1 of 42 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.  

2 of 42 DOCUMENTS 

JOHN HENDERSON AND GUSTAVUS HENDERSON vs. WILLIAM E. MAYHEW AND OTHERS. WILLIAM E. MAYHEW AND OTHERS vs. JOHN AND GUSTAVUS HENDERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 393; 1844 Md. LEXIS 39 

December, 1844, Decided 

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

This was an action of assumpsit, brought to May term of Baltimore county court 1842, by J. and G. Henderson against William E. Mayhew and others. The plaintiffs declared for goods sold and delivered, &c., and the defendants pleaded non assumpsit.

The jury found a verdict for the defendants.

Upon the trial of this cause, the plaintiffs, to support the issue upon their part, offered in evidence by Samuel Ellis, that he was a clerk for the plaintiffs, during the whole of the year 1841, and for several years before that time; and that he is now their clerk. That in the months of November and December 1841, a certain William Champion, who was then the master of the brig Harriet, of Baltimore, ordered from the plaintiffs, certain materials and supplies for said brig, for a voyage to the coast of Africa; that said materials and supplies were furnished to said brig, upon said order, and were charged in the books of the plaintiffs, to the "brig Harriet and owners." That a bill of parcels of said materials and supplies, was shortly afterwards made out from the books of the plaintiffs, and presented to the said captain, who certified [**2]  to the correctness of said bill; and that the bill now shewn to the said witness, is the original bill of parcels, of said articles, as certified by the said captain to be correct.

"Baltimore, December 20th, 1841. The brig Harriet & Owners, bought of John Henderson & Co., ship chandlers and manufacturers of patent cordage, No. 71, Pratt street:

________________________________________________________________________________
1841.	
Nov. 23,	87 1/2	lbs. Russia rope, a	12 1/2	cents, -	$ 10 93	
" 29,	522   	lbs.  do.  do.  a	12 1/2	" -	65 37	
Dec. 6,	Coils	Manilla rope, 407 lbs. a	14	" -	56 98	
"   " 	58   	lbs. Russia rope, a	12 1/2	" -	7 25	
"  15,	250 1/2	lbs.  do.  do.  a	12 1/2	" -	31 31	
"   " 	557 1/2	lbs. Manilla do.  a	14	" -	78 05	
"   " 	10   	lbs. Tar'd Marline, a	20	" -	2 00	
"   " 	12   	lbs. Sewing twine, a	50	" -	6 00	
"   " 	2   	
lbs. Whipping twine, $ 1. 1 doz.	
	
Needles, 50 cts. 2 Palms, 75, -	2 25	
	
   (6 Months.)	$ 260 14	
________________________________________________________________________________

W. CHAMPION"

That shortly after said bill of parcels had been certified as correct, by the said captain of said brig, it was presented and delivered by the witness, as clerk [**3]  of the plaintiffs, at the counting-room of Hugh Boyle, for payment, when it should become due, or before, at the option of said Boyle; that the materials were furnished on a credit of six months; but that it was customary to deliver bills for supplies, soon after they are furnished for a vessel, in order that the owners may be able to enter them in the account of the expenses of the vessel; but that sometime afterwards, how long, the witness does not recollect, having heard from some person, he thinks one of the plaintiffs, that Mr. B. was not the person to pay, he, (the witness,) went to the counting-room of Mr. B., for the purpose of getting the bill; Mr. B. was in, and he asked him for the bill, and B. took it out of a bundle, and gave it to witness; that no further conversation was had with B. on the subject. The plaintiffs, further to support the issues on their part, gave in evidence a bill of sale, executed by Hugh Boyle to the defendants, on the 6th October 1841, for the said brig Harriet; which said bill of sale was admitted by the defendants, to have been signed and sealed, and delivered by the said B. to the defendants, on the said 6th October 1841; and which said bill of [**4]  sale is as follows:

"Know all men by these presents, that I, Hugh Boyle, of Baltimore, State of Maryland, sole owner of the brig or vessel, called the Harriet, of Baltimore, for, &c., of $ 6000, to me in hand paid, at, &c., by William E. Mayhew, Alexander Fisher and Wm. D. Miller, the receipt whereof is hereby acknowledged, have granted, &c., and by these presents do grant, &c., unto the said W. E. M., A. F., and W. D. M., their, &c., the whole of said brig Harriet, of Baltimore, together with all and singular, her masts, &c. She now lies in the port of Balmore, and is more particularly described in a certificate of registry, granted her at the port of Baltimore, in the following words, &c."

And further gave in evidence by Ring, a competent witness, that he was a clerk in the custom house at Baltimore, in the year 1841; and that on the 8th October in said year, the defendants appeared in said custom house, and in pursuance of the revenue laws of the United States, took out the following register for the said brig, and made the oath therein contained.

"In pursuance of an act of the Congress of the United States of America, entitled, an act concerning the registering and [**5]  recording of ships or vessels, William E. Mayhew, Alexander Fisher and William D. Miller, of Baltimore, State of Maryland, having taken or subscribed the oath required by the said act; and having sworn that they are the only owners of the ship or vessel, called the Harriet, of Baltimore, whereof Alexander Fisher is at present master, and a citizen of the United States, as he hath sworn: and that the said ship or vessel was built in Baltimore, &c."

"We, W. E. M., A. F., and W. D. M., of &c., do swear, according to the best of our knowledge and belief, that the brig called the Harriet of Baltimore, is of the burden of two hundred and twenty-five and 34/95 parts of a ton, and was built in Baltimore, in the State of Maryland, during the year 1822; that we are citizens of the United States; that our present place of abode or residence, is as above, and that we are the true and only owners of the said vessel; that there is no subject nor citizen of a foreign prince or State, directly or indirectly, by way of trust, confidence, or otherwise, interested therein, or in the profits or issues thereof, so help us God.

(Signed,)

WM. E. MAYHEW,

ALEX'R FISHER,

WM. D. MILLER.  [**6]  "

"Port of Baltimore.--Sworn to this 8th day of October 1841, before     (Signed,)

N. F. WILLIAMS, Collector."

"I, Alexander Fisher, master and commander of the said brig called the Harriet, of Baltimore, do swear, that I am a citizen of the United States, having been born in Baltimore, State of Maryland.     (Signed,)

ALEX'R FISHER.

Custom House, Baltimore, 28th February 1841."

And that A. Fisher was named and sworn by said defendants to be the master of said brig in said register, at the time of taking out the same; which said A. Fisher, the defendants admitted, was, at that time, one of the defendants mentioned as a grantee in said bill of sale.

The plaintiffs, further proved by the said Ring, that he has been for several years a clerk in the custom house; and that persons were permitted at the custom house, to endorse upon the register of a vessel, a memorandum of a mortgage, when they desired it; and that such memoranda were sometimes made.

The plaintiffs, further to support the issue upon their part, offered in evidence by W. L. Brockelman, that during the year 1842, he was a clerk in the office of the Neptune Insurance Company, of [**7]  Baltimore; and that on the 19th January 1842, the defendants applied for insurance upon the brig Harriet and her freight, for a voyage to the coast of Africa and back; that the said offer for insurance, and the acceptance now shewn to the witness, is the said original application, signed in the proper hand writing of the defendants.

"Balto., Jan'y 19 1842. Insurance is wanted by Wm. E. Mayhew & Co., for account of whom it may concern: amount of loss, if any, to be paid to them, to the amount of $ 4000, on the brig Harriet, Captain Champion, valued thereat; from Baltimore, on a trading voyage, to the American colonies on the coast of Africa, and their vicinity, and back, to a port in the United States. They understand this to be the third voyage of Capt. Champion on that coast, and an acclimated super-cargo went out in the vessel. They also want insurance on freight, to be valued at $ 2500, and considered as earned at all periods of the voyage. What is the required premium? The Harriet is reported by Capt. Clackner in November, and cleared at this port in December last."

"Nine p. ct. Accepted,     WM. E. MAYHEW & CO."

And that in pursuance of said offer and acceptance,  [**8]  he made out and delivered to the defendants, a policy of insurance upon said brig and freight.

The plaintiffs, further to support the issue upon their part, offered in evidence, by competent witnesses, that upon the return of the said brig from the coast of Africa, upon said voyage, the defendants received the freight for said voyage, and paid the port charges of said brig in the port of Baltimore; and that on the 2nd November 1842, the defendants sold said brig to Greenbury B. Wilson, and conveyed the same to him by bill of sale, which was signed, sealed and delivered, by the said defendants to the said Wilson, on the day of its date, to have and to hold the said brig absolutely.

And that the defendants received the consideration money, mentioned in said last mentioned bill of sale.

The defendants, to support the issue upon their part, and for the purpose of shewing that the defendants were not the absolute owners of the brig Harriet, but only mortgagees, gave in evidence by Samuel Ellis, the witness sworn on behalf of the plaintiffs, upon cross examination of said witness, that the said Hugh Boyle never told him, (the witness,) that he, (Boyle,) was the person to pay [**9]  the said bill. That the reason why he presented the bill to the said Boyle, was, because he considered said Boyle was the owner of said brig. That the plaintiffs had, for some time previously, furnished supplies for vessels belonging to said Boyle; and he believes they had furnished some, once before, for the said brig Harriet, and were paid for them by Boyle. The defendants, then, for the said purposes, gave in evidence by James Hall, a competent witness, who being duly sworn, testified, that he and the said Hugh Boyle, on the 15th November 1841, executed the charter party for the brig Harriet, now shewn to the witness, which is in the words following, &c. This was for a voyage from Baltimore to the coast of Africa, and back, and described Hugh Boyle as owner. That under a contract with said B., for said charter party, he took possession of said brig, some days before the date of said charter party, as the freighter of said vessel, and to hold the possession and control of said brig, upon the contract and terms of said charter party, thenceforth, until sometime in August or September 1842, the time when the voyage, described in said charter party was terminated, on the arrival of [**10]  said brig from the coast of Africa to the port of Baltimore. That he, the said James Hall, as the freighter of said vessel, appointed William Champion her master, about the date of said charter party. That the defendants never had any possession of said vessel, to the knowledge of this witness, until after she returned from the coast of Africa, in August or September 1842; that after her return, and after the termination of said voyage, the defendants took possession, and they received the freight due upon said charter party; that when, or about the time when the said vessel was chartered to him the said James Hall, he told said Boyle, that the said master, William Champion, might act as his, Boyle's agent, in superintending the repairs which he, Boyle, was bound by the charter party, to put upon said vessel, to fit her for the intended voyage; and that the said master did superintend those repairs, and from time to time, called upon, and received from said Boyle, instructions or orders, where and of whom to procure materials for the making of such repairs, and purchased them accordingly; and that the materials for which this suit is brought, were necessary for said brig upon said [**11]  voyage. And the defendants, for the purpose of shewing that they were mortgagees, out of the possession of said brig, further offered in evidence, by Charles Oudesluys, that he, this witness, was the clerk of the said H. B., throughout the whole of the year 1841, and until July 1842; and during that time, acted in the capacity of his book keeper, in his counting-room in the city of Baltimore, the residence of said B; that the witness drew up the bill of sale from said H. B. to the defendants, or to three of them therein named, and witnessed the execution thereof; that he knew the object of said bill of sale, from the conversations he heard before its execution, between the said Boyle and William E. Mayhew, one of the defendants; that the object of it was to secure to the defendants, constituting the firm of William E. Mayhew & Co., payment of the said Hugh Boyle's note, viz:

"$ 2,628.17. Baltimore, October 7th 1841. Four months after date, I promise to pay to the order of Messrs. William E. Mayhew & Co., twenty-six hundred and twenty-eight dollars and seventeen cents.

No. 2163. Due 7th. 10th Feb. 1843. H. BOYLE."

That he, the witness, had no particular instructions in [**12]  what form to draw up the bill of sale; that he made it absolute upon its face, supposing it would answer the object designed; that in one instance before, where Mr. Boyle had made a bill of sale of a vessel called "The Serene," as security, it was made absolute on its face; that the said vessel was valued by Boyle at $ 6000, and he mentioned that sum to the witness, to be put as the consideration in said bill of sale; that said bill of sale was given by the witness, after it was drawn up, to Boyle, who the witness supposed read it, and executed it. The money which was advanced to Boyle, (as a discount of his said note,) by William E. Mayhew & Co., was deposited by said Boyle, in the Farmers and Planters Bank; and this witness, as clerk as aforesaid, without any special instructions from said Boyle; but in the discharge of what he considered his duty, as said Boyle's clerk, in the recording of transactions in his business, on the 9th of October 1841, made the following entry in said Boyle's journal:

Copy of entry in H. Boyle's journal, 9th Oct. 1841.

"Sundries to Bills Payable.

Farmers and Planters Bank.

P'ds, No. 1218. 4 months, 7th instant, for $ 2,628.17, favor [**13]  W. E. Mayhew & Co., collaterally secured by a bill of

________________________________________________________________________________
sale for the brig Harriet, valued at $ 6000, -	$ 2,573.42 	
  Interest.	
   Out for the discount,	54.75 	
	$ 2,628.17"	
________________________________________________________________________________

The defendants, for the same purposes, further gave in evidence, by the said witness, Charles Oudesluys, that he knows that the identical account of the plaintiffs, now shewn to him, was presented and left for payment at the counting house of said Boyle; and that he, as clerk as aforesaid, entered the amount of said account to the credit of the plaintiffs, in the books of the said Boyle, on the 20th December 1841, while it was remaining in said Boyle's possession; that he noted the date of said entry on the face of said account, which he now recognizes in his handwriting; that said account was sometime afterwards withdrawn by the plaintiffs, or their clerk; that the said plaintiffs had furnished to the said Boyle, materials for other vessels; and afterwards, in April 1842, they furnished him materials for the steamboat Virginia, of which Boyle was the sole owner; but never before furnished materials for the said brig Harriet. That the whole amount of the accounts for materials [**14]  or supplies, furnished to the said Boyle by the plaintiffs, as credited to them in his books, including the account for the materials and supplies furnished for the said brig Harriet, is $ 507.67. A note was given by Boyle to the plaintiffs, for a part of said account, which fell due 23rd April 1842; but said note did not embrace the amount of supplies furnished the brig Harriet, now sued for, in this cause; that said Boyle had owned the said brig Harriet for four or five years; that on or about the 19th January 1842, the said William E. Mayhew, having seen the advertisement of the time of the sailing of the said brig Harriet, upon said voyage to the coast of Africa, called down at the counting house of said Boyle, to inquire the nature and particulars of said voyage, in order to procure insurance upon said brig, and the freight under the charter party; and that about the same time, this witness drew up the assignment of the charter party from the said Boyle to William E. Mayhew & Co., as a further security for the note aforesaid, mentioned in said assignment, which he saw said Boyle execute, and which, by his direction, this witness delivered to the said William E. Mayhew on the day [**15]  of its date, together with the charter party itself; which charter party and assignment, were then read in evidence to the jury. And the defendants, further gave in evidence by the said witness, Oudesluys, that the said defendants never took possession of said brig, or exercised any control over her, until after her return from Africa, in August or September 1842; and that said B. continued, in all respects, to act as the owner of said brig, after said bill of sale, as he had done before its execution. That the amount of the premium notes, given by the said William E. Mayhew & Co., for the insurance of said brig and freight, were credited to them by this witness, in said Boyle's book, or journal, on the 29th of March 1842.

Copy of entry, 29th March 1842.

"Disbursements of brig Harriet to Wm. E. Mayhew & Co. Insurance effected by them in their name at the Neptune office, in this city, 19th January 1842, viz: $ 4000 on vessel, and $ 2500 on freight. Brig Harriet, from Baltimore to American colonies on the coast of Africa, and back, 9 per cent., 6

________________________________________________________________________________
months,	$ 685.00	
  Two policies, at $ 1	2.00	
	
	$ 687.00	
________________________________________________________________________________

Ship credited $ 587."

That he should [**16]  have entered this credit at the time when the insurance was effected, had he known the amount: he says he thinks there is an error in the amount, of one hundred dollars; that the said William E. Mayhew & Co. paid the said premium notes, and charged them in account with said Boyle, against the said brig and her freight; that when the said note of Boyle, in favor of said firm, for $ 2,628.17, became due, on the 10th of February 1842, it was not paid by said Boyle; and this witness, as clerk as aforesaid, credited the same to William E. Mayhew & Co., the defendants, in the journal of said Boyle, as having been secured by the said bill of sale of said brig Harriet; that the form of the entry was as follows:

"February 10, 1842.

"Bills Payable to W. E. Mayhew & Co., No. 1218, my note discounted by them, due this day, and not paid, secured by a bill of sale of the brig Harriet, and an assignment of her freight: $ 2,628.17."

That after the said bill of sale was executed, the said Boyle continued in possession of the said brig Harriet, and exercised acts of ownership over her, just as if the bill of sale had not been made; chartered her to James Hall, by the charter party above [**17]  mentioned; and gave Captain Champion orders where to get the materials for the repairs, which he, Boyle, agreed to put upon her, under said charter party; that upon the return of said vessel from Africa, in August or September 1842, the defendants took possession of said vessel, and sold her; that the defendants had never had any possession or control over said vessel, before her return from Africa, as aforesaid; that he, the witness, never informed the plaintiffs, that B. had transferred the said brig to the defendants; he thinks he went once with Captain Champion, to the store of Henderson & Co., the plaintiffs; that in July 1843, Mr. Boyle made an assignment of his property to Grafton L. Dulaney, in trust for creditors; that after the return of said brig, and after she had been sold by the defendants, the witness, as agent of the said Dulaney, as trustee of said Boyle, called upon William E. Mayhew & Co., at their counting room, and stated to said Mayhew, that the bill of sale of said brig, and the assignment of her freight, under the charter party, had been made by Boyle, as collateral security; and that he, the witness, desired to know what surplus funds there would be, and notified [**18]  the said Mayhew, that the surplus would be payable to said Dulaney, as trustee, and requested said Mayhew not to pay said surplus to any other persons; that said Mayhew referred said witness to Mr. Cook, the book keeper of said William E. Mayhew & Co., for information, as to the surplus that would remain, of the proceeds of sale, of said brig and her freight, after satisfying their claims; and directed said book keeper to give the witness the information desired; that said book keeper examined the accounts in the books of the defendants, and gave the witness an extract on a piece of paper, of the amount of such surplus, as being about three hundred dollars; that afterwards, some further expenses were paid, and the amount reduced. In order that the defendants might have a more formal notice, the witness went to George M. Gill, Esq., (Mr. Dulaney being out of town,) and told Mr. Gill the circumstances, and requested him to address a line to said defendants, on behalf of Mr. Dulaney, as trustee of Mr. Boyle, and he did so, and the following is the letter sent on that occasion:

"Dear Sir: I understand, that after paying your claim against the brig Harriet and her freight, there will [**19]  remain a balance. To this balance, Mr. Dulaney, as trustee of Hugh Boyle, is entitled, and I now notify you that it will be claimed.

GEO. M. GILL, Att'y for G. L. Dulaney.

Baltimore 17th August 1842.

To Messrs. W. E. Mayhew & Co."

That said Dulaney sanctioned said letter, and all that the witness did as his agent in the premises; that the said Hugh Boyle was in tolerable good credit when the supplies were furnished by the plaintiffs, for said brig, but not in such good credit as he had been before; that neither Boyle nor the witness as his clerk, had made any investigations or statements with a view to ascertain his solvency; that he was, at that time, possessed of a considerable amount of property, real as well as personal; that the witness could have purchased goods on Boyle's credit in the market, without question; that the first of Boyle's paper that was dishonored, was a note that became due on the 24th of December 1841; and further stated, that he, the witness, as the clerk and book keeper of said Boyle, had knowledge of Boyle's condition, which the public had not; but that the public would have trusted him at the time the supplies sued for in this action [**20]  were furnished.

The plaintiffs then prayed the court, by their counsel, as follows:

1st. That if the jury shall believe, from the evidence in this cause, that the defendants were the owners of the brig Harriet, at the time the articles furnished her by plaintiffs were sold and delivered, that then the plaintiffs are entitled to recover.

2nd. That the evidence offered in this cause by defendants, to prove that the bill of sale of 6th October 1841, was intended to be a mortgage, is inadmissible and incompetent for that purpose.

3rd. If the jury shall believe from the evidence, that the defendants in this case were the owners of the brig Harriet, at the time the supplies in this case were furnished, and that said supplies were charged to the said brig and owners, and that said supplies were furnished to said vessel, and that the defendants received the benefit of said supplies; that the plaintiffs are entitled to recover, notwithstanding the jury shall also find that the said supplies may have been ordered through the agency of Champion, the captain of said vessel, and that the bill of particulars in this case was left with Boyle for settlement.

The defendants,  [**21]  by their counsel, in like manner prayed the court, as follows:

1st. That if the jury find from the evidence, that the bill of sale of 6th October 1841, from Boyle to the defendants (or three of them,) was made by way of mortgage, or collateral security, to secure the payment of the note of Boyle for $ 2,628.17, dated 7th October 1841, at four months; and that the assignment of the charter party, by Boyle, to the defendants, on the 21st January 1842, was made as a further security for the payment of said note; and if the jury further find, that the defendants never gave any order or authority to the plaintiffs, or to any other person, for the furnishing of the materials charged in the account of the plaintiffs, the price or value of which, they seek to recover in this action; and if they further find, that the defendants never took, or had, or exercised any possession or control of the said brig, until she returned to the port of Baltimore, upon the termination of her voyage under the charter party, made between Hugh Boyle and James Hall, then the plaintiffs are not entitled to recover in this action; notwithstanding that the bill of sale is absolute on its face, and notwithstanding [**22]  the oath and registry made and procured at the custom house by the defendants, or some of them, notwithstanding the insurance procured by the defendants upon their order on the vessel and freight, and notwithstanding the defendants, after the return of said vessel as aforesaid, in August or September, 1842, did take possession of and sell her for the purpose of paying the defendants the amount of the said note, the premium of insurance on the said vessel and freight, and other expenses incidental to the entry of the vessel at the port of Baltimore.

2nd. If the jury find, from the evidence, that the supplies charged in the plaintiffs' account were furnished to the brig Harriet, upon the credit and upon the authority of H. B., and not upon the credit of the defendants, that then the plaintiffs are not entitled to recover.

3rd. If the jury find, from the evidence, that the defendants never took possession of, nor exercised any control over the brig Harriet, until she returned from her voyage under the charter party; and that between the 23rd of November and the 15th December 1841, inclusive, (comprising the dates of the plaintiffs' account,) James Hall, the freighter, or Wm.  [**23]  Champion, as the master appointed by him, or both together, had the actual possession and charge of said vessel, under said charter party; and that the plaintiffs, within that period, did not know that the defendants had any title or interest in said vessel, but knew, or supposed, that H. B. had been, and was, the owner of said vessel, that then the plaintiffs are not entitled to recover in this action, by reason, that the law upon that state of facts, does not raise or imply an assumpsit on the part of the defendants, to pay for the supplies furnished by plaintiffs for said vessel, within that period, upon the order of the said master, without the knowledge or authority of the defendants.

The county court (ARCHER, C. J. and PURVIANCE, A. J.,) rejected the first and third prayers offered by the plaintiffs, and granted the second prayer offered by them.

The court also refused the first prayer offered by the defendants, and granted their second prayer, and in addition thereto, and in lieu of the defendants' third prayer, gave also the following instructions to the jury.

If the jury believe that the defendants were owners of the brig, yet if they believe that Hugh Boyle,  [**24]  with the consent and permission of the defendants, chartered the brig to Hall, for a voyage to the coast of Africa, according to the terms of the charter party offered in evidence, and that the same was assigned by Boyle, as a security to the defendants, for their indebtedness to him, and that the defendants accepted said assignment, and that the materials for which this suit is brought were furnished after the date of the charter, and before the date of the assignment, the defendants, as legal owners of the ship, are not answerable for the materials furnished, unless the jury should believe, that the plaintiffs furnished the materials on the credit of the defendants, as the legal owners.

To the rejection by the court, of the first and third prayers, offered by the plaintiffs, and the granting of the second prayer, offered by the defendants, and additional instructions of the court, the plaintiffs, by their counsel, excepted.

The defendants, under the provisions of the act of Assembly of December session 1831, chap. 319, beg leave to except, as well to the opinion of the court in refusing to grant their first and third prayers, as also to the opinion of the court in granting [**25]  the plaintiffs' second prayer, and prayed the court to sign and seal this bill of exceptions on their behalf, which was done.

Both parties appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED UPON THE APPEAL OF J. & G. HENDERSON, AND PROCEDENDO AWARDED.  

HEADNOTES:

On the 6th October 1841, B. executed an absolute bill of sale to M., for a vessel, on which, on the 8th, he took out a register in his own name, and made the usual oath required by the act of Congress. On the 15th November 1841, B., who continued in possession, chartered the vessel for a foreign voyage, to H., who appointed C. master, and he, in November, and to the 15th December, purchased materials for her outfit, by B's directions. On the 20th, the account for materials was delivered to B. On the 19th January 1842, the charter party, made by B., was assigned and delivered by him to M., who then effected insurance on the vessel and freight, after an enquiry of B., of the nature and particulars of the voyage. Upon the return of the vessel, in August 1842, M. received the freight, paid the port charges, for the first time took possession of her; in November sold her, and received the money; never having before had any possession and control of the vessel. In an action brought by the material man against M., for the supplies furnished as aforesaid, HELD:

1st. That the plaintiffs were not entitled to recover, upon the mere finding of the fact by the jury, that M. was the owner of the vessel, at the time the articles furnished her, were sold and delivered. Nor in addition to the fact of ownership, as aforesaid, the circumstances, that the supplies were furnished, and that M. received the benefit of them.

2nd. That it was not competent for M. to show, by parol proof, that his bill of sale was intended to be a mortgage; that it was so designed and agreed, between him and B.

3rd. It was not competent, to either plaintiff or defendant, under the circumstances of this case, by any form of prayer, to withdraw the question of B's agency for M., in procuring materials for the ship, from the consideration of the jury.

Where there was evidence offered, that M. was the owner of a vessel at the time she was furnished with supplies, but the account against her and her owner, was sent to B., her previous owner, for payment, this cannot discharge M., if, but for this proof, he would have been answerable.

Unless the vendor knows, at the time of sale of chattels, who his principal is, and notwithstanding such knowledge, makes the agent his debtor, the principal is not discharged.

The jury are exclusive judges of the weight of parol evidence offered to them, tending to prove an agency.

Oral proof is inadmissible, to change or contradict the terms of a written instrument.

Strangers to an instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may in a controversy with a grantee, if he charges the same to have been obtained by fraud or mistake

Parties to a written instrument are not permitted, in controversies with strangers, to insist, that it does not express what it was intended to express.

Where a defendant obtained an absolute bill of sale for a vessel, authorizing the community to regard him as the owner thereof, he cannot for his benefit, be permitted to allege in an action against him, by a stranger to the instrument, that it is a mortgage. 

COUNSEL:
By TEACKLE and STEELE, D. A. G., for the plaintiffs below, and

By HINCKLEY for the defendants below.  

JUDGES:
The cause was argued before DORSEY, SPENCE and MAGRUDER, J. DORSEY, J., dissenting.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*408]  MAGRUDER, J., delivered the opinion of this court.
This action was brought by the appellants, to recover from the appellee a sum of money alleged to be due, for supplies furnished for the brig Harriet, by the appellants.
It is not disputed that the supplies were furnished, but it is insisted by the appellees, that they are not responsible for them.
1st. Because they were not the owners of the vessel:
2nd. Because the credit was given to another, to wit, to Hugh Boyle.
There was certainly evidence offered to the jury, that the appellees were the owners of the vessel at the time that she was furnished with the supplies. But the account against the vessel and its owner, was sent to Boyle, and this [**26]  it is supposed, was giving credit to him. It appears however, that Boyle was at one time the owner of the vessel, and it would seem that the account was sent to him, under an impression that he was still the owner. This proof of the account being sent to Boyle, cannot discharge the owner, if, but for this proof, he would have been answerable. Unless the seller knows at the time who the principal is, and notwithstanding that knowledge, makes the agent his debtor, the principal is 

 [*409]  not discharged. (See Roscoe on Evidence 216, and the authorities there collected.) Notwithstanding all the testimony, then, on the part of the appellees, designed to show that the credit was given to Boyle, the former may be answerable, and it is a material question in the case, whether Boyle, in purchasing these supplies, is not to be regarded as the agent of the appellees? There was testimony offered to the jury, "tending to prove" the agency. Of the weight to which that testimony was entitled, the jury are the exclusive judges.
The court below, therefore, erred in granting the second prayer of the defendants below, as it withdrew the question of agency from the consideration [**27]  of the jury, and also in giving the instruction which was given, in lieu of the instruction asked for by the appellees in their third prayer.
No error is discovered in the rejection of the appellants' first or third prayer.
The appellants, who were defendants in the court below, took exception to the opinion of the court, that parol evidence was inadmissible to show, that the bill of sale was intended to be a mortgage. It is the opinion of this court, that the decision was correct. Parol evidence 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. But the parties to a written instrument are not permitted, in controversies with strangers, to insist, that it does not express what it was intended to express. The appellants, after obtaining an absolute deed, and authorizing the community to regard them as the owners of the vessel, cannot now, for their own benefit, be permitted to allege that their bill of sale is a mortgage. [**28]  
The party here, who is a stranger to the deed, insists, that it is what it purports to be, and the appellants who accepted it, are precluded from offering the evidence on which they rely, in order to defeat the action against them.

 [*410]  Judgment must therefore be reversed upon the appeal of the plaintiffs below, upon this second prayer; and upon the instructions given by the court to the jury. And affirmed upon their first and third prayers.
Upon the appeal of the defendants below, the instructions to which they excepted, are affirmed.
DORSEY, J., dissented to the affirmance, upon the appeal of the defendants below.
JUDGMENT REVERSED UPON THE APPEAL OF J. & G. HENDERSON, AND PROCEDENDO AWARDED.  

3 of 42 DOCUMENTS 

RICHARD EDWARDS, vs. THE BALTIMORE FIRE INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 176; 1845 Md. LEXIS 17 

June, 1845, Decided 

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

This was an action of covenant upon a policy of insurance against fire, brought on the 12th November 1842, by the appellant against the appellee, who pleaded non infregit conventionem.

The plaintiff, to support the issue on his part, gave in evidence his application for insurance.

Baltimore, Sept. 28th, 1839.

To the PRESIDENT and DIRECTORS of

The BALTIMORE FIRE INSURANCE CO.,

The subscribers want insurance on account of Richard Edwards,--desire to be insured against loss or damage by fire, for the term of one year, to the amount of $ 5000, on the property described below; that is to say, on merchandize, such as is kept in a country store, in a frame building, now occupied by R. E., located between two mountains, standing alone. Frame stable about one hundred yards from the store. A furnace about five hundred yards from store. In Farrandsville, Clinton County, Pennsylvania, near the canal. If any loss should happen, the amount of said loss to be paid to Hooper & Graff, they showing a legal claim against the said Edwards.

HOOPER AND GRAFF.

"What premium will be required?"--

"$ 5000, at 1 per cent., $ 50."

"Baltimore,  [**2]  28th September 1839.--Accepted, HOOPER & GRAFF."

Also:--

Baltimore F. Ins. Office, 1st Oct. 1839.

MR. HOOPER,

Dear Sir:--You will please call at the office as soon as you can make it convenient, as I cannot make out your policy before I see you.

Respectfully,

W. A. TUCKER, Pres't.

Baltimore F. Ins. Office, 19th Oct. 1839.

Dear Sir:--If you should be passing by my office, please call in.

Respectfully Yours,

W. A. TUCKER, Pres't.

Messrs. Hooper & Graff.

The policy of insurance, dated 23d October 1839, was in conformity to the order for insurance.

The 7th article of the policy, made it the duty of all persons insured, in case of fire, to do every thing in their power for the safety and protection of the property insured; and all persons insured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the company; and as soon after as possible, to deliver in as particular an account of their loss or damage, signed by their own hands, as the nature of the case will admit; and make proof of the same by their oath or affirmation, and by their books of accounts, and other proper vouchers as shall [**3]  be reasonably required, and shall make oath whether any, and what other insurance is made on the same property, and shall procure a certificate under the hand of a magistrate, or notary public, (most contiguous to the spot where the fire happened, and not concerned in such loss,) that they are acquainted with the character and circumstances of the person or persons insured, and do know, or verily believe, that he, she, or they, really and by misfortune, and without fraud or evil practice, have sustained by such fire, loss, or damage to the amount therein mentioned; and until such affidavits and certificates are produced, the loss shall not be payable. So, also, if there appear any fraud or false swearing, the claimant shall forfeit his claim to restitution or payment by virtue of this policy.

The plaintiff also proved the following letters, admitted to have been received by the company:

Baltimore, Nov. 26th 1839.

WM. A. TUCKER, ESQ., President, &c.

Sir:--We, yesterday, received information of the destruction, by fire, of the property insured by you, by policy, No. 5959, (dated per application, Sept. 28th 1839, in the name of Richard Edwards,) which insurance was [**4]  effected by us, and to be paid to us if loss should take place; we shall immediately take steps to procure the necessary proofs of the loss, amount of property destroyed, and furnish you with the same. You will, therefore, hold the same subject to our order and adjustment.

Respectfully yours,     HOOPER AND GRAFF.

Also:--

Baltimore, Dec. 28th 1839.

WM. A. TUCKER, ESQ., President, &c.

Sir:--We lay before you this day, papers shewing the loss by fire, on policy No. 5959, which you will examine.

Respectfully,     HOOPER AND GRAFF.

Also:--

To the P. and D. of the B. F. INSURANCE CO.

Gent:--You will take notice, that I did, on the 7th December 1839, transfer all my right, title, claim and interest, in policy No. 5959, (Baltimore Fire Insurance Co.,) to Messrs. Hooper & Graff. You will, therefore, account to them for the loss sustained on said policy, and their receipt will be good for the same.

Respectfully,

RICHARD EDWARDS.

BALTIMORE, Jan 9th, 1840.

Baltimore F. Ins. Office, Jan. 13th 1840.

Dear Sir:--I wish to see your books and other papers, in relation to your loss under the policy, from this office.

Respectfully,  [**5]      WM. A. TUCKER, Pres't.

P. S.--On reflection, I wish, also, to see the bills of parcels of your purchases. You will please to call at the office as soon as convenient.     WM. A. TUCKER, Pres't.

(Mr. Richard Edwards, Farrandsville, Clinton county, Pennsylvania.--Care of Hooper & Graff, Baltimore.)

Baltimore, Jan. 14th 1840.

W. A. TUCKER, ESQ., Pres't B. F. INS. CO.

Sir:--In reply to your note of yesterday, I must beg leave to refer you to Messrs. Hooper & Graff, as you are well aware, they are the only persons authorized to settle the claim in the policy, No. 5959.     RICHARD EDWARDS.

Also:--

Baltimore, February 11th 1840.

To the P. and D. of the BALTIMORE F. I. CO.

Gent:--We beg leave respectfully to inform you, that the books of account of Richard Edwards of, &c., showing the amount and value of the merchandize covered by your policy of the 23rd of October 1839, No. 5959, and subsequently destroyed by fire, as you have been already advertised, are in our possession, at our office in North Street, subject to your examination at your pleasure, for which purpose we will deliver them to you, if desired; and that we are ready to [**6]  furnish any other proof in addition to that already communicated, which you may reasonably require of the fact and extent of said loss.

We have the honor to be,

Very respectfully, your obedient serv'ts,

NELSON AND BUCHANAN, Atty's for R. E.

Also:--

Baltimore F. Ins. Office, March 3rd, 1840.

TO RICHARD EDWARDS, ESQ.,

Sir:--The books and papers you have left for the inspection of the company, to sustain your claim for loss under a policy effected at this office, were so numerous, that I am only able now to state, after their examination, that this company considers them wholly unsatisfactory as to the amount of your claim, even if the company were responsible at all. They deny, however, any responsibility, by reason of a material concealment as to the character of the risk; and even if the policy ever had attached, by reason of the circumstances attending the fire, if any responsibility ever had existed, it has all been discharged, and your claim forfeited under the 7th condition of insurance, annexed to the policy; for you have, on oath, rendered an account of loss, in which you estimate a lot (of goods) at Lockhaven, as worth $ 150;--which, in the [**7]  first place, was never intended to be included in the policy; and, in the second place, we suppose, was not consumed by fire. With a reservation of all objections to your recovering, in any form, and without intending to waive any of our rights under the policy, we leave you to pursue any course you may deem expedient.

Respectfully,

W. A. TUCKER, Pres't.

The plaintiff offered proof of the location and condition of the store, and its contents; the goods left, after the fire, were removed to an adjacent building; many in a bad condition, soiled and rumpled, and were then in the possession of the sheriff of the county, who had commenced arranging them, for the purpose of making an inventory. The witness, on the next day, (Saturday,) assisted the sheriff, who was then absent two days, and locked up the goods; as soon as the inventory was finished, a copy was made and sworn to by plaintiff. After the inventory and affidavit were finished, they were put into the post office, at Farrandsville, directed to Hooper & Graff, Baltimore, the inventory and affidavit were procured for the plaintiff, as soon as they possibly could be done. They were engaged two or three days in taking [**8]  the inventory. Witness, when in Baltimore, went to the office of defendant, and there saw the copy of inventory, and which he sent to Messrs. Hooper & Graff, from F., in the possession of Mr. Tucker, the president of the company. Mr. Buchanan stated, that witness was Mr. Edward's clerk, and had brought down all the books and papers, and they were now ready to go into an examination of them, to which Capt. Tucker replied, he had no time then for an examination, but would like to have the books and papers sent to the office, so that he could examine them at his leisure. The interview with Capt. Tucker, was in the latter part of January or February 1840, and there was but one. Deponent reached Baltimore on the third day after he left Farrandsville; the plaintiff was in F., from the time of the fire until January. The goods were levied on by the sheriff, after the fire, under execution.

Evidence was also given by the plaintiff, of the visit of Hooper to the president of the company; the delivery of the inventory and various accounts, and that the loss was disputed by the company, because Capt. Tucker contended, in a conversation he had with Edwards and Hooper, that they had not performed [**9]  the conditions of the policy, in rendering an account, whereby the company could ascertain the loss; and also complained to Mr. Hooper, as the agent of Edwards, of the delay in transmitting the account and statement of loss, and Capt. Tucker complained to witness, that the company had not been notified of the sheriff's sale, which took place after the fire, so that the company had no opportunity of appointing appraisers, to ascertain the partial loss, as provided for by one of the conditions of the policy.

The plaintiff also proved, the burning of his store on the evening of the 18th November 1839; that the sheriff who levied upon the goods, did not authorize the taking of any inventory, except when he was present; that the plaintiff offered to assist him in taking it, and he had the assistance of his clerk in part. The sheriff took possession on the 21st November 1839, and commenced his inventory on the 22nd, and completed the same on the 14th December. The confusion from the fire, produced much delay. Edwards could not have obtained a copy until the sheriff completed his. The sheriff's sale commenced on the 16th December 1839, was adjourned from day to day, and completed 8th [**10]  January 1840. The inventory comprised about twelve pages of folio paper. The distance from Lockhaven to Farrandsville is about seven miles. Witness was not certain whether the mail came daily from F. to L., or every other day, from the 21st November 1839, to the 1st January 1840. From Lockhaven to Baltimore, there was then, and is now, a daily mail. The F. and L. mail are united at L. The sheriff had exclusive possession, on and after the 21st November 1839, of the injured and remaining goods. The plaintiff was not at home on the evening of the fire, he had gone to Lockhaven, and returned about 10 o'clock, after the fire. There was a post office at Farrandsville, and the mail left there on Monday, Wednesday and Friday for Baltimore, and if no accident happened, a letter would arrive in B., from F., on the night of the third day, and be delivered on the morning of the fourth day. It was tri-weekly at F. in 1832. In the spring of 1840, it was daily. The mail did not leave F. regularly, and frequently failed to connect at Williamsport. In 1839, there were three contracts for carrying the mail between F. and Northumberland, which was the distributive office; that six or eight days would [**11]  not be unreasonable from F. to Baltimore, as the roads were obstructed at that time from the 20th of the month. From F., the mail in December, would be very uncertain. The mails from N. to B., in Baltimore, were as follows: 15th November, received on the 16th; 17th on the 18th; 18th none; 19th on the 20th; 20th to 27th, each on the day following; to 1st December, none.

The plaintiff also proved, that before the 11th February 1840, his counsel called on the defendants, and requested to see the preliminary proofs of loss, furnished them by the plaintiff, but that the defendants refused to show him the same; and that before the trial of this case, notice was given to the defendants to produce the same in court, which they have refused to do.

The plaintiff prayed the court to instruct the jury:

"That if they believed the facts set out in the foregoing statement, the defendants have waived the adduction by the plaintiff of the preliminary proofs required by the conditions annexed to the policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same."

The defendants prayed the courts opinion to the jury as [**12]  follows:

1st. That if they find, from the evidence, that the house, in which the goods insured were at the application for the insurance, was used as a dwelling house, that then the policy in this case is void under the 2nd article of the conditions annexed to the policy in question, because the description of the same in the application for insurance, was false.

2nd. If the jury find the facts stated in the first prayer, and also find, that if said house had been truly described as occupied as a dwelling, that the risk of the insurance would, in the opinion of the underwriters, have been considered as enhanced, and a higher premium have been charged than was charged in this case, that then the plaintiffs are not entitled to recover, the policy being void under the 2nd article of the conditions of insurance, attached to said policy.

3rd. That the plaintiffs are not entitled to recover, because they have not offered evidence that they forthwith gave notice of the loss to the defendants, or as soon as possible after the fire occurred, delivered to them the particular account of their loss or damage, signed by them, as the nature of the case admitted; and made proof of [**13]  the same by his oath, and by his books and accounts, and other proper vouchers, as required by the 7th condition attached to the policy.

4th. That the true construction of the policy of insurance in this case, is, that the insurance was effected for the benefit of Hooper & Graff, the persons applying for the same as evidenced by the order for insurance of the 28th September 1839, given in evidence by plaintiff, and the terms of the policy itself; and that no recovery can be had in this case for any loss, which the jury may find from the evidence, occasioned to the goods insured, without evidence that said Hooper & Graff had a legal claim against said Edwards, the plaintiff, and if there be any evidence, then, only to the extent of any such claim as may be shewn by evidence.

The court, (LE GRAND, A. J.,) rejected the prayer of the plaintiff, and also rejected the first, second, and fourth prayers of the defendants, and granted the third prayer of defendants.

To the rejection of the plaintiff's prayer, and the granting of the third prayer of defendants, the plaintiff excepted, and prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

Where there is a formal defect in the preliminary proofs offered by an assured to the underwriter, which could have been supplied had an objection been made by the underwriters to payment on that ground, but the underwriter put his refusal to pay on other grounds, the production of further preliminary proofs will be considered as waived.

Where the answer of the underwriter stated that the proofs were wholly unsatisfactory as to the amount of the loss; that all responsibility was denied by reason of a material concealment as to the character of the risk; that all claim had been forfeited under a particular article of the policy, and he also reserved all objections to recovery in any form, and without intending to waive any of the rights under the policy, this is not a waiver that the notice of the loss by fire was not "forthwith" given, and a particular account of the loss or damage, "as soon after as possible," delivered by the assured to the assurers, in conformity to the article in the policy, under which the claim was alleged to be forfeited.

The loss took place in November, and the objection was made in March; notice given, or an account of loss delivered, in March, would not have been a compliance with the policy.

There is no ground for the implication of a waiver of preliminary proof, where the assured could not have supplied the proof, nor remove the objection to the want of it, if the objection had been made. The assured, in such case, can sustain no injury by non-disclosure: He is not lulled into false security, nor prejudiced in the way of fraud or surprise.

Neither will the court imply a waiver, where the answer of the underwriter gives explicit warning and annunciation to the assured, that he designs to waive nothing, and that he must come to trial, fully prepared to prove every thing necessary to his recovery,

The terms, "forthwith," in a policy of insurance, used in connection with giving notice to the underwriter of the occurrence of a loss by fire--and "as soon as possible" after a fire occurs, deliver a particular account of such loss, are not to be taken literally, but mean with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case.

In all ordinary cases, whether due diligence has been used by the assured; or he has been guilty of no unnecessary procrastination or delay, under all the circumstances of such cases, are questions of fact, to be determined by the jury,

It is not analogous to the question of diligence exacted by the law, from the holder of a dishonored note or bill, desirous of fixing the liability of previous parties to such instruments.

A policy of insurance, executed in Baltimore, against fire on merchandise in a house at F, required the assured forthwith, to give notice to the underwriter of any loss. The mail left F on Monday, Wednesday, and Friday, for Baltimore. The fire took place on Friday night, and the assured did not give notice by mail on Wednesday. All the circumstances attending the condition of the property, and the efforts of the assured to collect, and preserve it in its damaged state were left to the jury to determine, whether the assured was not so occupied on Tuesday, in doing every thing in his power for the safety and protection of the property, as to show, he had neither time nor opportunity to put the notice in the post office, in season for the mail of that day.  

COUNSEL:
By NELSON and W.  [**14]  F. GILES, for the appellant, and

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

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

OPINIONBY:
DORSEY 

OPINION:

 [*185]  DORSEY, J., delivered the opinion of this court.
The bill of exceptions taken by the appellant in this cause, is to the county court's refusal to grant the prayer made by him, and to the granting of the third prayer of the defendants.
The plaintiff prayed the court to instruct the jury, "that if they believed the facts set out in the foregoing statement, the defendants 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."
Assuming, that the letter of the defendants, of the 3rd of March 1840, was a flat denial of the plaintiff's right to recover, upon a ground going to the merits of the plaintiff's claim, and having no reference to the preliminary proofs thereof, to be furnished to the defendants, (which, for the plaintiff, is the most favorable light in which it could be regarded,) the plaintiff's prayer [**15]  was properly rejected by the court. It carried the doctrine of implied waiver of preliminary proofs, far beyond any of the cases referred to in support of it; and farther than it can be legitimately extended upon the principles on which it is founded.
In the case of Allegre vs. The Maryland Ins. Co., 6 H. & J. 408, the preliminary proof emitted to be furnished to the underwriters, was the invoice of the cargo insured, which, with all the preliminary proofs requisite in that case, were of such a character, that furnishing them by the insured, at the date of the letter from the Insurance Company, would have been a sufficient compliance with the provisions of the policy, in respect to the preliminary proofs; and a requisition for their production, could, by the assured, at once have been complied with.
The principles upon which the waiver of preliminary proofs depend, are correctly stated in the case of McMasters and Bruce vs. The Western Mut. Ins. Co., 25 Wend. 379, at p. 382, where the court say, "the law is well settled, that if there be a formal defect 

 [*186]  in the preliminary proofs, which could have been supplied had an objection been [**16]  made by the underwriters, to payment on that ground; if they do not call for a document, for instance, or make an objection on the ground of its absence or imperfection, but put their refusal upon other grounds, the production of such further preliminary proofs will be considered as waived." And, speaking of the interviews between the insured and the agents of the company, the court further say, "had the objection been made in the course of these interviews, the defects might at once have been remedied."
In the case of the AEtna Fire Ins. Co. vs. Tyler, 16 Wend. 385, at p. 401, Chancellor Walworth says, "the law is well settled in this State, that if there is a formal defect in the preliminary proofs, required by the policy or the custom of the place, and which could probably have been supplied, had any objection been made by the underwriters, to the payment of the loss on that ground; if the insurers do not call for the document, or make no objection on the ground of its absence or imperfection, but put their refusal to pay distinctly on some other ground, the production of such further preliminary proof will be considered as waived." And in 2 Wend. 64, at p. 71, [**17]  Ocean Ins. Co. vs. Francis, it is decided, that "where the underwriters make no objection to the sufficiency of proof of interest, but put their refusal, to pay on the ground, that they are not liable for the loss, it is a waiver of preliminary proof of interest." Why is it such waiver? Because, had the objection been then raised, the proof of interest, according to the stipulations of the policy, could then, and would, have been adduced by the assured.
But what is the objection to the sufficiency of the preliminary proofs in the case now before us? It is, that the notice of the loss-by fire, was not "forthwith" given, and a particular account of the loss or damage, "as soon after as possible," delivered by the assured to the assurers. Suppose the objection had been raised in the letter of the president of the Insurance Company, of the 3rd March 1840, could the appellant have bettered his condition? Would notice then given, or an account of loss then delivered, have been a compliance with the conditions of the policy? Unquestionably not. There is no ground, therefore, 

 [*187]  for the implication of the waiver insisted on by the appellant. He could not have removed the [**18]  objection, had it been made; he has sustained no injury by its non-disclosure. The conduct of the appellees has lulled him into no false security; has prejudiced him, neither in the way of fraud, nor surprise.
Suppose, however, it were otherwise, and that the objection, if raised, could then have been obviated by the appellant, we think the letter of the underwriters, of the 3rd of March 1840, repels every presumption of any waiver on their part, and is an explicit warning and annunciation to the appellee, that they designed to waive nothing, and that on the trial of any action which he might institute against them, he must come prepared to prove every thing, which, according to the terms and conditions of the policy of insurance, it was necessary to prove, to entitle him to recover.
For the reasons we have stated, we think the county court were right in rejecting the appellant's prayer.
The third prayer of the appellees, to the granting of which the appellant has excepted, is, "that the plaintiffs are not entitled to recover, because they have not offered evidence, that they forthwith gave notice of the loss to the defendants, or as soon as possible after the fire occurred, delivered [**19]  to them the particular account of their loss or damage, signed by them, as the nature of the case admitted, and made proof of the same by his oath, and by his books and accounts, and other proper vouchers, as required by the seventh condition attached to the policy."
To enable us to judge of the correctness of the court's conduct, in granting this prayer, the meaning of the terms, "forthwith," and, "as soon as possible," as used in the policy of insurance, ought to be ascertained To give to them their literal import, would, in almost every case of loss by fire that occurs, strip the insured of all hope for indemnity for the loss incurred; and policies of insurance against fire, would, as to the insured, instead of being contracts of indemnity, as they profess to be, become engines of fraud and injustice in the hands of the underwriters, and a recovery by the insured, would be rarely, indeed, if ever practicable. Such a construction, 

 [*188]  therefore, has not been sanctioned by courts of justice. The true meaning of those terms is, with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. See Inman vs. Western Fire Ins. Co., 12 Wend. 452, at p. 461, [**20]  where it was determined that, "forthwith," in such a policy, imposes upon the insured nothing more than what is called due diligence, under all the circumstances of the case;" and Cornell vs. Le Roy, 9 Wend. 163, at p. 166, where it was decided, that "the assured is, as soon after the fire as possible, to deliver in a particular account of such loss or damage, and this means no more, than it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay."
In all ordinary cases, whether due diligence has been used by the insured, or he has been guilty of no unnecessary procrastination or delay under all the circumstances of the respective cases, are questions of fact to be determined by a jury. We cannot assent to the proposition contended for by the appellees, that the same transmission of notice of loss necessary to constitute due diligence on the part of the insured in this case, that according to "The Law Merchant," and an unbroken chain of decisions of courts of justice, is deemed due diligence by the holder of a bill of exchange or promissory note, seeking to charge those contingently liable [**21]  for the payment thereof, viz: that notice must be transmitted to those sought to be charged by it, by the next mail after the dishonor of the bill or note. Such a rule, as an unbending principle of law, has not, and we think ought not, to be applied to contracts like that now before this court. And in reference to such contracts, we entirely concur with the views and principles so perspicuously and forcibly stated, in note (p.) to page 451, of 1 Stark. on Ev., as follows, "in general, questions of reasonable time, reasonable care, due diligence, probable cause, and such like, depend so much on their own peculiar circumstances as not to admit conveniently of any general rules, and it is of greater convenience to depend on the judgment and discretion of a jury, deciding on a comparison of the circumstances with the ordinary course of practice, or with reference to the ordinary principles of fair 

 [*189]  and honest dealing, than to introduce such a multiplicity of legal rules and definitions as would be necessary for the due decision of cases, subject to such infinite variety of circumstances. It is, in truth, a matter of important and obvious policy, rather to refer questions [**22]  of this nature as matters of fact to a jury, than to frame legal rules applicable to particulars. The difficulty of framing precise rules must, in such circumstances, be very great, for the reasons adverted to, unless they be founded on some prominent and decisive incidents. Whenever the court decides upon circumstances, the decision would become a precedent and rule of law, and as such decision would afford room, by comparison, for a great number of distinctions, the obvious effect would be, to multiply such decisions and distinctions to a very inconvenient and burdensome extent. On the other hand, by abstaining from legal decision, except in cases where some decisive rule or principle of law is clearly applicable, and by adopting in others the inference of the jury, in point of fact, substantial justice is administered in simplicity, and free from perplexity occasioned by nice and subtle distinctions, and conflicting decisions. And this is an advantage, and by no means an unimportant one, incident to the system of trial by jury: the law can thus deal in general definitions and leave the rest as fact to the jury, without multiplying decisions and precedents; but if the judges, and [**23]  not the jury, were to decide, every decision would become a precedent, and legal distinctions would be multiplied to an excessive extent."
According to the facts in this case, as appearing on the record, would it be irrational in the jury to conclude, that the plaintiff had been guilty of no want of due diligence in not forwarding a notice of the loss by the mail of Wednesday, by reason of his being so occupied on Tuesday in doing "every-thing in his power for the safety and protection of the property insured," which, by the express terms of the policy, he was bound to do, that he had neither time, nor opportunity, to put the notice in the post office in time for the mail of that day.
The defendant's third prayer, withdrawing from the consideration and finding of the jury the question, as to due diligence in giving notice of the loss by fire, and the question whether 

 [*190]  there was any unnecessary delay in delivering the particular account of the loss, we think that in granting that prayer, the county court were in error.
But, conceding that we are wrong in the opinion we have expressed, as to the tribunal by which the question of due diligence in giving notice, to the  [**24]  Insurance Company, of the time of loss, is to be determined, and that to shew due diligence, the plaintiff must prove that such notice was put into the post office in time for the next mail, (after the fire,) from Farransville to Baltimore, the county court, in granting the third prayer of the defendants, took that fact from the consideration of the jury, and determined it in the negative; although there was evidence before the jury, from which it was competent for them to find, if they believed from the evidence, the fact so to be, that such notice was put into the post office, in time to have been transmitted in the first mail, after the fire, from Farransville to Baltimore. On this ground, if all others were wanting, we think there is error in the court below in giving to the jury the instruction prayed for in the defendant's third prayer.
We concur with the county court in its rejection of the plaintiff's prayer, but dissent from its granting the defendant's third prayer, and therefore reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

4 of 42 DOCUMENTS 

THE GEORGIA INSURANCE AND TRUST CO. vs. F. DAWSON AND P. T. DAWSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 365; 1844 Md. LEXIS 35 

December, 1844, Decided 

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

This was an attachment commenced on the 9th October 1840, by the appellees against the appellants, upon the following contract of insurance, viz:

"Policy No. 31. Insured $ 3,500. Baltimore, 11th November, 1837. In consideration of the sum of seventeen dollars, fifty cents, the Georgia Insurance and Trust Company do hereby insure William Dawson and Co., and whom it may concern, against all risks to the amount of thirty-five hundred dollars, on three hundred boxes tin valued thereat, shipped, or to be shipped on board the schooner Edward Vincent, at and from New York to Baltimore, according to order of this date. John G. Proud & Co., agents. $ 3.500 at one-half per cent., $ 17.50. Policy 50 18."

It was accompanied with a statement of particular average, showing damage to $ 994.27, and the usual affidavits against the defendants, a company not incorporated by the State of Maryland.

The defendants appeared by consent, and pleaded non assumpsit. The jury found a verdict for the plaintiffs. The defendant moved in arrest of judgment generally.

At the trial of this cause, the plaintiffs, to maintain the issue on their part, offered [**2]  in evidence to the jury, that being the owners of three hundred boxes of tin, at New York, they shipped the same on board the schooner Edward Vincent, for Baltimore, and proved their bill of lading for the same.

That the defendants being an insurance company, chartered by the State of Georgia, and not chartered by the laws of this State, but transacting business, and holding and exercising franchises in this State, by its agents John G. Proud and Francis H. Smith, who are and were citizens of the State of Maryland, resident in the city of Baltimore, and acting as such agents under the firm of John G. Proud and Company, insured the said tin upon the said voyage, by the aforesaid policy. That on the said voyage, the said schooner encountered gales and storms, which caused her to leak badly; and on the arrival of the said schooner at Baltimore, the said tin was found to be damaged by salt water, in consequence of the said storms and gales, to the amount claimed by the plaintiffs.

The defendants, to maintain the issue on their part, offered in evidence to the jury, that the said tin was stowed upon sand ballast, and badly and insufficiently dunnaged, and that the risk upon said [**3]  tin thus stowed, was greater than if the stowage and dunnage of the same had been usual, sufficient, and proper.

The plaintiffs, in order further to maintain the issue on their part, offered in evidence to the jury, that the stowage upon sand ballast, was usual and customary; and that the stowage and dunnage of the tin in this case was good and sufficient. Whereupon the defendants prayed the court to instruct the jury:

1st. If the jury shall believe from the evidence, that the damage done to the tin insured, was owing to the neglect of the master in improperly stowing and dunnaging the same, then they must find for the defendants; although they may also believe that the injury done to the tin was occasioned by contact with salt water, introduced by leakage of the vessel, which leakage was occasioned by storms and gales.

2nd. If the jury shall believe from the evidence, that the stowage and dunnage of the tin insured, was such as to expose it to more than ordinary risk, then they must find for the defendant, unless they shall also believe that such risk was in the contemplation of the parties at the time of effecting the insurance.

3rd. If the jury believe from the [**4]  evidence, that owing to the negligent and improper manner in which the tin in controversy in this case was stowed and dunnaged, the schooner Edward Vincent was not sea-worthy for the safe transportation of the tin against leakage, and the ordinary perils of the sea, upon the voyage from New York to the port of Baltimore, then the plaintiffs are not entitled to recover in this case, notwithstanding the jury may believe that the said schooner was sea-worthy in other respects.

Which instruction, as asked in the first and third prayers, the court, (MAGRUDER and PURVIANCE, A. J.,) refused to grant; and as asked in the second prayer, the court refused, so far as it was in conflict with the instruction asked by the plaintiff's prayer.

And the plaintiffs prayed the court to instruct the jury, "If the jury believe, that at the inception of the voyage the schooner Edward Vincent was tight, staunch, and strong, and properly officered, manned, and equipped, having a competent master and crew; and if the jury further find, that on the voyage of said vessel from New York to Baltimore, through storms and perils of the sea, the tin in question was damaged and injured to the extent claimed [**5]  by the plaintiffs in this case, that plaintiffs are entitled to recover, although the jury believe that the dunnage of said vessel and cargo was negligently fixed and arranged by the master and mariners of said vessel, and that such negligent fixing and arranging of the cargo, was the remote cause of its loss."

Which instruction the court gave. To which refusal and instruction by the court, the defendants excepted.

The defendants prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Upon a valued policy on cargo, tin, shipped, or to be shipped, "at and from New York to Baltimore," the assured may recover a partial loss, for damage by sea water, caused by the perils of the seas, though the tin was not properly dunnaged and stowed.

Underwriters are liable for a loss, the proximate cause of which, is one of the risks enumerated in their policy, though the remote cause may be traced to the negligence of the master and mariners.

The liability of the ship owner to the shipper for the negligence of the master and crew, cannot avail the insurer as a defence. Upon payment of the damage, the insurer may be subrogated to all the rights of the insured against the person answerable for bad stowage and dunnage.

The act of 1832, ch. 280, is not repealed by the act of 1834, ch. 89. The latter gives to the creditors of foreign corporations an additional remedy.  

COUNSEL:
BY ST. GEORGE W. TEACKLE for the appellants, and

By GLENN for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*368]  MAGRUDER, J., delivered the opinion of this court.
The defendants in error, being about to ship a quantity of tin from New York to Baltimore, the plaintiff in error undertook, for the premium agreed upon, to insure the same to the amount of $ 3,500, shipped, or to be shipped on board the schooner Edward Vincent, at and from New York to Baltimore.
On the voyage, the vessel encountered gales and storms, which caused her to leak badly, and the tin insured was discovered, on its arrival at Baltimore [**6]  , to be damaged by salt water, in consequence of the gales and storms, which the vessel 

 [*369]  encountered, and for the amount of the damages done to the property insured as aforesaid, this action was brought.
These facts are not denied, but the plaintiff in error resists the claim, upon the ground that the tin insured was stowed upon sand ballast, and badly and insufficiently dunnaged, and that the risk was greater, than if the stowage and dunnage of the same, had been usual, sufficient, and proper. These facts too, the points which were raised, in the court below, require us to assume.
A verdict having been obtained by the defendants in error, a motion in arrest of judgment was made, and this because, as was contended, the remedy which is given against foreign corporations by the act of 1832, ch. 280, is taken away by a subsequent law, passed in 1834, ch. 89. This motion was properly over-ruled. The latter gives, and was designed to give, to the creditors of such corporations, an additional remedy, and cannot be interpreted to deprive the defendant in error, of the remedy which the previous law afforded to him.
The questions which remain to be decided, are presented by the [**7]  bills of exceptions, taken in the progress of the trial, by the plaintiffs in error.
On the part of the defendant, it is contended, that the damage done to the tin, was occasioned by the perils of the sea, and that the gales and tempests, which the vessel encountered, being the proximate cause of the loss, they are entitled to recover, even although his adversary has found in wrong stowage and dunnage, what is called a remote cause of such damage.
Much of controversy has arisen upon the question, which is here presented, and by many it has been insisted, that although the loss be occasioned by any of the perils mentioned in the policy, yet the insurer is not liable, if there can be found another and remote cause of the loss, and it can be ascribed to misconduct, or negligence of the captain and crew, the same not amounting to barratry. Chancellor Kent, in the chapter of his Commentaries, which treats of the law of insurance, (in the edition of 1828,) refers to decisions, 

 [*370]  for and against the insurer, and adds: "It may be expedient to suspend our own judgment, under such a sad uncertainty of the law, and leave the question for further judicial investigation, since [**8]  an eminent judge of the Supreme Court of the United States, (Justice Story,) has thought proper to take this course." A number of decisions, both in England and this country have, since then, taken place on this once very vexed question, and in 1837, (see 11th Peters 220,) Justice Story said, that in the case, 10 Peters 507, "the court thought, that in marine policies, whether containing the risk of barratry or not, a loss whose proximate cause was a peril insured against, is within the protection of the policy, notwithstanding, it might have been occasioned remotely by the negligence of the master and mariners. We see no reason to change that opinion; and, on the contrary, upon the present argument, we are confirmed in it." In these two cases, (10 & 11 Peters,) are cited most of the English cases, in which the question was decided. The reported decisions of some of our sister States, furnish other cases, establishing the same doctrine, and this court can feel no disposition, in deciding this case, to depart from the rule stare decisis. It is to be understood then to be the settled law of Maryland, "that the underwriters are liable [**9]  for a loss, the proximate cause of which, is one of the enumerated risks, though the remote cause may be traced to the negligence of the master and mariners."
It is however contended by the plaintiff in error, that the cases referred to do not settle the law of this case; that these cases only establish, that a policy, which being once attached, is not discharged by reason of the remote cause of the loss or damage sustained by the assured, but in the case now under consideration, the question is, whether the policy ever attached? The reason of this distinction, however, between this and the other cases is not perceived. The policy is on a cargo, shipped, or to be shipped on board of a vessel, at and from New York to Baltimore. If the policy had said not "at and from," but "from N. York to Baltimore," the risk would have commenced only when the vessel broke ground; but as the language 

 [*371]  here used, is "at and from New York to Baltimore," it is understood, to "include all the time the ship is in port, after the policy is subscribed, and the goods are on board, &c."
The owners, &c., of the vessel, it is said, are the agents of the assured, and are answerable [**10]  to the shippers for any damage, which is the consequence of bad stowage. This may be so, but still we are told, 2 Barn. & Ald. 82, that "a loss, whose proximate cause, is one of the enumerated risks in the policy, is chargeable to the underwriters; although the remote cause may be traced to the negligence of the master and mariners." The act of insuring, is the voluntary act of the insurer; he can prescribe the terms on which he will underwrite; may undertake as few or as many risks as he pleases, and in the policy of insurance, may, if he thinks proper, insert such clauses as will secure him against all liability, if the stowage and dunnage be not as they ought to be. If there be no such express warranty on the part of the owner of the cargo, still the underwriter may rely on the implied warranty, and is discharged, if the warranty express or implied, will exonerate him. Now, it is not pretended, that in this case the underwriter can claim to be discharged, by any express warranty. Does the implied warranty furnish him with a defence? By effecting a policy, whether it be on the ship, freight, or cargo, or the commissions or profits, to accrue upon the cargo, the assured [**11]  is always understood to warrant, that the ship is sea-worthy, or the materials of which the ship is made, its construction, the qualifications of the captain, the number and description of the crew, the tackles, sails and rigging, stores, equipment and outfit generally, are such as to render the ship, in every respect, fit for the voyage insured. Phillips on Insurance, 113. (Am. edit., 1823.) The policy implies the seaworthiness of the ship. To render a ship seaworthy, it must be staunch, and of sound materials, or rather, it must be sufficiently staunch and sound, for the employment or situation intended by the insurance. Phillips 113. The author then proceeds to explain, that this relates to the beginning of the risk, that the breach of the warranty, discharges the underwriter from all subsequent 

 [*372]  liability; that the vessel must be of proper construction, must have sufficient stores and supplies, must have a skilful master and competent crew, and a competent pilot, where it is customary to take one, but no where tells us, that this warranty ex vi termini, implies any thing, with regard to the stowage or dunnage of the vessel, which it certainly would [**12]  be unreasonable to expect, that the owners of the articles insured, would attend to.
But it is said, that the liability of the insurer does not commence, until the articles insured are placed as they ought to be. In 3rd Kent, 310, (3rd edit.,) the doctrine is not so laid down.
There would seem to be no good reason for this, as it is generally understood, that afterwards, and even after the vessel has left the port for some time, it is the right, and generally the duty of the master, to arrange the cargo differently, to trim the ship; and it is not contended, that because of a mistake then committed, the underwriter must be discharged.
The owners of the ship, it is said, are answerable to the shipper, for any damage in consequence of bad stowage. It does not thence follow, that the underwriter is discharged. If damages are to be recovered, because of the manner in which goods on board of a vessel are stowed away, it would seem to be but right, that in the action, which is to decide whether the damage was the result of bad stowage, the owner should be the party defendant, and that such a question should not arise in an action, upon the policy of insurance; and who is so [**13]  fit a person to be the plaintiff in the action, to recover damages for any such negligence or unskillfulness, as the insurer himself, who by relying on such a defence, proves, that he is in possession of the proof, and if there had been no subsequent loss or damage of the articles insured, might have retained the premium, and concealed the damage occasioned by the bad stowage, which perhaps, lessened the value of the article when sold? If the insurer be, as he alleges, in possession of proof, to fix the loss of the cargo upon the owner or captain, he becomes entitled, upon payment of the amount of 

 [*373]  he loss or damage, to stand in the place of the owner, and to be subrogated to all his rights against the person answerable for bad stowage or dunnage.
The conclusive answer however, to all that was urged on this subject, is to be found in the decisions alluded to, in England and America, and which have established, that in case of loss, the consequence of the negligence or fault of the assured, their agents or servants, the underwriters will be liable, provided the proximate cause of the loss or damage be one of the enumerated risks in the policy. The good effects [**14]  which are anticipated by an adherence in such cases to the maxim, "causa proxima, non remota spectatur," would be entirely lost, if in an action upon the policy, the defendant might insist upon one, yet more remote than the remote cause, which it is settled, can furnish the insurer with no defence. In the case of Waltron vs. Maitland, 5 Barn. & Ald. 174, the judge said, "no decision can be cited, wherein such a case, (the loss by a peril of the sea,) the underwriters have been held to be excused, in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule. It will introduce an infinite number of questions as to the quantum of care, which, if used, might have prevented the loss." Justice Story, in delivering the opinion of the court, in Waters vs. Louisville Insurance Company, observes, "if negligence of the master or crew were, under such circumstances, a good defence, it would be perfectly competent and proper to examine on the trial, any single transaction of the whole voyage, and every incident of the navigation of the whole voyage, whether there was due diligence, in all [**15]  respects, in hoisting or taking in sail, in steering the course, in trimming the ship, in selecting the route, in stopping in port, in hastening or retarding the operations of the voyage; for all these might be remotely connected with the loss. If there had been more diligence, or less negligence, the peril might have been avoided, or escaped, or never encountered at all. Under such circumstances, the chance of a recovery upon a policy, for any loss, from the peril insured 

 [*374]  against, would of itself, be a risk of no inconsiderable hazard:" and surely, this reasoning, applies to the case now under consideration, and to the defence which is relied on. Policies of insurance would seldom be contracts of indemnity, if, when the actual peril insured against has occurred, the payment of the loss depended upon every act, in regard to the property insured, which, by possibility, might have increased the risk of loss.
The court can discover no error, either in the instruction which was given, at the instance of the counsel, for the plaintiff below, or in the refusal to give the instructions, which were asked by the defendant below.
JUDGMENT AFFIRMED.  

5 of 42 DOCUMENTS 

THE BALTIMORE AND SUSQUEHANNA RAILROAD COMPANY vs. TILGHMAN G. COMPTON AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 20; 1844 Md. LEXIS 5 

June, 1844, Decided 

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

This was an action of Trespass upon the case, commenced on the 21st December, 1839, by the appellees against the appellants. The declaration of the plaintiff alleged:

1ST COUNT. That whereas by an act of the General Assembly of Maryland, entitled "An act to incorporate the B. & S. R. R. Co." it was amongst other things enacted, that the subscribers of the stock therein mentioned, their successors and assigns, should be, and they were thereby declared to be, incorporated into a company, &c.; and amongst other things in the said act mentioned and enumerated, the president and directors of the said company were invested with all the rights and powers necessary for the construction and repair of a railroad from the City of Baltimore to some suitable point or points on the Susquehanna river, to be by them determined, not exceeding sixty-six feet wide; and whereas by the said act of Assembly, it was also enacted, that the president and directors of said company, or a majority of them, or any person or persons authorized by a majority of them, might agree with the owner or owners of any land, earth, &c., or any improvements which might be wanted [**2]  for the construction or repair of any of said roads, or any of their works, for the purchase or use and occupation of the same, and if they could not agree, or if the owner or owners, or any of them, be a feme covert, under age, non compos mentis, or out of the county in which the property might be, when such land and material may be wanted, application might be made to any justice of the peace of such county, who should thereupon issue his warrant, under hand and seal, directed to the sheriff of said county, requiring him to summon a jury of twenty inhabitants of said county, &c., to meet on the land, or near to the other property or materials to be valued, on a day named in said warrant, not less than ten, nor more than twenty days, after the issuing of the same; and if at said time and place any of said jurors summoned should not attend, &c., that before they should act as such, the said sheriff should administer to each of them an oath or affirmation, as the case might be, that he would justly and impartially value the damages which the owner or owners might sustain by the use and occupation of the same, required by the company, and that the jury in estimating such damages should [**3]  take into the estimate the benefits resulting to the said owner or owners from the conducting such railroad through, along, or near to, the property of said owner or owners, but only in extinguishment of the claim for damages, and that the said jury should reduce their inquisition to writing, and should sign and seal the same, and that it should then be returned by said sheriff to the clerk, &c., and should be confirmed by said court at its next session, if no sufficient cause to the contrary be shown, and when confirmed should be recorded by the said clerk, &c.; but if set aside, the said court should direct another inquisition to be taken in the manner above prescribed, and that such inquisition should describe the property taken, or the bounds of the land condemned, and the quantity of duration of the interest in the same, valued for the company, and such valuation, when paid or tendered to the owner or owners of said property, or his, her or their legal representatives, should entitle the said company to the estate and interest in the same, thus valued, as fully as if it had been conveyed by the owner or owners of the same; and whereas, one Thomas Compton, late of Baltimore county,  [**4]  deceased, who was the father of the plaintiffs in this action, was, in his life-time, to wit, on the first day of March, in the year of our Lord one thousand eight hundred and thirty-one, and at the time of his death, at the county aforesaid, seized in fee simple of a certain tract, or part of a tract, or parcel of land, situate, lying, and being in said county, called Ridgely's Whim; and whereas, on the day and year last aforesaid, at the county aforesaid, the president and directors of the said company, or a majority of them, did determine to locate and construct the B. & S. R. R. through, along, over and upon the said lands of the said Thomas Compton; and whereas, the president and directors of said company could not agree with the said Thomas Compton, for the lands so wanted for the location and construction of the said railroad, and the said Thomas Compton would not consent to the location and construction of the said road through, along, over, and upon his said lands, the president and directors of the said company caused the said railroad to be located, made, and constructed, through, along, over and upon the said lands of the said Thomas Compton, for the length of twenty-three [**5]  hundred feet, and of the breadth of sixty-six feet, using and occupying therefor three acres one rood and thirty-eight perches of land, without his permission and consent, and without making or allowing him any compensation whatever therefor. And the said plaintiffs further say, that in the making and constructing of the said road through, along, over and upon the said lands of the said Thomas Compton, as aforesaid, the president and directors of the said company caused an embankment, consisting of earth, stone and gravel, to be made, of the length of two thousand feet, of the breadth of thirty feet, and of the height of ten feet, on one part of the said land, and that the president and directors of the said company also caused to be made, an excavation, of the length of two hundred feet, of the breadth of sixty-six feet, and of the depth of twenty feet, on another portion of said land, to the great damage and injury of said Thomas Compton. And the said plaintiffs further say, that afterwards, to wit, on the sixteenth day March, in the year eighteen hundred and thirty-one, at the county aforesaid, the B. & S. R. R. Co. made application to Henry Brice, esquire, a justice of the peace [**6]  of the State of Maryland, in and for the city of Baltimore, to issue his warrant, under his hand and seal, directed to the sheriff of said county, requiring him to summon a jury of, &c., as the jury of inquest of damages in the matter of the said Thomas Compton, in pursuance of the said act of Assembly, and that the said warrant was accordingly issued, directed to Henry Green, Esq. the then sheriff of said county, and executed and returned to Baltimore county court, and that afterwards, to wit, on the 30th April, 1833, the said inquisition, so taken and returned, was quashed and set aside by the court, and the said sheriff was ordered and directed to summon a new jury, which was done, and a new inquisition taken, executed and returned, and confirmed by the said court, and that the said Thomas Compton was allowed one cent for his damages, and no more. And the said plaintiffs further say, that the B. & S. R. R. Co. continued from the 16th March, 1831, until the 1st September, 1838, at, &c., to use, occupy, possess and enjoy that portion of the said tract or parcel of land hereinbefore mentioned, and the railroad thereon made and constructed, without paying or allowing any compensation [**7]  whatever therefor. And that said plaintiffs further say, that the said Thomas Compton departed this life on or about the 1st December, 1833, at, &c., and that his real estate descended to the said plaintiffs, as his heirs-at-law.

2ND COUNT. And the said plaintiffs further say, that afterwards, to wit, by an act of the General Assembly of Maryland, passed at, &c., entitled "A further supplement to an act entitled an act to incorporate the B. & S. R. R. Co." it was enacted that the B. & S. R. R. Co. be, and they were thereby authorized to alter the location of their road between Baltimore and Timonium and Owings' mills, and in making such alteration have and exercise all the powers conferred by the act of incorporation for the purpose of originally constructing said road. And the said plaintiffs further say, that afterwards, to wit, on the 1st September, 1838, at, &c., the B. & S. R. R. Co., in pursuance of the powers in them vested as aforesaid, altered the location of their road between Baltimore and Timonium, and abandoned all that part of their said railroad which had been located and constructed upon the lands of the said Thos. Compton, as aforesaid, and made and constructed [**8]  their said railroad from and off the lands of the said plaintiffs, and have ceased to use and travel upon that part of their said road which was originally made and constructed upon the lands of the said plaintiffs, and have thereby entirely deprived the said plaintiffs of the benefits resulting to the said plaintiffs from the conducting of the said railroad through, along, and upon their said lands, to their great loss and injury, and without making and allowing to them, the said plaintiffs, any compensation whatever therefor. And the said plaintiffs further say, that since the passing of the several acts of Assembly hereinbefore mentioned, and since the condemnation of the lands of the plaintiffs, for the uses and purposes aforesaid, and since the original location and construction of the said railroad, and since the making of the said embankments and excavation hereinbefore mentioned, and since the making and constructing of their said railroad anew, between Baltimore and Timonium, and the abandonment of the original location and construction thereof upon the lands of the said plaintiffs, and the discontinuance of the travel thereon, to wit, on the 1st January, 1840, at, &c., and [**9]  ever since, the B. & S. R. R. Co. well knowing the premises, but not regarding their own duties, nor the rights of the said plaintiffs, have not removed the said embankment, nor the earth, stone and gravel wherewith the same was made and constructed, nor have the B. & S. R. R. Co. filed up the said excavation hereinbefore mentioned, as they ought to have done, but have permitted the same to remain as made, to the great loss and damage of the said plaintiffs. By all which said premises, the said plaintiffs say that they are injured, and have sustained damage to the value of, &c.

To this declaration the defendants pleaded not guilty on the first count, on which issue was joined; and by consent of parties leave was given generally to offer special matter in evidence.

The defendants demurred to the second count, and the county court rendered judgment thereon for them. As to both counts, however, all "errors in pleading" were waived by consent.

At the trial the jury found a verdict for the plaintiffs, of $ 1,643, with interest from the 25th May, 1841.

1ST EXCEPTION. The plaintiffs, to support the issue on their part, offered in evidence the charter granted to the defendants [**10]  by the General Assembly, and proved that they were the children and heirs-at-law of Thomas Compton, in whose life-time, at the instance of the defendants, the following proceedings took place for the condemnation of a part of a tract of land, belonging to him in fee, and lying in said county, about three and a half miles from the city of Baltimore, and at the time of this action owned by and in the possession of the said plaintiffs, as his heirs-at-law.

"THOMAS COMPTON: Inquisition, condemnation and confirmation of part of his lands, for the use of the Baltimore and Susquehanna Railroad Company:

"Be it remembered, that on the 11th April, 1831, H. G., Esq. sheriff of B. Co., in pursuance of an act of the General Assembly of Maryland, &c., entitled "An act to incorporate the B. & S. R. R. Co." made return to the court here of the following warrant, inquisition and return, to wit:

"MARYLAND, Baltimore county, to wit:

"To Henry Green, Esq., sheriff of said county: Whereas application has been made to me, a justice of the peace of, &c., by the P. & D. of the B. & S. R. R. Co., stating that the said company cannot agree with T. C. for the purchase or use and occupation [**11]  of a certain tract or parcel of land, lying in said county, belonging to the said T. C., and contained within the following metes and bounds, courses and distances, to wit: Beginning for the same at station No. 147, on the location of said railroad, and running thence to station No. 170, being twenty-three stations of one hundred feet each in length, and occupying a space of sixty-six feet in width, containing three and a half acres, and which said tract is wanted by the said company for the construction of a railroad from the city of B. towards the S. river, under and in conformity to the provisions of an act of Assembly, passed, &c., entitled "An act," &c. Now, therefore, I, the said justice, under and by virtue of the said act and application aforesaid, do hereby authorize and command you to summon a jury of twenty inhabitants of said county, not related to said T. C., nor in any way interested, to meet on the land, on Monday the 28th day of March instant, the date hereof. Herein fail not, and this shall be your warrant and authority therefor. Witness my hand and seal, this 16th March, 1831.     HENRY BRICE, (Seal.)"

"I hereby certify and return, that by authority and in [**12]  pursuance of the commands of the within warrant to me directed, I summoned R. D., &c., being a jury of twenty inhabitants of said county, not related to the within named T. C., nor in any wise interested, to meet on the lands on Monday the twenty-eighth day of March, 1831, at which time and place did appear the above named persons, being the jurors aforesaid, from which panel the president of the company did strike off, &c. leaving twelve jurors to act as a jury of inquest of damages, to wit, R. D., &c.; and before the said jurors proceeded to act as such, I administered to each of them the following oath or affirmation: (as they respectively swore or affirmed,) "You do swear, (or, solemnly, sincerely and truly declare and affirm,) that you will justly and impartially value the damages which T. C. will sustain by the use or occupation of the tract of land required by the B. & S. R. R. C., for the construction of a railroad from the city of B. towards the S. river." Whereupon, having shown to the said jury the tract of land within described, and directed the said jury to take into the estimate of damages the benefits resulting to the said T. C. from the passage of such railroad through [**13]  and along said property, but only in the extinguishment of the claim for damages, the said jury did reduce their inquisition to writing, and did sign and seal the same in manner and form as by the original of the said inquisition, hereto annexed, and made part of this return, doth appear. Whereupon, I hereby return the said inquisition to William Gibson, the clerk of the said county, as directed by the act of Assembly, entitled "An act to incorporate the Baltimore and Susquehanna Railroad Company." Witness my hand and seal.     HENRY GREEN, (Seal,)

Sheriff of Baltimore County."

INQUISITION. Maryland, B. county: An inquisition taken at the said county, on the 28th March, 1831, before H. G., sheriff, &c., on the oath of R. D., &c., who, having been summoned by said sheriff, and sworn justly and impartially to value the damages which T. C. will sustain by the use and occupation of that piece, parcel or tract of land, owned by the said T. C., situated in said county, being part of a tract called    , and contained within the following metes and bounds, courses and distances, to wit: Beginning for the same at station No. 147, on, &c., as before described in the justice's [**14]  warrant; which said piece, parcel or tract, is wanted by the B. & S. R. R. C. for the use of a railroad from the city of Baltimore towards the Susquehanna river, upon their oaths do say, that the said T. C. is not entitled to any damage by the use and occupation aforesaid. In testimony whereof, we, the subscribers, being the jurors aforesaid, have hereunto set our hands and seals, on the day and year first above written.

RICH'D DORSEY, (Seal.) &c.

I do hereby certify and return to the clerk of Baltimore county court, the within inquisition, taken before me, on the oaths of the jurors within named; as herein set forth and reduced to writing, and signed and sealed by the said jurors, in my presence, agreeably to the directions of the Act of Assembly, entitled, an act to incorporate the Baltimore and Susquehanna Railroad Company.     HENRY GREEN,

Sheriff of Balto. County, (Seal.)

Which said inquisition was quashed by Baltimore county court on the motion of the said T. C.

1st. The court is of opinion that the issuing of the warrant by H. B., he being "a justice of the peace of the State of Maryland, in and for the city of Baltimore," was irregular, and affords [**15]  proper ground for quashing the inquisition.

2nd. The court is of opinion that the summoning of jurors resident in the city of Baltimore, is not contrary to law, for the purposes contemplated by the act of 1827, chap. 72, and within its intent and meaning, jurors may be taken from any part of the entire county, of which county, for that purpose, the city of Baltimore is a part. The jurors summoned must be disinterested within the intent and provisions of the said act.

3rd. The court is of opinion that the description of the land condemned is not sufficiently certain, but that the omission to insert the name of the tract of land is not a fatal defect. The description would have been sufficiently accurate if it had called for stones, trees, or any boundaries planted, or other fixed objects, or if it had taken for the beginning of the land intended to be described, any spot or point of beginning on land either conveyed to the railroad company, and therefore rendered certain by the record of the deed of conveyance, or on land theretofore condemned by inquisition, for the use of the company, if the inquisition was recorded.

4th. The court is of opinion, also, that the inquisition [**16]  ought to have set forth that the land was condemned for the use of the company, for construction, which would have been sufficient, but the statement of that fact in the warrant, does not, in the opinion of the court, comply with the requisition of the law, that it should appear in the inquisition.

5th. The court is of opinion that it is not necessary for the inquisition, in order to comply with that part of the law which requires the jury to state "the quantity of duration of interest," to set forth whether the land is condemned in fee, for life, or years, or otherwise, but that the inquisition will be good if it sufficiently appear on its face, as it will do if the land be stated to be wanted "for construction" of the railroad, that the entire interest in the land condemned is intended to be taken.

The county court, on the 30th April 1833, ordered and decreed, that the sheriff of Baltimore county summon a jury of twenty inhabitants of said county, not related to the said defendant, nor in any wise interested in the said matter, to meet on the said lands of the said T. C., required by the said plaintiffs for the uses, purposes and operations of the said plaintiffs, or near [**17]  thereto, on the 18th day of May next, and if, at the said time and place; any, &c., from which panel each of the said parties, his or their agent or attorney, may strike four jurors, and in the absence of the said parties, or either of them, or their agent or attorney, the said sheriff shall strike four persons for each or either of said parties from said panel, and the remaining twelve jurors shall act as the jury of inquest of damages in the said cause, but before they act as such, the said sheriff shall administer to each of them an oath or affirmation, as the case may be, that he will justly and impartially value and assess the damages which the said defendant will sustain by the use and occupation of his lands and premises by the said plaintiffs, and the said jury, in estimating such damages, shall take into the estimate the benefits resulting to the said defendant from constructing such railroad through, along or near to the property of said defendant, but only in extinguishment of damages, and the said jury shall sign and seal their said inquisition, and deliver it to the said sheriff, and the said sheriff shall forthwith return the same to this court.

The inquisition returned [**18]  by the sheriff under the order of Baltimore county court, after reciting the proceedings, stated that the jurors were sworn justly and impartially to value and assess the damages which T. C. will sustain by the use and occupation, for the purpose of construction of the railroad, of that piece, parcel or tract of land owned by the said T. C., situated in said county, being part of tract called "Ridgely's Whim," or by whatsoever name or names the same may be called or known, and contained within the following metes and bounds, courses and distances, to wit: beginning for the same at a stone placed in the ground, forty-seven feet from a Hickory tree, being on the boundary line of said tract, marked with three notches, and at a station stake numbered 147, on the line of the B. & S. R. R., and running thence, north 26 [degrees] 30' east, one hundred feet, thence north 18 [degrees] 30' east, one hundred feet, thence north 7 [degrees] 30' east, seven hundred feet, thence north 5 [degrees] 30' east, one hundred feet, thence north 1 [degrees] 30' east, one hundred feet, thence north 2 [degrees] 30' west, one hundred feet, thence north 8 [degrees] 30' east, one hundred feet, thence [**19]  north 14 [degrees] west, one hundred feet, thence north 18 [degrees] west, one hundred feet, thence north 19 [degrees] west, one hundred feet, thence north 21 [degrees] west, one hundred feet, thence north 25 [degrees] west, one hundred feet, thence north 23 [degrees] west, one hundred feet, thence north 14 [degrees] 30' west, one hundred feet, thence north 3 [degrees] west, one hundred feet, thence north 4 [degrees] east, one hundred feet, thence north 3 [degrees] west, one hundred feet, to station No. 170, on the line of said road, supposed to be the termination of the land owned and occupied by the said T. C., containing, by the above described courses, and a constant width of 66 feet, three acres, one rod, and thirty-eight perches of land, more or less, which said piece, parcel or tract is wanted by the B. & S. R. R. Co. for construction of a railroad from the city of B. towards the S. river, upon their oaths do say, that they value and assess the damages which the said Thomas Compton will sustain by the use and occupation aforesaid, at the sum of one cent. In testimony whereof, we, &c.

The inquest was ratified and confirmed on the 6th November 1833.

This [**20]  plaintiffs further offered in evidence, that under and by virtue of such condemnation, the said defendants took possession of the parcel of land in said proceedings described, and proceeded to make an excavation and embankment thereon, and completed upon the same their railroad, and used and travelled said road; and further offered in evidence from the printed statute book, a supplement to the charter of the defendants, granted by the General Assembly at December session 1835, chap. 371, in pursuance of the provisions of which, the defendants, on the 1st January 1838, abandoned all that portion of their railroad which had been so as aforesaid constructed on the land of said T. C., and took away the rails there-from, and wholly ceased to use and travel such part of their said road; and further offered to prove by Henry McElderry, John W. Ward and William McLanahan, witnesses produced and sworn on their part, that, at the request of the said T. C., and prior to the construction of the said road upon his land, they had examined said land, and had estimated the damage to accrue to him from such construction at the sum of $ 1,100, and that, in their judgment, the damage done to the land [**21]  by the said road, as originally constructed, amounted to that sum, for the purpose of proving which damage, said evidence was offered.

To the admissibility of which evidence, the defendants objected, upon the several grounds following:

The defendant, by its counsel, objects to the admissibility of the evidence offered by the plaintiffs, to prove the damage done to their land by the original location of the defendants' railroad.

1st. Because the action (as appears from the plaintiffs' declaration,) is brought to recover damages for changing the location of the railroad, which, heretofore, was constructed through the land of the plaintiffs, and if they are entitled to recover any thing, the measure of damages is the injury inflicted by such change, and not what may have been suffered from the first location of the road.

2nd. Because, if proof is admissible of the damage sustained by the original location and construction of the railroad of the defendant upon the lands of the plaintiffs, then that the inquisition of damages upon said land, in the lifetime of their ancestor T. C., taken and returned to Baltimore county court, and by it confirmed, and which has been [**22]  given in evidence by the plaintiffs, is conclusive as to the amount of such damages.

3rd. Because, if proof of such damage, other than, or in addition to, said inquisition, is admissible, the evidence so offered is not the best which the nature of the case admits.

The court (R. B. MAGRUDER, A. J.,) refused to sustain said objections, and the evidence was admitted accordingly, and went to the jury. The defendants excepted.

2ND EXCEPTION. The defendants then, to support the issue on their part, offered in evidence, that on the 1st January 1838, under the supplement to their charter as proved, they had reconstructed off the lands of the plaintiffs, and at the distance of about two hundred yards from its old location thereon, all that portion of their rail road which had been originally located on the lands of the plaintiffs, and had completed and were using and travelling the same, and that said rail road, as so re-constructed, was of equal benefit and convenience to the said plaintiffs, as it had been where originally constructed; and further proved that the parcel of land described in the proceedings of condemnation, given in evidence by the plaintiffs, had been in the [**23]  possession of the plaintiffs from the time of the re-construction of said rail road, and was claimed and admitted to belong to them; and further gave in evidence, that the same, at an expense of not more than five hundred dollars, might be rendered as valuable for cultivation, as it had been before the original construction of the rail road thereon.

The defendants then prayed the court to instruct the jury as follows:

1st. That the plaintiffs are not entitled to recover in this action, because the altered location of the rail road through the land of the plaintiffs, though it has removed the same from said land, has been by authority of, and pursuant to, and within the provisions of the act of Assembly of 1835, ch. 371, entitled a further supplement to the act entitled, an act to incorporate the B. & S. R. R. Co.

2nd. That the plaintiffs are not entitled to recover in this action for the removal from their land of the rail road of the defendant, unless they find some actual damage to the plaintiffs, growing out of such removal.

3rd. That if the plaintiffs are entitled to recover in this action, the measure of the damages to be awarded them, is the damage sustained [**24]  by them, in having the rail road of the defendants in its present position, instead of having it upon its original location on their land, and that if the jurors find the plaintiffs to have sustained no injury from such change, then that they are not entitled to recover.

The plaintiffs like wise prayed the court for other instructions, as follows:

The plaintiffs ask the court's instruction to the jury, that they are entitled to recover the damage done to the land and other property of the plaintiffs, by the original location of the defendants road over the same, and the abandonment of such location at the time of such abandonment, provided, the jury shall find such damage, location and abandonment, and also, that the present location of said road is on the eastern side of Jones' Falls, entirely off of the plaintiffs' land, without any deduction whatever for the benefit or advantage which the jury may find from the evidence, the plaintiffs derive from the present location of defendants road. The plaintiffs in this case claim, as a measure of damages, to recover what from the evidence in the cause the jury may find to have been the value of the land originally taken under the [**25]  condemnation offered in evidence by the plaintiffs, and such other of the land as was directly injured by the making of said road, at the time the defendants totally abandoned the said location, and made and used the one on the western side of the Falls off the plaintiffs land, if the said land had never been taken by the defendants, less what the jury may find to be the value to the plaintiffs of said lands at the time of such final abandonment; and for the purpose of proving said facts, they offered in evidence to the jury, that twenty acres of the said land, worth $ 200 an acre, were by said first location, and the making of said road, rendered totally valueless, except for the purpose of said road, and as evidence thereof, offered to prove by a competent witness, Capt. De La Roche, as civil engineer, who had carefully examined said part of said road, that to restore the said land to its said original value of $ 200 an acre, would cost at least $ 5,000.

The court (R. B. MAGRUDER, A. J.) refused to instruct the jury as prayed, and gave the following direction:

If the jury shall find that the defendants originally located their rail road through the lands of the plaintiffs,  [**26]  and made the embankments and excavations, and completed and used the said road in the manner set forth in the evidence, and that defendants then abandoned the said road, and shall also find that the present location of the road is on the eastern side of Jones' Falls, entirely off the plaintiffs land, then the plaintiff are entitled to recover the damage done to the land and other property of the plaintiffs, by the original location of the defendants' road through and over the same, without any deduction whatever for any benefit or advantage which the jury may find from the evidence, the plaintiff derived from the present location of the road.

And the court further instruct the jury, that the price paid by the plaintiffs for the benefit of the road, as originally located, or the amount which was charged to, or assessed upon, the plaintiffs, at the time of the taking of the inquisition given in evidence in this cause, as benefit resulting to the plaintiffs from the location of the road through his land, and which was deducted by the jury who made the inquisition from the whole amount of damage done to the land and other property of the plaintiffs by said original location, if the [**27]  jury shall find from the evidence such price or assessment and deduction, together with legal interest thereon, from the time of the abandonment of the road by the defendants, is the proper rule to regulate the jury in estimating the damages sustained by the plaintiffs.

To which direction, as given by the court, and the refusal of the prayers offered on their part, the defendants excepted.

3RD EXCEPTION. After the parties to this cause had gone before the jury under the direction of the court, as stated in the second bill of exceptions, the defendants, by their counsel, insisted that the jury were entitled to take into their estimate of damages, the sum for which the lands of the plaintiffs, occupied by the road, as originally constructed, might be rendered as valuable for cultivation as they had been prior to such original construction, and were not bound to consider said land as totally destroyed, to which the plaintiffs objected as contrary to the true construction of the direction aforesaid, and thereupon the court decided, that by the true construction of said direction, the jury were bound to consider said land as wholly destroyed. The defendants excepted.

The [**28]  judgment being against the Baltimore and Sus. R. R. Company, they prosecuted the present appeal.  

DISPOSITION:
PROCEDENDO ISSUED.  

HEADNOTES:

Where an inquisition was taken, returned, and ratified, according to law, upon proceedings by a railroad company, which found that a piece or parcel of land was wanted by the company for the construction of their road, and assessed the damages which the owner of the fee would sustain by the use and occupation of his land for the purpose aforesaid, at, &c., all questions having relation to the damage done by the location and construction of the road are terminated and concluded by such inquest.

And hence in an action brought by the owner of a fee against the company for having, after the construction of the road through his land, (the benefits of which construction to the plaintiff had been submitted to the jurors upon the inquisition aforesaid,) abandoned the same, and constructed the road anew in another location, off the plaintiff's land, the plaintiff cannot give evidence of the damage which would accrue to him from such original construction independent of the inquisition.

After a railroad company had constructed its road by authority of law, through the plaintiff's land, condemned for that object, they were authorized to alter the location of their road between two given points. They re-constructed their road, and abandoned that part which had been made through the plaintiff's land. HELD: that the authority derived from the legislature to alter the location, did not exempt the company from liability to the plaintiff for the loss sustained by him by reason of such abandonment.

Where a railroad company had constructed a road, then abandoned it in part, and changed the location pro tanto, a plaintiff through whose land the road originally passed, having sustained no damage or injury in fact, by the alteration, cannot maintain an action for such change of location.

An inquisition to condemn land for the use of the B. and S. Railroad Company, in Baltimore county, out of the limits of the City of Baltimore, ought not to be held upon the warrant of a justice of the peace appointed for said city. Per Baltimore county court.

Under the act of 1827, ch. 72, resident jurors in the city of Baltimore may be summoned to act in any part of Baltimore county. Ib.

The description in an inquisition of land condemned, ought to be sufficiently certain. The omission to insert the name of the tract is not fatal. A description is sufficient when it calls for stones, trees, planted boundaries, fixed objects, or where it takes for the beginning of the land intended to be described, any spot or point of beginning on land either conveyed to the company and recorded, or on land theretofore condemned by inquisition, recorded. Ib.

The description in an inquisition beginning for the land condemned at station No. 147, on the location of said railroad, and running thence to station No. 170, being 23 stations of 100 feet each in length, and occupying a space of 66 feet in width, is not sufficiently accurate to authorize its ratification. Ib.

Under the charter of the B. and S. Railroad Company, the inquisition for the condemnation of land should state that it was for the construction of the road, in that event the entire interest is condemned. Ib. 

COUNSEL:
By B. C. PRESTMAN and CAMPBELL for the appellants, and

By T. P. SCOTT and REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*36]  DORSEY, J., delivered the opinion of this court.
The testimony offered by the plaintiffs, in the first bill of exceptions on the part of the defendants, to prove the damage done by the location and construction of the rail road through their lands, was obnoxious to the objection taken to its reception. All questions in relation to such damage were terminated and concluded by the inquisition previously found by the jury. They formed no part of the issue then on trial. The question to be tried by the jury impanelled in the county court, was the extent of the injury which resulted to the plaintiffs by the abandonment and discontinuance of the railway on their lands, and its location and construction on the lands of another person. The county court therefore erred in admitting the testimony thus objected to by the defendant.
A majority of this [**29]  court are of opinion that the county court were right in rejecting the defendant's first prayer, in his second bill of exceptions; that the plaintiffs could not recover, inasmuch as the removal of the railway complained of was made under the authority and pursuant to the provisions of the act of Assembly of 1835, ch. 371. From this opinion I have dissented; but, as no reasons have been assigned in support of it, I do not deem it necessary to state the grounds of my dissent.
The defendant's second prayer in the same exception, to wit: "that the plaintiffs are not entitled to recover in this action, for the removal from their land, of the rail road of the defendant, unless they find some actual damage to the plaintiffs growing out of such removal;" and his third prayer, to wit: "that if the plaintiffs are entitled to recover in this action 

 [*37]  the measure of the damage to be awarded them, is the damage sustained by them in having the rail road of the defendant in its present position, instead of having it upon its original location on their land; and that if the jurors find the plaintiffs to have sustained no injury from such change, then that they are not entitled to recover; [**30]  " we think both ought to have been granted: and that in failing to do so, the county court erred.
In the third bill of exceptions, the county court was right in its construction of the instruction it had given to the jury as stated in the second bill of exceptions. The error of that court consisted in its giving the instruction, not in its interpretation of it.
This court concur with the county court in its construction of its instruction as stated in the third bill of exceptions. And a majority of this court approve of the refusal of the county court to grant the defendant's first prayer in his second bill of exceptions. But this court, dissenting from the county court's decision in the first bill of exceptions, and in its refusal to grant the defendants' second and third prayers in his second bill of exceptions, and from its instruction given in that exception to the jury, reverse its judgment.
LET A PROCEDENDO ISSUE.  

6 of 42 DOCUMENTS 

FRANCIS J. DALLAM, SAMUEL BRADY, AND THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. R. OLIVER'S EXECUTORS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 445; 1845 Md. LEXIS 45 

December, 1845, Decided 

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

On the 14th June 1841, the executors and devisees of Robert Oliver, filed a bill against M. Winchester and others, to enforce a vendor's lien, for unpaid purchase money of land sold, and obtained a decree for a sale by a trustee.

On the 7th May 1842, Francis J. Dallam, collector of the city of Baltimore, filed a bill for taxes due on the land sold to the Mayor and City Council of Baltimore, for the years 1833, 1834 and 1835, supported by affidavit.

On the 25th, Samuel Brady, another collector, filed a similar bill, for the years 1837 and 1838.

On the 30th September 1842, the trustee reported a sale, which was finally ratified, and confirmed on the 16th November of that year.

The trustee was then ordered to pay the taxes claimed, unless cause to the contrary be shown, &c., after notice, as prescribed.

The complainants in the cause, excepted to the payment of the taxes claimed:--

1. Because the same are no liens upon the land sold by the trustee.

2. That the claims are barred by limitations.

The claimants then gave proof, that G. Winchester, the tenant in possession, promised to pay the [**2]  taxes aforesaid, within two or three months of his death, in 1839.

It was admitted, that during Mr. Winchester's time, there was always personal property of said Winchester, sufficient to pay these taxes; and that he died in August 1839; that there was personalty sufficient for the payment of the tax bills upon the property, at the time the taxes became due, and for a long time afterwards; and that a judgment was recovered in Baltimore county court, in the name of The Mayor and City Council, on the 6th September 1836, for the taxes of 1833, which is yet unsatisfied.

On the 13th October 1843, the county court, (MAGRUDER, A. J.,) decreed as follows:--

No petition has been filed in relation to these claims; but the question as to the liability of the fund in court, arising from the proceeds of sale of real estate, and that estate being the property upon which these taxes were imposed, has been submitted after argument for decision.

It was conceded by the counsel, who argued in support of the right to claim against the fund for these taxes, and an admission of that fact has since been filed, that there was at all times, from the date of the imposition of those taxes,  [**3]  until the death of the late George Winchester, a sufficiency of personal property on the premises, which could be made liable for the payment of them, and it thence follows, necessarily, that there is no ground to charge the land with the payment of those taxes, Mayor and City Council of Baltimore vs. Ann Chase, 2 Gill & John., 381, unless the act of 1840, chap. 63, can be construed to extend to taxes laid before its passage, and to be intended by the legislature, to operate retrospectively.

It is not meant to deny the right of the legislature to have passed such an act, provided they had clearly so expressed such intention; but in the absence of any such expression, we must adhere to the rule adopted by the courts in the exposition of statutes, that they are to be construed to apply only to cases after their passage.

As the law stood, when those taxes were imposed, there could be no lien upon the land, because there was at all times a sufficiency of personal property on the premises, to satisfy the amount of taxes.

The claims, then, must be disallowed, as against the fund in court, and the claimants must pay the costs arising upon their proceeding in this [**4]  cause, for the recovery of the same out of that fund, and the clerk is to tax the same.

From this decree the claimants appealed.

The act of 1840, ch. 63, declared, that The Mayor and City Council of Baltimore, may and shall have full power 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, any thing in any act of Assembly to the contrary notwithstanding.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Taxes levied for the city of Baltimore, on real estate, prior to 1840, ch. 63, are not liens on the land, where there is a sufficiency of personal property on the premises taxed, to pay the same.

The act of 1840, chap. 163, which authorized the city of Baltimore to provide, by ordinance, for the prompt collection of taxes due the city, and to that end, may and shall have power to sell real, as well as personal property, will not be so construed, as to have a retrospective effect.  

COUNSEL:
By CAMPBELL for the appellant, and

By GLENN for the appellee.  

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

OPINION:

 [*447]  By THE COURT--
DECREE AFFIRMED.  

7 of 42 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.  

8 of 42 DOCUMENTS 

THE PHILADELPHIA, WILMINGTON, AND BALTIMORE RAIL ROAD COMPANY, vs. ZEPHENIAH BAYLESS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 355; 1844 Md. LEXIS 33 

December, 1844, Decided 

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

This was an action of trespass upon the case, brought on the 25th November 1842, by the appellee against the appellant, who declared, that whereas the defendants, on the 1st January 1842, to wit, at, &c., were indebted to the said plaintiff, as one of the collectors of taxes for Harford county, duly appointed by the board of commissioners of said county, in the sum of $ 125, for taxes due the plaintiff, as collector as aforesaid, and being so indebted, they, the said, &c.

The parties agreed, that their case be docketed by consent, and submitted on a statement of facts, which admitted, that the claim in this case is for taxes levied and assessed by the commissioners of Harford county, for the year 1841, for the common and ordinary county charges, and not for State purposes. That the same was levied and assessed on the rails, bed of the rail road, and other property of said defendants, connected with its rail road, and absolutely necessary for the use and enjoyment of its rail road. That the plaintiff was regularly authorized, to collect all taxes, legally assessable, on the property of defendant.

That the several acts of Assembly, which [**2]  relate to the incorporation and charter, are to be regarded as part of this statement, and to save the trouble of transcribing them, either party may read them from the printed statutes, to have the same effect as if they were transcribed into this statement.

It is further agreed, that if the court shall be of opinion on the foregoing statement, that the said property of the said defendant, is liable to be assessed for ordinary county charges, then judgment to be rendered for plaintiff, for $ 118 and costs. But if the court shall be of opinion, that the said property of said defendant, is not liable to assessment and taxation for ordinary county charges, but the same is exempted from such assessment and taxation under its charter, then judgment to be for defendant; either party to have the right to appeal.

The county court rendered judgment for the plaintiff below, and the defendant prosecuted this appeal.

In the Court of Appeals, the parties further admitted, that the property assessed in this case, lies in Harford county, and does not include the cars of the defendants; that the principle of valuation, adopted in making the assessment in this case, was to assess the [**3]  buildings and the rails, as of the value they bore, irrespective of their being portions of the rail road, and the land as land, and not as of increased value, by reason of being used as a rail road; that the rate of county taxation, imposed by the commissioners of Harford county, in the property of said Company, varies from the rate of county taxation, imposed by the commissioners of Baltimore and Cecil counties.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of 1831, ch. 288, the Baltimore and Port Deposite R. R. Co. was chartered, to construct a rail road from B. to P. D. By the act of same year, ch. 296, the Delaware and Maryland R. R. Co. was also chartered, to construct a road from some point at the Delaware and Maryland line to P. D. By the act of 1835, ch. 293, the D. and M. Co, was united to the Wilmington and Susquehanna R. R. Co., a company chartered by Delaware under that name. By the act of 1837, ch. 30, the first named company was united with the W. & S. R. R. Co., under the name of the Philadelphia, Wilmington and Baltimore R. R. Co. The first named company was located in Baltimore and Harford counties; and as to the second, which lies in Cecil county, Maryland, "the shares of the capital stock of the said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burden by the State, except that portion of the permanent and fixed works of the company, within the State of Maryland, and that any tax which shall hereafter be levied upon said section, shall not exceed the rate of any general tax, which may, at the same time, be imposed upon similar real and personal estate, within this State, for State purposes." HELD:

1st. That the shares and stock of the D. & M. R. R. Co., its works, improvements, profits, and machinery of transportation, except, &c., were exempted from all taxation or levies, whether for county or State purposes.

2nd. The permanent and fixed works of the Company remained subjects of taxation or assessment, either for county or State purposes, or for both by virtue of the said exception.

3rd. The terms, "that any tax, which shall hereafter be levied, shall not exceed," &c., have no reference to taxes or assessments on levies for county purposes; it relates, exclusively, to taxes laid for State purposes.

4th. The powers, &c., exemptions conferred by the act of 1835, ch. 293, as to county taxes, relate to Cecil county,

5th. A tax laid by the commissioners of Harford county, for county purposes, on the rails, bed of the rail road, and other property of the company, connected with its road in Harford county, and not upon the cars of said Company, was not forbidden by the charters referred to, and is within the general law relating to taxes.  

COUNSEL:
By O. SCOTT, for the appellant, and

By YELLOTT, for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*357]  DORSEY, J., delivered the opinion of this court.
The only question designed to be raised in the case before us, is, whether that portion of the permanent and fixed works of the Philadelphia, Wilmington, and Baltimore Rail Road Company, lying within the limits of Harford county, is subject to the payment of county levies or taxes, as they are sometimes called. That they are so, in common with all other property in the county, is conceded, unless exempted therefrom, by some legislative enactment upon the subject; and such enactment it is insisted, is to be found in the latter [**4]  part of the 19th section of the act of the General Assembly of Maryland, passed at December session 1831, chap, 296, entitled, "an act to incorporate the Delaware and Maryland Rail Road Company," which declares, "that the said road or roads, with all their works, improvements and profits, and all the machinery of transportation used on said road, are hereby vested in said Company, incorporated by this act, and their successors forever; and the shares of the capital stock of said Company, shall be deemed and considered personal estate, and shall be exempt 

 [*358]  from the imposition of any tax or burden, by the States assenting to this law, except upon that portion of the permanent and fixed works of said Company, which may be within the State of Maryland; and that any tax, which shall hereafter be levied upon said section, shall not exceed the rate of any general tax, which may, at the same time, be imposed upon similar, real or personal property of this State, for State purposes." According to the true construction of this provision of the act of Assembly, we think, that by the first part of it, the shares of the capital stock of the Company, thereby [**5]  created, its works, improvements, profits, and machinery of transportation, except its permanent and fixed works, which lay within the State of Maryland, were exempted from all taxation or levies, whether for county or State purposes. And that, as far as regards the said first part of said recited provision, such permanent and fixed works which lay within the State of Maryland, remained subjects of taxation or assessment, either for county or State purposes, or for both, in the same manner as if no such exemption had been inserted in the act of Assembly. That as to the succeeding part of the said provision, it has no reference to taxes or assessments on levies, for county purposes; and, therefore, in no wise, impairs the rights asserted by the appellee in the present action. That it relates exclusively to taxes laid for State purposes; and is to be construed in the same manner, as if the words "for State purposes," which now stand at the end of the section, had been inserted after the words "any tax," when it would read, and that any tax, for State purposes, which shall hereafter be levied upon said section, shall not exceed the rate of any general tax, which may, at the same [**6]  time, be imposed upon similar, real or personal property of this State.
But, suppose we are wrong in the construction we have given to the portion of the act of Assembly referred to, what has that to do with the question now before us. That act of Assembly, related to the Delaware and Maryland Rail Road Company; the southern terminus of which road, was at the river Susquehanna. The powers and exemptions given 

 [*359]  by its charter to that Company, as regards matters of the character of those now in controversy, apply to Cecil, not Harford county. To determine the question now before us, we must look to the act of 1831, ch. 288, entitled, "an act to incorporate the Baltimore and Port Deposite Rail Road Company;" not to the act of Assembly, for the incorporation of the Delaware and Maryland Rail Road Company. Under the first of these laws, you will look in vain for any such exemption, as that now claimed by the Philadelphia, Wilmington, and Baltimore Rail Road Company.
The acts of Assembly of 1835, ch. 93, and 1837, ch. 30, by which the Wilmington and Susquehanna Rail Road Company, and the Delaware and Maryland Rail Road Company [**7]  , and the Baltimore and Port Deposite Rail Road Company, were united into one Company, by the name of the Philadelphia, Wilmington, and Baltimore Rail Road Company, confer no such exemption.
JUDGMENT AFFIRMED.  

9 of 42 DOCUMENTS 

THE STATE OF MARYLAND vs. WILLIAM E. MAYHEW, PRESIDENT OF THE FARMERS AND PLANTERS BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 487; 1845 Md. LEXIS 7 

June, 1845, Decided 

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

This was an application for a writ of Mandamus, upon the petition of the State. It alleged, that the General Assembly of Maryland, by the act of 1841, ch. 23, entitled, "An act for the general valuation and assessment of property in this State, and to provide a tax to pay the debts of the State;" among other things enacted, that all stocks or shares, in any bank or company, incorporated by the said State, together with all other property thereby subjected to assessment and taxation, should be valued agreeably to the directions of said act, and chargeable according to such valuation, with the public assessment; which said assessment or tax, by the State of Maryland, was, by the said act of Assembly, fixed at twenty cents, or one-fifth of one per cent. in every hundred dollars worth of assessable property, for each and every year thereafter, to be collected as therein prescribed; and, that afterwards, by another act of the General Assembly of Maryland, made and passed at December session 1841, ch. 328, a further additional annual tax, of five cents in the hundred dollars, to be levied and collected in the same manner as the first mentioned tax,  [**2]  was imposed upon all the property assessed by the first mentioned act of Assembly, the said taxes collectively amounting to twenty-five cents, or one-fourth of one per cent. annually, in every hundred dollars worth of such property.

Your petitioner further states, that by the second section of the said first mentioned act, the city of Baltimore, in said State, was divided into assessment districts, as therein specified; that by the ninth section thereof, it was declared to be the duty of the assessors, appointed by said act, to value all such assessable property at its full, cash value, in the names of the owners thereof respectively; that by the sixteenth section thereof, it was enacted, that for the purpose of valuing the stock of banking, and other private corporations, held by non-resident stockholders, it was thereby declared and understood, that the stock of a banking, insurance, or other corporation, usually termed a moneyed institution, should be situated at the place in which the principal office for transacting the business of such corporation should be situated, and for the effectual collection of the taxes assessed on the stock of private corporations, held by non-residents,  [**3]  it was enacted, by the seventeenth section thereof, among other things, that the stock of corporations, liable to assessment under said act, held by persons, non-residents of said State, should be valued at its actual cash value, to, and in the name of such stockholders respectively; but, that the tax assessed on said stock should be levied and collected from said corporation, unless paid by such stockholders, and should be charged to such stockholders respectively, and be a lien on their respective stocks: that by another act of the General Assembly of Maryland, made and passed at December session 1841, ch. 281, it was made the duty of the president, or other proper officer of every bank, or other private corporation in the said State, to set apart and withhold, out of the dividend of the stock of such corporations, the amount of the tax levied by the first mentioned act semi-annually, and pay the same to the collector of the county, city, or district, in which such bank or corporation might be situated: that the General Assembly of Maryland, in substitution for the former enactments on the subject, at its December session 1843, made and passed an act, entitled, "An act entitled a [**4]  supplement to the act entitled an act to facilitate the collection of a portion of the tax levied in pursuance of the act passed at March session 1841, ch. 23," wherein it is enacted, that it should be the duty of the president, or other proper officer of the banks, and of all other of the incorporated institutions of this State, semi-annually, after the passage of the said act, (which passed on the 8th March 1844,) to set apart, and withhold, out of the dividends or profits, when dividends are not declared on the stock of said banks, or other incorporated institutions, the amount of the tax levied on the stocks of said banks, and other incorporated institutions, under the act of March session 1841, ch. 23, and its supplements, without reference to the place of residence of the stockholders therein, and to pay the said tax to the treasurer of the said State, who should give proper receipts therefor: that at the time of the passage of the first mentioned act of Assembly, there was, and from thence hitherto has been, a certain bank of the said State, duly incorporated by the laws of the said State, under the name and style of the Farmers and Planters Bank of Baltimore, and that its principal [**5]  office for the transaction of its business then, was and is situated in the said city of Baltimore, in the State aforesaid, in the fourth assessment district of said city; and that by the force and exigency of said first mentioned act, the stock of said bank then was, and is situated in said city and district, and that William E. Mayhew, Esq., of the city of Baltimore, from thence hitherto has been, and yet is, the president of the said bank.

Your petitioner further states, that shortly after the passage of the said first mentioned act of Assembly, the stock of the said bank was duly valued by the proper, then assessors, under said act, at the city, and assessment district aforesaid, and that twenty-three thousand, four hundred and twenty-five shares of the stock of said bank, being the number of assessable shares, were then, by them, valued at $ 19.50 a share, being the cash value thereof, amounting, altogether, to the sum of $ 456,787.50, and that the same valuation, under the said act, has ever since subsisted, and is now in force; that at the time of the passage of the last mentioned act of Assembly, of December session 1843, and ever since the said shares of stock, so valued [**6]  as aforesaid, were, and are liable to pay the said taxes, under the two first above mentioned acts of Assembly, to the said State, amounting, annually, to $ 1141.96; and that since the passage of the said last mentioned act of Assembly, the said bank has made great profits, and has declared three several dividends, that is to say, a dividend on the 1st July 1844, and dividends on the 1st day of January and July respectively, in the year 1845, each of which said dividends, far exceeded the amount of such taxes due on the said shares of stock at the time such dividend was declared: that by force of the last mentioned act of Assembly, it has been, and is, the duty of the said Wm. E. Mayhew, as such president of the said bank and its proper officer in that behalf, ever since the passage of such act, semi-annually to set apart and withhold, out of such dividends or profits, the sum of $ 570.98, being the moiety of the taxes, annually since accruing and levied on the said stock at such valuation as aforesaid, and pay the same to the treasurer of the said State, upon his proper receipts therefor, for the benefit of your petitioner; but although the said treasurer has always been, and is,  [**7]  ready and willing to give such receipts therefor, the said William E. Mayhew, so being such president of the said bank, as aforesaid, has utterly refused, and still refuses, to comply with the exigencies of the said last mentioned act, and semi-annually to set apart and withhold such last mentioned sum out of such dividends or profits for such taxes as aforesaid, and pay the same over to the said treasurer of the said State, for the benefit of your petitioner, and the sum of $ 1712.94, for such taxes, as aforesaid, accruing since the said passage of the said last mentioned act, remains in arrear, and wholly unpaid to the said treasurer of the said State. Prayer for a writ of Mandamus, to be directed to the said Wm. E. Mayhew of the city of Baltimore, in the State of Maryland, President of the Farmers and Planters Bank of Baltimore, commanding and enjoining him, according to the exigency of such last mentioned act of Assembly, semi-annually to set apart and withhold out of the dividends, or profits, when dividends are not declared upon the said shares of stock so valued as aforesaid, the sum of $ 570.98, being the amount of the taxes levied on the said shares of stock of the said bank,  [**8]  under the act of March session 1841, ch. 23, and its supplements, and pay over the same to the treasurer of the State of Maryland, upon his proper receipt therefor; and, also, to pay over to the said treasurer of the State of Maryland the said sum of $ 1712.94, for such taxes on the said shares of stock so remaining in arrear and unpaid, as aforesaid, upon his proper receipt therefor, according to the exigency of such act of assembly.

And, thereupon, on motion of the State of Maryland, aforesaid, the county court, (LEGRAND, A. J.,) passed the following order, to wit:

Ordered, by Baltimore county court, this 29th day of November, A. D., 1845, that the President of the Farmers and Planters Bank shew cause, on or before three o'clock this day, why Mandamus should not issue, as prayed, in the foregoing petition, provided a copy of this order, and said petition, be served on the president aforesaid, on or before two o'clock this day.

The parties aforesaid, by their attorneys aforesaid, file in court here, the following agreement and admission, to wit, (annexed to the petition aforesaid:) It is admitted, that the facts set forth in the above petition, are true. It is also [**9]  admitted, to be taken with the said facts, into the consideration of the court, that to pay over the tax, as required by the acts of Assembly, mentioned in the within petition, would be attended with additional labor, trouble and expense, to the said Mayhew, as president of the said bank. It is agreed, that all proceedings preliminary to a peremptory Mandamus, are waived on both sides, and that the above petition, with this statement, be submitted to the said court for its judgment, and that said judgment shall be rendered pro forma, against the State, with liberty of appeal.

On the 29th November 1845, in compliance with the agreement of parties filed, it was ordered by the court, that the rule for the Mandamus, is discharged pro forma, with costs, with the right of appeal reserved to the State.

The State prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The act of March session 1841, ch. 23, provided for a general assessment of all the real and personal property within this State, and directed, that the capital stock of the several banks, and other incorporated institutions of the State, should be assessed to its owners at its cash value, and taxed at one-fourth of one per centum.

All the property of such banks, &c., the stock of which was thus assessed and taxed, being exempted from taxation, the taxation of such stock is constitutional.

To relieve the proprietors of such stock, and facilitate the collection of the tax thus imposed, the act of 1843, ch. 289, made it the duty of the president, (or other proper officer) of such corporations, semi-annually, to set apart, and withhold out of the dividends, or profits, the amount of the tax levied on such stocks, and pay the same to the treasurer of the State.

The act of 1843, is a legitimate exercise of power, incident to the sovereign right of levying taxes for the support of government.

By the act of 1843, the place and mode of levying and collecting such tax are changed; it was no longer collectable where the stockholders resided; it ceased to be a debt or duty chargeable on them: they were exonerated from all personal liability for its payment: the stock, itself, stood exempt from its payment, and the security of the State therefor, became contingent.

For the recovery of such tax, the State has no lien on the stock; can maintain no action at law, either against the stockholder, bank, or any officer of the bank, in his official character; nor an action for money, had and received against any such officer, in his individual capacity.

But the State has a legal right to be paid out of the dividends declared, or profits made, the amount of the tax on the assessed value of such stock, and for the assertion of such right, having no appropriate legal remedy, is entitled to the writ of mandamus against the president or other proper officer of any such corporation.

The president of a bank, &c., is not, by the nature of the duty imposed upon him, by the act of 1843, created a State officer, a collector of the taxes due by the stockholders of the bank.

The object of the act was to command such president, he being already in possession thereof, to pay to the treasurer of the State the amount of State taxes in his hands, which, under the act of 1843, he had no authority to pay to any other person.

The General Assembly has the right, by legislation, to impose upon all property within the State, a just and proportionately equal public tax; to provide all means, details necessary for its speedy collection, by summary process of execution, or other reasonable or available means.

A power exercised by the General Assembly, from the adoption of our Constitution till the present time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of its possession by that body.

A contemporaneous construction of the constitution of such duration, continually practised under, and through which, many rights have been acquired, ought not to be shaken, but upon the ground of manifest error and cogent necessity.

Where the law provided for the valuation of bank stock, and it had been valued accordingly, and an act of Assembly prescribed the rate of taxation, and directed who should pay it, it cannot be said that the tax on such stock has not been levied: it is a legislative levy, wholly irrespective of the ownership of the stock.

As soon as a dividend is declared, the right of the State to so much of it as is required to be paid on account of the stock taxed, is fixed and indefeasible, and over-rides all other liens, claims or rights, by whomsoever asserted, unless, perhaps, it were in conflict with a preferred claim of the United States.

A citizen is not necessarily discharged from the obligation to perform a duty enjoined, by law, for the public good, because it imposes on him some additional labor, trouble and expense; as to perform militia duty, vote at the election of public officers, furnish true statements to assessors, obey the summons of executive officers, or arrest felons: in these, and other instances, the citizen must obey the law.  

COUNSEL:
By RICHARDSON, attorney general of Maryland, for the State, and

By DULANY and MCMAHON for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*494]  DORSEY, J., delivered the opinion of this court.
We deem it unnecessary [**10]  to decide a number of questions, argued with great ability, by the counsel of both parties; because, from the view we have taken of the record before us, they do not arise in this case.
According to our interpretation of the act of Assembly in question, the legislature have not attempted to exercise some of the powers so vehemently complained of, on the part of the defendant.
The act of March session 1841, c. 23, having provided for a general assessment of all the real and personal property within the State, directed, that the capital stock of the several banks, and other incorporated institutions of this State, should be assessed at its cash value. And all the property of such banks, and incorporated institutions, the stock of which was thus assessed and taxed, being exempted from taxation, as far as concerns the present controversy, the taxation of such stock, was decided to be a constitutional tax, both by the Supreme Court of this State, and of the United States. Difficulties having arisen from the mode provided, for the collection of the tax on said stock; and the peculiarly fluctuating ownership of such property, frequently rendering it a matter of controversy, by whom [**11]  the tax ought to be paid, to remedy such evil; and to relieve the owners of stock, who might sell the same, from the inconvenient necessity of going to the county town, to attend a meeting of the justices of the levy courts, commissioners of the tax, or county commissioners, (as the case may be,) and furnishing proof of the sale and transfer of the stock, that it might be deducted from the amount, standing against them on the books of assessment; and to relieve the stockholders, as well as the other tax payers of the counties, city and district, from the payment of a levy of from three to ten per cent., on the amount of tax levied on such stock; and with a view, to provide a far more just, convenient and safe mode of collecting the public revenue, arising from the capital stock of banks, and other incorporated institutions in the State, the legislature, by the first section of the act of 1843, chap. 289, enacted, "that it shall 

 [*495]  be the duty of the president, or other proper officer of the banks, and of all other incorporated institutions of this State, semi-annually, after the passage of this act, to set apart and withhold out of the dividends, or profits, when dividends [**12]  are not declared, on the stock of said banks and other incorporated institutions, the amount of the tax levied on the stocks of said banks, or other incorporated institutions, under the act of March session 1841, chapter 23, and its supplements, without reference to the place of residence of the stockholders therein, and to pay the said tax to the treasurer of this State, who shall give proper receipts therefor." And by the third section of the said act, it is enacted, "that on the first day of June next, the several levy courts, commissioners of the tax, and the appeal tax court of Baltimore, shall deduct from the amount of the assessment of property, in the several counties, Howard District, and the city of Baltimore, so far as relates to the taxes imposed, for the use of this State, the assessed value of the aforesaid stocks, and that thereafter, the accounts for taxes due this State, shall not include the tax upon the aforesaid stocks."
To the provisions of the first section of the said act of Assembly, a great variety of objections have been taken, and elaborately and ingeniously pressed upon the court.
First it is insisted, that the defendant, from the nature of [**13]  the duty imposed on him, is created a state officer, a collector of the taxes, due by the stockholders of the bank. To this proposition, we cannot yield our assent. Neither the design, nor operation of the law, will warrant such an interpretation of it. Its object was, not to require the officer of the bank, to collect taxes due to the State; but to command him, he being already in possession thereof, to pay to the treasurer, the amount of state taxes in his hands; which, under the act of 1843, he had no authority to pay to any other person. By the act of March 1841, c. 23, the stock of the banks, owned by residents of the State, was assessed to the individual stockholders; and the tax thereon, was to be collected from them, in the counties, city or district in which they respectively resided. But, under 

 [*496]  the act of 1843, the place and mode of levying and collecting this tax, are entirely changed. It was no longer collectable where the stockholders resided: it ceased to be a debt, or duty chargeable upon them: they were exonerated from all personal liability, for the payment thereof. Even the stock itself, stood exempt from the payment of the tax. The only security which [**14]  the State had for its payment, was contingent; it depended entirely upon the contingency of the banks declaring dividends, or making profits, without declaring dividends. And out of those dividends or profits, by terms of the most explicit enactment, the tax on the stock, was directed to be paid to the treasurer of the State, by the proper officer of the bank; that is, by him, in whose hands the dividends and profits of the bank, are placed for safe keeping, and payment over to the persons entitled to receive the same. And if the objections, taken to the constitutionality of this act of Assembly, be not sustainable, he was as imperatively bound to pay the tax in question, in the manner directed, as he would have been, had the board of directors enjoined him to do so.
The next objection taken to this act of Assembly is, that it is in violation of the sixth article of the Bill of Rights, which declares, "that the legislative, executive, and judicial powers of the government, ought to be forever separate and distinct from each other:" and of the twenty-first article of the same instrument, which provides, "that no free man ought to be taken or imprisoned, or disseized of his freehold,  [**15]  liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land."
According to the argument in behalf of the defendant, if carried out to its legitimate extent, the legislature may cause an assessment to be made, and prescribe the rate of taxation, but there its powers upon the subject cease. It must be left to some judicial tribunal of the State, to ascertain the amount of indebtedness of the individual tax payers; and when thus ascertained, the payment of taxes, can only be enforced by a resort to the judicial tribunals of the State, in the same manner that debts are recovered 

 [*497]  by one citizen from another. If such be the constitutional restrictions imposed on the powers of taxation, the sovereign authority, of the State is virtually disrobed of its most important and invaluable rights, of the very essence of sovereignty. The delays and expenses, incident to such a system of collecting the public taxes, would effectually paralyze the right arm of government, and render it wholly incompetent, to the accomplishment of the all important objects for which [**16]  it was constituted. That the General Assembly of Maryland has the right, by legislation, to impose upon all property within the State, a just, and proportionately equal public tax; and, in like manner, provide all the means, details, necessary for its speedy collection, by summary process of execution, or other reasonable or available mode is, we believe now, for the first time, made the subject of a doubt. That such powers should have been exercised, without being questioned, from the time of the adoption of our Constitution, till the present time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of their being possessed by the legislature. A cotemporaneous construction of the Constitution of such duration, continually practised under, and through which, innumerable rights of property have been acquired, ought not to be shaken, but upon the ground of manifest error and cogent necessity. If imperious necessity be appealed to, in relation to the existence of such a power, it sustains it with resistless force. And if a case can be conceived, in which, both as to time and circumstances, this court would shrink, with repugnance, from the innovation now [**17]  urged upon it, this is that occasion.
It has been contended, that the tax, for the recovery of which the present proceedings were instituted, has never been levied; and, therefore, the officer of the bank is neither authorized nor bound to pay it to the treasurer. The answer to this suggestion is, that the acts of Assembly have made the levy. The assessment of the stock having been made, and the rate of taxation prescribed, and the obligation for its payment being imposed on the bank officer; every thing has been 

 [*498]  done by the legislature, which is requisite for it to do, to render the tax available to the State. The tax, by the act of Assembly, is directed to be paid out of the dividends or profits of the stock, not by the owners thereof. It is a legislative levy, wholly irrespective of the ownership of the assessable stock. When the General Assembly confide to the levy courts, or county commissioners, the power and duty of making what is called "the levy of the taxes;" that is, of making out the "tax list," and delivering a copy thereof to the collectors; it is done, not because the legislature do not possess the power of discharging the same duty itself, by express legislative [**18]  enactment, but because the power can be more conveniently and advisedly exercised by the justices of the levy courts and county commissioners, to whose custody are confided the books of assessment containing all transfers of assessable property; without which transfer books, no "levy list," or "tax list," (as it is indiscriminately called,) can be correctly made out.
It is also contended, that a Mandamus ought not to issue in this case, because the officer of the bank, to whom it will be directed, is ignorant of, and has no means of ascertaining the amount of the tax to which the State is entitled; the stock of the bank being assessed at different values, in the different portions of the State, where the stockholders reside. If this could, in any case, (considering the facility with which the requisite information could be obtained,) furnish a ground for refusing to comply with the requisitions of the act of 1843; it certainly has no application to the case now before us. Here all the facts stated in the petition are admitted to be true; and the petition expressly states, that all the stock of the bank was duly valued, by the proper assessors, at $ 19.50 per share, so that the [**19]  same rate of tax is chargeable in respect to each and every share of the stock of the bank. There is, therefore, in this case, no pretence for the alleged inability of the officer of the bank, to comply with the requirement of the act of Assembly, by reason of any diversity in the assessed value of the shares of bank stock. And there is still less reason, in the refusal of the proper bank officer to pay the State tax, on 

 [*499]  the ground of the injustice done to the stockholders of this bank, by the tax laws of the State. By taxing the stock of the bank, instead of its bills, bonds, notes, judgments, mortgages, and all its other property, real and personal; the bank does not pay, perhaps, one half of the tax it would pay, if its property were assessed and taxed in the same manner that similar property of all citizens of the State is now assessed and taxed.
It is further said, that the act of 1843, if complied with, would render taxation unequal, by compelling the tax of the stockholders to be paid in cash, whilst other tax payers possess the power of paying in coupons. Such was not the design, nor is it the practical operation of that act of Assembly. The legislature, by it,  [**20]  neither intended to increase nor diminish the amount of the tax levied upon bank stock. And the treasurer of the State receives, from the officers of the banks, coupons in payment of such taxes, in the same manner that they are received in payment of taxes due by the citizens of the State.
Neither is the objection to the act of 1843 well founded, that it compels the officer of the bank to pay the tax upon the whole capital stock of the bank, although portions of it might be exempt from taxation, as being owned by other banks or incorporated institutions, (the stock of which was taxed,) or as being owned in such manner, as to be exempt from taxation under the first section of the act of March 1841, chapter 23. All transfers of bank stock, and the names of its owners, appear upon the books of the bank, and should any of its stock be exempt from taxation, as above mentioned, the officer of the bank is not bound to pay the tax upon it, nor would the treasurer of the State insist upon its payment. But the conclusive answer to such an objection, in this case, is this, that the petition states, and its statements are admitted to be true, the assessment and tax of the stock in 1843, and its [**21]  then and continued liability to such assessment, up to the time of the filing of the petition now before the court.

 [*500]  Another of the reasons, assigned for the non-payment of the tax to the treasurer, is, that the bank may have a lien upon the dividends for a balance due to it by the owner of the stock. The obvious answer to this is, that as soon as a dividend is declared, the right of the State to so much of it as is required to be paid on account of the tax, is fixed and indefeasible, and over-rides all other liens, claims, or rights by whomsoever asserted, unless, perhaps, it were in conflict with a preferred claim of the United States.
It has been urged, too, as an obstacle to the issuing of a Mandamus in this case, that the board of directors may have forbidden the payment of the tax by the officer of the bank. The record presents no such fact to the court, and we would very reluctantly credit its existence. Had such a prohibition been made apparent to the court, we feel assured it would have lent a willing ear to an application of the attorney general, for the interposition of the court in removing the difficulty.
The only remaining ground on which the officer [**22]  of the bank places his refusal to comply with the mandates of the law, is that a compliance would subject him to "additional labor, trouble and expense." To what extent, or in what way such "additional labor, trouble and expense" would be incurred, is left wholly unexplained. A citizen is not necessarily discharged from the obligation to perform a duty, enjoined by law, for the public good, because it imposes on him some additional labor, trouble and expense. The law requires a certain portion of its citizens to perform militia duty, by attending public musters on certain days in the year, which subjects them to much more labor, trouble and expense, than that imposed upon the officer of the bank in the discharge of the duty, now the subject of our consideration. The law requires every voter to go to the polls and vote at the election of public officers. It also enjoins upon every taxable inhabitant of the State, the duty of furnishing to assessors, a true and detailed statement of all his property liable to taxation, and of all such property in his possession, though belonging to other persons. A duty, in many instances, attended with far more labor, 

 [*501]  trouble, and expense,  [**23]  than is required of the bank officers, (under the act of 1843,) in consequence of the particular situation they occupy, in regard to important rights and interests of the State. Every citizen summoned by an executive officer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the service required, although it may subject him to danger, as well as "additional labor, trouble and expense." Yet in all these, and numerous other instances of the kind, which might be enumerated, nobody ever doubted the obligation of the citizen to obey the mandates of the law. Suppose, instead of providing for the collection of taxes, through the instrumentality of collectors, the legislature had dispensed with collectors, and required all those bound for the payment of taxes to pay them to the treasurer, at the treasury of the State. Could the constitutionality of such legislation be, for a moment, the subject of a doubt? We think not. For the time, manner of payment, and collection of the public taxes, it is the peculiar province of the legislature to provide. It may, in its discretion, make the tax levied, [**24]  a charge or lien on the property assessed, or its profits, or a personal charge or debt to the owner thereof. In the case of bank stock, the tax upon it is made, as it were a lien upon its dividends or profits, and to be paid thereout; and such dividends, or profits, being in the hands of the proper officer of the bank, he is required, by the act of 1843, to pay the portion thereof, to which the State is entitled for taxes, to the treasurer of the State. In this enactment, we can discover nothing unjust or oppressive, or in anywise conflicting with any thing to be found in the Bill of Rights, but we regard it as the legitimate exercise of a power incident to the sovereign right of levying taxes for the support of government.
The defendant having failed to inform us how, or to what extent, the duty imposed on him by the act of 1843, has subjected him to "additional labor, trouble and expense," let us inquire whether this "additional labor, trouble and expense" be so unreasonable, unjust and onerous, that this court, in the 

 [*502]  exercise of a sound, judicial discretion, ought to deny to the State, the process that has been applied for, in its behalf. To do this, we must ascertain [**25]  what are the acts to be done by the bank officer, in discharge of the duty assigned him by the act of Assembly? He must multiply the number of shares, to wit: 23,425 by $ 19.50, the assessed value of each share; and of the amount thus obtained, ascertain what is the one-fourth of one per cent. Having thus discovered the amount of the State tax if paid in money, with the prices current before him, which in a newspaper or otherwise, is to be found in every banking institution, he sees the price of coupons, and calls on a broker, or drops a line to a broker to call on him, purchases a coupon for the amount of the State tax, encloses it in a letter to the treasurer, and the next day, or the day after, receives a letter from the treasurer, containing the appropriate receipt. The postage on this letter being five cents, is, as it ought to be, paid by the bank: so that in truth, not a farthing of expense is incurred by the officer of the bank, in the discharge of this, his most onerous duty. He then divides the sum paid for the coupon, by the aforementioned number of shares, and the quotient is the amount of the tax attributable to each share of stock. He then directs the clerk of the bank,  [**26]  by whom the statement is made out for the payment of the dividend, to deduct from the dividend of each stockholder the amount, arrived at by multiplying his number of shares by the sum payable as the tax on each share, and there ends all the "additional labor, trouble and expense," of which the bank officer complains. If the entire labor and trouble thrown, in this case, upon the officer of the bank, were to be wholly performed by a single competent clerk, he would not be thus occupied for the half of a day. And if the directors of the bank would, as they ought to do, cause the coupon, for the payment of the tax on its stock, to be purchased before declaring the dividend, the officer of the bank, would be saved more than half the labor and trouble cast upon him by the act of 1843. This is a computation of the duties of the bank officer as to the first dividend, which, in a great degree, supersedes the 

 [*503]  necessity of similar calculations at subsequent dividends. The services thus rendered by the bank officer, though nominally for the State, are in truth performed in the way of his vocation, for the benefit and as the agent and representative of his employers, of whom the State [**27]  might lawfully have exacted, the services thus performed by him. Under such circumstances, can this court do otherwise, than regard this alleged "additional labor, trouble and expense," to the officer of the bank, as a ground wholly insufficient, to avoid the payment of taxes most justly due to the State.
The agreement of the counsel filed, in this cause, renders it unnecessary for us to say any thing, as to the propriety of applying for a Mandamus against the president, instead of some other officer of the bank.
The only remaining question to be considered, (if indeed a question it can be called,) is whether, in the case before us, a Mandamus is the appropriate remedy, to restore the State to those rights, which are illegally and unjustly withheld from it. For the recovery of the tax on the stock of the bank, the State has no lien on the stock; it can maintain no action at law against the stockholder; nor against the bank; nor against any officer of the bank in his official character. Nor can it maintain an action for money had and received, against any officer of the bank, in his individual character. Yet, under the act of 1843, we are of opinion, that it has a clear and [**28]  unquestionable right, a legal right, to be paid out of the dividends declared, the amount of the tax imposed on the assessed value of the stock of the bank. And for the assertion of this right, it has no appropriate legal remedy. According then to all the authorities, a Mandamus is the proper remedy; and it would be a reproach to our system of jurisprudence, if it were denied to the State on the present occasion.
The pro forma judgment of the county court is reversed, with costs, and a procedendo awarded.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

10 of 42 DOCUMENTS 

THE MERCHANTS BANK vs. THE MARINE BANK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 96; 1845 Md. LEXIS 13 

June, 1845, Decided 

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

This was an action of assumpsit, docketed by consent to January term 1840, by the appellees against the appellants.

The general issue only was pleaded.

At May term 1840, the parties filed the following statement, signed by counsel:

Joel Vickers, on the 20th September 1839, deposited in the Marine Bank of Baltimore $ 762, and received therefor the annexed certificate of deposit, which, it is admitted, is the usual form of certificate of deposit in the banks of this city. J. Strodtmann, to whose order said certificate was made payable, was personally unknown to the officers of said bank, had never been among its customers, and never had any previous transaction with the bank. The hand-writing of Strodtmann was unknown to the officers of the bank, but it is admitted, that after the deposit was made, Philip Littig, Jr., Cashier of the Marine Bank, received from a brother-in-law of J. Strodtmann, a signature of     Strodtmann, as he stated at the time, which the said cashier pasted in the signature or firm book of the bank, but without informing any of the clerks of the bank that he had done so, nor was it, in his opinion, material,  [**2]  according to the usage of that bank, as certificates are usually given for the use of persons at a distance, as payees, whose signatures it is not the practice of the bank to obtain. It is admitted, that the signature of J. Strodtmann, pasted in the signature book as aforesaid, was genuine, and that the officers of said bank had access to said signature book, as well as to all the other books of the bank. The certificate was, on the 20th September 1839, enclosed by         in a letter directed to St. Louis. It was never received by said Strodtmann, but fell into the hands of some other person who forged thereon the endorsement of said Strodtmann, and passed it for a valuable consideration to B. Godfrey & Co., of Alton, in the State of Illinois, who endorsed and transmitted to Howes, Godfrey and Robinson, of New York, who also endorsed and transmitted it to Weld and Jenks of Baltimore, who kept an account with the Merchants Bank of Baltimore, in which account they were credited with this certificate on the 2nd day of November 1839, as cash, or endorsing and delivering said certificate to said bank. On the 4th November 1839, the Merchants Bank presented said certificate for payment [**3]  at the Marine Bank, and obtained the amount thereof. On the 21st of November ensuing, the forgery was discovered upon the complaint of the brother-in-law of Strodtmann, that said certificate had never come to hand, although an unusually long time had elapsed since its transmission. Immediately upon the discovery, and upon the same day, the Marine Bank gave notice to the Merchants Bank of the forgery, and demanded a return of the money paid to the Merchants Bank as the bearer of the certificate, the Marine Bank having since and before the institution of this suit paid J. Strodtmann, the payee of said certificate, the amount thereof. The question is submitted to the court upon the foregoing statement of facts, whether the Marine Bank is entitled to recover from the Merchants Bank the amount so paid. The annexed copy of the certificate, and of the endorsements thereon, it is agreed shall be received as a part of this statement.

The copy of certificate and endorsement above referred to is in the form following:

"$ 762. Marine Bank of Baltimore. Baltimore, September 20th, 1839. J. Strodtmann has credit for seven hundred and sixty-two dollars in the Marine Bank of Baltimore, subject [**4]  to his order on the return of this certificate, deposited by Joel Vickers. Signed, Philip Littig, Jr., Cashier."

Endorsed, "Pay to the order of B. Godfrey & Co. J. Strodtmann. Pay Howes, Godfrey and Robinson, or their order. B. Godfrey & Co. Pay Weld and Jenks, Howes, Godfrey and Robinson. Weld and Jenks."

"The Marine Bank of Baltimore paid the amount of the within certificate to the Merchants Bank of Baltimore, on the 4th November 1839. D. Sprigg, Cashier."

"January 10th, 1840. Received payment of the Marine Bank of Baltimore. J. Strodtmann."

(Written in red ink on the face.) "Number one hundred and seventy-four, seven hundred and sixty-two dollars. Louis E. Smith, B'k."

At January term 1841, the cause was tried and a verdict rendered for the defendants. The plaintiffs, now appellees, appealed; and in the Court of Appeals the record was amended by a further agreement to insert, in the statement of facts in the fourth sentence thereof, the following words, "after said certificate of deposit was issued, and before it was presented for payment to said Marine Bank," so that said sentence shall read as follows--"Philip Littig, Jr., Cashier of the Marine Bank, after [**5]  said certificate of deposit was issued, and before it was presented for payment to said Marine Bank, received," &c. That the Marine Bank, at the time of paying, and the Merchants Bank at the time of receiving the amount of the certificate of deposit, on November 4th, 1839, were both ignorant of the forgery; also, that the name of Strodtman was correctly written "mann" in the body of the certificate, while the forged endorsement was written "man."

And the judgment was reversed and the cause remanded.

At the second trial in the county court, the plaintiffs obtained a verdict, and the defendants below prosecuted this appeal.

1ST EXCEPTION. At the trial of the case, the plaintiffs to maintain the issue on their part, offered to read in evidence to the jury the statement of facts agreed upon by the counsel of the parties, and submitted to the county court upon the previous trial of the cause, to the admissibility of which, as evidence in this trial, the defendant objected; but the court overruled the objection, and permitted the said statement to be read in evidence, and it was accordingly read to the jury by the plaintiffs, to which the defendant excepted.

The plaintiff [**6]  next proved by Louis E. Smith, an officer of the Marine Bank, that on the day the forgery was discovered, he apprised Mr. Sprigg, the cashier of the defendant, of the fact of the forgery, and demanded payment of the amount previously paid to the defendant by the Marine Bank on said certificate; that Mr. Sprigg gave it as his opinion that the defendant was both legally and morally bound to refund the amount, but asked a short time for consultation with Weld and Jenks, who had deposited the certificate with the defendant, and promised to give an answer upon the subject in about half an hour; that after the lapse of the time appointed, or thereabouts, the witness called again, and told Sprigg that the Marine Bank was anxious to have a positive answer, as the brother-in-law of Strodtman was waiting to receive one; that Sprigg then informed the witness that it was all right, and that the amount would be refunded; that the witness then asked him, (Sprigg,) for the amount, and that Sprigg, with a view as witness supposed, of directing the teller of the defendant to pay the amount, advanced towards said teller, but finding the latter busy stopped; that witness then asked him if the matter [**7]  was to be considered settled, to which Sprigg replied yes, and authorized witness to have it sent in the lists which are exchanged every morning between the banks; that from the usage among bank officers so to do, he relied as confidently on the statement of Sprigg that it would be done, as if it was done, and witness therefore considered the promise of Sprigg, and the direction to send in the certificate, as equivalent to the allowance of a credit to the Marine Bank to the amount of the certificate, and an absolute settlement of the transaction; that with this understanding witness returned to the Marine Bank, and communicated the result of his interview, and immediately thereupon, and in consequence of the assurance of Sprigg, the brother-in-law of Strodtman, was instructed by the Marine Bank to inform him, (Strodtman,) that the amount of the certificate was held by the Marine Bank, subject to his order, and that Strodtman, being thus informed, came on from St. Louis to Baltimore, and the amount was paid to him by the plaintiffs upon the 10th January 1840, as appears from the endorsement upon the certificate; that no entry however was made in the books of the plaintiff's bank, shewing [**8]  that this amount was passed to the credit of Strodtman, and no memorandum in writing was made of the promise to the brother-in-law. The plaintiffs then gave in evidence by the same witness, the check list of the plaintiffs of the 22nd of November 1839, and that said list was transmitted by the plaintiffs to the defendant on the following morning, to wit, on the 23rd of November.

________________________________________________________________________________
"MERCHANTS, Nov'r 22, '39.	
A	  80	
C	  40	
	  33 37	
	  50	
	
	 203 37	
Not (in pencil,)	 762	
	
	 965 37	
	3490 10	
	
	2524 73	
________________________________________________________________________________

Paid Mr. Dorsey seven hundred and sixty-two dollars, to be settled this day, November 23rd 1839. Marine."

And that the item of $ 762, appearing on that day in said list, was for the certificate of deposit given in evidence, which was also sent in to the defendant upon the morning of the 23rd of November, in pursuance of the previous direction of Sprigg; and further proved by said witness, that according to the usage and practice of banks, the check list dated on any particular day, is not sent in by one bank to another until the day following its date.

The defendant then to maintain the issue on its part joined, read in evidence [**9]  the testimony taken under the commissions sent for that purpose to Alton, Illinois, and New York city.

Deposition of Winthrop S. Gilman for the defendants: I saw the check marked A on or about the 8th October, A. D. 1839, when it was presented at the counting room of B. Godfrey & Co. for sale, by and in possession of a young man introduced to me by George W. Fox, whose name was John Strodtman. The firm of B. Godfrey & Co. purchased said check on the 8th October, A. D. 1839, from Mr. John Strodtman aforesaid, and gave him for same one and a half per cent. premium, paying him two hundred dollars cash, and the balance in two notes of hand, payable forty days from the 8th of October 1839, and due on the 17th and 20th November 1839, which said notes were paid by said firm of B. Godfrey & Co. I knew a person by the name of John Strodtman in October 1839, who had resided with Mr. George W. Fox, near Alton, but who stated he was then residing in St. Louis. I do not know when he left Alton, or where he is now residing. I was first informed that the first endorsement on the back of said check was a forgery, through a letter from Messrs. Howes, Godfrey and Robinson to B. Godfrey & Co., dated [**10]  New York, 29th November 1839, and received by them on the 13th December, A. D. 1839, about which time said letter was seen by me. Neither myself nor the firm of B. Godfrey & Co., to my knowledge, had any notice that said endorsement was a forgery at the time of the purchase of said check by said firm. To my knowledge, the purchase of, and payment for said check by B. Godfrey & Co., was a bona fide transaction. The firm were very careful in such purchases, and in this instance became satisfied that the interest in the check was really vested in the party offering it for sale. To the cross-interrogatory on the part of the plaintiff, he deposeth and saith, I first saw the check on or about the 8th day of October 1839, at the time it was offered for sale to B. Godfrey & Co., and in the possession of Mr. John Strodtman. I was at that time a partner in the house of B. Godfrey & Co. Said certificate was purchased by said firm of B. Godfrey & Co., and the agreement for price, and the payment for the check, were made in Alton, as stated by me in my answer in chief. I had no previous acquaintance, nor had B. Godfrey & Co. any previous dealings with the seller of said check. He was recommended [**11]  by Mr. Fox as a correct man, Mr. Fox himself being a man of respectable character. I do not now recollect whether I heard what J. Strodtman's business was at the time of the purchase of the check. The answers to the interrogatories in chief have been given on my personal knowledge, my recollection has been refreshed by recourse to the books of B. Godfrey & Co., and I hereto annex a statement of the transaction as it appeared at the time, and as it has ever since appeared upon their books.

(B.)

________________________________________________________________________________
J. Strodtman.	
Dr. 1839--	Oct. 31st.--	To our note payable 17th,	
		  20th Nov. 1839,	$ 201 33	
	   "   "	To our note payable 17th,	
		  20th Nov. 1839,	375 91	
	   "   8,	To cash,	200 00	
	
			$ 777 24	
________________________________________________________________________________

________________________________________________________________________________
1829.--	Cr.	Oct. 8th.--	By certificate of deposite	
			  of Marine Bank of	
			  Baltimore,	$ 762 00	
			By premium on do. 1 1/2	
			  per ct.,	11 43	
			By interest on our notes,	3 81	
	
				$ 777 24	
________________________________________________________________________________

Deposition of Benjamin Ives Gilman, was similar to W. S. Gilman's.

Deposition of George W. Fox, for the defendants. I first saw it, the certificate, in the hands [**12]  of John Strodtman, who came from St. Louis to my house, and wished some advice as to negotiating, so that he might not be taken in. He shewed me a letter which he said was from his sister, written in German, and directed to him, advising him not to dispose of the certificate at less than its value. Said firm of B. G. & Co. did purchase said check from John Strodtman, sometime in the autumn of 1839; said firm gave for said check one and a half per cent. premium. If I remember right, they gave $ 200 cash, and the balance in notes at 40 days. S. lived with me from March 1839, to September 18th, 1839. I resided about two miles and a half from Alton. After he left me he went to St. Louis to reside, and said he was going to buy a farm in Missouri after he received the money from his sister. I did not see him again until he came back with the check, sometime in the month of October following. As he came to me for advice, I told him there were merchants in Alton who were doubtless in want of eastern funds, and accordingly introduced him to B. Godfrey & Co. He was a farmer; I know not where he now is. I know of no other man by the name of J. or John Strodtman or Strodtmann. It was several months [**13]  after he sold the check before I was informed that the name of J. Strodtman was a forgery. I was told by Mr. Gilman, one of the house of B. Godfrey & Co. I do remember that a man called at my house some months after the transaction, who said he was the real John Strodtman, making enquiry of me for the man who had worked for me by the name of John Strodtman. He wished to get information where the latter was, and said his real name was Andrew, if I remember right.

Deposition, James Robinson for the defendants. I have before seen the certificate marked A. I first saw it on or before the 23rd October 1839. It was received from B. Godfrey & Co., by H., G. & R. It was enclosed in a letter from B. Godfrey & Co., dated 9th October 1839, (being the letter hereto attached, marked C,) which was received by H., G. & R.; said letter was answered, (a copy of which letter is hereto attached, marked D.) The endorsement of B. Godfrey & Co., on said certificate, I am well acquainted with, and have no doubt of its being genuine. The endorsement on the certificate of H., G. and R. is genuine; I am a member of the firm and wrote it myself. The firm of B. G. & Co. was established in the year 1839,  [**14]  at Alton, in the State of Illinois, and H., G. and R. was established at the same time in the city of New York; they did correspond and do business with each other during said year. The character in which H., G. and R. received said certificate, was that of a remittance against a large indebtedness which then existed against B. G. & Co., and which indebtedness was caused by the purchase of goods for their account, the acceptance and payment of their drafts, and the payment of their notes and other business transactions, and said certificate was passed to their credit in account. H., G. and R. did pay said B. G. & Co's note to Goodwin, Fisher and Spencer, for $ 483, the day following the receipt of said certificate, say on the 24th of October 1839, which payment I do believe was made in consideration of the funds they expected to be realized of said certificate, and I do not think said $ 483 would otherwise have been paid. The account marked E is a statement of the account between the two firms, from the 23rd of October 1839, down to the 15th February 1844, which shews the debt existing when said certificate was received, and the balance due at the present time with interest thereon.  [**15]  Said certificate was remitted by H., G. and R. to Weld and Jenks, of Baltimore, on the 31st October 1839, in the letter marked B of that date; said letter was written by me. Said certificate was remitted to W. and J. for the purpose of collection, and providing them with funds which they were advised to pay on H., G. and R's account to Capt. Barze, of barque Isabella, and which they did pay out of the funds so collected from said certificate, to the amount of about $ 166. The notice of the first indorsement of J. Strodtmann on said certificate being a forgery, was first received by H., G. and R., between the 23rd and 25th of November 1839, being the letter marked F. H., G. and R. gave notice of the forgery to B. G. & Co., on the 29th November 1839, by letter, of which a copy is marked G. I stood in the relation of partner in the concern of H., G. and R., in October and November 1839, and have remained in same relation since, except for one year from April 1840, and am now a partner. B. G. & Co. failed about the 23rd October 1839; first note of their's which to my knowledge was protested, was on that day. My knowledge of the time B. G. & Co. having made payment to J. Strodtman for the [**16]  certificate in question, is derived only from their letter of 19th December 1839, which is marked H, and which contains all the information I have of the time and mode of ultimate adjustment of said certificate. The amount of said certificate was passed to the credit of B. G. & Co. in account, as certificate of deposit in the Marine Bank. The account marked I, is a copy of the account from their books, from 23rd October 1839, to the 1st January 1840. The house of B. Godfrey & Co. were in good credit here until their notes were protested.

Deposition of Theophilus Nelson, for defendants. The certificate was received from B. G. & Co., on account of an indebtedness to H., G. and R., although H., G. and R. did further advance funds for account of B. G. & Co., in anticipation of the payment of this certificate and other funds not then matured; the statement of the account between the firms from the time of the receipt of this certificate to this time is marked E. The certificate was remitted by H., G. and R. to W. and J., Baltimore, on the 31st October 1839; a letter marked B, now shewn me, was written by James Robinson, a member of the firm of H., G. and R., and the certificate was [**17]  enclosed therein to W. and J. The certificate was remitted to Weld and Jenks for collection, and to be credited to H. G. and R. in general account. H., G. and R. at the time designing said funds, or such part as might be required to meet the expenses of a vessel which they had sent to Baltimore to take cargo, and a part of which funds Weld and Jenks had used for that purpose previous to the discovery of the forgery. Notice of the forgery was first given to B. Godfrey & Co. on 29th November 1839, by letter, a copy of which marked G. During the months of October and November 1839, and since, was book-keeper for H., G. and R., and am in that situation at the present time.

(B.)

New York, 31st Oct. 1839.

Messrs. Weld and Jenks, Baltimore.

Gent:--We enclose certificate of deposit in Marine Bank of Baltimore, by J. Strodtmann, for $ 762, which please collect and pass to our credit. Capt. Barze, of barque Isabella, now on her way to your city, and chartered to load for Havre, will call upon you for some funds to pay his expenses, which please advance, and if in need of any assistance, we shall be obliged by your rendering them.

We remain your friends,

HOWES, GODFREY [**18]  AND ROBINSON.

(C.)

Alton, Oct. 9th, 1839.

Messrs. Howes, Godfrey and Robinson, New York.

Gent:--Our last respects were under date 7th inst., inclosing Norton Johnson's draft, 2nd inst., 30 ds. st., on Earp. and Bros., Phil., for $ 1000, which hope arrived safely. We now enclose certificate deposit in Marine Bank of Baltimore, dated September 20th, 1839, to order of J. Strodtman, for $ 762, which please place to our credit.

Your friends and serv'ts,

B. GODFREY, & Co., by C. J. Gilman.

(D.)

New York, October 23rd, 1839.

Messrs. B. Godfrey & Co., Alton:

Gen:--Yours of the 9th is received, covering certificate of deposit on Baltimore for $ 762, to cash, which we should to-day have to pay from 12 to 13 % discount, &c. We have advised Goodwin, Fisher and Spencer, that your note in their favor, due to-day, for $ 1031.67, would not be paid, giving them the reasons, and requesting that they should withdraw it from the bank, at the same time promising, that as soon as funds were realized, we would apply them to the payment of their note, crediting you with all remittances except the 30 days draft on Earp. and Bros., and the certificate of $ 762 [**19]  received to-day. Our cash-account stands very nearly square, and as we think it certain, that when the news of the suspension reaches you, the rates of exchange on New York will advance as it has done in Baltimore and Philadelphia, or even higher, and in consequence that you will cease remitting, we have thought it highly inexpedient, even were it in our power, to undertake to protect your notes due in this month, &c.

Signed,     HOWES, GODFREY AND ROBINSON.

(E.)

________________________________________________________________________________
B. Godfrey & Co. in account with Howes, Godfrey and	
Robinson.	
  Dr.--1839,	
Oct'r.	23.	To whole amount of debit to this	
		   date,	$ 43,881 23	
	24.	" cash paid their note to Goodwin,	
		   Fisher and Spencer,	483 00	
	31.	" expenses collecting drafts,	1 20	
Nov'r.	7.	"   do.   do.   do.,	1 35	
	13.	" exchange on Philadelphia funds,	127 50	
	26.	"   do.   do.   do.,	102 50	
Dec'r.	28.	"   do.   do.   do.,	128 33	
 1840,	
January	1.	" postage,	2 43	
		" balance of interest,	62 59	
	
			$ 44,790 13	
________________________________________________________________________________

________________________________________________________________________________
1839,	CR.	
Oct'r.	23.	By whole amount of credit to this	
		   date,	$ 35,223 84	
	"	 " certificate of deposite in Marine	
		   Bank, Baltimore,	762 00	
	31.	 " checks on United States Bank,	
		   Philadelphia, due Dec. 28,	1,509 81	
Nov'r.	7.	 " dft. E. C. Delavan,	134 90	
  1840,	
January	1.	 " balance to debit this date,	7,159 58	
	
			$ 44,790 13	
________________________________________________________________________________

 [**20]  

________________________________________________________________________________
DR.--1840.	
January	1.	To balance this date,	$ 7159 58	
		 " certificate of deposite on Marine	
		   Bank, Baltimore,	762 00	
________________________________________________________________________________

This account was further stated until the 16th March 1841, when the balance due H. G. and R. was $ 4914.73; and on the 10th October 1842, when it was $ 2468.78.

(F.)

Baltimore, November 22, 1839.

Messrs. Howes, Godfrey and Robinson--Gentlemen: We received notice to-day from the Merchants Bank, where we keep our bank account, that they had this day received notice from the Marine Bank, that the signature purporting to be that of J. Strodtmann on the back of the certificate of deposit, issued subject to his order by the Marine Bank, is a counterfeit. The circumstances are these: Mr. Joel Vickers, of this city, deposited the money in the Marine Bank, in the name and for the benefit of Mr. J. Strodtmann, the Marine Bank giving a certificate of deposit, payable to the order of J. Strodtmann, on return of said certificate of deposit. We deposited it in the Merchants Bank on or about the 2nd of November instant, and that bank, in course of their usual exchange of checks and settlement of balances, sent said [**21]  check in to Marine Bank the next morning as usual, and the amount thereof was duly passed to Merchant Bank's credit in settlement. Mr. Joel Vickers, who made the deposit in Marine Bank, has just received a letter from J. Strodtmann, dated St. Louis, Missouri, November 11, 1839, in which said Strodtmann advises of not having received any certificate of deposit, the receipt of which letter here has led to this development. On comparing the endorsement of the certificate with J. Strodtmann's signature, in his letter, there appears no similarity. The Marine Bank did not know the signature of J. Strodtmann, never having taken it. It is customary to draw the money for checks on other banks, or have the checks endorsed by the teller before depositing said checks. Our clerk took this certificate of deposit to the Marine Bank, before depositing it in Merchants Bank, and asked the teller if it was necessary to have it endorsed like any ordinary check. The teller took the certificate, looked at it, and returned it to the clerk, saying it was not necessary to have it endorsed. We have, of course, assured the Merchants Bank we will hold them harmless in the premises, and we will look to you to [**22]  make good that assurance. We wait your orders what course to pursue in regard to the Marine Bank. The Marine Bank demand of the Merchants Bank, that the amount be refunded; the matter stands open, waiting our action. The endorsements are J. Strodtmann to Godfrey & Co., or order, and by them to yourselves, or order, and by you to our order, and endorsed by us.

Your friends and servants,     WELD & JENKS.

(G.)

New York, November 29th, 1839

Messrs. B. Godfrey & Co., Alton.

Gentlemen:--Some time since we received from you a certificate of deposit in the Marine Bank of Baltimore, for $ 762. The same was made payable to the order of J. Strodtmann, and by him endorsed. On the 31st October, we sent the same to our friends, Weld and Jenks, of Baltimore, to collect and pass to our credit, intending to draw for it as favorable opportunities offered. Weld and Jenks collected the certificate through the Merchants Bank, where they keep their account, on or about the 2nd instant. On the 22nd instant, they advised us of having received notice from the Marine Bank, that the name of J. Strodtmann was a forgery, and the Marine Bank demands a return of the money from the Merchants [**23]  Bank, and the Merchants Bank from Weld and Jenks; the latter write to us for instructions. It appears that Mr. Joel Vickers, who made the deposit for Mr. J. Strodtmann's benefit, has received a letter from the latter, dated St. Louis, November 11, in which he says he has received no certificate of the kind; upon which information it is concluded, that the signature is a forgery; we have refrained so far from giving any direction to change the position of the draft, on account of our not knowing what would be the proper course to take. We have made several inquiries, but find it to be such a novel case, that hardly any one can venture an opinion with any degree of certainty. Mr. Shipman, however, thinks that the Marine Bank should have the amount refunded, and then hold it, (the original deposit,) subject to the order of the proper owner. We shall be glad to have your advice upon the subject as early as possible, and in the meantime, we shall endeavor to not move in the matter, without it may be actually necessary, or without we may become convinced of the proper course to pursue.

We remain, &c.,

(Signed,)     HOWES, GODFREY & ROBINSON.

Alton, 17th December, 1839.

Messrs.  [**24]  B. Godfrey & Co., Alton.

Dear Sirs:--The young man who sold you the check, or certificate deposit on Marine Bank, Baltimore, on 8th October last, came to live with me in March last, and remained with me till 18th September; his name was John Strodtmann, which I ascertained when he was subpoenaed last summer to attend a trial in Alton. On the 30th September, I settled with him, and hold his receipt, signed that day J. Strodtmann. He had intimated to my family, that he had money in the hands of a sister at the east, and about 8th October, he came to my house, stating he had received his money in a certificate of deposit, which was drawn to his order, and I had no doubt but it was correct. It was on the 8th October he sold the certificate to you, and if there be any thing wrong about it, it must be that there are two J. Strodtmanns, for that was certainly his name, and I had no doubt of his being the identical J. Strodtmann in whose favor the certificate deposit was drawn.

(Signed,)     GEO. W. FOX.

(H.)

Alton, 19th December, 1839.

Messrs. Howes, Godfrey and Robinson, New York.

Sirs:--Since ours of 25th October, &c., you will notice by the accompanying [**25]  letter from G. W. Fox, (a very respectable farmer here,) that we bought the check of J. Strodtmann, but as appears now, it is probable there were two Germans of that name. We do not wish it settled, except in accordance both with law and equity, and if you become convinced that it was our duty to know, that the J. Strodtman of whom we purchased, was the identical J. Strodtman alluded to in the certificate, and that it now proves that he was not the same, we suppose we must lose it. Your own judgment we commit it to, and shall be satisfied with any adjustment that is clearly right. If you have not forwarded our account current, please send it as early as possible, as we need on 1st January.

Yours truly,     B. GODFREY & CO.

(I.)

Same as E, to debit of 1st January 1840.

The defendant then further proved, by Daniel Sprigg, its cashier, that on the day of the discovery of the forgery, upon the certificate of deposit given in evidence, Mr. Smith, of the Marine Bank, called upon the witness, with the certificate, and said that the endorsement of J. Strodtman thereon, was a forgery, and which was the first notice witness had, that said endorsement was a forgery, and [**26]  inquired as to the course the Merchants Bank would pursue; to this witness replied, that the defendant would certainly settle it, for that he, (the witness,) conceived it both legally and morally bound to refund the amount, but that Weld and Jenks, who deposited it, would be consulted, and their and witness' decision made known. That a messenger was sent to those gentlemen, and Mr. Jenks, of that firm came, and after being made acquainted with the circumstances, and the opinion of the witness, of the liability of the defendant to the plaintiffs, and by consequence his to the defendant, he, (the said Jenks,) promptly differed in opinion, and stated that he did not consider the defendant or himself, legally or morally bound to return the amount. That said Jenks and the witness differed so widely in their views, that witness advised him, Jenks, to consult his counsel, and on being informed that he was out of town, witness proposed to send for the counsel of defendant, who witness was sure would confirm his views; this was agreed to, and witness accordingly sent for Mr. Brown, who appeared on the morning of the same day, and on relating the facts of the case to him, Mr. Brown said that [**27]  witness was wrong, and Mr. Jenks right. That witness then stated what had taken place between him and Mr. Smith, including his, witness' promise to settle the amount of the certificate; and further said, it would be necessary for Mr. Brown to go over to the Marine Bank, and state to the said bank, that witness was in error in regard to the obligation of the defendant to refund. That witness also requested Mr. Jenks to acquaint the proper officers of the Marine Bank with his, Jenks', unwillingness that the defendant should refund the amount of the certificate until after he should hear from his New York correspondents, from whom the certificate had been received. The said witness further testified, that in any engagement he had with Mr. Smith, he had regard, and he thinks express reference to the assent of Messrs. Weld and Jenks, whom he considered bound to defendant, if latter was bound to the plaintiffs, and that if those gentlemen objected, he could not pay it, and that he certainly made no promise to Mr. Smith after their objection.

The defendant then further proved, by George William Brown, that upon being sent for by Mr. Sprigg, as proved by that witness, he gave the opinion [**28]  as counsel of the defendant, that it was not legally bound to refund the amount of the certificate to the plaintiffs, and that Mr. Brune, who was upon that day president pro tem., in the place of Mr. Swan, who was out of town, agreed with witness in this opinion; that upon his, (witness,) giving this opinion, he went over on the morning of the same day, at the request of Mr. Sprigg, to the Marine Bank, and informed the president of the plaintiffs, and witness thinks also the cashier, that Mr. Sprigg was in error as to the liability of the defendant; and further, witness gave the plaintiff's president, and he thinks cashier, notice not to send in the certificate in the exchange lists upon the following morning, as the defendant, as then advised, would not pay the same. The same witness also testified, that he met at the Marine Bank, Mr. Jenks, of the firm of Weld & Jenks, who, while witness was in said bank, came there for the same purpose with himself, and on coming out of said bank, witness also thinks he met with Mr. Smith, to whom he made the same communication.

The defendant then further proved, by Richard Dorsey, Jr., that in 1839, he was runner of the defendant, and that [**29]  it was then the daily practice of the runners of the banks, to take to the other banks, a list or statement of the items, with the vouchers, upon which the banks so sending claimed a credit, and at the other banks to which these were taken, they received from the tellers thereof a list and vouchers, upon which credit was claimed by them, and that the balance of these items were struck, and if not objected to by either party before 11 o'clock on the morning of the day on which the exchange was made, the balance struck was considered settled; that sometimes, according to the practice, the runner of the defendant would go to the bank of the plaintiffs, and make with the teller of that bank the exchanges, and sometimes the runner of the Marine Bank would come to the Merchants Bank, and make with the teller of the latter bank the exchanges; that it was the practice for the teller of the one bank, and the runner of the other, at the bank where the exchange was made, to subtract the items of credit claimed by the one bank, from those claimed by the other upon the lists, and for the officer of the bank, against whom the balance appeared, to enter the balance in a book kept for that purpose,  [**30]  and for the runner, upon returning to his own bank, to take with him this substraction and result, together with the vouchers obtained at the other bank, for the examination of his own teller, and if the statement of credits was not objected to by 11 o'clock in the morning of the same day, the account was considered closed. The same witness also testified, that it was not the duty or business of the runners to examine the vouchers presented to them for credit at their bank, or to consider their correctness; that this was the business of the paying tellers, and that he, the witness, had no authority, while he was runner of the defendant, to bind it to the payment of money. The same witness further proved, that upon the morning of the 23rd of November 1839, after the exchanges had been made between the plaintiffs and defendant, in accordance with the usage of the banks, as proved by the witness, the certificate of deposit, given in evidence, was delivered to the paying teller of the defendant, Mr. Gill, together with the other vouchers, upon which the Marine Bank claimed credit. That Mr. Gill on seeing said certificate, immediately objected to receiving it, and to allow the credit claimed [**31]  for it, and sent the witness to the Marine Bank, with the message, that he, (the said teller,) could not receive it. That witness carried said certificate to the teller of the Marine Bank, and demanded the amount thereof, but received for answer from said teller, that Mr. Sprigg had told Mr. Littig or Mr. Smith, that it might be returned in the check list to the Merchants Bank. That witness then returned to Mr. Gill, with the certificate, and told him what Mr. Miller had said. That Mr. Gill gave the certificate back to the witness, and told him to tell Mr. Miller, that the Marine Bank must pay it, and that Mr. Sprigg, could settle it with the Marine Bank himself. That witness accordingly returned the certificate to Mr. Miller, and obtained the amount for which credit had been refused, in order that Mr. Gill might adjust his account. That all this took place before 11 o'clock of the 23rd.

The defendant then further proved, by William L. Gill, that he is the paying teller of the defendant, and was such in 1839, and that on the morning of the 23rd of November, in that year, when the check list from the Marine Bank of the previous day given in evidence was brought to him, with the [**32]  vouchers, upon which the Marine Bank claimed credit, the witness objected to allow a credit of $ 762, claimed on said list upon the certificate of deposit given in evidence. That witness wrote in pencil mark, the "not" upon said check lists opposite to said credit, to signify that he did not allow the same, and sent Mr. Dorsey, the runner, back with said certificate to the plaintiffs, to demand the amount of it from Mr. Miller. That Mr. Dorsey returned from the Marine Bank, and brought word from its officers, that Mr. Sprigg had said that it should be settled in this way; to this witness returned for answer by Mr. Dorsey, that this might be, but that witness could not receive it and allow the credit, and that the money must be paid. That the money was accordingly paid, and that these things took place before 11 o'clock of the said 23rd of November 1839. The said witness also proved, that by the custom of the banks, the tellers have until 11 o'clock of each day, to examine the items and vouchers upon which the other banks claim credit, and that by the custom, they may object to any items so claimed until that hour. That when any item is objected to, or not allowed, it is the custom [**33]  to send the runner for the money to the amount of the item claimed, and when the money is thus obtained, the item is permitted to stand in the list and the account; but if the item is a large one, it is more usual to correct the item which gives more trouble. The same witness proved the practice of making exchanges between the banks, in the mode stated by the witness, Dorsey, and testified to the duties of the runners and tellers of banks, as given in evidence by the same witness, Dorsey.

The defendant then gave in evidence, the account between the defendant and Messrs. Weld and Jenks, from the 1st of November 1839, to the 1st of December of the same year, taken from the books of the defendant, shewing the balances upon each day during that period.

________________________________________________________________________________
1839.	
Nov. 1.	Amount in bank,	$ 6,648 56	
2.	Deposited, $ 400  1500  762,	2,662 00	
	
		$ 9,310 56	
"	Checks,	3,601 97	
	
	Balance,	$ 5,708 59	
4.	Balance,	6,041 11	
5.	Balance,	7,010 99	
6.	Balance,	7,361 80	
7.	Balance,	2,818 58	
8.	Balance,	1,916 74	
9.	Balance,	2,467 36	
11.	Balance,	2,011 79	
12.	Balance,	3,976 58	
13.	Balance,	2,376 58	
14.	Balance,	2,114 60	
15.	Balance,	802 10	
16.	Balance,	1,447 50	
18.	Balance,	411 78	
19.	Balance,	57 77	
20.	Balance,	500 83	
21.	Balance,	1,768 03	
22.	Balance,	6,696 03	
23.	Balance,	3,071 60	
25.	Balance,	3,435 60	
26.	Balance,	1,921 33	
27.	Balance,	121 33	
28.	Balance,	3,345 85	
	
29.	Balance in Bank,	$ 3,391 65	
________________________________________________________________________________

 [**34]  

From which it appears, that upon the evening of the 19th of November, and the morning of the 20th of the same month, 1839, Weld and Jenks had drawn out all the money which they had in the bank of the defendant, including the amount credited to them upon the certificate given in evidence, except the sum of $ 57.77.

The defendant likewise gave in evidence the by-laws of the defendant.

The plaintiffs then proved by Mr. Miller, the plaintiff's paying teller, that upon the 23rd November, when he paid the amount of the certificate to Mr. Dorsey, viz: $ 762, as given in evidence by that witness, this witness paid it with the understanding, that the amount was to be settled on that day by the defendant, and that he made a memorandum to that effect, at the time on the check list given in evidence, and would not have paid the amount without this understanding. The same witness further proved, that the whole of said check list is in the hand-writing of witness, except the word not, written with a lead pencil thereon. The same witness also gave evidence of the practice of banks in the city of Baltimore, and their tellers, when an item is claimed by one bank, and objected to by another,  [**35]  to the same effect as proved by the witness, Gill.

The defendants then further proved by the witness, Dorsey, that he had no recollection of promising Mr. Miller to repay the money received from Mr. Miller, on the day it was received. That if he did make such promise, it was based upon the statement of Mr. Miller, that Sprigg said it should be settled; that the writing upon the check list was made by Miller in witness' presence.

The defendant prayed the court to instruct the jury as follows:

1. That if they shall believe, from the testimony in this cause, that on the 20th of September 1839, Mr. Joel Vickers deposited in the Marine Bank $ 762, and received therefor the certificate of deposit given in evidence in this cause, payable to the order of J. Strodtman, and for the purpose of remitting the said certificate to said Strodtman, who was then at Saint Louis, and after said certificate was issued, and before it was presented for payment to said Marine Bank, Philip Littig, Jr., the cashier of said bank, received from a brother-in-law of said Strodtman a signature of said Strodtman, which he, the said cashier, pasted in the signature or firm book of said bank; and if [**36]  the jury shall further find, that said certificate was remitted to said Strodtman, but was never received by him, but fell into the hands of another person who passed under the name of J. Strodtman, that the said last mentioned J. Strodtman claiming to be the owner of said certificate, and the person to whom it was payable, forged thereon the name of J. Strodtman, and passed it for a valuable consideration to Messrs. B. Godfrey & Co., of Alton, in the State of Illinois, who received the same bona fide, and without notice of said forgery. And if the jury shall further find, that said B. Godfrey & Co. endorsed and transmitted said certificate to Messrs. Howes, Godfrey and Robinson, of New York, who also, bona fide and without notice of said forgery, endorsed and transmitted it to Weld and Jenks, of Baltimore, who kept an account in the said Merchants Bank, in which account they were credited with said certificate on the 2nd November 1839, as cash,-on endorsing and delivering said certificate to said bank, bona fide, and without having received notice of said forgery. And if the jury shall further find, that on the 4th day of November 1839, the Merchants Bank, bona fide and without having [**37]  notice of said forgery, presented said certificate for payment at the Marine Bank and obtained the amount thereof. And if the jury shall further find, that neither the Merchants Bank nor Marine Bank discovered until the 22nd of November 1839, that the name of said Strodtman had been forged on the said certificate, then the plaintiff is not entitled to recover.

Rejected by the court, because it does not require the jury to find that defendants were holders for value.

2. That if they shall find the facts stated in the first prayer, the plaintiff is not entitled to recover, although they may further find, that on the 22nd of November 1839, the Marine Bank, on discovering the payment of said certificate to have been made under a forged endorsement, applied to the Merchants Bank to refund the amount, and that the cashier of the latter bank replied, that he considered said bank legally and morally bound to return the money, and that said Marine Bank might send said certificate into the Merchants Bank, in the check list in the following morning, provided they further find, that after said declaration by the cashier, he was instructed by the counsel of said bank, and by the president [**38]  pro tem. thereof, that in their opinion, the said bank was not bound to return said amount; and that he was also instructed by Messrs. Weld and Jenks, the previous endorsers on said certificate, that they had received it from their correspondents, Howes, Godfrey and Robinson, and that they, Weld and Jenks, would not consent that the Merchants Bank should pay back said certificate, unless compelled by law so to do, and that if said bank did so, they, the said Weld and Jenks, would not hold themselves answerable to said bank for the amount thereof; and provided the jury shall further find, that the said Sprigg, on the morning of the said day, the 22nd November 1839, after being so instructed by the counsel and president pro tem. of the bank, and Weld and Jenks, gave notice to said Marine Bank not to send in said check on the check list on the next morning, that the Merchants Bank could not, as then advised, return the money.

Rejected by court, because the prayer takes no notice of the time of the obligation of the Marine Bank.

3. That if they find the facts stated in the first prayer, and further find, that at the end of the 19th of November, and on the morning of the 20th [**39]  of November 1839, and between the day when said certificate was deposited in said Merchants Bank by said Weld and Jenks, and credited to them as cash, and the day when said forgery was discovered and communicated to said bank; that they, the said Weld and Jenks, relying upon said credit, and in ignorance of said forgery, had drawn out all the money which they had in that bank, including the amount credited to them on certificate of deposit, except the sum of $ 57.77, then the plaintiffs are not entitled to recover, although they may further find, that on the 22nd of November 1839, the Marine Bank, on discovering the payment of said certificate to have been made under a forged endorsement, applied to the Merchants Bank to refund the amount, and that the cashier of the latter bank replied, that he considered said bank legally and morally bound to return the money, and that said Marine Bank might send said certificate in to the Merchants Bank in the check list on the following morning; provided they further find, that after said declaration by the cashier, he was instructed by the counsel of said bank, and by the president pro tem. thereof, that in their opinion the said bank was not [**40]  bound to return said amount; and that he was also instructed by Messrs. Weld and Jenks, the previous endorsers on said certificate, that they had received it from their correspondents, Howes, Godfrey and Robinson, and that they, Weld and Jenks, would not consent that the Merchants Bank should pay back said certificate unless compelled by law so to do, and that if said bank did so, they, the said Weld and Jenks, would not hold themselves answerable to said bank for the amount thereof; and provided the jury shall further find, that the said Sprigg, on the morning of the same day, the 22nd November 1839, after being so instructed by the counsel and president pro tem. of the bank, and Weld and Jenks, gave notice to said Marine Bank not to send in said check on the check list on the next morning, that the Merchants Bank could not, as then advised, return the money.

4. That if they find the facts stated in the 1st prayer, and if they shall further find, that at the end of the 19th of November, and on the morning of the 20th day of November 1839, and the day the said certificate was deposited in the said Merchants Bank by the said Weld and Jenks, and credited to them as cash, and the [**41]  day when said forgery was discovered, communicated to said bank, they, the said Weld and Jenks, relying upon said credit, and in ignorance of said forgery, had drawn out all the money which they had in that bank, including the amount credited to them in said certificate of deposit, except the sum of $ 57.77, then the plaintiff is not entitled to recover any larger sum that the said sum of $ 57.77, with interest thereon, if the jury shall find interest to be due under the circumstances of this case.

5. The defendant further prays the court to instruct the jury, that if they find the facts stated in the first and second, and third prayers of the defendant, and if they further find, that on and before the 23rd of November 1839, it was the usage and custom of plaintiff and defendant, for either plaintiff or defendant, to send in to the other on the morning of every day by its runner, the notes, checks and other instruments received by it on the previous day, on which it claimed credit from the other, and to receive in exchange, from the proper officer of the other bank, the notes, checks and other instruments received by the other bank on the previous day, on which it claimed credit [**42]  from the bank so sending; and if they shall further find, that when the officers of said banks met to make the exchanges as aforesaid, it was the usage and custom for them to deduct the amount claimed by one bank from the amount claimed by the other, and for the officer of the bank, against whom the balance appeared, to enter said balance to the debit of said bank, and that it was not the business or duty of said runners to examine or decide upon the notes, checks and instruments on which credit was so claimed, but that the runner of the bank so sending, returned to the paying teller of his bank, the notes, checks and instruments on which the other bank claimed credit, with any entries which had been made by the officer of the other bank, and that it was the business and duty of the paying teller to examine the said entries, and also the check list furnished by the other bank, and the checks, notes and other instruments on which it claimed credit, and if he objected to allow the credit as claimed, to send back to the other bank, on the morning of the same day, and before 11 o'clock, A. M., the instrument which it objected to receive; and if the jury shall further find, as a part of [**43]  the usage and custom of said banks, that where credit was improperly claimed on an instrument, and that instrument was sent back to the bank so claiming credit on it: the mode adopted for settling the accounts was for the bank which sent in an improper claim to pay over the amount to the other, on the re-delivery of the instrument, in order not to disturb the account as handed in, and by an alteration of recorded accounts; and if the jury shall further find, that on the morning of 23rd November 1839, the exchange between said banks was made in accordance with the usage of said banks, and that among the instruments on which the Marine Bank claimed credit, was the certificate of deposit given in evidence in this cause, which was handed to the paying teller of the Merchants Bank, Mr. Gill, together with the other instruments on which the Marine Bank claimed credit; that Mr. Gill immediately on seeing said certificate, and before 11 o'clock of that day, objected to allow the credit claimed for it, and sent it back to Mr. Dorsey, the runner of the Merchants Bank, with the message that he could not receive it; that Mr. Dorsey carried said certificate to the teller of the Marine Bank and [**44]  demanded payment for it, but received for answer from said teller, that Mr. Sprigg had told Mr. Littig or Mr. Smith that it might be returned in the check list to the Merchants Bank; that Mr. Dorsey returned again to Mr. Gill with the certificate, handed it to him, and told him what Mr. Miller had said respecting the understanding between Mr. Sprigg and Mr. Littig, or Mr. Smith; that Mr. Gill gave the certificate back to Mr. Dorsey, told him to tell Mr. Miller that the Marine Bank must pay it, and that Mr. Sprigg could settle it with the Marine Bank himself; that Mr. Dorsey accordingly returned the certificate to Mr. Miller, and obtained the amount for which he had objected to allow credit as aforesaid, for the purpose of adjusting the account according to custom, then the plaintiff is not entitled to recover, although the jury may find, that on receiving said money, Mr. Dorsey promised that it should be settled on that day.

Rejected by the court, because it takes no notice of the fact as to the time when the Marine Bank engaged to pay the amount to the brother-in-law, &c.

6. The defendant further prays the court to instruct the jury, that if they find the facts stated in [**45]  the preceding first, second, third and fifth prayers, said facts do not amount to a payment to the Marine Bank by the Merchants Bank, of said certificate.

7. The defendant further prays the court to instruct the jury, that if they find the facts stated in the preceding first, second, third and fifth prayers, the promise made by Mr. Dorsey, and the promise or declaration made by Mr. Sprigg, if believed by the jury, was without consideration, and not binding on the Merchants Bank.

But the court, (LE GRAND, J.,) refused to grant the defendants said prayers, and each of them. To which refusal of the court to grant its said several prayers, and each of them, and to the opinion of the court overruling the defendant's objection to the admissibility of the statement of facts offered as evidence in this cause by the plaintiffs, and to the opinion of the court expressed in the reasons, and each of them, assigned by the court for its rejection of the first, second and fifth prayers of the defendants, and appended by the court to said prayers respectively; the defendant excepted.

It was agreed, that the printed by-laws of the defendant should be read in the Court of Appeals as if [**46]  they had constituted part of the record.

The defendants appealed to this court.  

DISPOSITION:
Affirmed.  

HEADNOTES:

On the 20th September 1839, the Marine Bank issued their certificate of deposit, payable to S or order. It was mailed for St. Louis, and an endorsement by S, forged, when it was passed to B of Illinois, for value, bona fide; that house remitted it to H of New York, who remitted it to W of Baltimore, customers of, who deposited it with the Merchants Bank for collection, and obtained a credit for it in account, on the 2nd November. On the 4th, the Marine Bank paid it to the Merchants Bank. On the 21st, the former institution discovered the forgery, immediately gave notice to the latter bank, and demanded its payment. Between the 2nd and 18th November, W had always to his credit with the Merchants Bank, a larger sum than the amount of the certificate. On the 19th it was less, but on the 20th, 21st and 22nd, it was again greater. There were daily transactions deposits and checks, by W, with and on the Merchants Bank. The Marine Bank having paid the certificate to the real payee, brought an action against the other bank, which it had also paid previously, to recover back the amount of the certificate. HELD:

1st. That if the Merchants Bank was a bona fide holder of the certificate, for value paid, it would not have been responsible in this action,

2nd. There was evidence, that on the day on which the forgery was discovered, and the demand made on the defendants to refund the money, that there was standing to the credit of W, on the books of the Merchants Bank, a larger sum than the amount of the certificate.

3rd. If at the time the forgery was discovered, and the demand of payment made, W had withdrawn from the Merchants Bank the balance to his credit, the Merchants Bank would then have been a bona fide holder for value.

4th. The credit to W on the books of the bank for the amount of the certificate was not conclusive, and did not prevent the bank from correcting the account when the forgery was discovered; if it then had funds in their possession adequate to that purpose, the credit was only prima facie evidence.

The cashier of a bank possesses no incidental authority to make any declarations binding the bank, not within the scope of his ordinary duties.

If the cashier of a bank promise to pay a debt which the corporation did not owe, or was not liable to pay, or should admit forged bills to be genuine, such promise or admission would not bind the bank, unless it had authorized or adopted the act.

An agreement of facts made, and filed in a cause prior to its first trial, which after judgment was reversed upon appeal, is competent evidence upon a second trial, under a procedendo.  

COUNSEL:
By BRUNE and BROWN for the appellants, who cited:

Baily on Bills, 318. Solomons vs. The Bank of England, 13 East, 136. Fulton Bank vs. Phoenix Bank, 1 Hall, 573, 576, 578. Story on Agency, 34, 104, 105. Bosanquet vs. Dudman, 2 E. Com. Law R., 267. Newson, ad'r vs. Douglass, 7 H. & J., 453. Karthaus vs. Owings, 2 G. & John., 430. Levy vs. Bank U. S., 1 Binny, 37. Bank of the U. S. vs. Dunn, 6 Peters, 59. Bank of the U. S. vs. Jones, 8 Peters, 16, 17. Ang. and Ams. on Corp., 245, 246. Key vs. Knott and wife, 9 G. & J., 342. 1 Ste. N. P., 240. 43 Law. Lib., 417. Mahoney vs. Ashton, 4 H. and McH'y, 322. Sowerwein vs. Jones, 7 G. & J, 340, 341.

By S. T. WALLIS and DAVID STEWART for the Appellees, who cited:

Greenlf. Evid., 186, 218 Fulton Bank vs. Phoenix Bank, 1 Hall, 572. Talbott vs. Bank of Rochester, 1 Hall, 297. Wild vs. Bank of Passamaquoddy, 3 Mason, 505, 506. Fleckner vs. Bank U. S., 8 Wheat, 358. Blake vs. Doherty, 5 Wheat, 366. Bank of Columbia vs. Patterson, 7 Cranch, 299. Smith vs. Mercer, 6 Taunton, 80. 10 E. C. Law, 143. De La Chaumette vs. The Bank of England,  [**47]  17 E. C. Law, 356. Chitty on Bills, 430, 432. Sto. on Bills, 104. Sto. on Notes, 465. 1 Hill, 287.  

JUDGES:
The cause was argued before ARCHER, C. J., SPENCE and MARTIN, J. ARCHER, C. J., dissenting.  

OPINIONBY:
SPENCE 

OPINION:

 [*124]  SPENCE, J., delivered the opinion of this court.
"At the trial of this case, the plaintiff, to maintain the issue on its part, offered to read in evidence to the jury the statement of facts agreed upon by the counsel of the parties, and submitted to the court upon the previous trial of the cause, to the admissibility of which, as evidence in this trial, the defendant objected; but the court over-ruled the objection, and permitted the said statement to be read in evidence to the jury by the plaintiffs, to which the defendant excepted."
This judgment of the court is first for our revision in this case.
We know of no legal objection to this statement of facts going in evidence to the jury, as the admissions of the parties of the facts therein set forth. The case of Van Wart vs. Wolley and others, 21 E.C.L. 366, is so entirely analogous as not to be distinguished upon principle.
The Court of Appeals, on the former trial of this cause, decided, "that [**48]  if the case stated showed that the appellee, the Merchants Bank, was a bona fide holder of the certificate for value paid, the appellant, the Marine Bank, would not have been entitled to recover."
The county court were right in rejecting the first, second, third, fourth and fifth prayers on the grounds assigned in the opinion of the Court of Appeals, namely, that to enable the Merchants Bank to prevent the Marine Bank from recovering, it must shew itself to be a bona fide holder for value of the certificate. It is true, that the hypothesis of the third, fourth, and fifth prayers, each of them, present the fact, that on the 19th day of November 1839, Weld and Jenks had drawn out of the Merchants Bank all the money which stood to their credit, with the exception of $ 57.77; but it is equally true, that there was evidence to the jury, that on the 22nd day of November 1839, the day on which the forgery was discovered, and the 

 [*125]  demand made on the Merchants Bank to refund the money, there was standing to the credit of Weld and Jenks, on the books of the Merchants Bank, a balance of $ 6696.03.
It could not be successfully contended,  [**49]  that if at the time this forgery was discovered, and the demand made on the Merchants Bank to refund to the Marine Bank the amount paid on the certificate, Weld and Jenks had withdrawn from the Merchants Bank the balance standing to their credit; that the Merchants Bank would not then have been holders of the certificate bona fide, and for value.  Fulton Bank vs. Phoenix Bank, 1 Hall 573. But, if Weld and Jenks had received credit on the books of the Merchants Bank for the amount of the certificate, that entry was not conclusive upon the Merchants Bank, they were not concluded thereby from correcting their account when the forgery was discovered, on the 22nd November 1839, if they had funds of Weld and Jenks' in their possession, adequate to the purpose. It was, as it stood, evidence prima facie against the Merchants Bank, but not conclusive. Garland vs. Salem Bank, 9 Mass. 408.
The county court erred in rejecting the defendant's sixth prayer, as there was no evidence in the cause, of the payment by the Merchants Bank to the Marine Bank of the certificate.
We are also of opinion,  [**50]  that the county court erred in refusing the defendant's seventh prayer.
"The cashier of a bank, possessing no incidental authority to make any declarations binding the bank, not within the scope of his ordinary duties: so if the cashier of a bank should promise to pay a debt which the corporation did not owe, and was not liable to pay, or should admit forged bills of the bank to be genuine, the bank would not be bound by such promise or admission, unless it had authorized or adopted the act." Storey's Com. on Agency, page 104, sec. 115 and Gloucester Bank vs. Salem Bank, 17 Mass. 1.
From the view which we have taken of the opinion given by the Court of Appeals, on the former trial of this cause, we are of the opinion, that the Merchants Bank cannot, in this 

 [*126]  case, successfully resist the recovery by the Marine Bank, and therefore affirm the judgment.  

DISSENTBY:
ARCHER 

DISSENT:

ARCHER, C. J., delivered the following dissenting opinion:
I am of opinion there ought to be a procedendo in this case. If the Merchants Bank was entitled to retain the money which was paid to it on the forged certificate, by the Marine Bank, provided the Merchants  [**51]   Bank could show, that she was a bona fide holder, and for a valuable consideration, I cannot conceive upon what principle she can be precluded from reposing on the title of the Alton House, which according to the proof, was a fair and bona fide holder for a valuable consideration, and when the subsequent holders were either acting as agents in the collection, or were bona fide holders for a valuable consideration, having no notice whatever of the forgery, or of any fact that could put them upon the enquiry.
It is my opinion that the Court of Appeals never meant to decide any proposition opposed to these views, and I account for the peculiar phraseology of the court's opinion when the case was in this court before, from the fact, that in the case then stated, the Merchants Bank neither set up, or offered to set up the title of the Alton House, the New York House, or the title of Weld and Jenks, but rested solely on her own title.
The money, when received by the Merchants Bank was, in my judgment, received for the benefit of the bona fide holder for a valuable consideration of this certificate, and that she bore the character of agent in the [**52]  transaction, an agency merely of collection, and to deny the Merchants Bank the legal right to retain the money is in effect to say, that no matter in what condition, or under what circumstances the forged draft was taken; such holder, if he endorses the draft, even for collection, shall lose the money, although the same shall have been paid on presentation.
JUDGMENT AFFIRMED.  

11 of 42 DOCUMENTS 

E. S. BUCHANAN, ET AL., vs. ALEXANDER LORMAN, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 51; 1845 Md. LEXIS 11 

June, 1845, Decided 

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

This cause was before the court at December term 1840, 11 Gill & John., 342; after it was remanded to the court of chancery the complainants filed their amended and supplemental bill, in which it was alleged, by E. S., Samuel S., William B., and Robert S. Buchanan, children and heirs at law of James A. Buchanan, and sister and brothers and heirs at law of Eliza S. Buchanan, complainants, that heretofore Eliza S. B. purchased of a certain George Torrance, one undivided fifth part of the Warren Factory, situate in this State, and its lands, mills, &c., for the sum of $ 60,000; and in order to secure the payment of said sum, executed and delivered to said Torrance, a bond dated 16th April 1829, with J A. B., W. B., E. S. B. and R. S. B., as her sureties; and the said Torrance at the said time, gave to the said Eliza S. Buchanan his bond for the conveyance of the said property, which your complainants are ready to produce, whenever this court shall require the same. That on the 1st August 1831, the said George Torrance, for the use of a certain Wm. Fulford, Wm. Lorman and Alexander Lorman, instituted an action of debt in Baltimore county [**2]  court against J. A. B., W. B. B., E. S. B., and R. S. B., as surviving obligors of Eliza S. Buchanan, and thereon, on the 12th December 1832, recovered a judgment of the said court for the sum of, &c. That the said Torrance assigned the said bond of E. S. B., and her sureties to the said W. F., W. L., and A. L., and that they, and each and every of such assignees, well knew before, and at the time of such assignment, for what consideration, and upon what contract the said bond was given, and that it was, in fact, given for the purchase money of the said Warren Factory, its lands and appurtenances. That after the contract aforesaid, between the said Eliza S. Buchanan and the said George Torrance. in relation to the said Warren Factory, had been entered into, and while the legal title thereto still remained in him, the said George Torrance, to wit, on the 13th August 1830, he, the said G. T., for the purpose of securing a note, endorsed, for his use, by the said W. F., and discounted for the use of him, the said G. T., duly executed and delivered to him, the said W., a mortgage of the said one undivided fifth part of the Warren Factory, to secure the payment of the said note, amounting [**3]  to the sum of $ 11,000, and which said mortgage was made subject to the operation and effect of the bond, executed as aforesaid to the said Eliza S. Buchanan, all which will, &c. That afterwards, to wit, on the 7th May 1834, the said William and Alexander Lorman having taken the place of the said William Fulford, as endorser upon the said promissory note of George Torrance for $ 11,000, the said William Fulford and George Torrance assigned to the said William and Alexander Lorman, said mortgage of the 13th August 1830, from said George Torrance to William Fulford, and also a certain other mortgage of the 21st August 1829, here-with filed as a part of this bill for property acquired by said Torrance, whether from his father or mother, or both, the object of which mortgages was to secure the said debt of $ 11,000. That on the 30th November 1831, the said Torrance, for the purpose of securing another sum of $ 7,500, by him borrowed from the said William and Alexander Lorman, executed another mortgage to them of his undivided fifth in the said Warren Factory and appurtenances, also subject to his bond of conveyance, to the said Eliza S. Buchanan, so that in effect and fact, he, the said [**4]  George Torrance, after his contract with the said Eliza S. Buchanan, and while he held the legal title to the property, the subject of that contract mortgaged and conveyed the said legal title to the said Alexander and William Lorman, to secure them the sum of $ 18,500, obtained by the said George Torrance, on his own account, or for his own uses, and in no way connected with the said factory, the consideration of the bond of the said Eliza S. Buchanan, or the complainants in this cause. And these complainants further allege, that after the said contract between E. S. B. and G. T., the said premises were destroyed by fire; that the same were insured, and that the said W. and A. L., or the said T., received the amount of the insurance, or some part thereof, and they pray an answer and discovery, of the sum so received, which these defendants insist was, and is in equity in part payment of the said bond from Eliza S. Buchanan to said Torrance, and must be so considered and taken, or at any rate, went to pay the debt due from the said Torrance to the said William and Alexander Lorman. That afterwards, to wit, on the 12th May 1835, the said W. L., A. L. and W. F. filed their bill on the [**5]  equity side of Baltimore county court, a court of full, complete and competent jurisdiction in the premises, against the said G. T. alone; the object of which was to sell the property, estate and effects which had theretofore been mortgaged by the said G. T. to the said Lormans and Fulford, as hereinbefore mentioned, for the purpose of paying the debt due to the complainants in said last mentioned bill; that to this bill the said G. T. immediately appeared, and voluntarily came into the said Baltimore county court, and confessed the said bill, and consented to a decree for the sale of the property therein referred to. That thereupon, a certain Philip T. Dawson and Frederick Dawson, and the Warren Manufacturing Company, claiming to be the assignees of a certain John T. Barr, a judgment creditor of the said G. T., petitioned Baltimore county court to be made parties defendant to the said bill of the 12th May 1835, upon the ground, that they had a lien in virtue of the said judgment, on the property mortgaged by the said T. to the complainants in that cause, and that the said bill had been filed without making the petitioners parties, for the purpose of defeating such lien; and thereupon [**6]  the said Philip and Frederick Dawson, and the said Warren M. Co., were by order of court, on the 13th May 1835, admitted nisi defendants to said bill; that thereupon the said Dawson and the Warren M. Co. answered the said bill, also agreed to a sale, and that the proceeds thereof should be brought into court to abide the decision thereof. That on the 10th October 1835, a decree was passed in said cause by Baltimore county court, that the property in the proceedings mentioned be sold, and that upon payment of the purchase money, the trustee appointed to make such sale should convey to the purchaser or purchasers thereof, his, her, or their heirs, the property and estate to him, her, or them sold, free, clear, and discharged from all claims of the parties thereto, complainants and defendants, and those claiming by, from, or under them, or either of them; and the said trustee was thereby ordered to bring into the said court the money arising from said sale to be distributed under the direction of Baltimore county court. That afterwards, to wit, on the 16th January 1836, the trustee, under the decree of the 10th October 1835, proceeded to make sale of the property, ordered to be sold thereby,  [**7]  and, in fact, sold the said one-fifth part of the Warren Factory and its appurtenances, and the title and interest of the said G. T. therein, for the sum of $ 7000, to the Warren Manufacturing Company, by the said Frederick Dawson, and sold certain other property to the amount of $ 10,230, to the said William Lorman and Alexander Lorman, by the name of William Lorman & Son. That the gross sum of such sales amounted to $ 17,230, and on the 26th February 1836, said sales were finally ratified and confirmed.

And now your complainants show, that instead of the proceeds of said sales being distributed in due course of law and equity, by Baltimore county court, according to the reservation of the decree of the 10th October 1835, and the proceeds of the property sold by G. T. to E. S. B., applied as they should have been, to the extinguishment of the debt due by her to T., on her bond of April 1839, and which he had assigned to the said Lorman and Fulford, who were merely his sureties and creditors, with notice of the equities of the said E. S. B., and to that extent, to the relief of the said sureties of the said E. S. B., on her bond to T., and instead of applying the proceeds of the [**8]  other part of said property, in payment of the debt due by said T. to F. and L., and in relation to which, these complainants charge, that the said L. and F. had a prior right and lien over and before the said Dawson and the said Warren M. Co., as assignees of John T. Barr, and that it ought in equity, to have been applied to the debt of the said Torrance, due Lorman and Fulford, and in fact, the said William and Alexander Lorman, and Frederick and Philip T. Dawson, instead of permitting the sales of the said Torrance's property, to be distributed according to the due course of equity intercepted the same; and on the 26th February 1836, agreed that the sum of $ 10,130, and no more, should be applied to the payment of the sum then due on the said mortgages, exhibited with the bill in Baltimore county court, and that for the remaining balance due on said mortgage, the said William and Alexander Lorman should look to certain property of James A. Buchanan, in or near to the town of Wheeling, in the State of Virginia, which had been attached under a judgment assigned to said W. and A. Lorman, by G. T., as a further security for said mortgage debt; and the said P. T. and F. D. agreed, that [**9]  they would never, in any manner, interfere with the said property of J. A. Buchanan, near Wheeling; and it was also further agreed, that the balance of the said proceeds of sale, in the hands of said trustee, should be applied under the direction of that court, without any other or further claim whatever, being made thereto, or to any part thereof, by them, or either of them, and that the said P. and F. Dawson should hold the said balance free, clear and discharged from all and every claim thereto, by the said William and Alexander Lorman, or either of them; that upon the final audit of the said proceeds, by Baltimore county court, the sum of $ 10,130 was awarded to the said William and Alexander Lorman, and the sum of $ 6432.15, to the Warren Manufacturing Company; and that it also appears by the auditor's report in said cause, that the equity of redemption of the said George Torrance, remaining after the execution of his mortgages to said W. and A. Lorman, had been sold to the said Warren M. Co., and said Company entitled to the balance of the proceeds after payment of said Lorman's debt, and that on the 26th March 1836, the said audit and distribution of the proceeds was finally [**10]  ratified by Baltimore county court; that afterwards, the said T. filed his petition in Baltimore county court, objecting to the allowance of the said sum of $ 6422.15 to the Warren M. Co., and thereupon, W. and A. L., on the 9th May 1836, executed a release under seal, acknowledging to have received from John Glenn, the trustee, who sold the premises under the decree of October 1835, the sum of $ 10,130, with the interest, being in full for the amount allowed them, in the case of L. and T. and others, per auditor's report of 11th March 1836, and in consideration thereof, released the said Glenn, trustee, of, and from all and every action, suit, claim or demand, which could or might properly be brought, exhibited or prosecuted against the said trustee, for or on account of the said sum of money, or the payment thereof, thereby declaring themselves fully satisfied and contented, and paid the said amount as above specified.

And your complainants are now advised, and therefore charge, that the said W. and A. L. having become the mortgagees of the property sold by the said G. T. to E. S. B. and the assignees of the bond of the said E. S. B., and her sureties, for the payment of the [**11]  purchase money of said property so sold, and having obtained judgment against the sureties of the said Eliza S. B., and being well aware that the said James A. Buchanan, and the complainants in this cause, were the sureties of the said Eliza S. B., and therefore interested in the application of the proceeds of the one undivided fifth part of the Warren Factory, to the payment of the said T's debt to W. and A. L., and F., to the end that the right and title of the said G. T., should remain unfettered and disencumbered until the year 1839, when the principal sum of $ 60,000, the purchase money of the said one-fifth of Warren factory would be due and payable, should have been content, and it was their duty to have suffered the proceeds of the property mortgaged to them by the said T., to have been distributed according to the course of equity, and that if it had been so dealt with, the debt, principal and interest, not more than $ 11,000, with interest from 12th May 1835, according to the bill of the said L's, due to them, mentioned in the said mortgages of G. T., would have been fully paid, and the bond of the said Eliza S. B., and her sureties, and the judgment thereon must and would [**12]  have reverted to the said G. T., and the sole question then between the said E. S. B., and her heirs and sureties, would have been, whether, as the said Torrance had consented to a sale of said property upon a bill to which neither she nor these complainants were parties, he, the said T., after such sale not being able to give title, and not having title, could enforce the purchase money for said one-fifth of Warren Factory, which these complainants are advised, and charged, that he, the said T., could not; yet now so it is, that the said W. and A. L., disregarding the rights of the said Eliza S. B., and her sureties not content to enforce their rights in a due course of law, wrongfully and injuriously entered into a special agreement with a certain Philip and Frederick Dawson, and the Warren factory, by which they, the W. and A. L., relinquished voluntarily the sum of $ 6422.15 of the proceeds of the property, mortgaged to them as aforesaid, without the consent of the said T., with the intent to make J. A. B., (a mere surety of the said E. S. B.,) pay the same, $ 6422.15, while at the same time, the said W. and A. L. either knew, or ought to have known, that by the sale of the said [**13]  one-fifth of the Warren Factory, under the decree of the 10th October 1835, the title, and certainly the possession thereof, was with another party than themselves, while they still claim to enforce said bond of April 1829, and were diligently making a case of great and serious embarrassment to the title purchased by E. S. B., to the injury of your complainants, and forcing them into litigation with the purchaser, under said last mentioned decree of October 1835, in order, if at all, to procure the title purchased by her.

These complainants therefore insist, that under such circumstances that the said W. and A. L., both in their own right, and as assignees of W. F., are fully paid and satisfied, and have no color or claim in equity to proceed against the property of the said J. A. B., or the securities or heirs of the said Eliza S. B; and they further charge, that the said W. and A. L., have no claim, or color of claim against the said Eliza S. B., or her heirs or sureties, except as assignees or mortgagees of G. T. aforesaid; that the said trustee, who made the sale of the 16th January 1836, did, on the 26th day of March 1836, execute a deed for said one-fifth of Warren Factory [**14]  to the purchaser; that neither the said W. and A. L., nor the said G. T., can give title to the said E. S. B, her heirs or sureties, to the said one-fifth of W. Factory, and appurtenances; that the same has been sold, and possession thereof delivered to the purchaser thereof, under the sale of the 16th January 1836, and that the consideration of the said bond of April 1829, has in fact wholly failed, and chiefly by the fact that the said T., with the knowledge of the said assignees of the said E. S. B's bond, has voluntarily placed it out of his power, to make a title clear and undisputable to said one-fifth of Warren Factory.

And these complainants further show, that after the rendition of the judgment in Baltimore county court, at law, and before the filing of the bill on the equity side of Baltimore county court, in May 1835, to wit, in the month of June 1833, the said G. T., W. F., W. L. and A. L., filed their proceedings in chancery, in the circuit superior court of law and chancery, for the county of Ohio, in the State of Virginia, for the purpose of enforcing the payment of the judgment obtained by them in Baltimore county court, at law, upon the bond of E. S. B. against [**15]  her sureties, the said J. A. B., W. B. B., and Esther S. B., and R. S. B., who were not inhabitants of Virginia, and against Morgan Nelson and Lewis Bonnett, the debtors of J. A. B., and it was so proceeded in, that in the month of November 1835, that it appearing to the court in Virginia, that the said J. A. B. hath real effects in said State, and that his personal effects therein amount to $ 333.33, the court adjudged, that the complainant's bills against him should be taken for confessed, and then rendered a decree against him for the sums due from him, in conformity to the judgment of Baltimore county court, and that Lewis Bonnett pay to the the complainants the sum of $ 333.33, with interest from 8th July 1833, until paid, and that unless the said J. A. B., on or before the 10th December 1835, do pay the complainants the sum of $ 24,744, &c.; that the sheriff of Ohio county do sell, &c., a tract of 443 acres of land, in the amended bill mentioned as the property of J. A. B., upon the terms prescribed in said decree, and the said cause was also further retained for proceedings against an undivided interest of J. A. B., in certain other real property in the counties of Ohio, and [**16]  Marshall, in the State of Virginia, and against the said J. A. B., as to the other defendants, the said bill was dismissed; and that afterwards, on the 30th July 1836, the land in the said decree condemned, was under the said decree, put up and sold for fifteen dollars per acre to the said William and Alexander Lorman, the said W. and A. L., having previously filed a bond, as required by the said decree, all which will more fully and at large appear upon a reference, &c.

And so your complainants charge, that after the agreement of the said W. and A. L., of the 26th February 1836, with the said D. and Warren M. Co., by which they, the said Lormans, were in equity fully paid, to wit, on the 30th July 1836, they proceeded to make sale wrongfully of the property of the said J. A. B., and that the said G. T., long after he had parted with his title to the said undivided fifth of Warren Factory, and had lost all legal and equitable control over the same, and being now, and for a long time past, utterly insolvent and wholly unable to comply with his bond of conveyance, or respond in damages for the breach thereof, is wrongfully proceeding jointly with the said L. and F., in Virginia,  [**17]  to enforce the bond and judgment of Baltimore county court as aforesaid; these complainants contending, that after the consent to the said sale, by the said Torrance, and after the said agreement of 26th February 1836, neither he, nor the said Lormans, had any power or right further to proceed in the recovery of the said bond of E. S. B., and her sureties; that the said Eliza S. B. died sole and intestate, and left her father, J. A. B., and her brothers and sisters, W. B. B., Esther S. B., R. B. and S. S. B., her heirs at law; that J. A. B. is also dead, and left the said children, his heirs at law; that the same are all citizens of Maryland, but the said J. A. B. devised his whole estate to his son, S. S. B. aforesaid; that W. F. is dead, and a certain H. F. was appointed his executor, and took upon himself the burden of that trust; that G. T., W. and A. L., are all inhabitants of Maryland; that Lewis Bonnett lives in Virginia, and is not a resident of this State. And finally, these complainants are so advised, and therefore insist and charge, that the said G. T., for his own account, and for considerations moving unto himself, without the consent of the said Eliza S. B., her securities [**18]  or co-obligors, in her aforesaid bond, or her heirs at law, did divest himself of all legal and equitable title to the said one-fifth part of Warren Factory, its lands, &c., and did and has placed himself in a situation, and the said W. F., A. L. and W. L., have also placed themselves in a situation, whereby neither they, nor either of them can convey title to the said part of Warren Factory, sold as aforesaid, or its appurtenances, or any part thereof, to the said Eliza S. B., her co-obligors or heirs at law; and so that the consideration for which the said bond of April 1829, was given, and the judgment thereon was confessed has wholly and entirely failed. That no administration has been taken out upon the personal estate of Eliza S. B.; that in fact she left no effects; that J. A. B., in the year 1834, became and was a petitioner for relief under the insolvent laws of Maryland, and that the said S. S. B. was duly appointed his permanent trustee, and gave bond as such, with security, for the faithful performance of that trust, which was duly and regularly approved. That this application for relief of J. A. B. was had and made before the said defendants, or any of them, had obtained [**19]  any process against, or any lien, judicial or otherwise, to affect the lands, or the title to lands or real estate of the said J. A. B., in Virginia, and that the time, course, and manner of the said proceedings in Virginia, by and on behalf of the defendants in this cause, will fully and particularly appear by the record above referred to. That the said proceedings in Virginia are in effect, an attempt to prevent the just and legal distribution of the property of an insolvent debtor, an inhabitant and citizen of Maryland, by other citizens of Maryland, bound to respect the laws of this State, and liable to be restrained for any violation thereof, and are, in law, against the policy of our insolvent laws. Prayer, that the sale of the said one-fifth part of the Warren Factory, its lands, &c., made by the said George Torrance to Eliza S. Buchanan, may be vacated and annulled; that the said bond of the said Eliza S. Buchanan, and her sureties aforesaid, of April 1829, may be vacated; that the plaintiffs at law may be perpetually enjoined from enforcing the judgment of Baltimore county court upon the said bond, and that the same may be entered satisfied or stayed, and that the said G.  [**20]  T., A. L. and W. L., and W. F., may also be perpetually enjoined from further proceeding upon their decree in the circuit superior court of law and chancery for the county of Ohio, in the State of Virginia; that the sale reported in said cause of James A. Buchanan's land may be vacated, and the said W. and A. L. be enjoined from receiving a conveyance for said land, or in any manner alienating or disposing of the same, or that the said W. and A. may be decreed to hold the same in trust for the heirs of the said J. A. B., or his assigns; and they pray, further, for such other and general relief as the nature of their allegations, proof and equitable rights shall and may sanction; and for process, &c.

The answer of Alexander Lorman admitted that Eliza S. Buchanan purchased of a certain G. T. one undivided fifth part of the Warren Factory, &c., for the sum of $ 60,000, as stated in said bill; and that in order to secure the payment of the said sum, she executed the bond, of which a copy is exhibited, with the original, bill in this cause. He further admits, that on the 1st August 1831, the said G. T., for the use of W. F., W. L., and this defendant, instituted an action of debt in [**21]  Baltimore county court against James A. Buchanan, &c., surviving obligors of Eliza S. Buchanan; and that on the 12th December 1832, the said G. T. obtained, by confession, a judgment of the said court for, &c. That the said G. T. assigned the said bond of the said E. S. B. and her sureties to the said W. F., W. L., and this defendant, and that the said assignees, and each of them knew, before and at the time of such assignment, that the said bond of the said E. S. B., and her sureties, was given to secure the payment of the purchase money contracted by her to be paid for the said one undivided fifth part of the said Warren Factory, its lands and appurtenances. And this defendant denies that the bond of conveyance, given by said G. T., was given to the said E. S. B. on the day of the date of her bond for the payment of the purchase money hereinbefore referred to, but avers, that the said bond of conveyance from the said G. T. to the said E. S. B., bears date the 20th April 1829, and was delivered on that day. And this defendant alleges, that the said E. S. B., and her sureties, made default in the payment of the sum of, &c.; and that on the 21st August 1829, the said G. T. executed [**22]  to W. F., in the State of Maryland, a deed of mortgage, filed with the bill in this cause, and that thereafter, the said E. S. B., and her sureties, further made default in the payment of the sum of, &c., so that the said G. T., on the 13th August 1830, with a view to the further security of the said W. F., executed the second mortgage, exhibited with the bill in this cause, which said mortgage, as this defendant admits, was made subject to the operation and effect of the bond of conveyance, executed as hereinbefore stated, on the 20th April 1829, by the said G. T. to the said E. S. B., and which mortgage was intended to operate, and did operate, merely as a transfer of the debt then due upon the bond aforesaid, of the said E. S. B. and her sureties. And this defendant further answering, admits, that on the 30th November 1830, when the amount of the installments, required by the bond of his said E. S. B. to be paid, and which had fallen due since the mortgage to W. F, as aforesaid, was $ 4500, the said G. T. with the knowledge and assent of the said W. F., executed a mortgage to W. L. and this defendant, of the said one undivided fifth part of the said Warren Factory; and which mortgage [**23]  was intended to operate, and did operate, merely as a transfer of the debt which had become due on the said bond of the said E. S. B. and her sureties, since the 13th August, in the year 1830, the date of the mortgage so as aforesaid made to W. F. And this defendant further answering, admits, that on the 7th May 1834, W. F. and G. T. executed to W. L. and this defendant, the indenture of assignment, filed with the bill in this cause, and he admits that the said mortgage of the 30th November 1831, and the said indenture of assignment of the 7th May 1834, were made and accepted, subject to all rights which the said E. S. B. had acquired under the bond of conveyance hereinbefore referred to. That the said G. T. received the sum of $ 8949.20, on account of a policy of insurance effected by him on his insurable interest in the said one undivided fifth part of the said Warren Factory, and that the same was duly paid over by the said G. T. to the said W. L. and this defendant, on account of their claim against him; and this defendant denies that the said policy of insurance was intended to cover, and did cover, any interest of the said E. S. B. in the insured premises; and he denies that [**24]  the sum so received on account of the policy aforesaid, or any part thereof, was or is applicable to the payment of the said bond of the said E. S. B. and her sureties. That on the 12th May 1835, the said W. L. and this defendant, as complainants, filed their bill in Baltimore county court, sitting as a court of equity, against the said G. T., for the purpose of compelling payment of the balance of $ 11,000, then due to the said W. L. and this defendant, by the said G. T., after duly crediting him with the sum received by them of him, as aforesaid, on account of the policy of insurance hereinbefore referred to. That in the course of the proceedings on said bill, a certain Philip T. Dawson and Frederick Dawson, and the Warren Manufacturing Company, by their petition and the order of Baltimore county court, passed thereupon, were permitted to appear as defendants to the said bill, and filed their answer as defendants in the said cause, and thereafter filed their consent to the decree, which was rendered by Baltimore county court on the 10th October 1835, as will more fully appear by the said decree, being part of complainant's bill in this cause.

And this defendant further admits,  [**25]  that the proceeds of the sales, made in pursuance of the said decree, amounted to the sum of $ 17,230, of which the sum of $ 10,130 was, by agreement of the parties, dated the 26th February 1836, audited to W. Lorman and this defendant, and the sum of $ 6422.15 was awarded to the Warren Manufacturing Company; and he admits, that for the balance remaining due on the said mortgages, after the credit of the said sum of, &c., the said W. L. and this defendant, by the agreement aforesaid, were to look to certain property of James A. Buchanan, at or near Wheeling, in the State of Virginia, for which property as their security, exclusive of any claim of the said Philip T. Dawson and Frederick Dawson, they had agreed to pay, and have paid the said Philip T. Dawson and Frederick Dawson, the sum of $ 1000; that the said W. L. and this defendant, received from John Glenn, the trustee appointed in and by said decree, the aforesaid sum, and have duly executed to him their release therefor, as charged in said bill; that on the 26th February 1836, the date of the agreement aforesaid, made in the cause in Baltimore county court, as a court of equity hereinbefore mentioned, several installments of [**26]  the bond of the said E. S. B., and her sureties as aforesaid, had become due and payable since the 30th November 1831, amounting altogether to the sum of $ 15,300, which this defendant insists, that the said W. L., this defendant, and the said G. T., were entitled to receive in like manner as the installments due before that period, the said W. L. and this defendant, to the extent of their interest in the said installments, as security for the debt due to them by the said G. T., and the said G. T. the balance; that after the rendition of the judgment in Baltimore county court hereinbefore mentioned, and before the filing of the bill on the equity side of Baltimore county court as aforesaid, to wit, in the month of June, in the year 1833, the said G. T., W. F., W. L. and this defendant, filed their bill in chancery in the circuit superior court of law and chancery for the county of Ohio, in the State of Virginia, as set forth in the complainant's bill, and he admits exhibit, &c., to be a copy of the record of the proceedings of the said circuit superior court upon the bill so filed; and this defendant avers and insists, that the orders and decrees of the said circuit superior court [**27]  of law and chancery, set forth in said record, still remain in full force and effect, not in any wise reversed, annulled, set aside or rendered void, and this defendant accordingly claims the benefit thereof; that the said E. S. B. died sole and intestate, and left her father, J. A. B., her brothers, W. B. B., &c., surviving her; and he further admits, that J. A. B. has departed this life, and that he left the following children, his heirs at law, W. B. B., &c., but this defendant does not know whether all of his said children be citizens of this State or not, nor does this defendant know whether the said J. A. B. devised all his estate to the said S. S. B., as stated in said bill; that the said W. F. is dead, and that a certain H. F. was appointed his executor, and took upon himself the burden of that trust, but he states that the said H. F. has since departed this life, and that the father of this defendant, W. L., is also dead; that no administration has been taken out on the personal estate of E. S. B., but this defendant does not know whether she left no effects, as stated in said bill; and he further admits, that the said J. A. B., on the 11th December 1834, made application [**28]  for the benefit of the insolvent laws of Maryland, and that the said S. S. B. was duly appointed his permanent trustee, and gave bond as such. And this defendant denies, that the said proceedings in Virginia, were intended to prevent the just and legal distribution of the property of the said J. A. B., as charged in said bill; but to the contrary thereof, he insists, were duly and rightfully instituted and prosecuted, and that he is entitled to the full benefit thereof, without this, &c.

The answer of George Torrance adopted that of his co-defendant, Alexander Lorman.

It was admitted, that neither William Fulford, nor Henry Fulford, nor their heirs, have any interest in the cause, their interest having been transferred, and their liability for Torrance having been assumed by A. and W. Lorman; that Alexander Lorman is the only child, surviving partner, and heir at law of William Lorman, deceased, and succeeds to whatever right or interest the said William Lorman had, in the subject matter or controversy in this cause, and is the administrator of the said William Lorman.

The various exhibits and documents, (except the bond for the purchase money,) referred to in the bill,  [**29]  were filed with it.

On the 28th November 1843, the Chancellor, (BLAND,) dismissed the bill, being of opinion that under the facts and circumstances of the case, the complainants were not entitled to relief.

The complainants appealed.  

DISPOSITION:
CAUSE REMANDED.  

HEADNOTES:

A vendee of an estate, in an unexecuted contract, is entitled to have that for which he contracted, before he can be compelled to part with the consideration he agreed to pay.

The ability of the vendor to convey should exist, when his duty by the contract arises to convey; or at the time of a decree for a conveyance, where time is not of the essence of the contract.

A vendee is not bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to procure his title.

After a contract for the sale of land, the vendor mortgaged the same, and upon a bill filed by the mortgagee for a sale, to which the vendee was no party, a decree was passed to sell, and the trustee directed by the decree to convey to the purchaser the rights of the mortgagor and mortgagee, which was executed by a sale and deed to the purchaser, in conformity with the decree, to all which the vendor voluntarily consented. HELD:

1st. That this decree and sale operated to extinguish the vendor's title, and pass it to the purchaser.

2nd. That when the contract of sale had ripened into maturity, the vendor, by his own consent, had stripped himself of every vestige of title, legal and equitable, in the land he had sold, was in no condition to comply with his contract to convey, and had no legal capacity to enforce a reconveyance of the title to him, so that he might comply with his contract of sale.

3rd. That the vendee was not bound to take a title thus embarrassed, and embark in a lawsuit against an adversary claimant.

4th. That if the vendee had gone into equity to compel a specific execution of the contract, she must have averred a compliance on her part with the terms of the contract, or have offered to pay the purchase money.

5th. Where a bill seeks a rescission of a contract, on the ground of want of title, a payment or offer to pay is unnecessary.

6th. Where the consideration of a contract of sale wholly fails, the vendor, nor his assignees who stand in his stead, ought not to be allowed to recover the purchase money, and a judgment on a bond for it will be perpetually enjoined.

The vendor of land, assigned the vendee's bond, and judgment against him, for the purchase money to L, who, before the obligation to convey had matured, proceeded against the vendee's land in another State, obtained a decree against him for a sale, sold, and purchased the same. L had notice of the consideration of the bond and judgment which had been assigned to him, which entirely failed. When by the terms of the contract of sale, the period of conveyance had arrived, the vendor had no title to convey, nor any legal capacity to enforce a reconveyance to him; HELD, that if these defences had been brought to the notice of the court of equity, in the State where the decree for the sale of the vendee's land had been obtained, this court is bound to presume, that no decree would or could have passed against him, until the estate sold to him had been relieved from its embarrassments, and until the vendor, by so doing, could have shown himself in a condition to convey, according to his contract of sale.

The decree in the other State must be considered as conclusive, as to the merits, upon the equities existing anterior to it, and as having the efficacy of a domestic judgment or decree, and it could not there be examinable upon any ground of equity existing prior to its passage.

But upon an equity arising subsequent to such decree, which would make it inequitable in the present defendants, who obtained, to enforce it, the complainants in this bill may enjoin them from enforcing it.

When the person of the defendant is in Maryland, though the land in controversy is in Virginia, and the object is to vacate a decree of a court of the latter State, though this cannot be done, yet the defendant seeking to enforce such decree, may be enjoined from accepting a conveyance of lands purchased by him under it, or if he has obtained title inequitably, may be decreed to reconvey the same.

Where a vendee, upon a contract for the purchase of land, has been let into possession, and it is afterwards rescinded by decree, he is responsible for any deterioration of the property arising from his improvidence, or culpable negligence, but not otherwise; and for all the time it was occupied by him or his agents, he should account for rents and profits.

There is generally a great disproportion between rents and profits, and interest on the purchase money, so that there is no propriety in awarding interest, where the sale is rescinded.

When a contract is rescinded, a court of equity could never treat the vendor as entitled to the purchase money, nor consider the vendee as the owner of the land.

Where the court determined that a contract ought to be rescinded, in a case where there was no legal evidence to show the possession of the vendee or its duration, or whether the deterioration of the property proceeded from casualty or negligence, nor the value of the rents and profits, they neither reversed nor affirmed the decree of the chancellor, but remanded the cause under the act of 1832, ch. 302, that evidence might be taken on those subjects.  

COUNSEL:
By GLENN for the appellant, who contended, that the decree below was erroneous:

1st. Because the case was decided the other way, upon the former appeal.

2nd. Because the vendor, Torrance, by his own acts, put it out of his power to give E. S. Buchanan, his vendee, a title to the property, and caused a total failure of consideration.

3rd. Because the agreement of Lorman and others, the appellees, in relation to the rights, if they had any, against Eliza S. Buchanan, deprives them of the right to pursue the other parties.

He maintained, that the Dawsons did not purchase to hold under Miss Buchanan, nor with knowledge of her title, but adversely to her; and hence there was a total failure of consideration as to Miss B. If the purchaser is evicted before title made, he may recover back the purchase money, 2 Sug., 279, 420, though once in possession. Cripps vs. Reade, 6 Term. Rep., 606. Johnson vs. Johnson,  [**30]  3 Boss & Pull, 162.

The vendor cannot demand specific performance, unless he can convey, or unless he can do all that it is incumbent on him to do. Garnett vs. Macon, 6 Call's Rep. 368. Here the purchasers were entitled to a deed in 1839, and then only could they require title, yet, in 1839 it was gone, past recovery. There could be no quid pro quo for mean, while the vendor had designedly disposed of it to another. We are entitled to a clear title, or to rescind the contract. Frisbee vs. Hoffnagle, 11 John., 50. McKay vs. Carrington, 1 McLean, 50. Duplantier vs. Pigman, 1 Con. Louis'a, 116. 3 Martin 236. Danger of eviction is enough for equitable interference. There was an express contract, and the complainants are sureties. The property was diverted to their detriment.

All the sureties are injured. By the contract of the defendants the sales were paid to Dawson, in extinguishment of liens due from Torrance. A new bargain is struck in opposition to the securities, and it took from them property on which they might properly rely.

DAVID STEWART, for the appellees, in support of the decree insisted:

1. That the purchaser, under the decree of Baltimore county court,  [**31]  if in truth he acquired any interest in the premises attempted to be sold, purchased the same with notice of the agreement between Torrance and Eliza S. Buchanan, and took subject to the equities of the latter arising out of that agreement. The heirs of the latter may, therefore, enforce a specific execution of the agreement as against the purchaser under the decree, on paying the balance of the purchase money due on the agreement to the persons entitled thereto.

2. That the mortgages from Torrance to Fulford and Lorman, under which the sale was professedly made, assigned merely parcels of the purchase money due from Eliza S. Buchanan to Torrance, on the agreement between them, as indemnities to the said assignees against liabilities they had assumed for Torrance, with the benefit of the vendor's lien on the property sold by Torrance to Eliza S. Buchanan.

3. That the sale made under the decree of Baltimore county court could, therefore, operate only as an assignment of so much of the purchase money due from Eliza S. Buchanan to Torrance, as was equivalent in value to the proceeds of sale made under the decree, or at the extent to the balance due on the mortgages, for satisfaction [**32]  of which the sale was made. The right to demand payment of the residue of the original purchase money yet exists in Torrance, or Lorman as his assignee of the judgment stated in the proceedings.

4. That if the agreement is to be rescinded at all, it ought to be upon the equitable conditions of payment by the complainants, as representatives of the purchaser, of interest on the purchase money, during the time the possession of the premises remained in the hands of the original purchaser, and an equivalent in value for deterioration of the property during the continuance of such possession.

5. That the decree in Virginia was an appropriation of the property decreed to be sold in payment of this debt, and the vendor is entitled to the benefit of this decree, since the value of the property so appropriated, together with the proceeds of sales subsequently made, are not equal to the balance of purchase money yet due.

E. S. .B bargained with her partner and co-shareholder, Torrance, and so became sole proprietor of the Warren Factory. Upon that purchase she was in default $ 19,344, at the time of the judgment on the bond, which was payable by instalments. The property was [**33]  mortgaged subject to her contract, and it was assigned to Lorman, liable to the same incumbrance. There was no original inherent defect in the title of Torrance. It was free from all exception, and the mortgage gave notice of Buchanan's equities. The proceedings in equity by Lorman, were not against Buchanan. A purchaser may presume the court has investigated the title of parties, Bennett vs. Hamill, 2 Sch. & Lef., 577, and there is no right to question a sale from a title not in issue, nor in any way affected by the decree, Haines et al. vs. Beach, 3 J. C. R., 459. The court makes no warranty. It is only the title of parties which is sold. The purchaser only takes that. Brown vs. Wallace & Mitchell, 4 G & J., 492. Miss B. was not affected by that sale, it only transferred the vendor's lien. The purchaser might be forced, by Miss B., to transfer the title to her, A purchaser, with notice, is bound by the agreement, and must perform it. On the question of notice, he cited Ghiselin and W. vs. Fergusson, 4 H. & J., 522. Champion vs. Brown, 6 J. C. R., 398. Graves vs. Graves, 1 A. K. Marshall, 165. Broadwell vs. King, 3 B. Munroe, 451. Wadsworth vs. Windell, 5 J. C. R., 224, 229. The mortgage [**34]  to Lorman, in terms, gave notice of E. S. B's right. The advertisement of sale gave it; the deed of the trustee so conveyed.

On the fourth point he insisted, that the parties to the original purchase must be placed in statue quo, and on this point he cited Bullock vs. Bemiss, 1 A K. Marsh., 433. Brockenbrough and Taylor vs. Blythe's Ex'rs, 3 Leigh., 619. Williams vs. Rogers, 2 Dana., 375. Turner vs. Clay, 3 Bibb, 53. Bumpus vs. Platner, 1 J. C. R., 213. Taylor vs. Lyon, 2 Dana, 276.

On the fifth point he maintained, that the Virginia decree established the debt, and there was no ground to disturb that decree when it passed. Story Confl. of Laws, 278, 362. Buchanan's discharge under the insolvent law of Maryland, had no extra territorial effect. The obligee had a right to sell Miss B's bond, as much as any other part of his estate. It was not to be dormant in his hands, and unavailable, and hence proceedings to enforce it are not to be disturbed.

T. S. ALEXANDER, for the appellees.

The first point of the appellants is out of this case. Their third point relies on a mistake in the application of the fund arising from the sales of the Warren Factory under a decree,  [**35]  which is no ground of complaint against the decree itself. If they seek the application of that fund to themselves, they admit the validity of the decree. The law of the second point of the appellant is denied.

What is the justice of this case, the morality of this bill? Torrance's title is not questioned. He sold his interest, one-fifth of the factory, to Miss B., on ten years credit, payable by instalments, and put her in possession. She relinquished to the purchaser under Lorman's decree in 1836. She paid nothing for use and occupation, nor for interest, and the factory now is valueless. Her representatives propose to sponge off the price and interest, and return the property in a dilapidated condition. If they had proposed to pay for use and occupation, there might be something in it. Then as to the pretext for setting aside the sale: they say, we cannot give them the thing we contracted to give them. Then, how stands the case. Torrance, a creditor for $ 60,000, with a lien on the property, makes a public sale, and discloses his contracts. All the mortgages disclose his right. He practices no injustice. Lorman sells his title, such as he had, no more, it is subject to Miss [**36]  Buchanan's contract. The purchaser is affected with notice of all that appears in the record of the cause, in which the decree for a sale was obtained.

It is not true that the property was placed beyond Miss B's reach. She refuses to pay the purchase money; refuses to pay the assignee of her bond. Lorman seeks his right; he falls upon an unskilful attorney, who instead of proceeding by execution on the judgment at law, in Baltimore county court, files a bill, and the vendee improperly surrenders the possession, under a decree to which she was no party. This surrender is now wielded as a defence to her contract of purchase; is in fraud of it.

Then can the contract be rescinded? Torrance's title was originally good, a supervening defect is now relied on to defeat it. Can Miss B. get a legal title? The vendor is a trustee for the vendee; a purchaser from vendor is a trustee with notice, and must execute the trust. Lorman might have sought a foreclosure, and cut off Torrance. But he takes a decree for a sale. He sells. Does the purchaser take any better title than Lorman had? Not at all. Miss B had a right to demand a title on payment. Then who is entitled to the balance of the [**37]  purchase money. The delinquent purchaser should only be indemnified. The bill does not shew who is entitled to the purchase money. Lorman purchased a debt from Dawson, who bought the estate, and it would be a fraud on Dawson to claim the whole estate. The vendor may extinguish his lien, and still claim the purchase money Aymar vs. Bill, 5 John. C. R., 570. Turner vs. Clay, 3 Bibb, 353. 4 Dessau, 126.

On the appellees fourth point: Upon what terms may the contract be rescinded? The parties must be reinstated; Torrance is entitled to his land: to something for dilapidation. It was a flourishing manufactory when sold. To put us back in 1845, will not repay us. The property should be restored to its original condition. It is like a covenant to repair or to rebuild There must be compensation for seven years use of the estate. There was no actual fraud, and Miss B. must respond as tenant in possession. Frisba vs. Hoffnagle, 11 John., 50. McCay vs. Carrington, 1 McLean, 61 Garnett vs. Macon, 6 Call, 368.

As to the Virginia decree, it is conclusive, it is in rem., if no defence could be maintained to it in Virginia, none could be here.

By REVERDY JOHNSON, in reply:

On the [**38]  former appeal, Buchanan vs. Torrance, 11 G. & J., 342, only two objections were taken, and it was remanded to cure those defects. The equity of the case was not denied, and upon this appeal, the general principles involved since the defects of the first were cured, are not changed. Torrance consented to a decree for a sale, and Dawson bought clear of all the parties to the cause, and all persons claiming under them. The purchaser took free of Torrance's title, took an absolute title, and then came the agreement to divide the proceeds, irrespective of these complainants. The court, in the former case, under the act of 1832, ch. 302, sect. 6, necessarily assumed, that the sale to Miss B. ought to be rescinded, or they would not have remanded the cause. That act required them to look at the justice of the case, and no relief could be granted, without determining that the sale should be rescinded. That is not now an open question.

The surety of the purchaser cannot be made to pay where there is a failure of consideration. The rule of equity cannot be denied as to an entire failure. Garnett vs. Macon, 6 Call., 367, 368.

A vendor calling for specific performance, must be able to [**39]  grant such an estate as he agreed to give. What is the cloud over the title here? We cannot demand title until 1839, nor he demand the principal of the purchase money. At the time stipulated for compliance, the vendor must be able to comply. How is this objection met? What will the purchaser, under Torrance's decree, say to us? I have bought out all his interest in the land. In 1835, he had the legal title, it was sold, and Torrance, could not comply with his bond to convey. Can this defendant answer us by saying, we may get the title from the purchaser, under the decree, or that possibly or probably, we may get it. Will Torrance's deed give a full title? Who is to decide that? Will the purchaser do it favorably to us? No. He will say he will not, and may rely on his decree. He may rely on the presumptions of the decree. This court cannot disturb his possession, without a bill. We might, perchance, recover it. Then is a vendee to pay for land, which he must go into equity against strangers, to compel a title to be given to him, after he has parted with his money? To relieve us from this difficulty, Lorman should have made these complainants parties, as Torrance's vendee, but that bill [**40]  disregards us altogether. As respects Torrance, the property is gone, and that entitles us to satisfaction of the judgment at law.

Then, what does equity impose on us? It is said, account for rents and profits. It must appear, that the vendee has, or might have received them. Possession of the estate is not stated in the bill in answer. Defects in answers are not cured by the act of 1832, ch. 302. No averment in answer of receipts of profits. If we are to account, how are we to account? The vendee here, is not to account for interest, but if for any thing, only for what he has made. This is a principle of justice. It was a ruinous concern. There can be no claim for interest where the debt is gone. The cause cannot be remanded twice to make a better case. There is no proof of dilapidation. Difference in price, is no proof of bad management. The possession is gone, which is the fault of the vendor.

As to the proceedings in Virginia, we are entitled to have the judgment at law entered satisfied, and the sale rescinded. The defence was not disclosed to the Virginia court. E. S. Buchanan not a party there. Then as the party claiming the Virginia land resides in Maryland, his conscience [**41]  may be affected here. No jurisdiction over the land, but there is full, over his person. Where a personal remedy may be decreed, or the subject matter is here, this court may act. Lorman is in no better situation than Torrance. If against equity to take B's Maryland lands, it is equally so to take his Virginia estate. Having lost the remedy in Maryland against the vendee, his sureties cannot be pursued in Virginia.  

JUDGES:
The cause was argued before ARCHER, C. J., SPENCE and MARTIN, J.  

OPINIONBY:
ARCHER 

OPINION:

 [*74]  ARCHER, C. J., delivered the opinion of this court.
The complainants seek to vacate a sale made by George Torrance to Eliza S. Buchanan, of one undivided fifth part of the Warren Factory, on the 16th day of April 1829, on which day she executed her bond for the purchase money, and to enjoin the defendants from proceeding to collect the amount of the purchase money. Suit having been instituted in Baltimore county court on this bond, judgment was confessed by the defendants on the 12th of December 1832, and proceedings having been instituted in the superior court for the county of Ohio, in the State of Virginia, as a court of equity, to subject certain [**42]  funds and lands of the obligors in the bond to sale for the payment of the said judgment, and a decree having passed thereon, and certain portions of the property 

 [*75]  having been sold, the bill further prays, that the defendants may be enjoined from further proceeding upon their decree in the superior court of chancery, for the county of Ohio, in the State of Virginia, that the sale reported in said cause of James Buchanan's land may be vacated, and the said William and Alexander Lorman enjoined from receiving a conveyance for said land, or in any manner alienating or disposing of the same; or that the said William and Alexander Lorman may be decreed to hold the same in trust for the heirs of James A. Buchanan, or his assigns, and for general relief.
It appears, from the bill, answer and exhibits, in the case, that after the contract of sale made by Torrance to Eliza Buchanan, that Torrance, on 13th of August 1830, mortgaged his interest in the property sold to William Fulford, to indemnify him as endorser for Torrance to the extent of $ 11,000, and on the 30th of November 1831, he mortgaged the same property to William [**43]  and Alexander Lorman, to secure the payment of $ 7500. These mortgages, on their face, were declared to be subject to the operation and effect of, as well a bond executed by Torrance to Eliza Buchanan, on 20th April 1829, for the conveyance to her upon the terms therein expressed of the aforesaid one undivided fifth of the Warren Factory, as of a mortgage of said interest, in connection with other property executed by Torrance to Fulford, on 13th of August 1830. On the 17th of May 1834, William Fulford and George Torrance executed an assignment of the mortgage of the 13th of August 1830, to W. and A. Lorman. On the 12th of May 1835, W. and A. Lorman filed their bill in Baltimore county court against George Torrance for a foreclosure and sale of the property thus mortgaged. To this bill Eliza Buchanan was not made a party, but the defendant, Torrance, voluntarily appeared, confessed the facts in the bill, and consented to a decree. On the 10th of October, Baltimore county court decreed a sale. On the 28th of January 1836, the trustee appointed to sell the mortgaged premises reported the sale to the court, and the same [**44]  was, by the court, on the 26th of February 1836, finally ratified and confirmed. On the 1st of July 1836, John Glenn, the trustee, in pursuance of the decree 

 [*76]  conveyed to the purchaser the one undivided fifth of the Warren Factory, thus sold to the purchaser.
Anterior to the above decree in Baltimore county court, P. F. Dawson, F. Dawson, and the Warren Manufacturing Company, alleging that John T. Barr had recovered a judgment against George Torrance, which was assigned to them, prayed to be, and were, by the court, made parties; and in their answer to the bill of W. and F. Lorman, allege, that the complainants have other securities for their debt, consent to a sale, and pray that the money may be brought into court to abide the decision of the court. The proceeds of sale amounting to $ 17,230, were distributed, $ 10,130, to W. and A. Lorman; to the Warren Factory, $ 6422.15, by an agreement between W. and A. Lorman, and P. F. Dawson and F. Dawson, filed on the 11th March 1836. By this agreement no more than $ 10,130 was to be applied to the payment of the mortgages exhibited in the cause; and it was agreed,  [**45]  that for the remaining balance due on said mortgages, W. and A. Lorman were to look to certain property of James A. Buchanan, in or near the town of Wheeling, which had been attached, &c.; and in consideration of $ 1000, P. F. and F. Dawson agree, that they will never interfere with Buchanan's property in Viringia, and W. and A. Lorman agree, that the balance of the proceeds of sale shall be paid to P. F. and W. Dawson.
Anterior to these proceedings in Baltimore county court, as a court of equity, to wit, on the 12th of December 1832, Torrance, for the use of Fulford, W. and A. Lorman, had obtained a judgment in Baltimore county court against the securities of Eliza Buchanan, who had survived her, for the purchase money. And, also, anterior to said proceedings in Baltimore county court, as a court of equity, George Torrance, W. and A. Lorman, and W. Fulford filed their bill in the superior court of law and equity for Ohio county, in the State of Virginia, against the securities of Eliza Buchanan, on her bond for the purchase money, alleging the execution of the bond, the judgment in [**46]  Baltimore county court, that it was paid, and praying to subject the lands of J. A. Buchanan to sale, for 

 [*77]  the payment of the said debt; and that funds in the hands of certain debtors of the said J. A. Buchanan should also be condemned for the payment of the said judgment. On the 6th of November 1835, the superior court for the county of Ohio decreed, that James A. Buchanan should pay to the complainants in that proceeding, on a day named, the sum of $ 24,744, with legal interest until paid, and costs, the said sum being the amount then found to be due on the bond of Eliza Buchanan, that a certain tract of land in the bill mentioned should be sold to pay the amount decreed, unless within the time specified, the said amount should be paid, and that the debtors of James A. Buchanan, who had been made parties, should pay to the complainants the sums in their hands belonging to him, and that as to the residue of the lands mentioned in the proceedings, the bill should be retained for future decree; and as to the other defendants, the bill was dismissed. A sale under the decree was accordingly effected on the 30th day of July 1836, and the said William [**47]  and Alexander Lorman became the purchasers. No further proceedings appear to have taken place in the Virginia court in the above case.
The complainants insist, that Torrance, by his acts, since the contract of purchase and sale, has disabled himself from complying with his contract, in making a title to his vendee, and that as by such acts the consideration upon which the bond has been given has failed, the contract of sale should be rescinded, and that the judgment obtained upon the bond given for the purchase money should be perpetually enjoined.
A vendee of an estate, in an unexecuted contract, is entitled to have that for which he contracts before he can be compelled to part with the consideration he agreed to pay. The ability of the vendor to convey should exist, when his duty, by the contract, arises to convey, or at the time of a decree for a conveyance, where time is not of the essence of the contract. And we conceive it to be equally clear, that a vendee is not bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to procure his title. These principles are so obviously just, that they must be considered as resting at the [**48]  foundation of every well regulated system of equity.

 [*78]  The admissions and facts in the cause show, that mortgages were, after the contract of sale, executed to secure to the mortgagees the payment of $ 18,500; that a bill was filed to sell the mortgaged premises to pay the mortgagees, and that a decree passed to sell the same, and the trustee was directed by the decree to convey to the purchaser the right of the mortgagor and mortgagees, which was executed by a sale in January 1836, and a deed accordingly executed to the purchaser in July 1836; in strict conformity with the terms of the decree. To this decree the vendor voluntarily consented, and assented to part with his title. There can be no doubt but that this decree and sale operated to extinguish the vendor's title, and to pass it to the purchaser. The argument which has been urged, that these mortgages and this decree only operated to pass so much of the purchase money due to Torrance as these mortgages called for, cannot be sustained, because, by the deeds themselves, the legal title passed to the mortgagees, and the mortgagees do not seek to subject to sale so much of the debt due to Torrance from Eliza  [**49]   Buchanan as would extinguish the mortgages, but they ask that the land mortgaged shall be sold to pay the amount of their lien, and the decree follows the prayer of the bill, and the assent given by the answer of Torrance, and directs the land to be sold, and all the rights of the complainant and defendant to be conveyed, upon a compliance with the terms of sale to the purchaser.
It thus appears, that when the contract of sale had ripened into maturity, Torrance, the vendor, by his own consent, as evinced by his acts, and by his answer to the bill in equity, had stripped himself of every vestige of title, legal or equitable, in the land he had sold, and was, himself, in consequence of these proceedings, in no condition to comply with his contract to convey, and had no legal capacity to enforce a re-conveyance of the title to him, so that he might comply with his contract.
It is true, that Eliza Buchanan was no party to these proceedings, and was, therefore, in no manner bound by them; and that she might, perhaps, have been competent, by applying as much of the purchase money as would have fully indemnified the purchaser, on the institution of proceedings in 

 [*79]   [**50]  chancery have coerced a conveyance upon the ground, that the mortgages were originally made subject to her contract of purchase, and that the purchaser under the decree in the county court took his title with notice of this condition and agreement. But although this may be so, it by no means relieves the case from the difficulties which surround it. For Eliza Buchanan, the vendee, was in no manner bound to take a title thus embarrassed, and to embark in a lawsuit against an adversary claimant, to obtain that, by delay, by perhaps expensive and protracted litigation, which, by the principles of law applicable to her contract, she had stipulated to have without delay, and without expense or litigation.
It has been argued that the complainants could, at all events, be only entitled to relief by averring a readiness to comply on the part of the vendee. If the vendee had gone into equity to compel a specific execution of the contract, she must have averred a compliance, on her part, with the terms of the contract, or to have offered to pay the purchase money. But this bill seeks a rescission of the contract, on the ground of a want of title, and a payment, or offer to pay, was unnecessary.  [**51]  To have paid the purchase money could not have strengthened the equity of the complainant. "Chancery requires no act to be done in vain: it therefore, could not require the payment of the purchase money in this case, or an offer to pay it after the defects in the title had become known," McLean, R. 86.
The case of Hart v. Bleight, 3 T.B. Mon. 273, has been cited by the appellees as a case analogous to this. But it will be found, from an examination of that case, that the vendor, at the time when the conveyance was to have been made, was in a condition to comply with his contract, and had, for a year afterwards, his title unembarrassed. It was the fault of the vendee that he had not, by paying the purchase money, put himself in a condition to demand a specific execution of the contract; and having been in default in complying with his contract, but for which he could have had a conveyance, it was conceived that he was not entitled to enjoin the collection of the purchase money, and that he should be driven to his remedy against the vendor, or against the purchaser under the judgment.

 [*80]  But in the case before us, long before the stipulated time for the [**52]  completion of the payments of the purchase money, and more than three years before the vendee could have called for the conveyance of the title, the vendor had parted with his title, and was utterly unable to comply with his contract to convey the land.
If we are correct in the above views, the consideration for the contract having wholly failed, Torrance, or his assignees, who stand in his stead, ought not to be allowed to recover the purchase money for the land sold, and as the judgment in the county court, sought to be stayed, was obtained on the bond for the purchase money, the defendants ought to be perpetually enjoined from instituting any proceedings to enforce its payment
The complainants conceiving that a perpetual injunction on the judgment obtained in Baltimore county court would furnish them with inadequate relief, if the defendants were permitted to reap the fruits of a decree, obtained against James A. Buchanan, seek further to enjoin them from proceeding to execute the decree obtained in November 1835, in the superior court of law and equity for Ohio county in the State of Virginia.
At the time of this decree, an equity existed on the part of the [**53]  present complainants, to relief. The property sold was then encumbered with the mortgages to Fulford and W. and A. Lorman; the bill of the mortgagees had been filed in Baltimore county court, and a decree had been obtained to sell the mortgaged premises with the consent of Torrance, to satisfy these liens. Had these defences, which then all existed, been brought by way of defence to the notice of the court of equity in Virginia, we are bound to believe, that no decree would or could have passed against James A. Buchanan, until the estate sold should have been relieved from its embarrassments; and until the vendor, by so doing, could have shown himself in a condition to have passed the title to the vendee or her representatives.
That the court in Virginia possessed jurisdiction of the case decreed upon by them, has not been, and could not be denied. The decree must be considered as conclusive, as to the merits 

 [*81]  upon the equities existing anterior to the decree, and as having all the efficacy of a domestic judgment or decree, and it could not there be examinable upon any ground of equity existing prior to the decree; and as it could not, upon [**54]  such ground, be examinable in Virginia, we are legally incompetent to examine it here. But if an equity has arisen subsequent to the decree, which would make it inequitable in the defendants to enforce that decree upon such new and subsequent ground of equity, not existing at the time of the decree, the law, as we apprehend, would fully justify the complainants in demanding the interposition of this court, in restraining the defendants from enforcing the decree.
When the decree in Virginia was passed in Nov. 1835, the period had not arrived, when by the terms of the contract, Torrance was bound to convey the land sold to the vendee. He had until 1839 to fulfil his part of the contract; although he had created incumbrances on the estate, he might have removed them, and although a decree had in October 1835, passed in Baltimore county court for the sale of the land, which by contract he was to convey, it was in his power to have prevented the sale, by paying the costs of the chancery suit, in Baltimore county court, and the liens for which the land had been decreed to be sold. This, however, he did not do, but suffered the decree to be executed by the sale of the [**55]  land in January 1836, which event occurred after the decree of the superior court of Virginia, by which event occurring after said decree, he had effectually placed it out of his power, either to convey, or to procure the title to the land he had contracted to convey.
Leaving out of view, therefore, all the acts of Torrance anterior to the date of the decree in Virginia, as upon this branch of the subject, not properly examinable, being foreclosed by the decree, the fact of the sale afterwards, by which he has disabled himself from complying with his contract, has created a new ground of equity in the complainants, which calls upon this court for the exercise of its restraining authority. This, however, can only be accomplished through the person of the defendant, who is within the jurisdiction of this court, and will not enable the court, as prayed by the complainants, to vacate 

 [*82]  any of the proceedings which have taken place under the Virginia decree. The defendant ought, therefore, to be enjoined seeking to enforce his decree, from accepting a conveyance of the lands purchased under said decree, or if he has obtained a title, he ought to be decreed to reconvey [**56]  the same to the heirs of James A. Buchanan.
From the views we have taken of this case, the contract of purchase must be rescinded; and it is insisted, that it should be upon the condition of paying to the vendor interest on the purchase money, and an equivalent in value for the deterioration of the property, during the continuance of the possession of the vendee.
For any deterioration of the property sold by the improvidence, or culpable negligence of the vendee, her representatives should be answerable, but not otherwise. 2 Dana 374.
If the vendee were put in possession of the land, for all the time it was occupied by her, or her agents, she should be made to account for the rents and profits. It has been contended, that interest should be allowed for the use of the land, instead of rents and profits. The general rule may be, that when the purchaser is let into the possession and the perception of the rents and profits, he ought to pay interest on the purchase money; the buyer, being the owner of the land, must rest satisfied with the rents and profits, and the seller, the owner of the money, is entitled to interest. But as there is, generally, a great disproportion [**57]  between the rents and profits, and the interest of the purchase money, there would be no propriety in applying the rule to a case where the sale was rescinded. In such a case, a court of equity could never treat the vendor as entitled to the purchase money, or consider the vendee as the owner of the land. These views will be found to be sanctioned by 3 Leigh 619 at 647, 648; a different rule would seem to have prevailed in some of the States, 2 Dana 374; but we cannot adopt the principle of that case, because we think it would operate injustice.
There is, however, no legal evidence in the case, going to shew the possession of the vendee, or its duration, or whether the deterioration of the property proceeded from casualty or 

 [*83]  negligence, or the value of the rents and profits, and therefore again remand the cause to the court of Chancery, that evidence may be taken on these subjects, in order that justice may be effectuated between the parties.
CAUSE REMANDED.  

12 of 42 DOCUMENTS 

HENRY TIFFANY vs. JOHN SAVAGE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 129; 1844 Md. LEXIS 15 

December, 1844, Decided 

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

This was an action of assumpsit, for goods sold and delivered. The defendant pleaded non assumpsit, &c.

The plaintiff to support the issue on his part joined, gave in evidence the following account, and affidavit attached to it, for goods, wares, and merchandise, viz:

"Baltimore, September 22, 1838.--Mr. John Savage, by Lewis M. Hughes, bought of Henry Tiffany, 2 pieces 3-4 check, 81 at 10 $ 8.10, &c., $ 260.07." &c.

The plaintiff by his counsel, then read in evidence to the jury certain interrogatories, by him filed in this cause, as follows, &c.

And the answers to said interrogatories by Lewis M. Hughes, a competent witness, sworn and examined on the part of the plaintiff, as follows:

1st. In the month of September 1838, I went to Henry Tiffany's and bought the goods in the name of John Savage.

2nd. I told the plaintiff, the said Henry Tiffany, that the goods were for John Savage, and had them directed to his iron works in Pennsylvania, to the care of his clerk, I think.

3rd. I believe the account as exhibited to me, is a true account of the goods purchased from said Tiffany for John Savage.

4th. I [**2]  did receive a letter from said Savage in reference to said goods. I decline attaching the said letter to the deposition, because a portion of it is separate and distinct from the transaction, and is private. The annexed statement, is a full, perfect, entire and true copy of that portion of the letter, in the handwriting of said Savage, relating to this transaction: "Why not answer Longhead's letter about the number of boxes forwarded; the bill of lading calls for 13 boxes, marked A. McCallister, Huntingdon, 19 bags of coffee, 2 bbls. sugar, marked John Savage. There was, likewise, a bale of goods marked A. McCallister, not entered on bill of lading. Really, it is too bad, to receive goods shipped, as you stated in your letter, on the 24th September, on the 8th day of October; a voyage to the West Indies could be accomplished before. Extreme inattention was to be found somewhere; three days ought have sufficed. No numbering of boxes, no notice of the bill of goods, &c. You put no card on the boxes as I requested."

5th. I have the letter in my possession, and the answer to the fourth interrogatory is my answer to this.

6th. The letter referred to, did acknowledge the receipt [**3]  of the goods, with the exception of one package, which said package, deponent since learned, had been received by said John Savage.

7th. I did direct the said plaintiff to charge the goods to the said Savage at the time they were purchased.

The defendant then read in evidence to the jury, interrogatories by him filed in said case, as follows, to be propounded to Lewis Hughes and to Holker Hughes, as witnesses to be examined on the part of the defendant.

And the answers to said interrogatories by J. Holker Hughes, a competent witness, sworn and examined on the part of the defendant, as follows:

1st. I had purchased from John Savage, (the defendant above referred to,) a certain lot of blooms, and undertook to procure for him, and to pay for goods to be purchased in Baltimore. I think I gave instructions to Lewis M. Hughes (my agent in Baltimore, Maryland,) to purchase such goods as John Savage might require, from any house with which I was in the habit of dealing. The bills of those goods, or copies of them, were rendered to me, and duly charged to said Savage, the defendant, on the "Mont Alto" furnace books, and on said books properly credited, among which said bills [**4]  so credited and charged, was one from Henry Tiffany for the goods above referred to and received by said Savage. The reason I undertook to pay for the blooms, purchased by me from said Savage in merchandise, was, that I had been dealing for a number of years in Baltimore, and had credit with merchants, among whom was said Henry Tiffany, and said Savage wanted goods, and was willing to receive them in exchange for the blooms above referred to, he being unacquainted with the merchants of Baltimore. The bill shown to me, and attached to interrogatories, and bearing date the 22nd September, 1838, which said interrogatories are signed by D. G. Yost, esquire, as counsel for plaintiff, is, I think, the amount of the bill rendered to me, and credited on "Mont Alto" furnace books to the aforesaid Henry Tiffany.

The plaintiff then read to the jury in evidence, the answers of the said Lewis M. Hughes to the above mentioned interrogatories, filed by the defendant, as follows:

1st. I purchased the goods upon the authority of a letter from Holker Hughes, who directed me to have them charged to John Savage.

2nd. I do not recollect of stating at whose instance the goods were purchased [**5]  at the time I ordered them.

3rd. In answer to this interrogatory, I refer to my answers to fourth, fifth and sixth interrogatories on the part of plaintiff.

4th. It was in compliance with the instructions from Holker Hughes, referred to in answer to first interrogatory.

Whereupon the defendant, by his counsel, prayed the opinion and direction of the court to the jury from the evidence above set forth, the plaintiff is not entitled to recover, because it is not proved by said evidence that the said Lewis M. Hughes was the authorized agent of said defendant in purchasing said goods, wares and merchandise from said plaintiff, and forwarding them to said defendant; which opinion and direction the court gave. The plaintiff excepted and appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where a plaintiff contracts with the defendant's agent, in an action on the contract, it is necessary to give proof that the agent had some authority.

Although upon the whole testimony in a cause, on both sides taken together, the conclusions of a judge might be, if acting as a juror, that the verdict should be for the defendant, yet if there is evidence legally sufficient to warrant the jury in finding for the plaintiff, when left unaffected by the defendant's proof, the court will not say to the jury upon the motion of the defendant, that there is no evidence in the cause, or that the plaintiff's cause is not proven.  

COUNSEL:
By D. G. YOST, for the appellant, and

By PRICE, for the appellee.  

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

OPINIONBY:
SEMMES 

OPINION:

 [*132]  SEMMES, J., delivered the opinion of this court.
The question for our decision in this case is, whether upon the facts proved on the trial below, the court erred in not leaving it to the jury to decide the issue between [**6]  the parties?
The suit was brought by Henry Tiffany against John Savage, to recover the price of a certain quantity of goods, which had been purchased of the plaintiff by a certain Lewis M. Hughes, and forwarded to the defendant. The testimony offered by the plaintiff, consisted of an account with a probate thereto annexed, and of the deposition of the said Lewis M. Hughes, which had been taken, together with the deposition of Holker Hughes, the defendant's witness, under a commission issued for that purpose. The account was headed thus,
"BALTIMORE, Sept. 22nd, 1838.

"John Savage, by Lewis M. Hughes,
Bought of Henry Tiffany."
Then follows the items, amounting in all, to $ 260.07. To this account is annexed the affidavits of the plaintiff and his clerk, George Standard, Jr., proving the correctness of the same, in the usual way; and that it remained unpaid. The deposition of Lewis M. Hughes, stated in substance, that he had purchased the goods from the plaintiff in the name of the defendant, and that he told the plaintiff the goods were for the defendant. That deponent had them directed to the defendant's iron works, in Pennsylvania [**7]  , and that he afterwards received a letter from the defendant, in which he complained of delay in the arrival of the goods, and of a want of attention through someone's fault, in his not receiving proper information in respect to the same; that said letter acknowledged the receipt of the goods, with the exception of one package, which deponent afterwards learned had been received by the defendant. But it was shown 

 [*133]  by the deposition of Holker Hughes, the defendant's witness, that the said Holker Hughes had purchased of the defendant a certain lot of blooms, and had undertaken to pay for them in merchandise, to be procured in Baltimore. That he accordingly gave instructions to the said Lewis M. Hughes, (deponent's agent in Baltimore,) to purchase such goods as the defendant might require, from any house with which deponent was in the habit of dealing. That the goods were purchased as ordered, and bills for the same rendered to deponent, with which the said defendant was duly charged, &c., on the books of the "Mont Alto" furnace; that amongst the bills so rendered and charged, was the bill of Tiffany, the plaintiff, for the goods bought of him, as [**8]  aforesaid, by the said Lewis M. Hughes; and upon the whole evidence, the defendant by his counsel, prayed the opinion and direction of the court to the jury, that the plaintiff was not entitled to recover, because it was not proved that Lewis M. Hughes was the authorized agent of said defendant, in purchasing said goods from the plaintiff, and forwarding them to the defendant, which opinion and direction the court gave; and it is contended, that the court by thus taking all the facts within its own exclusive cognizance, usurped the province of the jury, and decided upon the "measure and quantity of the proof," as a question of law. Let us see whether the judgment of the court below, is obnoxious to the objections which have been urged against it. It was certainly necessary, in order to entitle the plaintiff to recover, to establish the fact that the said Lewis M. Hughes had some authority, either express or implied, from the defendant, to act as his agent in purchasing the goods. And, if the court below was right, in granting the defendant's prayer, we must conclude that the evidence offered by the plaintiff, taken by itself, was legally insufficient to warrant the jury [**9]  in finding that fact. See the case of Cole, vs. Hebb, adm'r. d. b. n. of Wm. Gwyther, to be found in 7 G. & J. 20. But we are not warranted in coming to such conclusion, from the testimony offered by the plaintiff in this cause. The account, which we find in the record, with the joint affidavits of the 

 [*134]  plaintiff, and his clerk, George Stanard, Jr., thereto annexed, as aforesaid, shows on its face to be an account by the plaintiff, against the defendant, for goods sold and delivered, and is the plaintiff's identical cause of action in this suit. This account, it appears, was suffered to go to the jury as evidence; to which is to be added, on the part of the plaintiff, the deposition of Lewis M. Hughes. Now, notwithstanding it may be true, that if the whole testimony, in the cause on both sides, be taken together, our conclusion might be, if sitting as a jury, that the verdict should be found for the defendant; yet seeing, as we do, that there was evidence offered by the plaintiff, legally sufficient to warrant the jury in finding the issue, which it was offered to sustain; testimony, which if left unaffected by the defendant's proof, would have been [**10]  conclusive in the plaintiff's favor; we are of the opinion, that the court below erred in granting the defendant's prayer.
We therefore, reverse the judgment, and order a procedendo.
JUDGMENT REVERSED.  

13 of 42 DOCUMENTS 

JOHN GLENN vs. WILLIAM A. MCKIM AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 366; 1845 Md. LEXIS 38 

December 1845, Decided 

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

On the 12th November 1834, Joseph McKim filed a bill to sell the real estate of his deceased brother, Samuel McKim; and on the 4th May 1835, a decree was passed for that object, and John Scott and W. H. Marriott, were appointed trustees to carry it into effect. They gave separate bonds, made a sale, and deposited the proceeds of sale in court. Proceedings in attachment having been instituted by a creditor of one of the parties, distribution of a portion of the fund was delayed; and on the 22nd July 1836, the following agreement was filed in the cause:--

"On the exceptions which were filed by Joseph McKim and others, to the account of the trustees, stated and filed by the auditor on 23rd September 1835, by which a part of the proceeds of the sale of the said estate were allotted to William T. Fleet, John A. Fleet, and Andrew Fleet, and to Laura M. Fisher, Margaret J. Fisher, Charles M. Fisher, Janette Fisher, and Elizabeth Fisher, the Chancellor having sustained the said exceptions by his order of 28th June last, and the said William T. Fleet and others, above named, having been excluded by the said order from any participation in the proceeds [**2]  of the said estate, and having taken an appeal from the said order, it is agreed, by and with the consent of the Chancellor, that John Glenn and John Scott of the city of Baltimore, be constituted trustees, to receive and invest that portion of the proceeds of the said estate, now deposited in the high court of chancery, which was allotted to the said William T. Fleet and others, by the said account of 23rd September last past, to wit, the sum of $ 8912.90, being one-fifth of the net proceeds; and the further sum of $ 1782.58, to which the said Laura M. Fisher and others, will be entitled, provided the said order of the Chancellor is reversed. And it is further agreed, that the register of the Court of chancery, by and with the consent of the Chancellor, draw checks for the said sums of money, payable to the order of said John Glenn and John Scott. And it is further agreed, that upon the final hearing of the said appeal, the said John Glenn and John Scott shall pay into the Court of chancery the said sum of money, and all interest and profit which may accrue thereon, subject to the said order and decree which may be passed on said appeal."

"JOHN SCOTT, for complainant, and solicitor [**3]  for Alexander McKim, William A. McKim, and Guest and wife; and guardian of Joseph McKim."

"JOHN GLENN, for John A. Fleet and others."

"WM. H. MARRIOTT, for Jane Hutchinson."

"T. PARKIN SCOTT, for Margaret C. Fisher."

On the 30th July 1836, there was filed in the said cause the following receipt:--

"BALTIMORE, 27th July, 1836.--We do hereby acknowledge to have received from Ramsay Waters, Esq., Reg. Cur. Can., a check on the Farmers Bank of Maryland, for the sum of $ 10,695.48, drawn by him, pursuant to the order of the Chancellor, payable to the credit of the real estate of Samuel McKim, deceased.     JOHN SCOTT,

$ 10,695.48.     JOHN GLENN."

On the 8th March 1843, James Guest and wife, Jane Hutchinson, William A. McKim, and Margaret C. Fisher, as heirs at law of Samuel McKim, filed a petition, setting forth the previous proceedings in the cause; and that upon the appeal taken, the decree of the Court of chancery had been affirmed, so that the event contemplated by the agreement, has occurred; and that the petitioners are entitled to require, that the aforesaid sum of money, ($ 10,695.48,) with its profits and increase, should be brought in [**4]  for distribution among the parties, who had become entitled thereto by the aforesaid decree of the Court of Appeals. That the trustees are jointly responsible, and the petitioners ignorant of the profits made, and for what they might have made, and did not, by reason of their negligence. Prayer, for disclosure, and for an account, &c.

On the same day the chancellor ordered, that the trustees answer the petition.

John Scott, by his answer, admitted it to be true, that in the year 1836, a large sum of money was then on deposit in the Court of chancery of this State, belonging to the estate of the late Samuel McKim, the right to which was then in controversy between certain persons, of whom the petitioners are some, claiming to be heirs at law of the said S. McK., and that under an order passed by the chancellor, the precise amount of which this defendant has not, at this time, the means of ascertaining, the said sum of money was directed to be paid to John Glenn and this defendant, as trustees, pending the said controversy, to be invested for the benefit of those persons who might be entitled to the said fund. That of the funds so paid, this defendant, with the consent of the [**5]  said John Glenn, loaned on security to John H. Hunter, Esq., of Baltimore, the sum of $ 5000, which was repaid as follows: $ 200, on the 8th May 1837, and the balance, to wit, $ 5101.67, on the 31st July 1837; and that this defendant then, on the 1st August, in the same year, loaned to Luke Tiernan, Esq., then of the city of Baltimore, but since deceased, the sum of $ 5000, on mortgage, and that the said Luke Tiernan, Esq., paid to this defendant the interest thereon, from the 1st August 1837, to the 1st August 1839, amounting to $ 600, and died sometime in that year, without having made any further payments on account of the said debt. That after the death of Luke Tiernan, Alexander Niel, Esq., one of the executors of the will of Luke Tiernan, made the following payments to this defendant on account of said debt and interest, viz., on the 14th January 1840, $ 150; on the 6th July 1841, $ 150, for interest to the 1st of August next, thereafter; on the 2nd February 1841, $ 150, for interest to the 1st January; on the 11th February in the same year, $ 1000; and on the 28th May 1841, $ 3080, in full of said debt; and that of this sum so last paid, this defendant, on the 1st June, in the [**6]  same year, paid to the Baltimore & Ohio Railroad Company, he being the administrator upon the personal estate of the said Samuel McKim, the sum of $ 2000, on account of installments then due upon the stock belonging to the estate of the said Samuel McKim. And this defendant, further answering, saith, that the controversy respecting the right to the said sum of money, was decided by the Court of Appeals, at June term 1838, on an appeal from an order of this court, taken by the Fleets against the heirs of said Samuel McKim, in which matter this defendant acted both as counsel and agent for the said heirs, and associated Reverdy Johnson, Esq., with him as counsel; that he considered himself as entitled to a fee of $ 500, for his service, and he requested John Glenn, Esq., to pay out of the fund in his hands a like fee to Reverdy Johnson, Esq., which was done. This defendant further answering, saith, that in November 1837, this matter could have been settled so far as regards the said controversy, but that pending those proceedings, Samuel G. Hyde of the city of Baltimore, claiming to be a creditor of the estate of Samuel McKim, to an amount greater than the whole of the personal estate,  [**7]  had filed a bill in chancery against this defendant, as administrator as aforesaid, and subsequently a supplemental bill, and the distribution of the said funds was enjoined by your honor; to all which proceedings this defendant begs leave to refer, and prays, that the same may be taken and considered as a part of this, his answer to the said petition. And this defendant further answering, saith, that in the year 1837, being then the sole counsel of Joseph McKim and Alexander McKim, surviving brothers of Samuel McKim, each of whom is entitled to one-fourth of the whole estate, both real and personal, except so far as other counsel were employed by him in suits at law and in equity, and considering himself able to meet his own engagements, and being as administrator, charged in some degree with the interests of the other parties, he paid the clerk of the Court of Appeals, $ 19.60, his fees, on the appeal herein before mentioned; and expecting thereafter to be allowed large fees and commissions from his clients in the settlement of the said estate, and being then in want of money, in the month of November in the same year, borrowed from John Glenn, Esq., $ 1100 out of the said funds,  [**8]  and the further sum of $ 250 on the 19th July 1835; and that actuated by his own impressions of his authority, and then still hoping with the aid of his fees and commissions, and other resources, (in which he has been disappointed,) to be able to pay up the said fund when required, which he had received from the estate of Luke Tiernan, Esq., as aforesaid, he received the same without the knowledge of the said John Glenn, and also applied the same as before stated, without his knowledge. And this defendant further answering, saith, that he is aware that this answer is important in many particulars. That for eleven months he has been, from indisposition, rendered almost incapable of attending to business; and in consequence of ill health has been compelled to remove from Baltimore. That the copy of the petition in this cause was shewn to him on the 16th March last, past, but not left with him. That as soon thereafter as possible, he came to Baltimore, for the purpose of preparing his answer, but that from that time until yesterday, he has been confined by indisposition, and unable to answer the same. He therefore now prays for further time, and he will, &c.

The answer of John Glenn [**9]  admitted, that on the 27th July 1836, John Scott, Esq., and respondent, received for investment $ 10,695.48, of which was lent to John H. Hunter, on the following day, secured by mortgage, $ 5000; that this sum, with interest, was repaid on the last of July 1831, and on the following day, $ 5000 were loaned to Luke Tiernan, on mortgage. That the interest received of Hunter, was in part applied by Mr. Scott, for a fee due him of $ 500, in the Court of Appeals, and Court of chancery, in this cause. That this respondent never knew or supposed, till very recently, that said Scott had received of Mr. Tiernan, or his representatives, any part of either the principal or interest of said mortgage; and this respondent avers, that such receipt was without the authority, privity, consent, or knowledge, of this respondent. That in the month of August 1836, the said Scott and respondent, lent to Alexander Brown & Sons, $ 5856.34, from which deduct a fee paid to Reverdy Johnson, on or about 3rd September 1838, and the balance this respondent brings here into court, with this answer, and this respondent prays to have allowed to him a commission for such investment, and also for $ 1350, paid out of [**10]  said fund to Jno. Scott, Esq., counsel of Joseph and Alexander McKim, with interest thereon, from the time the same was paid to him, and, &c.

Statement by J. Glenn filed, with his answer:--

________________________________________________________________________________
1836, Aug. 9--To cash lent A. Brown & Co.,	$ 5866 34	
Int. to 30th June 1843,	2425 58	
	
		$ 8291 92	
Deduct,	
3rd Sept., 1838--Paid R. Johnson,	$ 500 00	
Int. to 30th June 1843,	144 75	644 75	
	
		$ 7647 17	
________________________________________________________________________________

The cause was then referred to the auditor, and the defendant, Glenn, deposited in court the balance above mentioned.

The auditor reported an account, in which he distributed the above sum among the heirs of Samuel McKim, a portion to the petitioners, with others, and he further reported, that an agreement was filed on the 3rd April 1837, for suspending over the payment of Alexander McKim's portion of the proceeds of sale, until the termination of a certain controversy therein mentioned, which does not appear, from the proceedings, to have been yet terminated; and that on the 17th September 1838, an order was passed, suspending the payment over of the net proceeds of the estate of the deceased, until further order, which has not yet been [**11]  rescinded; and he submitted, that no part of the said fund in court be distributed, without further proceedings, and that the payment of the said Alexander McKim's portion thereof, be also suspended, according to the said agreement; and he further reports, that it appears from the answers of John Scott and John Glenn, Esqs., the trustees, that the funds entrusted to them, for the purpose of investment, had been misapplied by the former; that the deficiency is evidently greater than any amount of fees that would be allowed, according to the usual course of the court, and the said trustees are answerable, each for the conduct of the other; no commissions have been for the present allowed.

The petitioners then filed another petition, suggesting the grounds on which the objections of the auditor, in reference to the suspending orders, might be dispensed with, and praying another reference to that officer, which was ordered on the 19th October 1843.

It was then admitted, by agreement, that John Glenn never united in any release of mortgage to Luke Tiernan, or his representatives, of the mortgage made to him and John Scott.

The auditor then filed another account, in which [**12]  the two trustees were jointly charged with $ 10,695.48, as per their receipt of 30th July 1836, with $ 170.86 loaned, being so much above the amount entrusted to them by the answer of John Glenn, with various amounts of interest received, and credited with the sum of $ 7647.17, paid into court by Glenn; $ 500 paid to counsel, and commissions on the whole sum. The balance, $ 7232.75, was variously distributed among the heirs of S. McKim; a second account only distributed the money paid in by Glenn.

The appellant, Glenn, excepted to this audit, because it charged him with money received by John Scott, and with more money, $ 170,86, than was ever received to be invested; and because in one account, no commissions was allowed him.

It was then further admitted, that the property mortgaged by Luke Tiernan to John Glenn and John Scott, to secure the payment of the money belonging to the McKim estate, loaned by said Glenn and Scott, to said Tiernan, was amply sufficient for the purpose; that the moneys stated by John Scott to have been received by him, were so received by him in manner and under the circumstances stated in his answer, filed in this case, and that John Glenn, in no [**13]  way, participated in receiving such money, or endorsing the note given for its security, or in releasing the mortgage; and it is agreed, that the last account stated and reported by the auditor, for the distribution of the money actually in court, shall be ratified, as stated.

The mortgage of the 1st August 1837, from Luke Tiernan, for $ 5000, to Glenn and Scott, as trustees, was also filed, with the release thereof, by John Scott, of the 2nd December 1841.

On the 3rd January 1844, other accounts were reported, in which the balance of $ 7232.75, was assumed to be still due from Scott to Glenn, and distributed differently from the former accounts, in consequence of the death of some of the heirs, and for other reasons.

To this account the appellant also filed exceptions; but on the 27th January 1844, the Chancellor, (BLAND,) ratified it, and ordered the trustees to pay accordingly; from which the said Glenn prosecuted this appeal.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

A sum of money deposited in the Court of chancery, being detained there by appeal, it was, in July 1836, agreed, that by and with the consent of the Chancellor, that G and S be constituted trustees, to receive and invest such funds; and that upon the final hearing of the appeal, the trustees should pay into the Court of chancery the said sum, and all interest and profit which might accrue thereon, subject to the order and decree which might be passed on said appeal. The money was paid to the trustees, who jointly receipted therefor, loaned H a part thereof, which was repaid in about twelve months, and immediately thereafter loaned the same sum to T, who amply secured the same by mortgage. The mortgagee paid interest thereon from time to time to S, one of the trustees; and in 1841, repaid him the entire principal sum, when he released the mortgage. All the payments to S, were without the knowledge, privity, or consent of G, who was also ignorant of the release. The cause, upon appeal, was decided in 1838, but no application was made for a distribution of the fund, by those entitled to it by the decree of the Chancellor and appellate court, until 1843, when a petition was filed, requiring the trustees to account. It then appeared that S had misapplied the fund received from T. There was no charge of fraud, collusion, or criminal remissness on the part of G. HELD: that the loan to T, was properly and regularly made, and that G, as co-trustee, was not responsible for the money received by S from T, and misapplied.

A trustee is answerable for the default of his co-trustee, if, with a knowledge, that the trust fund is in a course of abuse, that his co-trustee is making an improper use of it, he remains passive, refuses or declines to interfere.

If there be mal-practice, fraud, or evil dealing between co-trustees, then the one shall be answerable for the default of the other.

If judicial trustees are to be made responsible for the acts of each other, in cases where trustees, by agreement, would not be so, it must be by virtue of a bond, taken for the due performance of their trusts, and where one stipulates for the other.

Where there are two trustees, and one of them is in default, without the knowledge, privity, or consent of the other, the parties interested, who selected the defaulting trustee, shall not hold the other, innocent one, liable for the defaulter's acts.

Where two trustees are appointed to receive and invest money, and one of them puts it into the hands of the other to invest, instead of investing it with his associate, and the latter uses the money, both are answerable.

Where money was paid out of chancery, by agreement, to trustees, to invest and make interest pending an appeal, and the trustees, upon the determination of the appeal, were to bring the fund and interest again into court, but, in the meanwhile, other proceedings were had in the cause, which prevented the Chancellor from awarding a distribution of the fund, until these also were disposed of, the obvious intent of the parties required, that the investment, for the sake of interest, should continue until such other proceedings were acted upon, and it was not the duty, nor the right of the trustees, to prevent the fund from yielding interest, while the court had not, from any cause, the power of distributing it.  

COUNSEL:
By MEREDITH for the appellant.

The exception of the appellant to the auditor's account, as to $ 170 charged against him, must prevail. The charge is a clear mistake.

There was no original [**14]  liability of the trustees, each for the other. Glenn did not select Scott, who was the attorney of the parties. This is an additional ground of defence for the appellant.

That the trustees were not originally liable for each other; and that fraud, mal-practice, is the ground of such liability; he cited: Townley vs. Sherbone, Bridgman's Rep., 35. Lewin on Trusts, 136. 24 Law Lib., 136. Sadler vs. Hobbs, 2 Bro. C. R., 116, 117. Townley vs. Chalenor, Cro. Chas, 312. Hardres, 314. Leigh vs. Barry, 3 Atk, 584. Williams vs. Nixon, 2 Beavan, 472. Littlehales vs. Gascoyne, 3 Bro. C. R., 74. Hovey vs. Blakeman, 4 Ves., 596. Bacon vs. Bacon, 5 Ves., 331. Evans vs. Evans, 1 Dessau, 520. Knox vs. Pickett, 4 Dessau, 92. Sutherland vs. Brush, 7 John. C. R., 22. Lawrence vs. Lawrence, Lit. Select Cases, 23. Massey vs. Carlton, 1 Cheves, 181. 1 Iredell Eq., 93. Gardner and Bowling vs. Harvey and Simms, 12 G. & J., 365, 384. Walker vs. Symonds, 3 Swan, 1. Lewin on Trusts, 24 Law Lib., 140. Brice vs. Stokes, 11 Ves., 319. Langford vs. Gascoyne, 11 Ves., 335.

Joint executors and joint trustees, are exempt from all liability for each other, if merely passive, though with knowledge that his co-executor [**15]  or trustee, has the funds. Williams vs. Nixon, 2 Beavan, 472. Where two executors were directed to invest and accumulate a surplus, one received the funds and misapplied it, the other, without knowledge, is not answerable. Lenoir vs. Winn, 4 Dessau, 65.

The general rule is, that one trustee is not liable for the default of his companion, nor is it error on his part, to permit his co-trustee to receive the funds of the trust.

If a trustee is not merely passive, but by some positive act, by direction or agreement, enables his co-trustee to get possession of the trust fund, then he is liable. Clough vs. Bond, 3 Mylne & Craig, 490. Davis vs. Spurling, 1 Russ. & Mylne, 66. Gill vs. The Attorney General, Hardres, 314. Shipbrook vs. Hinchinbrook, 11 Ves., 252. Same case, 16 Ves., 477. Fox vs. Mackreth, 2 Bro. C. R., 400. Underwood vs. Stevens, 1 Merriv, 712. Adair vs. Shaw, 1 Sch. & Lef., 272. Joy vs. Campbell, Ib., 341. Bone vs. Cooke, 13 Price, 332. Chambers vs. Minchin, 7 Ves., 186. 3 Young & Collyer, 359. Clarke vs. Clarke, 8 Paige, 153. Monell vs. Monell, 5 J. C. R., 283. Johnson vs. Johnson, 2 Hill, 293.

If one trustee joins in a receipt, but receives no part, and shows [**16]  the fact, the receipt itself does not impose any liability on him. Fellows vs. Mitchell and Owen, 1 P. Wms., 81. Churchill vs. Lady Hobson, 1 P. Wms., 241, each trustee is to account for what he has received. A trustee may passively let funds go into the hands of a co-trustee, but in any agreement with him, he makes himself responsible. The principle which protects a trustee from responsibility, when he joined in a receipt, and in fact received no part, was not originally applied to executors, on the ground, that as it is not necessary for the executor to join, interfering in the transaction unnecessarily, the inference is the other way. If he assumes a power over the fund, he is answerable in the particular transaction. Churchill vs. Lady Hobson, 1 P. Wms., 241. Brice vs. Stokes, 11 Ves., 324. Harden vs. Parsons, 1 Eden, 147. Westley vs. Clarke, 1 Eden, 359. Sadler vs. Hobbs, 2 Bro. C. R., 117. Chambers vs. Minchin, 7 Ves., 198. Shipbrook vs. Hinchinbrook, 16 Ves., 479. Joy vs. Campbell, 1 Sch. & Lef., 344. Mosely, 35. 24 Law Lib., 138.

The rule was attacked in 1 P. Wms., 241, a distinction was taken applicable to executors, in relation to legatees and creditors. The principle [**17]  was applied in relation to creditors, entitled to the utmost benefit of the law, against executors joining in a receipt. Each executor was made liable for the whole, but as to legatees, they had no remedy for their demand, but in equity.

In Westley vs. Clarke, 1 Eden, 245, the distinction between executors and trustees was doubted, and held, they stood on same ground with reference to receipts, if there is no other proof, as where one executor received mortgage money, and afterwards asked his co-executor to unite in a receipt and release. The act of the second deemed nugatory, one executor is competent to receive and release, and his acts are binding. In Scurfield vs. Howes, 3 Bro. C. R., 94, Lord Alvanley doubted the distinction. In Hovey vs. Blakeman, 4 Ves., 608, joining in a receipt was not held conclusive. There acting, as well as joining in a receipt. Walker vs. Symonds, 3 Swan, 64. 2 Sto. Eq., sec. 1283. Joining in a receipt, is only prima facie evidence. Monell vs. Monell, 5 John. C. R., 296. McNair's Appeal, 4 Rawle. Rep., 148. Many exceptions have been introduced, but the true test is in Townley vs. Sherbone. Trustees are sometimes treated as bailees, and only responsible [**18]  for negligence, evil practice, or fraud. Knight vs. Earl of Plymouth, 1 Dicken, 126. Sto. on Bail, 111. 2 Ch. Cases, 2. Pybus vs. Smith, 1 Ves., Jr., 189. Trustees, who are mere stakeholders, not liable. Balchin vs. Scott, 2 Ves., 677. It is like a gratuitous bailment.

The test of liability is this:--as a general rule, not bound for the acts and doings of each other,--if there is an absence of all fraud, and the exercise of reasonable diligence, no liability attaches. Clough vs. Bond, 3 Mylne & Craig, 490, 496. Rowth vs. Howell, 3 Ves., 565. Bacon vs. Bacon, 5 Ves., 331. Trustee dealt with funds as his own property, not liable. Adams vs. Claxton, 6 Ves., 225, 227. They are expected to take the same care of trust funds, as a reasonable attention to their own affairs would dictate to them, to take of their own property, and not more. Massy vs. Banner, 1 Jaco. & Walk., 241. Rainsfred vs. Rainsfred, Rice S. C. Eq. Rep., 343. Hurtt vs. Fisher, 1 H. & G., 88. Trustees are responsible for gross negligence. Mr. Glenn's want of knowledge, now admitted by all, excuses him from Mr. Scott's default. Was there an exercise of due diligence on his part? He made no enquiry. He knew of the mortgage,  [**19]  that it was joint and ample; of Mr. Scott's relations to the parties in interest; that he was attorney, administrator for some; that he was "dux et factotum," entitled to large fees for extended labor. He knew the mortgage could not be released without him; that the executors of Tiernan, were cautious and prudent men; that the transaction could not be attacked for fraud; that the application of a third party, kept the fund locked up. There was, then, no want of diligence in relying securely upon the mortgage.

It was a trust fund, the representatives of Tiernan had notice of this when they took the release. The petitioners ought to follow the property for their indemnity. Lewin on Trust, 135. Sinclair vs. Jackson, 8 Cow., 543. Hawley vs. James, 5 Paige, 323. Murray vs. Lylburn, 2 J. C. R., 442. Adams vs. Clifton, 1 Russ., 297.

If the executors of Tiernan had been made parties, what defence could they have set up? The court would have sheltered an innocent trustee. Then, what is there to prevent the remanding of this cause, with directions to make new parties, and seek relief against the mortgaged property?

By LATROBE for the appellee.

In this cause, there was more [**20]  than one trustee in fact, yet, all are regarded by the courts as one. This might lead in some cases to injustice, if not controlled, to some extent, by the salutary discretion of the courts of equity. A recipient of a fund is alone responsible, except under peculiar circumstances. 2 Story Eq., 652, sec. 1283. We start in this cause with a joint receipt. The responsibility is to be regulated by that instrument. It attached at the time when the two trustees received the money. Monell vs. Monell, 5 John. C. R., 295. 2 Sto. Eq., 649. Joy vs. Campbell, 1 Sch. & Lef., 341. The true question is, was the fund under the control of both parties? if so, both are chargeable. Bridgeman, 35. 7 East, 240. 1 Dev. & Batt., 199. No cases have been cited, where the joint trustee has been discharged by equity; yet, in most of the cases, that trustee had not, in fact, received the money sought to be recovered. The fund, once in the hands of the trustee, and he remains responsible, while the security is ample and solvent. The cases, Churchill vs. Lady Hobson, 1 P. Wms., 241; Williams vs. Nixon, 2 Beav., 472, are the only exceptions.

The fraud of one trustee is, constructively, the fraud of the other;  [**21]  that is, he is liable for consequences, though innocent of the fact. How can the fraud of one, discharge a liability which has attached? The duty here, was for both trustees to invest and return the money into court, upon a certain event, which has long since transpired. Of that duty to return, the co-trustee was negligent. He let it pass, and did nothing. He did not attempt to recall the fund. A prudent man would have looked after it. The expiration of the mortgage, the death of debtor, and the end of a year from that death, at which epoch the administrator of the deceased debtor was bound to pay, were all cautions calculated to excite attention and promote diligence, and yet the trustee did nothing. After this, the fund was lost by payment to his associate trustee, since dead and insolvent. 24 Law Lib., 140.

By REVERDY JOHNSON for the appellant, in reply.

The mortgage taken by the two trustees was a good security, for principal and all accruing interest. The object of the agreement was, to increase the fund, and secure both parties beyond the mere personal security of the trustees. The fund was to be placed beyond the hazard of loss by investment. What is the law of such [**22]  a case? what the extent of the responsibility of each trustee? The general rule is not denied.

In the case of joint trustees, whether they do, or do not join in the receipt, there is no responsibility for each other, except for misconduct; when one, who has not in fact received the fund, is called upon to account, that fact must appear. The rule is founded on two grounds: on a general equity, that a trustee is not bound to answer for what he has not received; on public policy, that a more rigid principle would be too severe, too exacting, and thus the public would suffer, by excluding prudent men from a service where they are most essential. The principles are stated in Bridgeman, 35. 24 Law Lib., 269, 271. There must be fraud, evil dealing, or mal-practice in the non-receiving trustee. It is no breach of trust to permit one of two trustees, to receive all the profits of an investment. Ex parte Belchor vs. Parsons, Ambler, 219. Fellows vs. Mitchell, 1 P. Wms., 83. 2 Sto. Eq., 1280, 1281. It was the opinion of that distinguished jurist, Judge Storey, that a joint trustee was only liable for his own acts and receipts; perhaps he was in error, as to difference in the rule touching [**23]  executors and trustees in England.

The rule of irresponsibility, in favor of innocent trustees, is founded in justice. He ought never to suffer where he could not, ought not, to anticipate loss, and prevent loss. Any other doctrine would be against equity. Why does a joint receipt impose liability on all? Because all are blameable for some act done, or omitted to be done, under it. It supposes, that loss could not incur, unless blame on all. Possession of funds at sometime, during and under a trust, does not involve responsibility at all future time, while the trust continues. The fund was received in 1836; loaned by both to Hunter, on good security, and repaid. The whole principal was lent again to Tiernan, fairly, honestly and prudently. If the second loan had been refused, it would have been a breach of duty. Some calamity arises. The property depreciates in value. The trustees are not responsible for loss, yet, they received, and have not accounted. How are they to account? What they did, was in the course of duty, and it would be flagrant wrong to make them responsible for such a loss. The test is, what would a man of ordinary prudence and care, have done under the circumstances?  [**24]  The object was to make interest, the principal being well secured; the fund could not be used, by reason of intervening proceedings in chancery; it was locked up. In such a case, all prudent men would have awaited, until the court could act. But, for what he did not know, and, therefore, could not prevent, he was doing what the object, design, and intent of his appointment demanded.

The court will treat a faithful trustee, as liberally as they can.

The cases in Ringgold vs. Ringgold, 1 Harr. & Gill, 11. Gardner and Bowling vs. Hardey and Simms, 12 Gill & John., 384. 1 P. Wms., 241. Bacon vs. Bacon, 5 Ves., 331, are all important causes on these questions, and this head of equity.

The item of $ 1350, was received by Scott, as counsel for Joseph and Alexander McKim, and this discharges Glenn. The $ 200 was borrowed by Scott, to whom fees were due out of the fund.

Compound interest will not be allowed, there was no direction to accumulate by re-investment.  

JUDGES:
The cause was argued before ARCHER, C. J., CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*380]  MAGRUDER, J., delivered the opinion of this court.
A decree of the Court of chancery, brought [**25]  into that court a large sum of money, the proceeds of sale of the real estate of Samuel McKim, in order there to be distributed among the persons to whom the real estate descended. Before distribution was made, the title of some of the claimants to any share of the estate, and, of course, of the purchase money, was denied by others, who were admitted to be heirs of the intestate. Thus arose a controversy in chancery, about a considerable part of the fund, and the Chancellor having, by his order, excluded some of the claimants, an appeal was taken by them to the Court of Appeals. Shortly after this appeal, the parties litigant, by their counsel, entered into an agreement, (which it is admitted, had the sanction of the Chancellor,) "that John Scott and John Glenn, be constituted trustees, to receive and to invest that portion of the fund which was in controversy;" that a check, payable to their order, be drawn by the proper officer, and that "upon the final hearing of the said appeal, 

 [*381]  the said John Glenn and John Scott, shall pay into the Court of chancery, the said sum of money, and all interest and profit which may accrue thereon, subject to the said [**26]  order and decree, which may be passed on said appeal."
In pursuance of this arrangement, Scott and Glenn, on the 27th July 1836, received the money, and the manner in which they disposed of it, is fully set forth in the proceeding. It has never been alleged, that they did not invest it judiciously, and within a reasonable time.
At June term 1838, the Chancellor's order was affirmed by the Court of Appeals. No application, however, was made to the Chancellor, in regard to the distribution of this fund, by those to whom his order, (affirmed by the Court of Appeals,) gave it, until March 1843, when a petition was filed, by persons having an interest in the fund, requiring the trustees to account for the same. Thereupon, each of the trustees filed an answer, and by these answers it appeared, that Scott had misapplied a part of the fund; but, that with respect to Glenn, a payment, which he made into court, in compliance with the order, discharged him, unless he could be made responsible for the default of his co-trustee. And, whether Glenn, the plaintiff in error, is responsible for such default of his co-trustee, is the principal enquiry upon this appeal?
The uncontroverted [**27]  facts in this case, furnish all the answer that need to be given to very many of the authorities, on which reliance seems to have been placed. We need not remark upon the cases which instruct us, that a trustee is answerable for the default of his co-trustee, if, with a knowledge that the trust fund is in a course of abuse, that his co-trustee is making an improper use of it, he remains passive, refuses or declines to interfere. The case before us, is not one of that character. We need not notice the adjudications, which tell us, that if there be some mal-practice, fraud or evil dealing, then the one shall be answerable for the default of the other. To any of these, or such like cases, we have no occasion to refer, because, in the case before us, the trustee, whom it is attempted to make responsible for the default of his co-trustee, is nowhere charged with anything like fraud or collusion, or culpable omission of 

 [*382]  duty. Glenn denies, upon oath, all knowledge of the receipt by Scott; of the money, afterwards wasted, and there is no statement or allegation, or intimation, from which it can be inferred, that he knew, or had any reason to suspect, that his co-trustee [**28]  had abused, or was capable of abusing the trust reposed in him, and reposed in him, too, by the parties to whom the trust fund belonged, and most, if not all of whom, had confided their interests to him, as their solicitor.
The Chancellor, as a reason for making Glenn answerable, observes, that Glenn and Scott were, by the act of the court, founded on the agreement of the parties, judicially constituted joint trustees, and as such, jointly liable for the whole amount of the money so committed to their disposition.
It is apprehended, that whether this be considered a judicial appointment, or one made by the parties themselves, there is nothing in the case, or in the circumstances connected with this trust, which would authorize us to say, that Glenn was answerable for the default of Scott. Security might have been required of these trustees. It might have been insisted, that before the money was placed in their hands, they should give a joint bond with security, and thereby become security, each for the other; or, several bonds, the bond of each to be liable for the misconduct of the principal obligee in it. But, no bond at all was required by those who could have [**29]  required it, and, surely, it does not follow, that each is answerable for the fidelity of the other, because, those who might have exacted security, think proper to dispense with it.
It is not perceived, that the case would be essentially different, if this was, strictly speaking, a judicial appointment; but, the order of the Chancellor, is in execution of the agreement of the parties, naming to him the persons who are to be entrusted with their funds. Scott was not selected by Glenn as his associate. In him, the parties who owned the fund, chose to repose confidence, and agreed to dispense, with security, for his good conduct. In the case of Townley against Chalenor, as reported in Cro. Charles, 312, it was resolved, that Townley, being but a party entrusted, shall not be answerable for more than came to his hands, and the reason assigned for this 

 [*383]  resolution, was, "it was the default of him, who put them in trust, to repose trust in one who was unable to pay, and he being the party trusted, as well as Townley, Townley shall not be compellable to satisfy his defect." We have a more full report of the same case, (though the name of defendant is different,  [**30]  ) in Bridgeman's Reports. There we are told, that in order to charge one trustee, for the defaults and deficiencies of their co-trustees, there must be proof, or circumstances to satisfy the court, that there had been dolus malus, or evil practice, fraud, or evil intent in him. It is true, indeed, as the lord keeper observed, that care should be taken, that trustees be not emboldened to break the trust imposed on them. It must be equally true, that parties trusted, ought not to be too much punished, lest it should dishearten men to take any trust, and all would be deterred from undertaking any trust; those only excepted, whose ignorance or knavery, render them unworthy of trust. Scott, the defaulter, was the trustee of the parties interested, chosen by them, and not by his co-trustee.
If we look at the circumstances connected with this trust, there is nothing to be found in them, which can operate at all to the prejudice of the plaintiff in error. Scott was a solicitor in the Court of chancery, and had the conduct of the original suit. He appeared in chancery and the Court of Appeals, for the successful parties, with power, it would seem, to secure such professional [**31]  assistance as he might deem necessary; he was the agent of several, administered upon the estate of one of the owners of the fund, and had the orders of some of them, to receive the money to which they were entitled. It would be difficult, indeed, to prove, that if Scott had brought into court, all the money which he received, and there had been an order for the distribution of the fund, he had not undoubted power, to receive a larger portion of the fund than he wasted; that the solicitor and agent of the parties interested, could not have claimed more than is due from him, as trustee. Why, in such a case, should the plaintiff in error, be dealt with more severely than the trustee, was, in the very many cases, to be found in the authorities, wherein, the attempt to make one trustee or executor, answer for the default of the other, was unsuccessful?

 [*384]  In this case, the petition, let it be remembered, does not charge the plaintiff in error with fraud, collusion, or criminal remissness, and the parties to that petition, by submitting the case upon petition and answer, put it out of the power of the plaintiff, in this court, to deny or refute any specific charge. The question,  [**32]  in truth, is, whether there be in the answer itself, any admission or statement, which will authorize a Court of chancery, to make him responsible for any portion of the trust fund, admitted by his co-trustee to have been received by him, and for which he does not deny, that he is exclusively answerable?
The petitioners set forth their claim in these words: "But they are advised, that the said trustees are jointly accountable to them, as well for what they have actually made, by the employment of said funds, as also for what they might have made, but for any negligence or default committed by them, or either of them."
It would seem, that as the money, when received, and almost as soon as received, was judiciously invested, nothing more need to be said in regard to the claim, as stated by the petitioners themselves.
In the course of the argument, however, we have been referred to the receipt given to the register of the Court of chancery, which is proof positive, that the whole fund was, at the date of the receipt, in the hands of the plaintiff in error, and, therefore, it is contended, that he must be answerable for the whole. The argument would be entitled to much weight, and the [**33]  authorities cited would be in point, if, after receiving the money, the plaintiff in error, had put it into the hands of his co-trustee, to make the investment, and instead of investing it, the co-trustee had applied it to his own uses. No doubt, the plaintiff in error, is bound to account for the money he received from the register, and he does give the most satisfactory account of it. He invested it, as he was bound to do. He parted with it, because it was his duty to part with it, and the case now is, precisely what it would have been, if the register had been directed not to pay the money to either of the trustees, but to the persons to whom it was loaned, upon such persons securing, 

 [*385]  by mortgage, its repayment to the trustees. If the enquiry was, what the trustees did with the money, which was taken out of the Court of chancery, it is easily answered, and both of the trustees would be found to be blameless. The case before us, would not be different, if only one, and either of the trustees, had been allowed by the court to receive and invest the money. The money in controversy, was money due from Tiernan, the payment of which was secured by a mortgage, executed [**34]  to the two trustees. Thus far, undeniably, the plaintiff in error, was not responsible for any part of it. But Scott, in the course of time, received and misapplied it. Of the receipt of it, the plaintiff in error, swears, (and it is not controverted,) that he was entirely ignorant. He did no act whatever, by which his co-trustee got the money, and left undone no act, which, if done, would have prevented the co-trustee from receiving it. Surely, if in such a case, the innocent trustee is to be made answerable, it would be unreasonable to expect, that any prudent person could be prevailed upon to become one of two or more trustees.
It has been said, however, that by the terms of the loan, the money was due, and ought to have been collected; and, moreover, the appeal had been decided, and for that reason, the plaintiff in error, ought to have been prepared to pay it into chancery. There would be some plausibility in this, but for a fact which the record discloses, and which has not yet been noticed. The Chancellor, at the instance of a person, who claimed to be a creditor of the deceased, (S. McKim,) and for whose claim, if established, the land might be responsible, had passed [**35]  an order, directing the trustees to retain the fund. How retain it? To be sure, they received the money, to invest it, pendente lite, between the real and pretended heirs, and the strict letter of the agreement, which placed the money in their hands, did seem to require, that they should be ready to bring it into chancery, upon the determination of that appeal. But, what was the obvious meaning of the agreement, upon which all parties acted? The money was to be invested, not to lie idle and unemployed in chancery, until chancery could distribute it. The appeal pending in the higher court, was spoken 

 [*386]  of, because, at the time, it was the only obstacle to the distribution of the fund. It was not the duty or the right of the trustees, to prevent the money from yielding interest, while the court had not, from any cause whatever, the power of distributing it. The order of the Chancellor, passed at the instance of an alleged creditor of Samuel McKim, put it out of the power of that court to distribute it; and the obvious intent of the parties required, that the investment, for the sake of interest, should continue, until that order was revoked. After the petition was filed,  [**36]  and the answers were put in by the trustees, the auditor reported to the Chancellor, that the fund could not yet be distributed, because of the last order of the Chancellor. We thus ascertain, that up to the date of Glenn's answer, the money was, properly, bearing interest.
If there was any want of due diligence, in procuring a revocation of the order, who is to bear the blame of it? Surely not Glenn. With the creditor's suit, he had no concern, and over it could exercise no control. It may be, that the petitioners, themselves, who must have been parties to that suit, might have procured its revocation at an earlier period, and might have prevented a delay in the settlement of this trust, until the defaulting trustee was no longer able to bring into court, the trust money, which he had received.
It has been said, (and in many cases of trust, it should be remembered,) that co-trustees are bound to watch the conduct of each other; and in a former case in this court, it was stated to be the received doctrine, that if the trustee, "who wasted the estate, was in any degree facilitated therein, by the acts and omissions of the other, they are both equally liable." This doctrine,  [**37]  however, cannot prejudice the plaintiff in error. He, certainly, neither did, nor omitted to do anything, by which his co-trustee was, "in any degree, facilitated in wasting the estate." But, may there not have been, in the conduct of the defendants in error, something of which the plaintiff in error, may justly complain? May he not claim the benefit of the maxim, vigilantibus non dormientibus leges subserviunt? So far as we can judge, it was owing to them entirely, owing to their remissness, in procuring a revocation of the Chancellor's 

 [*387]  order, before spoken of; that the default of Scott remained a secret, until he became insolvent, and it may be until his death, gives to others a right to claim the portion of the fund to which he was entitled, as administrator of one of the claimants, if in no other character. Add to this, the statement in Scott's answer, relative to the fees, which were justly due to him, for his services in these suits, and it must be believed, that while the plaintiff in error, has possibly been injured, it is by no means clear, that the defendants in error, or some of them, will not profit by sleeping upon their rights.
The money was [**38]  lent to Tiernan, it is said, upon a short credit, and ought, when it became due, to have been collected by plaintiff in error. To this an answer may be given in a few words: The credit was necessarily for a short period, because, in a short time, the Chancery court might have been, and it was supposed would have been, able to distribute the fund. But the money was to be invested, and to bear interest, until it could be distributed, and it was an advantage to all parties, that another investment should not be necessary. The debtor might insist on paying the debt, and if he had, the trustees would have been bound to receive it, and again invest it. If therefore the debtor did not offer to pay it to the trustee, there was no want of due diligence, in his forbearing to ask for payment.
We do not think that the plaintiff in error, ought to be charged with the money, which his co-trustee received from Tiernan, and his representatives.
Other questions were argued in connection with this, in which persons, not parties to this suit, are interested. Upon these we cannot intimate an opinion. We can only say, that the plaintiff in error, is not responsible for the money in dispute;  [**39]  of course he is not chargeable with interest on it.
With respect to the sum of $ 170.86, paid into chancery by the plaintiff in error, over and above the sum with which he was chargeable, the court can perceive no reason for refusing to return it. It cannot be retained on the assumption, that it had been received "on some investment not specified." This also is error.

 [*388]  The sum allowed to R. Johnson, Esq., has not been objected to, and of course must be allowed, without interest.
With respect to the credit of $ 300, which is claimed as so much paid to Scott for professional services, and also the credit of $ 1350, which is claimed, it does not appear to this court that the plaintiff in error had authority to pay them out of the trust fund, or that he can claim a credit for them in the settlement of his account as trustee. The commission allowed to this trustee is correct.
The order of the Chancellor, dated 26th January 1842, will be reversed, with costs, and the case to be remanded to chancery, in order that the account of John Glenn, as trustee, may be stated as herein directed, and that such further order be taken in the case as any of the parties interested [**40]  may apply for.
DECREE REVERSED AND CAUSE REMANDED.  

14 of 42 DOCUMENTS 

BEALE RANDALL vs. JOHN GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 430; 1844 Md. LEXIS 41 

December, 1844, Decided 

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

This was an action of debt, commenced on the 29th April 1841, by the appellee against the appellant.

The writ was for $ 25,800, in the debet and detinet, and the declaration complained, for that whereas the said defendant, on the 26th April 1841, at Baltimore, to wit, at the county aforesaid, was indebted to the said plaintiff, in the sum of $ 18,120.60, for so much money, before that time lent and advanced, by the said plaintiff to the said defendant, at his special instance and request; to be paid by the said defendant to the said plaintiff, when he, the said defendant, should be thereto afterwards requested. Whereby, and by reason of the said last mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said plaintiff, to demand and have, of and from the said defendant, the sum of $ 18,120.60, parcel of the said sum, above demanded. And whereas also, afterwards, to wit, on the day and year last aforesaid, to wit, at the county aforesaid, the said defendant was indebted to the said plaintiff, in a certain other sum of money, to wit, the sum of $ 7,679.40, for so much money, before that time had and received [**2]  by the said defendant, to the use of the said plaintiff, and to be paid by the said defendant to the said plaintiff, when he, the said defendant, should be thereunto requested. Whereby, and by reason of the said last mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said plaintiff, to demand and have, of and from the said defendant, the said last mentioned sum of $ 7,679.40, other parcel of the said sum, above demanded. Yet the said defendant, although often requested so to do, hath not, as yet, paid the said sum of $ 25,800, above demanded, or any part thereof to the said plaintiff. But he, to do this, hath wholly refused, and still doth refuse, to the damage of the said plaintiff, in the sum of seven thousand six hundred and seventy-nine dollars and forty cents, and therefore, &c.

At the return term of the writ, the said Beale Randall demanded of the plaintiff, a list of particulars of his claim. It was ordered by the court, on motion of the said Beale Randall, that the said John Glenn do deliver to the said Beale Randall's attorneys, or file in court here, the particulars of the claims for which this suit is brought, and in the meantime,  [**3]  that all proceedings in this case be staid. The plaintiff thereupon filed in court, the following bill of particulars, to wit:

"John Glenn vs. Beale Randall, in Baltimore county court. Plaintiff's bill of particulars. For monies advanced by the said John Glenn to the said Beale Randall, at his instance and request, at various times, up to the 16th May 1834, amounting to $ 18,120.60. Interest on the same, from 16th May 1834, till paid.     J. MASON CAMPBELL, plff's att'y.

Which said bill was endorsed, to wit: "service copy admitted 18th May 1841. JAS. M. BUCHANAN, att'y for def't."

The defendant then pleaded, that he does not owe the said plaintiff, the said sum of money above demanded, or any part thereof, &c., and of this, he puts himself upon the country, &c.

Upon this issue, the jury awarded the plaintiff the sum of $ 22,534.62, and judgment was accordingly entered against the said Beale Randall, on the 16th December 1842.

1ST EXCEPTION. When this case was called for trial, at September term 1842, the defendant moved the court, to stay all proceedings therein, because the plaintiff had not complied with the demand made by defendant, on the 7th May 1841,  [**4]  of the particulars of the plaintiff's claim, by his paper filed as such bill of particulars, and served on the defendant on 18th May 1841, which motion the court, (PURVIANCE, A. J.,) overruled, being of opinion, that the defendant has waived his right, now to object to the paper filed by the plaintiff, as the particulars of the claim, by not taking exception thereto before the time of trial, and pleading to the nar., after the filing of such paper, as a bill of particulars, to wit, on the 30th August 1841. The defendant excepted.

2ND EXCEPTION. The plaintiff to support the issue on his part, offered to read in evidence to the jury, a paper writing, purporting to be an agreement, to submit to the ascertainment of R. Johnson and J. W. McCulloh, Esqs., the amount of money due by the defendant to the plaintiff, for advances, as therein set forth, according to the language of said paper, (it being admitted, that said paper writing was signed and delivered by the defendant to said Glenn, as such submission on his, defendant's part, and that said Glenn agreed to such submission, and it was made accordingly.) And the plaintiff further offered in evidence to the jury, a paper writing,  [**5]  admitted to have been signed by the said R. Johnson and J. W. McCulloh, Esqs., as of the date it purports to have been signed, purporting to ascertain the amount so due; and it was admitted, that the defendant and plaintiff had notice of the meetings of said referees, and by themselves, or agents, attended said meetings, and admitted notice of the said ascertainment, by said paper writing. The defendant then objected to the admissibility of said paper writings in evidence, under the pleadings in this cause.

1. Because said paper writings were, in point of law, a submission to arbitration, and an award; and the said reference and award are not declared upon in this case.

2. Because the said paper writings, and other testimony and admissions above mentioned, are not evidence, under the first count in the nar.

3. Because the paper writings, and other testimony and admissions above mentioned, are not evidence, under the second count in the nar.

4. Because the said agreement to refer, and the said ascertainment, constitute no cause of action for the plaintiff against the defendant, and contain no promise or agreement on the part of the defendant, to pay such amount,  [**6]  or any amount to the plaintiff, but only a pledge of certain funds, to the discharge of such amount, as might be so ascertained. Each and every of which said objections, were over-ruled by the court, and the court permitted the said papers to be read in evidence to the jury, by the plaintiff, as evidence, under the first count in the nar, of an ascertainment and admission of the amount due by the defendant to the plaintiff, for advances made, as set forth in the nar, and said papers. The defendant excepted to the said refusal, and to the said direction.

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

The record was amended in this court, by consent, and the following documents referred to in the 2nd exception, admitted, as having been given in proof in the county court.

"Whereas, Beale Randall, of the city of Baltimore, stands indebted unto John Glenn, of the same place, in a large sum of money for advances, the amount of which, is hereby to be ascertained upon an examination of their accounts by Reverdy Johnson and James W. McCulloh, Esqs., mutually appointed by the said Beale Randall and John Glenn, for that purpose.

And, whereas, the said [**7]  Glenn hath come under the following responsibilities for account of the said Randall, to wit, at the Marine Bank of Baltimore, for the sum of seven thousand dollars, ($ 7,000,) &c. The advances made by the said Glenn, for account of the said Randall, as claimed by the said Glenn, amounted, on the sixth day of April last, to $ 18,126.60, and for the purpose of securing, indemnifying, and saving harmless, the said Glenn from all loss and damage on account of the premises, the said Beale Randall hath agreed to execute these presents. Now this instrument of writing witnesseth, that the said Beale Randall, for and in consideration of the premises, and of the sum of five dollars, current money, to him in hand paid by the said John Glenn, before, &c., hath granted, bargained and sold, assigned, &c., and by these presents doth grant, &c. To have and to hold the same, and every part and parcel thereof, unto the said John Glenn, his heirs, executors, administrators and assigns forever, in special trust and confidence, nevertheless, that is to say, in trust to retire, and pay all and singular, the responsibilities herein before mentioned; then to pay all such sums of money as the said Reverdy [**8]  Johnson and James W. McCulloh, Esqs., may ascertain and determine, the said Glenn has advanced for the said Randall, and the balance, if any, to pay over to the said Randall or his order."

This instrument dated 16th May 1834, was duly acknowledged, &c., on the day of its date.

"In pursuance of the authority given us by the within mortgage to ascertain the advances, in money, made by the within named John Glenn, to the within named Beale Randall, up to the date of said mortgage, and after having given to said Glenn and Randall notice of the times and places of our meetings, for said purpose, and having fully heard and considered all the evidence and representations they had to offer us in the matter, we do award, determine and ascertain, that said John Glenn had, on the day of the date of said mortgage, that is to say, on the 16th day of May 1834, advanced, in money, to said Randall, the sum of eighteen thousand, one hundred and twenty dollars, and sixty cents, ($ 18,120.60,) over and beyond the amount of the three notes, specially mentioned in said mortgage. And we do further award and determine, that said sum of $ 18,120.60, exclusive of said notes, is now due by said Randall [**9]  to said Glenn, with interest on the same, from the 6th day of April, in the year 1834. As witness our hands, this 12th day of May, in the year 1835.

Signed,     REVERDY JOHNSON,

JAMES W. MCCULLOH.

Notes mentioned $ 7,000, at Marine Bank, &c."

The defendant prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where the plaintiff's demand is set forth in a general count, as for money lent, &c., the defendant may, at any time, before he has pleaded to the merits, call on the plaintiff to exhibit the particulars of his claim.

After pleading to the merits, it seems to be too late to object to the want of a statement of the particulars of the plaintiff's demand, or that the same is defective.

At the term to which an action was brought, the defendant demanded a bill of particulars, which the plaintiff furnished; several terms afterwards, the defendant pleaded the general issue; at the next term, when the cause was called for trial, the defendant excepted to the sufficiency of the statement. This objection came too late.

The motion, to direct an amendment of a bill of particulars, filed in due time, made after plea, pleaded to the merits, at the trial term, is addressed to the sound discretion of the court; and therefore is one from which an appeal does not lie, any more than it will on a refusal to grant a new trial.

Where parties submit matters in controversy, for the purpose of a final determination, and the arbitrators make an award, the original contract or cause of action is merged by the submission and award; and there is no distinction, in this respect, between submissions by parol, and by bond.

There is a distinction between a submission by parties to the judgment of two or more individuals who are to decide the controversy, and a reference of a collateral, incidental matter of appraisement, or calculation, or the submission of a particular question, forming only a link in the chain of evidence, not calculated to put an end to controversy.

The recital in a mortgage executed and delivered by R. to G., that he stands indebted to G. in a large sum of money, for advances, the amount of which is to be ascertained upon examination of their accounts by J. and M., mutually appointed by R. and G., for that purpose, is a reference of a mere matter of calculation, and ascertainment as to the amount of money advanced; an ascertainment in conformity to such recital does not merge the original contract.

An ascertainment of the amount due, under such circumstances, is competent evidence, in an action of debt brought by G. against R., for money lent, advanced, had, and received, under the plea of nil debet, as an admission of the defendant of the amount due the plaintiff.  

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

By GLENN and CAMPBELL for the appellee.  

JUDGES:
The cause was argued before ARCHER, C. J., SPENCE and MAGRUDER, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*435]  SPENCE, J., delivered the opinion of this court.
The declaration in this case, has a count for money lent and advanced, and money had and received. The suit was brought to the May term 1841, of Baltimore county court. At May term 1841, of the same court, the defendant demanded a list, or bill of particulars, and the court passed an order upon the plaintiff, that he deliver to the said Beale Randall's attorneys, or file in the court, the particulars of the claim for which the suit was brought; and in the meantime, that all proceedings be staid. And thereupon, the said Glenn, by his attorney, filed in court, the following bill of particulars, to wit:
"In [**10]  Baltimore county court, plaintiff's bill of particulars, for money advanced by the said John Glenn to the said Beale Randall, at his instance and request, at various times, up to 

 [*436]  16th May 1834, amounting to $ 18,120.60." "Interest on the same, from 16th May 1834, until paid," which said bill is thus endorsed, to wit: "service copy admitted 18th May 1841."
After the service of this bill of particulars was thus admitted, the defendant pleaded nil debet; the plaintiff joined issue, and the cause was continued from term to term, until September term 1842. The first exception in this case, raises the first question to be decided by this court; and inasmuch as the defendant's motion fully presents the question, we insert it as follows:
"When this case was called for trial, the defendant, by his attorney, moved the court to stay all proceedings in the cause, because the plaintiff had not complied with the demand made by the defendant, on the 7th of May 1841, of the bill of particulars of the plaintiff's claim, by his paper filed as such particulars, and served on the defendant on the 18th of May 1841, which motion the court over-ruled."
The law seems well settled [**11]  upon authority, that in actions of this class, the defendant may at any time before he has pleaded to the merits, if the declaration do not disclose the particulars of the plaintiff's demand, call on plaintiff to exhibit them. Vide Mercer vs. Seyer, 3 Jno. Rep. 248. But it seems to be too late, after pleading to the merits, to object to the want of such a statement, or that the same is defective. Long vs. Kinard, Harp. 47.
In the case now under consideration, after the defendant had service of the bill, he filed his plea, and issue was joined, and the cause continued until September term 1842; and not before the cause was called for trial, did the defendant make the suggestion, that the plaintiff had not complied with the demand made of the particulars of his claim. This application of the defendant, at this stage of the case, after issue joined, and when the cause was called up for trial, for a continuance of the cause, might be considered as addressed to the discretion of the court, and we concur with the opinion of Gibbs, C. J., in Lovelock vs. Cheveley 3 E.C.L. 185, where he says, "bills of particulars undoubtedly facilitate 

 [*437]  the trial [**12]  of a cause, but they must not be permitted to obstruct the justice of it. The party who objects to particulars, as insufficient, must make his complaint at the proper time. He cannot wait till the trial of the cause, and then raise an objection, which, if earlier made, might have been disposed of. In this case, if the plaintiff had not time to tax the bill, he might have applied to the court, but by keeping the particulars, he has waived his objection." So in the case under consideration, if the defendant deemed the plaintiff's bill of particulars insufficient, he should have made his motion earlier, when the defect, if there were any, might have been remedied, and the delay of the trial of the cause avoided; whereas by his delay, he has rendered himself obnoxious to the charge of having waived his objections. This was a matter in the sound discretion of the court, under all the circumstances of the case, and therefore, one from which an appeal does not lie, any more than it will on a refusal to grant a new trial.
At the trial of this cause, the plaintiff offered in evidence to the jury, a certain paper writing, purporting to be a mortgage from Beale Randall to John Glenn [**13]  , which contained the following recital:
"Whereas Beale Randall, of the city of Baltimore, stands indebted unto John Glenn, of the same place, in a large sum of money for advances, the amount of which is to be hereby ascertained, upon an examination of their accounts, by Reverdy Johnson and James W. McCulloh, Esqs., mutually appointed by the said Beale Randall and John Glenn, for that purpose," it being admitted, that said paper writing was signed and delivered by the said defendant, to said Glenn, as such submission on his, defendant's, part, and that said Glenn agreed to such submission, and it was made accordingly. And the plaintiff further offered in evidence to the jury, a paper writing, admitted to have been signed by the said R. Johnson and James W. McCulloh, Esqs., as of the date it purports to have been signed, purporting to ascertain the amount so due. It was also admitted, that the parties had notice of the meeting of the referees, and by themselves, or agents, attended 

 [*438]  said meeting, and admitted notice of the said ascertainment, by said paper writing.
The defendant then objected to the admissibility of said paper [**14]  writing in evidence, under the pleadings in this cause; which objection the court over-ruled, and permitted the evidence to go to the jury.
Our next enquiry is, therefore, whether there was error in this act of the court?
The ground of objection to the admissibility of this evidence was, first, that there was no count in the declaration under which it was admissible; that in order to let it in, there should have been a count on the award, or an account stated; that the original contract was merged in the reference and award.
The doctrine is too well settled at this day, to admit a doubt, that where parties submit matters in controversy, for the purpose of a final determination, and the arbitrators make an award, in such a case, that the original contract, or cause of action, is merged by the submission and award. It is true, that in England, the courts have, and do profess to make a distinction between submissions by parol, and by bond; but the American cases, so far as we have been able to ascertain, do not profess to hold this distinction.
The mortgage in this case recites, that whereas Beale Randall, of the city of Baltimore, stands indebted to John Glenn [**15]  , of the same place, in a large sum of money for advances, the amount of which is hereby to be ascertained, upon an examination of their accounts, by Reverdy Johnson and James W. McCulloh, Esqs., mutually appointed, &c.
There is a distinction between a submission by parties of matters in controversy, to the judgment of two or more individuals, who are to decide the controversy, and a reference of a collateral, incidental matter of appraisement, or calculation, or the submission of a particular question, forming only a link in the chain of evidence, not calculated to put an end to controversy. Vide 4 vol. Cowens, Philip's 1, note 240, p. 149. Garr vs. Gomez, 9 Wend. 649.

 [*439]  We hold, that the reference in this case, was a mere matter of calculation and ascertainment, as to the amount of money which had been advanced by Glenn to Randall, which the mortgage was intended to secure; that the reference and ascertainment did not merge the original contract; and that as an admission of the defendant, it was admissible in evidence, under the pleadings in this cause, of the amount due the plaintiff. Keen vs. Butshore, vide 1 Esp. 193. [**16]  And King vs. Butshore, 1 Peakes N. P. C. 227.
JUDGMENT AFFIRMED.  

15 of 42 DOCUMENTS 

JOHN B. HOWELL vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 14; 1845 Md. LEXIS 9 

June, 1845, Decided 

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

This was an action of assumpsit, docketed by consent to September term 1844, between the State as plaintiff, and the appellant as defendant, who pleaded non-assumpsit.

It was agreed, that the taxes charged in the following bills were regularly assessed upon the property of the defendant under the acts of the General Assembly of Maryland, so far forth as the formal valuation of the property, the imposition of the tax, and the presentation of the bills are concerned; and that the amounts, as charged, are the correct amounts for the respective years under the law, upon the property held by defendant in vessels. It is agreed, that the property so taxed, consists in vessels which navigate the seas, and are regularly registered and licensed as American vessels under the laws of Congress. It is agreed, that if the State of Maryland has a right to tax such property, that judgment shall be entered for the plaintiff. If not, that judgment shall be for defendant. All errors in the pleading waived.

The tax bills referred to above are in the form following, viz:

"3-131. State Taxes, 1841, Jno. B. Seidenstricker, Coll'r., John B. Howell,

To [**2]  the State of Maryland, Dr.

________________________________________________________________________________
   To 87.	   Int. in vessels, $ 56,000, State Tax, a 20 cents per	
	   $ 100,	$ 112 00 	
3-134.	State Taxes, 1842.	
	   Int. in vessels, $ 56,000, State Tax, 25 1/2 cents pr.	
	   $ 100,	$ 142 80 	
	   Same for 1843,	142 80"	
________________________________________________________________________________

It is also agreed, that Baltimore county court shall enter judgment pro forma in this case, for the State, reserving to the defendant the right to appeal.

The judgment was entered accordingly, and the defendant prosecuted this appeal.

It was agreed, in the appellate court, that the record should be so amended as to show, that John B. Howell is a resident of the city of Baltimore, and a citizen of the State of Maryland, and that his interest in vessels taxed, arises upon vessels belonging to the city of Baltimore, and there trading.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of the extra session of 1841, ch. 23, the interest or proportion in all ships or other vessels, whether in port or out of port, owned by persons resident of the State, are directed to be valued, as other property is directed, and charged according to such valuation with the public assessment of twenty cents in every hundred dollars of assessed value. HELD: that the tax was a constitutional and valid exercise of power by the State.

The objects intended to be secured by the act of Congress of 18th February 1793, for enrolling and licensing ships and vessels were, by excluding foreign vessels from a participation in the commerce which existed between the States, to cherish and promote the growth of our own marine, and guard, as far as possible, the revenue from the frauds and abuses to which it would be otherwise exposed.

The power of Congress to regulate the coasting trade, is plainly deducible from that clause of the constitution, which has granted to the national government the power to regulate commerce among the several States.

The term, commerce, includes navigation.

The American ownership of a vessel and her national character is ascertained, not by her license, but by her enrolment. It shows that the regular proof of ownership and character has been given.

The license authorizes the owner of the vessel to carry on the coasting trade, and navigate the waters of the United States.

The right to tax is an incident of sovereignty, and is co-extensive with that to which it is incident. All subjects over which the sovereign power of the State extends, are objects of taxation, but those over which it does not extend, are upon the soundest principles exempt from taxation.

The sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission; but it does not extend to those means which are employed by Congress, to carry into execution powers conferred on that body by the people of the United States.

The decisions of the Supreme Court of the United States on constitutional questions are conclusive.

Property in ships and vessels was, before the adoption of the constitution of the United States, embraced by the taxing power of the State.

The power of taxation extends to all the people of the government, and embraces every thing which may be fairly considered as constituting a part of the mass of property within the State.

The interest in ships and vessels is private property; and belonging to a citizen of Maryland, living within her territory, subject to her jurisdiction, protected by her laws, is a part of his capital in trade; and like other property the subject of State taxation.

The States still hold all the powers which they originally possessed, except such as have been delegated to the United States, or prohibited to the States.

The general government has created a large class of subjects, without the reach of the taxing power of the States. The fiscal agents of the government; the army and navy; the judicature of the United States; the public ships; the national institutions and property are exempt from State taxation.

A restriction of a power created by implication, supposes that but for the implied limitation the power would have existed, and might have been exercised.

The institutions of the United States, though within the territory, are constructively without the local jurisdiction of the States in every respect and for every purpose including that of taxation.

Where there is a conflict between rights under the law of the local government and a law of Congress, the State law must yield to that which is supreme and paramount.

There is no incompatibility between the law taxing the interest in a vessel, and the license authorizing it to carry on the coasting trade. The tax does not interfere with the right to navigate.

To render a State law unconstitutional, or extinguish a State power by implication, on the ground that it is repugnant to powers vested in the general government, the repugnancy must be clear, immediate, and direct; and not merely speculative, indirect, and contingent.  

COUNSEL:
By REVERDY JOHNSON for the appellant, and

By MARSHALL and RICHARDSON, Att'y Gen'l, for the State.  

JUDGES:
The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, MAGRUDER, and MARTIN, Judges.  

OPINIONBY:
MARTIN 

OPINION:

 [*16]  MARTIN, J., delivered the opinion of this court.
The legislature of Maryland, on [**3]  the 1st of April 1841, passed an act, entitled: "An act for the general valuation and assessment of property in the State, and to provide a tax to pay the debts of the State." By the first section, it is provided, that all real and personal property in the State; all chattels, real and personal; all goods, wares and merchandise, and other stock in trade, at home, or not permanently located elsewhere; the interest or proportion in all ships or other vessels, whether in port or out of port, owned by persons resident of the State; and various other descriptions of property, to which it is not necessary for the purposes of this case to refer, should 

 [*17]  be valued agreeably to the directions of the act, and charged according to such valuation, with the public assessment. The assessment imposed, is twenty cents in every hundred dollars worth of assessable property, according to its assessable valuation.
In conformity with the provisions of this act, an assessment was imposed on the appellant on account of his interest or proportion in certain vessels, amounting, in the year 1841, to the sum of $ 112, in the year 1842, to the sum of $ 142.80, and to the same sum in the year 1843.  [**4]  
The appellant having resisted the payment of this tax, an action to recover its amount was instituted against him by the State of Maryland, in Baltimore county court, and at the trial of the cause, the following statement of facts was agreed upon:
"That the taxes charged in the annexed bills were regularly assessed upon the property of the defendant, under the act of the General Assembly of Maryland, so far forth as the formal valuation of property, the imposition of the tax, and the presentation of the bills are concerned; and that the amounts so charged are the correct amounts for the respective years, under the law, upon the property held by the defendant in vessels. It was agreed, that the property so taxed, consisted in vessels which navigate the seas, and are regularly registered and licensed as American vessels, under the laws of Congress." After the case reached the Court of Appeals, the record was amended for the purpose of introducing the further admission; "that the appellant is a resident of the city of Baltimore and State of Maryland, and that his interest in the vessels taxed, arises upon vessels belonging to the city of Baltimore, and there [**5]  trading."
The appellant has denied his liability to pay the tax imposed upon him under this act of Assembly, on the ground, that so much of that statute as professes to tax his interest in vessels duly licensed in conformity with the act of Congress of the 18th of February 1793, is incompatible with the privileges and immunities conferred by the license, and repugnant to the constitution and laws of the United States.
The act of Congress, under which the appellant claims exemption from the operation of the Maryland law, is that for 

 [*18]  enrolling and licensing coasting vessels. It enacts, that no ships or vessels, except such as shall be enrolled and licensed, shall be deemed ships or vessels of the United States, entitled to the privilege of ships or vessels employed in the coasting trade. It also declares, that every ship or vessel engaged in the coasting trade, and not being so enrolled and licensed, shall pay the same fees and tonnage in every port of the United States at which she may arrive, as ships or vessels not belonging to a citizen of the United States; and if she has on board any articles of foreign growth or manufacture, or distilled spirits,  [**6]  other than sea stores, the ship or vessel shall be forfeited.
The objects intended to be accomplished by this act, were, by excluding foreign vessels from a participation in the commerce which existed between the States, to cherish and promote the growth of our own marine, and guard, as far as possible, the revenue from the frauds and abuses to which it would otherwise be exposed. It is therefore clear, that though the power to regulate the coasting trade, by an act like that now under consideration, has not been expressly delegated to Congress, yet their right to legislate on this subject is plainly deducible from that clause in the constitution, which has granted to the national government the power to regulate commerce with foreign nations, and among the several States.
In the case of Gibbons against Ogden, 9 Wheaton, the Supreme Court determined, that the power to regulate commerce with foreign nations, and among the several States, extended to the regulation of navigation. They say, "if commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no laws prescribing what shall constitute American vessels, or requiring [**7]  that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, and has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word commerce to comprehend navigation. It was so understood when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for 

 [*19]  which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrain it comes too late. The word used in the constitution, they affirm, comprehends, and has always been understood to comprehend navigation within its meaning; and a power to regulate navigation, is as expressly granted as if it had been added to the word commerce." The validity of this act of Congress, as an auxiliary power, "necessary and proper" to carry into execution the expressly delegated power of regulating commerce with foreign nations, and among the several States, is [**8]  therefore placed beyond controversy by the Supreme Court, and is not again to be questioned.
Assuming however, as too clear for dispute, that this act of Congress was a constitutional exercise of power; the counsel for the State of Maryland have contended, that there is no color for the argument that seeks to exempt the owner of these vessels from the contributions to which he is liable, in common with the other citizens of the State, on the ground that the vessels were furnished with a coasting license by the collector of the port to which they belonged, because the only effect and object of this custom house document was to ascertain the ownership and character of the vessel to which it may have been granted, and that it gave no right to trade.
We are very clearly of opinion, that the counsel are mistaken in the view thus presented by them of the object and nature of the license. The American ownership of the vessel and her national character, is ascertained not by the license, but by the enrolment. It is the enrolment which shows that the regular proof of ownership and character has been given. This being accomplished, the owner becomes entitled to receive, and does [**9]  receive from the collector of the port a license, the import and effect of which is, to authorize him to carry on the coasting trade, and navigate the waters of the United States.
In the case of Gibbons and Ogden, 9 Wheat. 1, the Supreme Court, after a particular examination of the various provisions of the act of Congress, regulating the coasting trade, and the 

 [*20]  terms of the license, in answer to the argument presented for the plaintiff in error, that the sole purpose of the license was to confer the American character, say: "Notwithstanding the decided language of the license, it has been maintained, that it gives no right to trade, and that its sole purpose is to confer the American character. The answer given to this argument, that the American character is conferred by the enrolment, and not by the license, is, we think, founded too clearly into the words of the law, to require the support of any additional observations. The enrolment of vessels designed for the coasting trade, corresponds precisely with the registration of vessels designed for the foreign trade, and requires every circumstances that can constitute the American [**10]  character. The license can be granted only to vessels already enrolled, if they be of the burden of twenty tons or upwards, and requires no circumstances essential to the American character. The object of the license, then, cannot be to ascertain the character of the vessel, but to do what it professes to do, that is, to give permission to a vessel already proved by her enrolment to be American, to carry on the coasting trade."
Conceding then, the truth of the propositions advanced by the counsel for the appellant: that the act of Congress, regulating the coasting trade, and providing for the registration, enrolment and licensing of vessels, is a constitutional exercise of the power conferred upon Congress to regulate commerce with foreign nations, and among the several States; that the license granted by the collector of the port to carry on the coasting trade in conformity with those acts, was not given for the purpose of conferring the American character, but was a legislative grant of the right of transit, and to trade upon and navigate the waters of the United States; and that any law of the State of Maryland, though passed in the execution of some one of [**11]  its acknowledged powers, must yield when found in collision with a law of Congress, and the right conferred by that law, in the sense in which that term is to be understood in cases where there is an asserted conflict of powers, between the national and State Governments; we approach the interesting and important enquiry, whether the fact that these vessels were 

 [*21]  licensed by the collector of the port of Baltimore, as prescribed by the act of Congress, exempts the owner of that property from the taxing power of the State, when fairly exerted for the purposes of revenue?
The taxing power of the State, as modified, and restrained by the constitution of the United States, was delineated with characteristic perspicuity and power by the late Chief Justice of the Supreme Court, in the case of McCulloch against the State of Maryland, decided at the February term, 1819, 4 Wheat. 316. At page 428 of the opinion, he says: "Before we proceed to examine the argument advanced by the counsel for the State of Maryland, and subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original [**12]  right of taxation, which is acknowledged to remain with the States. It is admitted, that the power of taxing the people and their property, is essential to the very existence of the government, and may be legitimately exercised on objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of the State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of their constituents over their representatives to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of the State to tax them, sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents [**13]  of the legislature, which claim the right to tax them, but by the people of all the States. They are given by all, for the benefit of all, and upon theory, should be subjected to that government only, which belongs to all."

 [*22]  The court say, "that it may be objected to the definition thus given, that the power of taxation is not confined to the people and property of the State. That it may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation, but those over which it does not extend, are upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not.  [**14]  Those powers are not given by the people of a single State. They are given by the people of the United States, to a government, whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently the people of a single State cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of the State unimpaired; which leaves to a State the command of its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States, and safe for the Union. We are relieved as we ought to be, from clashing sovereignty, from interfering powers; from a repugnancy between a right in one government to pull down, what there is [**15]  an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. We are not 

 [*23]  driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give. We find then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise." Again, the learned court, at page 436, in explanation of the grounds on which the unconstitutionality of the law imposing a tax on the Bank of the United States, is placed; declare, "that the opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with other real property within the [**16]  State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with the other property of the same description throughout the State. But this is a tax on the operations of the bank, and is consequently a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution."
This is the reasoning, and such are doctrines of a court, whose decisions on questions of constitutional law, are to be received as conclusive, and we think, they clearly establish the validity of the Maryland statute.
It must be admitted, that property like that, which is now the subject of examination, was originally, and before the adoption of the United States, embraced by the taxing power of the State. All subjects were legitimate objects of taxation, over which the sovereign power of the State extended, because this power is an incident of sovereignty, and is co-extensive with that to which it is an incident. The power of taxation extends to all the people of the government, and embraces every thing which may be fairly considered as constituting a part of the mass of property within the State. This [**17]  is a cardinal principle, on the preservation and application of which, the existence 

 [*24]  of the State governments depends. In the case of the Providence Bank, 4 Peters 514, at p. 563, Chief Justice Marshall says: "that the power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. That it 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."
The interest upon which the tax in this case was imposed, was the private property of a citizen of Maryland, living within her territory, subject to her jurisdiction, protected by her laws, and bound in common with other citizens, to contribute to her support. The vessels upon which the tax was laid, constituted a part of his capital employed in trade, like that of the merchant, manufacturer, or artisan. For the property itself, the State had provided by her laws, ample security and protection. It was taxed rateably, with other property produced within the State. The law in question, was passed by the legislature of Maryland, in good [**18]  faith, to raise revenue for the high purpose of paying the debts of the State, from what was believed to be legitimate sources, and not to interfere with the regulations of commerce, or with any other power possessed by the general government. Is there then, any rule of law, or principle of construction, by which the State is to be held, as having surrendered her right to tax this property, as a portion of the private estate of one of her citizens, residing within the limits of her sovereignty and jurisdiction? We think there is not.
It is not necessary at this day to enter into an examination of the constitution, for the purpose of ascertaining the class of powers surrendered to the general government, and those retained by the States. It is established, that the States still hold all the powers which they originally possessed, except such as have been delegated to the United States, or prohibited to the States. This is the language of the tenth article of the amendments to the constitution. And it clearly appears from the papers of the Federalist, that the distinguished men, who participated so largely in the formation and adoption of the constitution, regarded this as its [**19]  true interpretation, in the absence of the amendment referred to. The author of the thirty-second 

 [*25]  number of that work, when discussing the proposed plan of the constitution, says: "As the plan of the constitution aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act, exclusively delegated to the United States. This exclusive delegation, or rather alienation of State sovereignty, would only exist in three cases: where the constitution in express terms, granted an exclusive authority to the Union; where it granted in one instance, an authority to the Union, and in another, prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States, would be absolutely and totally contradictory and repugnant." It is clear then, that unless the right of the State to tax property, like that which is now the subject of examination, has been alienated or surrendered, the power to do so, remains, and may be exercised.
Let the question before us be tried by this rule.
We are now considering [**20]  the taxing power of the State. The only express prohibition to be found in the constitution of the United States on this power, is that contained in the tenth section of the first article, by which the States are prohibited, unless with the consent of Congress, from laying any imposts or duties on imports or exports; and are also, without such consent, prohibited from imposing any duty on tonnage. This is the only limitation upon the taxing power of the States, to be found in the constitution of the United States, and it has been asserted by very distinguished authority, and we think correctly, that this revenue power, as it originally existed, is subject to no other restraint. The authors of the Federalist, when examining the subject of the taxing power, in the thirty-third number, say: "The inference from the whole is, that the individual States would, under the proposed constitution, retain an independent and uncontrollable authority, to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports." By every kind of taxation, they mean, the right to tax all persons and property within the jurisdiction of [**21]  the State, and as such, subject 

 [*26]  to the taxing power, with the single exception of duties on imports and exports. The view thus presented, is strongly supported by the opinion of the Supreme Court, in the case of McCulloh against the State of Maryland, already referred to. It must be recollected, that in this case, the whole ground of the taxing power of the States, as modified, limited, or restrained by the constitution of the United States, was examined with almost unprecedented ability. It was directly affirmed by the counsel for the bank, that there were not only express, but implied limitations on the taxing power of the States. The incompetency of the State to tax the bank was rested, in part, on the principle, that this State power was confined and restrained by implied limitations, although an examination of the case will show, that the cause of the bank was placed on higher and firmer grounds. Upon this subject the Chief Justice, speaking for the court, says: "This opinion does not deprive the States of any of the resources which they originally possessed." Does not the learned Chief Justice intend to affirm the proposition stated by the Federalist, that [**22]  the States retained authority to raise revenue by every kind of taxation, which they originally possessed, except duties on imports and exports?
It may be admitted, that after the States had surrendered to the general government the whole commercial power of the country, a restriction on their original right to impose duties on imports, would, if not expressly provided for, have been implied; because, as the imposition of duties on imports, is an instrument by which Congress may most effectually regulate commerce with foreign nations, the reservation of this authority by the States, would have been absolutely and directly incompatible with the commercial power granted to the national government. But this restriction was not left to implication. It was expressly inserted in the text of the constitution, and it may well be contended, that the prohibition on the taxing power of the States, was inserted ex industria, that this essential and vital power, about which the States manifested at all times so much solicitude, might be forever protected against implied and constructive limitations. When the States surrendered to the general government this rich source of revenue, it was [**23]  not supposed 

 [*27]  that their capacity to raise supplies, would be further abridged by implied limitations on the taxing power. Such a belief, if generally entertained, would perhaps have proved fatal to the constitution.
We are aware that there has been created by the general government, a large class of subjects, without the reach of the taxing power of the States. The fiscal agents of the government, the army and navy, the judicature of the United States, the public ships, the national institutions and property, are exempt from State taxation. Why? Not upon the ground, that the States were restrained by implication, from taxing the national institutions and property. A restriction created by implication, supposes, that but for the implied limitation, the power would have existed, and might have been exercised. But, because those subjects, in the nature of things, never could have become objects for the taxing power of the States. They constituted no part of the resources of which the States were originally possessed. Having been created by the national government, they could not have been liable to taxation by the States.
It is also a very clear proposition, that the institutions [**24]  of the United States, though within the territory, are constructively without the local jurisdiction of the States, in every respect, and for every purpose, including that of taxation. It is upon this ground, that the institutions of the United States, the judicature, the custom house, the public ships, are safely placed beyond the reach of the taxing power of the States, and not because of any implied restriction on that power. In the same class, may be placed imported goods in the public warehouses, on which the duties have not been paid. Property of this description, may be within the territorial limits of the State, but not within its jurisdiction, so as to subject it to the taxing power.
It cannot be maintained, that the doctrine of implied limitations on the taxing power of the States, is established by the case of Brown against The State of Maryland, 12 Wheat. 419. The court considered the law of Maryland, requiring the importer of foreign articles to take out a license from the 

 [*28]  State before he should be permitted to sell a bale or package, as a tax on imports; and therefore, within the express prohibition contained in the Constitution  [**25]   of the United States. On the contrary, when the Supreme Court have been required to speak upon this subject, they have discountenanced the notion of implied restrictions and limitations on the taxing power of the States. In the case of The Providence Bank against Billings and Pittman, they say: "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."
Waiving, however, this view, and assuming that there are cases, in which the taxing power of the States may be restrained and defeated, by implication; upon what principle is it, in this aspect of the case, that the State is denied the right to impose the tax, now under consideration?
The counsel for the appellant, contends, that the right claimed by the State to tax the appellant's interest in these vessels, is incompatible with the privileges conferred upon him by the license; and, that this being so, the law of Maryland must fall on the well established principle, that where there is a conflict, between rights [**26]  under the law of the local government and a law of Congress, the State law must yield to that which is supreme and paramount.
An answer to the argument presented on this branch of the case, is: that there is, in fact, no incompatibility between the law taxing the interest, which the appellant possesses in these vessels, and the license, authorizing them to be employed in the coasting trade.
It is, in all its features, unlike the case of Gibbons against Ogden, to which it was assimilated in the argument. In that case, the grant by the legislature of New York to Livingston and Fulton of the exclusive navigation of the waters within the limits of the State, with boats moved by fire or steam, operated as a practical denial of the right conferred on the owner of the steam boat Bellona, by her coasting license, to navigate 

 [*29]  the same waters. Between the right claimed under the State grant, and the right secured to Gibbons, by the laws of the United States, there was a direct and actual conflict. Under such circumstances, the Supreme Court could not do otherwise than annul the State law.
But no such collision can result from the tax imposed by the statute [**27]  of Maryland. The State does not pretend to interfere with the right of the appellant freely to navigate, with their vessels, the waters of the United States, or require him, as in the case of Brown against the State of Maryland, to obtain from the State a license, as a qualification for the exercise of a privilege to which he had become already entitled by a law of Congress.
It has, however, been contended by the counsel for the appellant, that a right to tax, involves the power to prohibit and destroy; that Maryland may hereafter determine to banish from her waters all trade; that to accomplish this purpose she may change her fundamental law; and that this power of taxation, if tolerated, may be so abused by her, and diverted from its lawful purpose, as to be directed against our marine, and those branches of commerce and navigation, in the prosperity of which the whole country is concerned, and which have been placed exclusively under the protection of the national government.
But an answer to be given to this argument, is, that to render a State law unconstitutional, or extinguish a State power, by implication, on the ground that it is repugnant to powers vested [**28]  in the General Government, the repugnancy must be clear, immediate and direct; and not that which is merely speculative, indirect and contingent.
In the case of McCulloh against the State of Maryland, the Chief Justice of the Supreme Court expressly stated, that the opinion did not extend to a tax imposed on the interest which the citizens of Maryland held in the Bank of the United States, in common with other property of the same description throughout the State. And if it be true, as there determined, that the proprietary interest held by the citizens of Maryland, in the bank stock of the Bank of the United States, could not 

 [*30]  be withdrawn from the taxing power of the State, it must follow, that the State retains the power to subject to taxation the interest which the appellant has in these vessels.
With much more reason could it have been maintained, that a tax upon the interest of the stockholder was repugnant to the act of Congress drawn in question, in that case, than that this tax was repugnant to the act of Congress regulating the coasting trade. A tax upon the proprietary interest of the stockholder in the Bank of the United States, would [**29]  operate indirectly upon an instrument created by the national government for the purpose of carrying into execution its acknowledged powers. But this, it was held, could produce no constitutional repugnancy. Unless the repugnancy between the operation of the State law, and the right claimed under the law of Congress is direct and irreconcilable, the State power must be upheld.
The true rule on this subject is to be found in the Federalist. It is there stated in the thirty-second number: "That it is not a mere possibility of inconvenience in the exercise of powers, but an immediate and constitutional repugnancy, that can, by implication, alienate or extinguish a pre-existing right of sovereignty."
The distinction is between an immediate, direct, and necessary conflict of powers, where power stands arrayed against power, as in the case of Gibbons and Ogden; and one that is merely possible, and often occurs in our form of government, where powers, harmonious in themselves, are seen operating upon the same subject.
We can perceive no repugnancy, between the law of Maryland, imposing a tax upon this property, and the acts of Congress, under which an exemption from it has [**30]  been claimed by the appellant.
We think, therefore, that the imposition of this tax was a constitutional exercise of the taxing power of the State, and that the judgment of the county court must be affirmed.
JUDGMENT AFFIRMED.  

16 of 42 DOCUMENTS 

MARGARET WALTER AND OTHERS' LESSEE, vs. ASHTON ALEXANDER AND SARAH ROGERS ALEXANDER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 204; 1844 Md. LEXIS 23 

December, 1844, Decided 

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

This was an action of ejectment, brought on the 19th April 1841, by John Doe, lessee of the appellants. The plaintiff declared for the following lot:

Beginning, for the same, on the east side of South street; south, three and three-quarters degrees east, seventy-nine feet, three inches, from the south-east intersection of South and Water streets; and running thence bounding on South street, south, three and three-quarters degrees east, twenty-six feet, nine inches; thence north, eighty-six and a quarter degrees east, seventy-nine feet six inches, to the divisional line between Daniel Bowley and Jno. McClure; thence, bounding on said line, north, twenty-six feet nine inches; and thence, by a straight line to the beginning; with the appurtenances situate, and being in Baltimore county aforesaid, which Margaret Walter, deceased, in her life time, had demised to the said John Doe, for a term which is not yet expired; and counted upon separate demises, made on the 1st March 1840, by each of the lessors of the plaintiffs, the appellants in this cause.

The tenants in possession, the appellees, appeared and pleaded non cul, on which issue [**2]  was joined.

1ST EXCEPTION. The plaintiffs, to support the issue on their part, gave in evidence to the jury, that Daniel Bowley being seized in fee of the lot of ground for which this suit was brought, executed and delivered the following lease for the same:

This indenture, made the 21st day of December 1798, between Daniel Bowley of, &c., and Solomon Etting of, &c., witnesseth, that the said Daniel Bowley, for, and in consideration of the payment of the rents, and performance of the covenants, hereinafter mentioned, on the part of the said Solomon Etting and his assigns, to be paid and performed; hath demised, &c., and by these presents doth demise, &c., unto the said Solomon Etting, his, &c., all that lot of ground situate in the city of Baltimore, containing, &c. Beginning, for the same, on the east side of South street, south, three and three-quarter degrees east, seventy-nine feet three inches, from the south-east intersection of South and Water streets; and running thence, bounding on South street, south, three and three-quarter degrees east, twenty-five feet nine inches; thence north, eighty-six and a quarter degrees east, seventy-nine feet six inches, to the division [**3]  line, between Daniel Bowley and John McLure; thence, bounding on said line, north twenty-five feet; and thence, by a straight line, to the place of beginning: being lot, No. 2, as by a private plot or survey thereof, made and certified by Jehu Bouldin, on the 5th day of December 1798; the plot, thereof, now in the possession of said Etting, reference thereto, being had, will more fully appear. To have and to hold the said lot of ground and premises, with their and every of their appurtenances, unto the said Solomon Etting, his, &c., from the day next before the day of the date of these presents, for and during, and until the full end and term of ninety-nine years, from thence next ensuing, fully to be complete and ended; yielding and paying therefor, to the said Daniel Bowley, his heirs and assigns, the yearly rent or sum of $ 100. The lease then reserved a right to re-enter for non payment of rent, &c.

The plaintiffs further proved, that such lease, by various mesne assignments, became vested in George G. Krause, who duly made and published the following will, which among others, contained the following clause:

Item. I give to the children of my oldest daughter, Margaret [**4]  Walter, the brick warehouse in South street, with its appurtenances thereon, during the residue of the term originally letten, with the benefit of renewal forever, subject to the yearly rent reserved thereon. The rent thereof, my son-in-law, Philip Walter, shall receive, as soon as he and my daughter, Margaret, keep house for themselves, and not sooner.

Item. I give and devise to my beloved wife, all my household and kitchen furniture; also, all the stock of horses, cattle, sheep, hogs, and other articles on my farm, during her natural life; and after her death, the whole of her property to be equally divided among my three daughters. Should there be any debts left after my death, it is my will, that all rents arising from said houses, shall be used for defraying such debts; and afterwards, my dear wife shall receive all the rents, until either of my two daughters shall marry.

Item. I do hereby nominate, constitute and appoint George Schauber and John M. Dosh, executors. In testimony whereof, I have hereto set my hand and seal, this 30th day of October 1811.

And died; that the plaintiffs are the children of Philip and Margaret Walter, mentioned in said will, and were [**5]  minors until 1835; and also proved, that shortly prior to the institution of this ejectment, the plaintiffs offered to Ashton Alexander, one of the defendants, who is the husband of Sarah R. Alexander, formerly Sarah R. Merryman, the other defendant; that said Alexander should charge the rents of said property under said lease, from the last day on which payment was made, up to the time of said offer, and all interest thereon, and all expenses incurred by said Alexander or his wife, and the interest and credit of the rents of said property, since it was in possession of said Alexander or his wife, with interest thereon, and that the plaintiff would pay the difference, if any, whatever it might be, which proposal was refused.

The defendants, to support the issue on their part, offered in evidence the following copy of a deed, from Daniel Bowley to John Merryman, duly executed, acknowledged and recorded, dated 15th August 1806; conveying the reversion, in fee, to the said J. M. and his heirs, of the following lot, to wit: Beginning for the same, on the east side of South street; south, three and three-quarter degrees east, seventy-nine feet three inches, from the south-east intersection [**6]  of South and Water streets; and running thence, bounding on South street; south, three and three-quarter degrees east, twenty-five feet nine inches; thence north, eighty-six and a quarter degrees east, seventy-nine feet six --; to the division line between Daniel Bowley and John McLure; thence, bounding on said line, north, twenty-five feet; and thence, by a straight line, to the beginning: being lot, No. 2; as, by a private plat or survey, thereof made and certified by Jehu Bouldin, on the 5th day of December 1798; the plat thereof, now in possession of said Etting, reference being thereto had, will more fully appear; together, &c.

And also offered in evidence, a duly authenticated copy of the last will and testament of said John Merryman; by which, the said lot was devised to the said Sarah R. M. in fee; and proved, that the said Sarah, in said will mentioned, is one of the defendants in this case.

The defendants further offered in evidence, the following proceedings of recovery in ejectment, of the premises mentioned in the declaration; being an action commenced by the said S. R. M's lessee, against Isaac J. Smith, on the 17th March 1823, for all that lot or parcel of [**7]  ground, lying and being in the city of Baltimore, in Baltimore county aforesaid: Beginning for the same on the east side of South (now called Belvidere) street; south, three and three-quarter degrees east, seventy-nine feet three inches, from the south-east intersection of South and Water streets; and running thence, bounding on South street south, three and three quarter degrees east, twenty-six feet nine inches: thence north, eighty-six and a quarter degrees east, seventy-nine feet six inches, to the division line, between Daniel Bowley and John McClure; thence bounding on said line north, twenty-six feet nine inches; and thence by a straight line to the beginning, with the appurtenances; which Sarah Rogers Merryman demised, to the said John, for a term of years; which is not yet expired, &c. The sheriff returned the copy of the declaration: "Copy set upon the premises, 17th March 1823." A judgment by default at March term 1823, was rendered against the casual ejector. The day of the demise was 1st January 1816.

On the 12th February 1824, the said John Denn, lessee as aforesaid, by his attorney aforesaid, filed in court here the following affidavit, to wit:

Sarah R. Merryman [**8]  vs. Isaac J. Smith. Action of ejectment in Baltimore county court. Sarah Rogers Merryman, lessor of the plaintiff in this cause, made oath on, &c., that at the time of issuing the declaration in this cause, and before the time of serving a copy of said declaration on the tenant in possession of the premises, in said declaration mentioned, there was and now is due, and in arrear to the said Sarah, as landlord of said premises, the sum of $ 300, for three years rent of said premises; and the further sum of $ 49.50, balance due and in arrear for one other year's rent thereof; and this deponent further saith, that at the time of serving the copy of said declaration on the tenant in possession of the premises, in said declaration mentioned, she, this deponent, was and now, is landlord of said premises, and the said Isaac J. Smith was the tenant in possession thereof; and that she then had, and now hath power to re-enter on said premises for non-payment of the said rent; and this deponent further saith, that at the time, and before said ejectment was served, no sufficient distress was to be found on said premises, and countervailing the arrears of rent then due to this deponent. Sworn this [**9]  3rd day of February, in the year 1824, &c. And on the same day, 12th February 1824, the plaintiff sued out a writ of hab. fac. pos., under which, possession was given, on the 24th February 1824.

And also proved the writ of possession; and further offered evidence, that the said Sarah, mentioned in said recovery in ejectment, intermarried before the institution of this suit, with the defendant Ashton Alexander, and that said Sarah and Ashton, have been in possession of the premises declared for in this case, ever since possession was delivered under the writ of possession, issued on said judgment in ejectment, and that September term 1823, continued to the fourth Monday of March 1824.

The plaintiff further offered in evidence, that the court was not in session on the day when the affidavit, stated in the record, was filed, and when the execution issued.

The defendant offered evidence, that the terms of Baltimore county court have always been adjourned over from the end of one term to the beginning of another. And the defendant offered evidence to the court, by various attorneys at law, of the practice of Baltimore county court, as to the time of filing the affidavit,  [**10]  under the statute 4, Geo. 2. The practice was stated to be, to file the affidavit at any time before suing out the writ of possession. The defendant, also, filed copies of the docket entries in various actions of ejectment, where judgments, nisi, had been entered.

Whereupon the plaintiffs made the following prayers to the court:

The plaintiffs pray the court to instruct the jury:

1st. That the proceedings in ejectment, given in evidence in this cause of Merryman's lessee vs. Smith, do not vest any title in said Merryman, and are no bar to plaintiffs' right of recovery in this case.

2nd. That as the defendants have produced the record of the ejectment suit between Merryman's lessee and Walter, for the lot in question in this case, and as a part of that record, the affidavit of the plaintiff's lessee in that case, dated the 3rd February 1824, and filed in court in said case on the 12th day of the same month, that then, in point of law, said affidavit was too late to make the judgment in said case conclusive against the lessee; and the lessors of the plaintiff, in the present suit, claiming the said lot under the lease from Bowley to Ettings, as a judgment in ejectment,  [**11]  under the statute 4, George 2nd, and that such affidavit having been produced by defendants, the jury are not bound to presume, that any other affidavit to obtain or justify said judgment, under said statute, was filed or made before the court rendering the said judgment.

3rd. That the judgment, nisi, against the casual ejector, in the ejectment referred to in the preceding prayer, became a final judgment, after the first day of the term of the court, in which the same was rendered, next succeeding the term at which said judgment was rendered, and that consequently, the said judgment became an absolute judgment, after the first day of the term of said court, which commenced in September 1823; and that the affidavit made by the lessor of the plaintiff in that suit, on the 3rd February 1824, and filed, in said suit, on the 12th of that month, was not in time to authorize such judgment, under the statute of 4th George 2nd, so as to make the same, and the proceedings in the said case, final and conclusive upon the lessee of the lessor of the plaintiff in that case, and those claiming under the lease.

4th. And the plaintiff further prays the opinion of the court to the jury, that [**12]  if they find from the evidence, that the affidavit filed in the ejectment suit aforesaid, of Merryman's lessee, was not, in fact, submitted to the court by which said judgment was rendered or approved of, or seen by said court, or held by it to be sufficient under the said statute of George the 2nd; and if they also find, that no other affidavit in said case was made, that then said proceedings in ejectment are not conclusive upon the rights of the lessor under said statute.

The defendants then prayed the court to direct the jury, that if they should find, that the defendant, Sarah, became entitled to the reversion of the ground declared for, as stated in the testimony, and recovered possession, and took, and has ever since held possession thereof, in the year 1824, as shewn by the record of recovery, given in evidence, and that this action was instituted on the 19th day of April 1841, then the plaintiff is not entitled to recover.

The court (MAGRUDER and PURVIANCE, A. J.,) refused the prayers of the plaintiffs.

The prayer of the defendant was granted.

The plaintiffs excepted on both grounds, and the verdict and judgment being against them, they prosecuted the present [**13]  appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ISSUED.  

HEADNOTES:

Where a defendant offers in evidence collaterally, proceedings in ejectment, and the plaintiff prays the court to instruct the jury, that they do not vest any title in the defendant, and are no bar to the plaintiff's right, such a prayer is not too general, under the act of 1825, ch. 117.

This court must assume, under such a prayer, that every ground which established either of the points relied on in it, was considered and determined by the county court.

The statute 4 Geo. 2, ch. 28, requires, that to render a judgment by default, conclusive upon the rights of a tenant, and bar his future recovery of the demised premises, it shall be made appear to the court where the suit is depending, by affidavit, that half a years rent was due before the declaration was served, and that no sufficient distress was to be found upon the demised premises, countervailing the arrears of rent then due, and that the lessor in ejectment had power to re-enter; in every such case the lessor shall recover judgment and execution, in the same manner, as if the rent in arrear had been legally demanded.

To make a judgment by default, a bar to a lease under the statute of 4 Geo 2, the record must disclose such facts and circumstances, as will justify the court in believing, or assuming, that in rendering its judgment, the court below designed to exercise the authority conferred on it by the statute.

When all the proceedings in ejectment, until long after the judgment by default, show it to have been an ordinary case of ejectment, having no connection with the statute, there is nothing to warrant the assumption, that the judgment was rendered under the authority of the statute.

Where the affidavit required by the statute, was filed in vacation, at a different term from that of the judgment, and more than ten months after its rendition; and which, according to the proof, was never shown to the county court, this court will not assume the judgment was given on the affidavit, according to the obvious import and design of the statute.

The affidavit in such cases, should be filed before the judgment by default is entered, or some time during the term at which it was rendered; so that before the judgment became absolute, the court may have had an opportunity of inspecting and adopting the affidavit, as the basis of its judgment.

The court will not presume, that an affidavit was filed, pursuant to the statute, after a lapse of seventeen years, where it clearly appears, that in fact it was not so filed; yet if filed in time, it will be presumed to have discharged their duty in relation to it.

The construction of a statute in every part of the State must be the same; a practice in a particular part of the State, inconsistent with its letter and spirit, cannot repeal it.

The county court ought not to be called upon, to submit to the finding of the jury, a fact, of which there was no testimony.

A party purchased the reversion in fee of a lot, described as subject to a ground rent, the deed for the reversion being for less ground than the original lease. Afterwards, the rent not being paid, the purchaser of the reversion, brought his action of ejectment to recover possession; declared according to the lease, and recovered judgment by default, and possession. Some years after, the lessee brought another action for the premises described in the lease. HELD: that the recovery in the first action, being for more land than the plaintiff was entitled to, was no evidence that the whole reversion of the leased premises had been conveyed to the plaintiff in that action.  

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

By MEREDITH and MAYER for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*212]  DORSEY, J., delivered the opinion of this court.
The first prayer of the plaintiff is, "that the proceedings in ejectment, given in evidence in this cause, of Merryman's Lessee vs. Smith, do not vest any title in said Merryman, and are no bar to plaintiff's right of recovery in this case." The objection taken to this prayer as being too general, in not sufficiently presenting, according to the act of 1825, c. 117, the point, which the county court are required to decide, we think cannot be sustained. The points, on which the decision of that court were demanded, were, that the proceedings in the ejectment referred to did not vest any title in Merryman, and formed no bar to the plaintiff's right to recover. Every ground, therefore, which established either of those points, we must assume to have been considered and determined by the county court. It was very properly conceded in the argument, that if these proceedings [**14]  in ejectment, offered in evidence to shew title in the defendants, were not had under the statute of 4 Geo. 2, c. 28, that the judgments therein rendered, vested no title in the defendant's wife, and formed no bar to the plaintiffs right to recover. This statute requires, that to render a judgment by default conclusive upon the rights of the tenant, and bar his future recovery of the demised premises, it shall be made appear to the court, where the said suit is depending, by affidavit, that half a years rent was due before the declaration was served, and that no sufficient distress was to be found upon the said demised premises, countervailing the arrears then due, and that the lessor or lessors in ejectment, had power to re-enter; in every such case, the lessor or lessors, in ejectment, shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made. To give to this judgment the efficacy ascribed to 

 [*213]  it, it must appear to this court to be a judgment rendered under the statute of 4 Geo. 2; or, in other words, the record must disclose such facts and circumstances, as would [**15]  justify us in believing or assuming, that in rendering its judgment, the court below designed to exercise the authority conferred on it by the statute. The record, before us, discloses nothing which could warrant us in any such assumption or belief. All the proceedings in ejectment, until long after the judgment, shew it to have been an ordinary case of ejectment, (having no connection with the statute,) the judgment in which, is conclusive upon no body. Upon what principle, then, can this court be called on, where an affidavit was filed in the case, in vacation, at a different term from that of the judgment; and more than ten months after it was rendered, and which according to the proof was never shown to the county court, to believe or assume, that its judgment was given on the affidavit thus introduced into the cause? According to the obvious import and design of the statute of 4 Geo. 2, c. 28, we think the affidavit should be filed before the judgment by default is entered, or some time during the term at which it was rendered; so that, before it became absolute, the court may have had an opportunity of inspecting and adopting the affidavit, as the basis of [**16]  its judgment. That such is the construction of this statute in England, see Adam's on Ejectment 159, and Doe. on Dem. of Hitchings and Another, vs. Lewis 1 Burr 614.
It has been contended in this case, that after the lapse of seventeen years, during which the defendants have been in the undisturbed possession of the demised premises, this court ought to presume the filing of an affidavit pursuant to the statute. The proof in this case having so clearly disproved such filing of the affidavit, the court has no ground left for such a presumption to rest on. This case differs essentially from the case above mentioned, of 1 Burr 614, referred to as warranting the presumption which this court has been called on to make. There, the question arose upon a case stated, in which the proceedings and judgment in ejectment, were stated to have been "under and by-virtue of the statute 

 [*214]  of 4 Geo. 2, c. 28;" and that fact was strongly relied on by the court, which, after an acquiescence in the landlord's possession, under the judgment of almost twenty years, determined that it was not necessary that the landlord should have produced [**17]  the affidavit on the trial, in which the proceedings in ejectment were offered as evidence.
We must not be understood as deciding, that to give effect and validity to the judgment of the court, in a proceeding in ejectment, under the 4 of Geo. 2, when judgment is incidentally brought before the court, (as in this case,) as evidence of title, that it must appear upon the face of the proceedings, that all the requisitions of the statute have been complied with; that there is no error in the judgment of the county court, which upon appeal or writ of error would cause its reversal. All that we mean to decide is, that to give to a judgment by default in ejectment, under the statute of 4 Geo. 2, the conclusiveness designed to be imputed to it by the statute, it is necessary that the affidavit should be filed or presented to the court before the judgment is rendered, or some time during the term at which it was given; so that before it became absolute, the court may have had an opportunity of inspecting and adopting the affidavit as the basis of its judgment, and that such judgment, when offered in evidence, as in this case, was sustained by such an affidavit, as satisfied [**18]  the court before which it was offered in evidence, that the court by which it was rendered, intended it as a judgment under, and in virtue of the statute 4 of Geo., 2, c. 28.
Nor do we mean to say, that it is requisite that the affidavit should appear to have been presented to the court. If filed at the proper time, the court will be presumed to have discharged their duty in relation to it.
The testimony offered on the part of the defendants, of the loose practice sometimes prevailing in the city of Baltimore, of filing the affidavit long after the rendering of the judgment, or as the witnesses state, at any time before the issuing of the writ of habere facias possessionem, can have no influence on the determination of the case before us. The construction of 

 [*215]  the statute must be the same in every part of the State; and were it otherwise, the practice referred to, is so entirely inconsistent with both the letter and spirit of the statute, that to sanction such a practice would be, pro tanto, to repeal the statute. We think the county court erred in refusing to grant the appellant's two next prayers; for the reasons we have stated, in the consideration [**19]  of its refusal to grant his first prayer.
The court below, also erred, in their refusal of the appellant's fourth prayer; because, from the uncontradicted record evidence in the cause, it could not have worked injustice to the appellees, but might have operated most prejudicially to the rights of appellant. Under the opinion of this court, the proceedings and judgment in ejectment, relied on by the appellees, formed no bar to the plaintiff's recovery, and the jury were not at liberty to find the filing of any other affidavit. And yet, if that prayer had been granted, the jury would have been authorized in finding, that these proceedings in ejectment were a conclusive bar to the rights of the appellant; if they found that the affidavit, no matter at what time, had been submitted to the court, or approved of, or seen by it, or been held by it sufficient, under the said statute of George 2nd; or if the jury found that any other affidavit had been made in the case, no matter when made, or what it might be.
The prayers of the appellant having been rejected by the county court, the appellees prayed the court to direct the jury, that if they should find that the defendant, Sarah [**20]  , became entitled to the reversion of the ground declared for, as stated in the testimony, and recovered possession, and took, and has ever since held possession thereof, in the year 1824, as shown by the record of recovery given in evidence, and that this action was instituted on the 19th day of April 1841, then the plaintiff is not entitled to recover: which prayer was granted, and in doing so, the county court erred, for the reasons stated by us in our examination of the courts refusal of the appellant's first prayer. It also erred for another reason. It called on the court, to submit to the finding of the jury, a fact of which there was no testimony; but which was conclusively 

 [*216]  disproved by the testimony of both parties. It required the court to direct the jury, that if they should find that the defendant, Sarah, became entitled to the reversion of the ground, declared for, &c., then the plaintiff is not entitled to recover. Both the lease from Daniel Bowley to Solomon Etting, and the deed for the ground rent, and reversion from Daniel Bowley to John Merryman, under whom the defendant Sarah claims title, shew, that she was not entitled to the reversion [**21]  of the lot of ground for which the ejectment was brought; but for a lot of different and smaller dimensions. And it is somewhat remarkable, that the alleged recovery of the lot of ground, by Sarah, the defendant in the action of ejectment under the statute of 4 Geo. 2, c. 28, was not of the lot leased, as aforesaid, by Daniel Bowley, and to the ground rent and reversion of which she was entitled; but of a lot of larger dimensions.
Dissenting from the county court, in its refusals to grant all the prayers of the plaintiff, and in its granting of the defendants prayer, we reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO ISSUED.  

17 of 42 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.  

18 of 42 DOCUMENTS 

M. A. GIST AND T. P. SCOTT, ADM'RS OF WILLIAM GIST, vs. THOMAS DRAKELY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 330; 1844 Md. LEXIS 31 

December, 1844, Decided 

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

This was an action of trespass on the case, brought on the 26th August 1842, by the appellee, against William Gist, the intestate of the appellants, who died pending the action.

The plaintiff declared,

1st. Upon the instruments given in evidence, as negotiable notes, endorsed, failure to pay, and notice, &c.

2nd. Upon the common counts.

3rd. Upon the notes of the Eutaw Company, given in evidence, assigned by David Keener, for value to the plaintiff. And whereas also, heretofore, to wit, on the first day of June, in the year of our Lord, eighteen hundred and forty-one, at the county aforesaid, in consideration that the said plaintiff, at the special instance and request of the said defendant, would receive from the Eutaw Company a certain writing, obligatory of the said Eutaw Company, sealed with its seal, the date whereof, is the day and year in this count aforesaid, whereby said Eutaw Company promised to pay, six months after the date thereof, to the order of David Keener, $ 1826.81, for value received; and by the said David Keener, after the making and sealing thereof, and before the same became due and payable, to wit,  [**2]  on the day and year in this count aforesaid, to wit, at the county aforesaid, ordered to be paid and assigned to the said plaintiff, by assignment in writing, signed by the said David Keener, who was then and there authorized to make the same, at and for the sum therein specified, and give such value therefore; he, the said defendant, then and there undertook, and faithfully promised the said plaintiff, to pay him the said sum of money in the said writing obligatory specified, upon default of the said Eutaw Company, so to do, when the said sum of money in the said writing obligatory specified, should become due and payable. And the said plaintiff avers, that he, confiding in the said last mentioned promise and undertaking of the said defendant, afterwards, to wit, on the day and year in this count aforesaid, did actually receive from the said Eutaw Company the said writing obligatory, at and for the sum therein mentioned, and gave such value therefor, to wit, at the county aforesaid. And the said plaintiff in fact saith, that the said Eutaw Company did not, when the said sum of money in the said writing obligatory specified, became due and payable, to wit, on the first day of December,  [**3]  in the year eighteen hundred and forty-one, or at any other time before or afterwards, pay the same, or any part thereof, to the said plaintiff, but wholly neglected and refused so to do, and made default therein, to wit, at the county aforesaid, (although the said Eutaw Company was requested by the said plaintiff so to do, to wit, on the day and year last aforesaid, to wit, at the county aforesaid,) of all which said premises, the said defendant afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, had notice. Yet the said defendant, not regarding his said last mentioned promise and undertaking, but, &c.

4th. In the further consideration, that the said plaintiff, at the special instance and request of the said defendant, would receive from the said Eutaw Company a certain other writing obligatory of the said Eutaw Company, sealed with its seal, the date whereof, is the day and year in this count aforesaid, whereby the said Eutaw Company, promised to pay, six months after the date thereof, to the order of David Keener, $ 826.81, for value received; and by the said David Keener, after the making and sealing thereof, and before the same became due and [**4]  payable, to wit, &c., ordered to be paid and assigned to the said plaintiff by assignment in writing, signed by the said David Keener, (who was then and there authorized to make the same,) at and for the sum therein specified, and give such value therefor, he, the said defendant, then and there undertook and faithfully promised the said plaintiff, to pay him the said sum of money, in the said last mentioned writing obligatory specified, upon default of the said Eutaw Company so to do, when the said sum of money in the said last mentioned writing obligatory specified, should become due and payable. And the said plaintiff avers, that he, confiding in the said last mentioned promise and undertaking of the said defendant, afterwards, to wit, did actually receive from the said Eutaw Company the last mentioned writing obligatory, at and for the sum them mentioned, and gave such value therefor, to wit, at, &c. And the said plaintiff in fact saith, that the said Eutaw Company, did not, when the said sum of money in the said last mentioned writing obligatory specified became due and payable, to wit, on, &c., or at any other time before or afterwards, pay the same or any part thereof to the [**5]  said plaintiff, but wholly neglected and refused so to do, and made default therein, to wit, &c., (although the said Eutaw Company was requested by the said plaintiff so to do, to wit, &c.,) of all which said premises, the said defendant, afterwards, to wit, &c., had notice.

5th and 6th counts were similar to the 4th count.

The defendant pleaded non assumpsit.

The jury found a verdict for the plaintiff.

1ST. EXCEPTION. The plaintiff to support the issue on his part, offered in evidence the two sealed bills, or notes and protests, following:

"$ 826.81. Baltimore, June 1st, 1841. Six months after date, the Eutaw Company promise to pay to the order of David Keener, $ 826.81, for value received. Witness the seal of the company, attested by the signature of the president,

(Seal.)     DAVID KEENER, President.

"4th December 1841. Pro't non-pay't., H. S. S., n. p., due 1/4 Dec'r., E."

Endorsed, "DAVID KEENER," "WILLIAM GIST," "THO'S. DRAKELY," "B. F. GARDNER."

The notarial protest, dated 4th December 1841, shows that the above instrument was presented "at the place of business of the makers thereof, demanded payment of its contents, and received [**6]  for answer, "it cannot be paid at present." "And that on the same day, the notary addressed a written notice to each of the endorsers of the said promissory note, informing them it had not been fully paid by the makers thereof, and that they severally would be held responsible for its payment, and left those for David Keener, William, Gist and B. F. Gardner, at their respective places of business, and directed one to Thomas Drakely, Wheeling, Virginia, deposited it in the post office in this city.

"$ 826.81. Baltimore, June 21st, 1841. Six months after date, the Eutaw Company promises to pay to the order of David Keener, $ 826.81, for value received. Witness the seal of the company, attested by the signature of the president,

(Seal.)     DAVID KEENER, President.

D. 1,016, Dec. 2/2 1/4, 1841, Pro't. non-pay't. 24th Dec. 1841."

Endorsed, "DAVID KEENER," "WILLIAM GIST," "THO'S. DRAKELY," "W. & S. WYMAN."

The protest of this note showed a demand and non-payment as before, and also, notices for David Keener, and W. & S. Wyman, delivered to them. Notice for Wm. Gist and Tho's Drakely, left at their places of business.

The hand writing of the drawer and endorsers [**7]  thereon being admitted, having, before offering the same, filled over said endorsements, upon each of said bills, which were in blank, the words following, viz: "For value received, we jointly and severally promise Thomas Drakely, to pay him the amount of the within bill obligatory, should the Eutaw Company, the obligee therein named, make default in the payment thereof, when the same shall become due."

The plaintiff further to support the issue on his part joined, proved by William J. Cole, a competent witness, that the single bills, hereinbefore inserted, were placed in his hands by Mr. Drakely, the plaintiff, for collection, some time before the institution of this suit; that soon after receiving them, he met William Gist, the defendant, and told him that he had the bills; Gist thereupon inquired of witness, whether they were some of those given for cotton? Witness replied, that he did not know, and asked Gist, what the Company wanted with cotton? to which he answered, for packing their machinery. He (witness,) further proved, that Gist (the defendant,) stated, in the same conversation, that David Keener and himself, had been appointed a committee, to raise money for the use [**8]  of the Eutaw Company, and in consideration, that he would endorse said bills, with others, as the means of raising money for it, the Company agreed, to give him a credit upon the claims of the Company against him, he, the said Gist, being at the time, the debtor of the Company, to a considerable amount; that he did endorse said bills and others, for said purpose, under said agreement, and upon which money had been raised. The witness further proved, that in a second interview, between said Gist and himself, he, the witness, stated to said Gist, that he had examined the books of said Company, and found, that his indebtedness thereto, would cover all his liabilities incurred, to which Gist replied, that he thought he had gone further; that he intended to pay the bills in the hands of witness, but wished him to go against the Company and Keener first; and promised, that he would give witness a judgment, with a stay of execution, for the amount of the bills; that at a third interview, witness told Gist, (the defendant,) that Keener had consented to confess a judgment; Gist said he did not think he owed as much as he had become responsible for, on account of said Company, but that he would [**9]  confess a judgment upon the bills; that Gist nevertheless, seemed to hesitate to make such confession, when witness left the nar. and order, for the judgment to be confessed, with T. P. Scott, Esq., Gist's attorney. Witness thinks, that Gist mentioned Tiffany's name, in connection with the cotton. Witness further proved, that in his second interview with Gist, said Gist stated, that the Eutaw Company and Keener, had severally made deeds of trust of their property, for the benefit of their creditors; that this statement was made before the institution of the present suit.

The plaintiff then offered in evidence the judgments, which, upon the said two single bills, he had obtained against Keener and the said Eutaw Company, in Baltimore county court.

"Baltimore county court, September term, 1842. Thomas Drakely, vs. David Keener. Case, &c. 23rd December 1842. Judgment by confession for $ 4,000, damages in nar. and costs; to be released on payment of $ 1657.12, with interest, from 24th December 1841, and costs. Plaintiff's costs, $ 8.03 1/3.

Test,     THOMAS KELL, Clerk."

"Baltimore county court, January term, 1843. Thomas Drakely vs. the Eutaw Company. Case, &c.  [**10]  2nd January 1843. Judgment by confession for $ 4,000, damages in nar. and costs; to be released on payment of $ 1657.12, with interest, from 24th December 1841, and costs. Plaintiff's costs, $ 7.83 1/3.     Test,     THOMAS KELL, Clerk."

Whereupon, no evidence being then offered, on the part of the defendant, the plaintiff offered to the court the following prayer:

If the jury shall find from the evidence, that the single bills, upon which the present suit is brought, were executed by the Eutaw Company, and endorsed by David Keener and William Gist, by an agreement with said Company, for the purpose of raising money thereon, or purchasing goods, and with a view, by said endorsements, of giving a credit to said Company; and if they shall further find, that William Gist, the defendant, undertook and agreed with said Company, to make such endorsement, in consideration, that said Company would give him a credit for the amount of his responsibilities thus assumed, upon a claim of said Company against said Gist; and shall further find, that when said single bills became due, payment was demanded, and refused by said Company, and that notice thereof was given to said Gist,  [**11]  the defendant, on the days shewn by the protests in evidence in this cause, that then the plaintiff is entitled to recover the amount of said bills, with interest, from the time the same became due.

The defendant offered to the court the following prayers:

1. That the plaintiff is not entitled to recover, under the first count in the nar. because the bills offered in evidence, are not promissory notes.

2. That the plaintiff is not entitled to recover, under the counts for work and labor, &c., or for materials furnished, &c., because there is no evidence, that the plaintiff performed any work and labor for the defendant, or furnished any material, as charged in said counts.

3. That the plaintiff cannot recover under the count for goods sold and delivered, because there is no evidence in support of said count.

4. That the plaintiff cannot recover under the money counts, because there is no evidence, that the plaintiff lent any money to the defendant, or that the defendant received any money for the plaintiff.

5. That if the jury believe from the evidence, that the defendant, when he wrote his name upon the back of the bills offered in evidence, intended [**12]  to assume the responsibility of an endorser, of a commercial negotiable instrument, in the order in which said bill was endorsed, and that the plaintiff so understood the said intended contract when he received said bills, then the plaintiff cannot recover in this suit.

6. Because there is no evidence of any agreement or authority from the defendant, with the plaintiff, under or by which, the plaintiff can write the guarantee, proposed to be written by him, over the name of the defendant.

7. Because there is no evidence of any contract, between the plaintiff and defendant in this cause, and the promise and undertaking of the defendant, offered in evidence by the plaintiff, was a nude pact, and void for want of present consideration when it was made.

8. Because the promise of the defendant, to pay the said writing obligatory, if the jury shall find such promise, was a promise and undertaking, to pay and answer for the debt of another person, and there is no evidence, that the agreement and consideration for such promise, was made in writing, and signed by the said defendant.

9. Because the contract offered in evidence, is essentially different and variant from the [**13]  contract declared on.

10. Because there is no evidence, that the plaintiff used due diligence, to collect the debt mentioned in said writing obligatory.

11. Because the only evidence offered by the plaintiff, to charge the defendant, is evidence of a joint contract and responsibility, by Keener and Gist, and it being in evidence, that the plaintiff has recovered judgment against Keener, the obligation of the said Gist, if it ever existed, has been discharged.

12. That the assignment of the said bills, by Gist to the plaintiff, not having been made in conformity with the provisions of the act of 1763, ch. 23, sec. 9, the plaintiff cannot recover against the defendant Gist, the assignor.

13. If the jury believe from the evidence, that the writing obligatory, offered in evidence by the plaintiff, was made and put in circulation, for the purpose of raising money for the use of the Eutaw Company, then the plaintiff is not entitled to recover, because the Eutaw Company had no power or authority under its charter, to make, issue, or put in circulation, the said writing obligatory, and the pretended contract, was merely void, and the promise of the defendant, if the jury [**14]  should find such promise, is void for want of consideration.

14. If the jury believe from the evidence, that the bills offered in evidence, were made by the Eutaw Company, and passed to the plaintiff, for the purchase of cotton, by the Eutaw Company, and for its use, from the plaintiff, then the plaintiff is not entitled to recover in this action, because the said Eutaw Company, had no authority to make such a contract.

The court, (PURVIANCE, A. J.,) granted said prayer, offered on the part of the plaintiff, and likewise, the 1st, 2nd, 3rd and 4th prayers offered on the part of the defendant, and rejected the 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th and 14th prayers, offered by the said defendant; to which opinion of the court to the jury, granting said prayer of the plaintiff, and rejecting said prayers of the defendant, the defendant excepted.

2ND EXCEPTION. At the trial of the above cause, the plaintiff having offered in evidence to the jury, the testimony stated in the first bill of exceptions, and no testimony being offered on the part of the defendant, the prayers stated in said first bill of exceptions, having been submitted by the plaintiff and defendant,  [**15]  and discussed before the court, and the court having pronounced an opinion and decision thereon, the defendant then offered to swear David Keener, Philip H. Coakley and John J. Harrod, for the purpose of proving, that the bills offered in evidence by the plaintiff, were made and endorsed for the accommodation of the Eutaw Company, and were taken and discounted by the plaintiff at an usurious rate of interest. To the right of the defendant, at this stage of the cause, to offer which said evidence, the plaintiff objected, and relied in support of his objection on the twenty-fifth rule of the court, and the court refused to permit said evidence, under the circumstances stated, to go to the jury. To which opinion and refusal, the defendant excepted.

It was agreed, that the charter of the Eutaw Company, may be read at the trial of this cause, in the Court of Appeals, from the printed statute books, and that the 25th rule of Baltimore county court, may be read from the printed rules.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Upon the back of the notes of a corporation under its seal, payable to the order of K., he and G., endorsed their names, over which D., an assignee for value, wrote as follows: "For value received, we jointly and severally promise D., to pay him the amount of the within, should the Company make default in the payment thereof." On proof that the Company gave the notes in the course of their business, and G., their debtor, credit in account for their amount, demand of payment from, and refusal by the Company, and immediate notice to G., in an action of assumpsit by D. against C., HELD, he was entitled to recover.

The right of action was not on the sealed instrument, but on the endorsement, a collateral or distinct contract.

Upon negotiable paper, the holder can only write over the signature of the endorser, such an endorsement as conforms to the nature of the instrument, viz: to point out the person to whom the bill or note is to be paid.

In actions upon notes not negotiable, the intention of the parties is to be considered, and effect is to be given to that intention, if no rule of law is violated.

When a defendant, for a valuable consideration, agreed to become, and by endorsing a note or single bill, not negotiable in point of law, designed to become security for the money expressed in it, he is responsible for its payment.

Parties to contracts are assumed to know the liabilities imposed on them by the law, and juries are not from evidence to infer, their ignorance of such liability.

Where a corporation executes a note which its charter does not authorize, the payee may, for value, stipulate with a third party that it shall be paid, and will not then be permitted to urge the invalidity of the Company to make it. He was capable to bind himself to pay the debt, if it should not be paid at maturity.

The rule of Baltimore county court, which requires that the whole testimony intended to be produced by plaintiff and defendant shall be offered, before any question of law is raised, except objections to the competency of testimony, is such a rule as that court has power to make.

When a party fails to offer any evidence, at the time he ought to have offered it, under the foregoing rule, this court will not assume that it was then out of his reach, or was afterwards discovered.

The observance of such rule may be dispensed with, by consent.  

COUNSEL:
By LUCAS and T. P. SCOTT for the appellants, and

By J. H. B. LATROBE for the appellees.  

JUDGES:
The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE and MAGRUDER,  [**16]  J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*339]  MAGRUDER, J., delivered the opinion of this court.
The Eutaw Company, by two instruments, to which its corporate seal was affixed, promised to pay "to the order of David Keener," the sum of money expressed in each of them. 

 [*340]  On the back of these instruments, David Keener first, and afterwards Gist, (the original defendant in the court below,) wrote each of them his name. Before offering these sealed instruments in evidence, the blank that was left over their names, was filled up with these words. "For value received. We jointly and severally, promise David Drakely, to pay him the amount of the within writing obligatory, should the Eutaw Company, the obligees therein named, make default in the payment thereof, when the same shall become due." Upon this, the present suit was brought.
The court below, at the instance of the appellee, instructed the jury, that he was entitled to recover in this suit, the amount of said bills, if the same were executed by the Eutaw Company, and endorsed by Keener and Gist, by an agreement with said Company, for the purpose of raising money thereon, or purchasing goods,  [**17]  with a view by said endorsement, of giving credit to said Company; and if they should find, that the defendant (in the court below,) undertook and agreed with said Company, to make such endorsement in consideration, that the said Company would give him a credit for the amount of said responsibilities thus assumed, upon a claim of said Company, against said Gist; and shall further find, that when said single bills became due, payment was demanded, and refused by said Company, and that notice thereof was given to said Gist, on the days shown by the protests in evidence, in this cause. Of this instruction the appellants complain.
Upon what grounds is it asked of us to say, that the court below erred in giving this instruction?
It was frequently assumed, in the course of the argument, that sealed instruments are the causes of action in this case, and authorities were cited to prove, that instruments of that description, if left blank, could not be filled up by the owner of them. But, this action is grounded not upon the promises of the Eutaw Company, which are to be found only in sealed instruments, but upon alleged written promises of the defendant, in [**18]  the court below, to which there were no seals. Many of the cases therefore, with a reference to which, we have been 

 [*341]  furnished, afford us no information, with regard to the law of this case. Those alleged promises, although on the same piece of paper, may be collateral to, or distinct from, and no part of the obligations of the Eutaw Company.
Much stress was, in the course of the argument, laid upon the circumstance, that the obligations of the Eutaw Company, were not promissory notes, or negotiable paper; and it seemed to be conceded, that if they had been instruments of that description, the defendant in error, would have been entitled to recover; the authorities, however, would not appear to lead us to this conclusion. Chancellor Kent says, (3 Com., p. 59, 1st edit.,) no other use can be made of a blank endorsement, on a note or bill of exchange, in filling it up, than to point out the person to whom the bill or note is to be paid. In the case of Moies vs. Bird, 11 Mass. 436, Justice Parker, pronouncing the opinion of the court, said: "Had the notes been made payable to him, and negotiable in its form, the plaintiff would have [**19]  been restricted to such an engagement, written over the signature, as would conform to the nature of the instrument. In such case, the defendant would have been held as endorser, and in no other form, for such must be presumed to have been the intent of the parties to the instrument." But this note was not made payable to the defendant, and was therefore, not negotiable by his endorsement. What then was the effect of his signature? It was to make him absolutely liable to pay the contents of the note. He puts his name upon a note, payable to another, in consequence of a purchase made by his brother, in a day or two after the bargain was made, knowing that he could not be considered in the light of a common endorser, and that he was entitled to none of the privileges of that character. He leaves it to the holder of the note, to write any thing over his name, which might be considered not to be inconsistent with the nature of the transaction. In Seabury vs. Hungerford, 2 Hill 80, the court say, "when a contract cannot be enforced, in the particular mode contemplated by the parties, the court, rather than to suffer the agreement to fail altogether, will, if possible, give [**20]  effect to it in some other way."

 [*342]  This is an attempt to charge the defendant with the amount due on two obligations; because of an endorsement thereon of his name in blank, and of course, the obligation is not, speaking technically, a negotiable instrument. Justice Story, in his able work on the law of promissory notes, page 587, speaking of notes, with the name endorsed in blank thereon, says, "these cases have been either, first, where the note was not negotiable, or second, where it was negotiable," and then adds: "In the former class of cases, it has been held, that if the blank endorsement was made, at the same time as the note itself, the endorser ought to be held liable, as an original promisor or maker of the note, and that the payee is at liberty to write over the signature, 'for value received, I undertake to pay the money within mentioned to B,' the payee."
It is not the duty of this court to say, upon how much less proof, than was offered by him, the plaintiff, in the court below, might have recovered the amount of his claim. He might perhaps, have regarded this as a contract, like that spoken of by the Supreme Court of the United States [**21]  , in the case of De Wolf against Rabaud and others, 1st Peters, 476, "a trilateral contract, each as an original promise, though the one may be deemed subsidiary, or secondary to the other, a credit not given solely to either, but to both; not as joint contractors, on the same contract, but as separate contractors, upon co-existing contracts, forming parts of the same general transaction." It may be, that the plaintiff below, might have filled up the blank somewhat differently, and thereby, have dispensed with the necessity of offering some of the proof which he adduced, but it is not perceived, that the blanks are filled up, otherwise than as the holder of the notes, was at liberty to fill them up, or that the defendants have any cause to complain of the insertion of any word, which, consistently with the nature of the transaction, might have been omitted.
Indeed, in order to sustain this decision of the court below, it is not necessary to rely on very modern decisions. The principles settled by the case of Russell vs. Langstaff, 2 Doug. 514, and the various cases in the books, (see 2nd H. Blac. 

 [*343]  298, note,) brought upon bills, payable to [**22]  a fictitious payee, or order, would seem to be sufficient for our purpose. If in cases like those now spoken of, such objections to a recovery were over-ruled, it is difficult to come to a conclusion, that they can be fatal objections to a recovery in this suit. In the first case, (that in Douglass,) the defendant endorsed several notes, all of them at the time blank; that is, without any sum, date, or time of payment, mentioned in the notes. The defendant's counsel, in the case, might well say, that by the signature, the defendant contracted for no given sum; that notes, without sum or date, were waste paper, and might insist, that the declaration, which alleged a pre-existing note, made previous to the endorsement, was at war with the facts of the case. Lord Mansfield however held, that it was a clear case, in favor of the plaintiff.
In the suits upon notes, or bills, payable to a fictitious payee, or order, it was strenuously argued, that the Law Merchant, forbade notes payable to order, to be treated as notes payable to bearer. The court however, decided, that if the rules of law prevented the instrument from operating, according to the words used therein,  [**23]  it may be stated in such a manner, that the law will give effect to them. The intention of the parties is to be considered, and effect is to be given to that intention, if no rule of law is thereby violated. In this case, we must not doubt, for the defendant below admitted to the witness, and the jury have, by their verdict found, that the defendant in the court below agreed for a valuable consideration, to become, and by endorsing them, designed to become security for the money expressed in each instrument.
It appears by the bill of exceptions, that the jury were put in possession of acknowledgments by Gist, (the defendant below,) that he and Keener, were to raise money for the Eutaw Company; and of his further acknowledgments, that in consideration of his, (Gist,) endorsing the bills, the Company agreed to give him credit upon the claims, which it had against him, (he being at the time, the debtor of the Company;) that he endorsed the bills in fulfilment of said agreement, and upon 

 [*344]  the bills so endorsed, money was raised. By the terms of the contract, then, between the Company and Gist, (for which the latter received a valuable and ample [**24]  consideration,) he was bound to become security for the payment of those bills of the Eutaw Company, and this, before any person was the owner of them; and moreover, that he was to become such security, by the endorsement of, (or writing his name on) them. Surely upon such testimony, (which the jury were to believe,) the appellee was entitled ex aequo et bono, to demand of the defendant below, the amount of notes, the payment of which, to the holders of them, was to be secured by his endorsement, and the amount of which, was to remain in his own hands, in order to save him from any possible loss. The man who becomes a party to such a contract, for such a purpose, and for such a consideration, is forbidden, by every thing like reason and justice, to deny, that the appellee became the owner of the bills at his special instance, and because of his undertaking to pay the holder of them their amount, if default was made by the makers of them. Surely, of such a transaction it may be said, as was said by Baron Hotham, in 1st H. Blac. Reports, 584, "unless some stubborn rule of law stand in the way of the present judgment, it ought to be supported."
Immediately following [**25]  the prayer of the appellee, we read in the bill of exceptions, that "the defendant offered to the court the following prayers." These prayers, (fourteen in number,) are nearly all of them points, which might be legitimately insisted upon by the counsel, whose duty it was in the court below, or in this court, to argue, that the court ought not to give the instruction, of which we have already spoken. Upon a few of them, some remarks will be made.
The fifth was properly rejected. It required the court to assume, that the parties might not have known, that single bills were not such commercial, negotiable instruments as promissory notes, or might not know, what was the liability which the defendant below assumed, when he endorsed them. The law requires us to assume, that the parties did understand the contract into which they entered, and the liability which 

 [*345]  the defendant below assumed. It would have been improper to authorize the jury, to infer from the evidence the existence of such ignorance among the parties, and if so, to instruct them that if it existed, the verdict must be for the defendant.
With respect to the thirteenth, and the next point, (which may be considered [**26]  in connection with it,) they seem to assume, that if the Eutaw Company had no authority (to be found in its charter,) to make those writings obligatory, then the defendant could not oblige himself, to pay to the holders of them, the sums of money expressed in either of them. It is thought, that it did not lie in the mouth of the defendant below, to make such an objection. He was capable of binding himself to pay the debts, if when they became due, they remained unpaid.
In regard to the supposed speculation in cotton, the testimony (derived from the defendant below,) was, that the cotton purchased, was "for packing their machinery." By this, it can only be understood, that it was purchased to pack, in order to send away, the articles in which the Company was authorized by its charter to deal. For such a purpose, the Company was surely authorized to buy cotton upon credit as well as for cash, and might give its bonds as well as the verbal promise of any of its members, or its officers, for payment of the purchase money.
For reasons, which have already been suggested, we think there is no error in the refusal by the court to give the other instructions, which were not given.  [**27]  
There is another exception taken by the plaintiff in error, of which we will now dispose.
A rule of Baltimore county court, then existing, commenced in these words. "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." In this case, after all the points submitted by the defendant, as well as plaintiff, had been decided by the court, the defendant offered to introduce other testimony. The plaintiff objected to its introduction, "at this stage of the cause," relying on 

 [*346]  the rule of court above mentioned, and the court "refused to permit the testimony, under the circumstances stated, to go to the jury." Was there error in this refusal, for which an appellate court ought to reverse the judgment of the court below?
This court has heretofore (Wall vs. Wall, 2 H. & G. 79,) said, "there exists no discretion in an inferior court, to dispense, at pleasure, with their own rules, or to innovate upon established practice; and a party injured by such a course, has an undoubted right to seek redress [**28]  in this court. Every suitor is interested in the interpretation of the rules of court, applicable to his case; and an erroneous judgment of the county court in relation to them, may in many cases be as vitally injurious to him, as a wrongful judgment upon the law, which may govern his case." Again, in the case of Dunbar vs. Conway, 11 G. & J. 92, "this court has always regarded a legitimate rule of a court, as prescribing a law to the court. The proper office of such a rule, is to establish fixed and settled practice, to which the court is required to conform, and any error of opinion, in respect to its legal effect, or to its application to a particular case, will entitle the party injured to redress by appeal." It is believed, that the power of this court, in acting upon appeals of this description, as well as the duties of the court below, in regard to the observance of its own rules, are accurately defined in the above extracts, from its former decisions; and that a plaintiff in error, who brings such a complaint as this before us, must show that he is authorized by these former opinions of the court, to prefer such a complaint against the court below. Rules [**29]  of court, adopted for the dispatch of business, and the impartial administration of justice, must be written, so that all may understand them, and when adopted, must be a law to the court, as well as to others. But it can never be a question in this court, whether a rule adopted by any inferior court, is just such a rule, as in the opinion of this court, or a majority of its members, ought to be adopted in preference to any other rule, calculated and designed to accomplish the same object.

 [*347]  It cannot be alleged, that in this case, the court dispensed with its rule, or changed its practice. The question then must be, had the court power to make such a rule, and because of its existence, deprive the defendant of an opportunity of introducing testimony, at a time, when according to the rule, it was inadmissible?
It appears by the record, that the defendant below had not previously offered any testimony. This however, is unimportant, as it must be taken for granted, that he had declined to offer any, at the time when the rule of court required or permitted it to be offered. The testimony offered, if it had proved the fact for which it was offered, might have rendered wholly [**30]  unnecessary a discussion of the very many points of law, upon which the defendant below, seemed to the court, to be disposed to rest his case. Why this testimony was not offered at an earlier stage of the trial, is not shown. We cannot, therefore, assume, that at the time when he ought to have submitted it, according to the rule of court, it was out of his reach, or was afterwards discovered.
A court constituted as this is, would necessarily feel reluctant to entertain the question, what rules would be the best for, and therefore ought to be adopted by, the courts of any one of our judicial districts.
How long the parties shall be at liberty to introduce fresh testimony, or at what stage of the trial this privilege shall cease, it is proper that a rule of court should determine; and yet, it is not to be believed, that any rule for that purpose, which can be devised, would be equally proper for every district.
There may be reasons, oftentimes, why either party, and especially the defendant, should be permitted to settle the law of the case, before he consumes the time of the court, in examining witnesses, whose testimony may afterwards be found to be wholly unnecessary. But, who [**31]  is to be the judge of this, in any particular case? Certainly not the party himself. He may suggest this course, with his reasons for preferring it, and if the court and his adversary approve of it, none would 

 [*348]  say, that the observance of the rule might not be dispensed with. But ought such a course to be pursued, if the court, when the reasons for preferring it are made known, thinks, that the rule ought to be adhered to?
It is very much in favor of the rule under consideration, that it was adopted as a rule for city business, at least fifteen years ago, and yet, that it is now for the first time, it is believed, a subject of complaint in this court.
JUDGMENT AFFIRMED.  

19 of 42 DOCUMENTS 

HENRY RIARL vs. HENRY WILHELM AND SAMUEL WILHELM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 356; 1845 Md. LEXIS 37 

December 1845, Decided 

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

This was an action of assumpsit, commenced on the 13th September 1842, by the appellees against the appellant. The cause was submitted to the jury on the general issue, who found a verdict for the plaintiffs.

1ST EXCEPTION. The plaintiffs to support the issue joined on their part, offered in evidence to the jury, by     Wilhelm, a competent witness, that more than fifteen years ago, the plaintiffs were in partnership with each other, as drovers; at that time he did not know the defendant, and never knew there was such a man, until less than ten years ago. That within the last three or four years, the plaintiffs and defendant have been engaged and connected together as partners, in the business of drovers; but whether they were all three partners together, or whether Samuel Wilhelm and Riarl were partners, and Henry Wilhelm had an interest in Samuel Wilhelm's interest, in the firm of Wilhelm & Riarl, witness does not know; that the witness was employed by them, in the driving of their stock from Pennsylvania to the city of Baltimore; that both, Henry Wilhelm and Samuel Wilhelm, bought stock in Pennsylvania for the concern, and that the [**2]  stock, when driven to Baltimore, was sold to butchers, sometimes by the defendant, and sometimes by each of the plaintiffs; that frequently, whilst he was employed in driving their stock to Baltimore, in company with the defendant, he understood from the defendant, that both the plaintiffs were concerned with him in the droving business, each having an equal interest therein; that he recollects once, whilst thus driving, the defendant observed, "they would have made much more money, if it had not been a three-handed business;" that the business was carried on in the partnership names of Wilhelm & Riarl, and Riarl & Wilhelm. And further offered evidence, by George Suter, a butcher of the city of Baltimore, that he had dealt with the firm for several years, buying stock of them separately; sometimes dealing with one of the firm, and sometimes with another, having bought stock separately from each of them, who dealt with him, and whom he always regarded as partners, in the said droving business; that on the last day of March, or the first day of April 1841, the defendant told the witness, that "they, (meaning, as the witness understood him, the plaintiffs and defendant,) had, two or three [**3]  days before, dissolved partnership, and had settled their affairs;" the defendant told the witness, that Samuel Wilhelm had quit the drover's business, but that he, the defendant, would continue to carry it on separately on his own account, and that he hoped he, the witness, would continue to buy stock of him. And further offered in evidence, by John Fisher, the cashier of the Bank of Westminster, that said concern opened an account with the said bank, and transacted its business therewith, and had notes taken for stock sold by them, discounted thereat, for and on account of the concern; that the checks by which the money of the concern was drawn out of the bank, were signed, some of them "Henry Riarl & Co.," and some "Samuel Wilhelm & Co.," the first of said signatures being in the handwriting of the defendant, and the second in that of the plaintiff, Samuel Wilhelm. That after the dissolution of the firm, reported to have taken place, and sometime in June 1841, the defendant applied to him, to pay out to the defendant the balance due to the firm by the bank, which, from what he had heard of disputes between the partners, he refused; but, upon the defendant threatening an immediate [**4]  suit against the bank, if he did not so pay, the witness permitted him to check out all the said balance, except sixty-seven dollars and some cents, upon his giving bond to indemnify the bank. That the witness regarded the plaintiffs and defendant, as partners in the said firm. The said defendant urged as a reason why the money should be paid to him, that if Samuel Wilhelm got the money, the defendant did not know whether he could ever get it, or any of it, again, as he was not sure that Samuel Wilhelm was worth any thing; and that if his father got it, he lived in Pennsylvania, and defendant would have great difficulty in getting any thing out of him; that on the 20th August 1842, in a conversation between the witness and the defendant, the latter stated, that in the month of March 1841, of the balance of the money then standing in the said bank to the credit of the said firm, the sum of $ 3350, belonged to Wilhelm, (meaning the plaintiffs, as the witness understood.) That on the 14th June 1841, the defendant, by a check drawn by him, drew out of the said bank, of the money standing to the credit of said firm, the sum of $ 2025.

Whereupon, the defendant made the two following [**5]  prayers to the court:--

1st. The defendant, by his counsel, prays the court to instruct the jury, that the plaintiffs, from the pleadings and evidence in this case are not entitled to recover: because they have not introduced to the jury, any sufficient evidence of a final settlement between them and the defendant, of all their partnership accounts and transactions, and the striking of a balance due to the plaintiffs, to be submitted to the jury, to sustain this action in the form it is brought.

2nd. Because there is no evidence given to the jury, in this case, to prove a promise to pay to the plaintiffs any balance found due to them by the defendant, even if it should be believed, that a final settlement of all the partnership accounts and transactions has been made, and a balance struck; and because such promise is necessary, to enable the plaintiffs to sustain this action, in case of a settlement and balance struck.

Which prayers were refused by the court, (DORSEY, C. J., WILKINSON and BREWER, A. J.,) and to such refusal the defendant excepted.

2ND EXCEPTION. The defendant, by his counsel, upon the facts stated in the first bill of exceptions, prays the court [**6]  to instruct the jury:--

That if they believe from the evidence, that the plaintiffs and the defendant were partners, and previous to the action brought, came to a settlement of their partnership accounts, and struck a balance; which balance was in favor of the plaintiffs in any particular sum, and that said plaintiffs were entitled to an equal proportion of that balance, and that thereupon the partnership was dissolved, yet the plaintiffs cannot recover, unless the jury also find from the evidence, that the defendant promised to pay that balance to the plaintiffs jointly: because a balance struck among partners, and a dissolution of the partnership, is not sufficient to sustain an action of assumpsit, unless there is also a promise by the defendant to pay that balance. But the court refused to grant this prayer, because it did not appear from the proof and proceedings in the cause, or the claim for which a recovery was sought, by the plaintiffs, at the hands of the jury, that in the settlement of the affairs of the partnership, (if the jury find that any such settlement was made,) that there was a balance in the hands of the defendant due to the plaintiffs; nor did it appear that [**7]  the suit was brought to recover any such balance, the plaintiffs insisting, that on the settlement which they allege did take place between the partners, there was no balance in the hands of the defendant due to the plaintiffs; but that after the dissolution of the partnership, upon their settlement of their affairs, and dividing and distributing their partnership effects between themselves, three thousand and fifty dollars of the balance standing to their credit in the Bank of Westminster, was assigned, or allotted to the plaintiffs, and that said sum of money was, subsequently, wrongfully and in violation of the said partnership settlement, withdrawn from the bank by the defendant, and appropriated to his own purposes, and that they therefore had a right to recover it from the defendant, in an action for money had and received to their use. Under such circumstances, the court, without considering the accuracy or inaccuracy of the principle of law asserted by the prayer, refused the instruction prayed, on the ground of its irrelevancy to the matters in controversy before the jury; and its tendency, if granted, to bewilder and mislead them. To which refusal of the court the defendant [**8]  excepted.

3RD EXCEPTION. In addition to the facts contained in the defendant's first bill of exceptions, which are to be taken and considered as a part of this, his third bill of exceptions, the defendant further offered evidence by John Fisher, the cashier of the Westminster Bank, on his cross-examination, that on the 13th day of March 1841, the firm of Henry Riarl & Co., had on deposit in the Westminster Bank, the sum of $ 6096.21; and on the same day said Riarl, defendant, drew $ 150; by check; and Samuel Wilhelm drew $ 800, by check. On the 20th March 1841, a check dated March 1st, 1841, payable to McDevitt, and drawn by defendant, was presented to the bank, and paid to McDevitt; on the 27th March 1841, plaintiff, Samuel Wilhelm, drew from the bank $ 1084; March 29th 1841, Riarl drew $ 100; April 5th, 1841, Wilhelm, drew $ 550, and $ 300, same day, $ 150 drawn by Riarl; 17th April 1841, Wilhelm drew two checks, one payable to self, for $ 300, the other, to Layer's protested note, $ 332 endorsed by the said firm, and discounted for the benefit of the plaintiffs and defendant at said bank; 14th June, Riarl drew $ 2025. August 9th, same year, Wilhelm drew balance, $ 67.71. The [**9]  firm got credit for a protested note, the amount of which was, before the institution of this suit, drawn out of said bank by the defendant; and further offered evidence, that two or more of said checks were drawn by said Samuel Wilhelm, to pay the debts of the said firm; and that one of such checks, for $ 300, was drawn to enable the Barringers, butchers in Baltimore, to pay at maturity, a note for a much larger amount, which they had given to the said firm for stock sold to them, and which the said firm had discounted for its account and benefit, at the said bank; and that said $ 300 was subsequently, and prior to the 12th of June 1841, paid by said Barringer into said bank, to the credit of the said firm, and on the said 12th day of June was checked out of the said bank by the said defendant.

Whereupon the defendant, by his counsel, prayed the court to instruct the jury, that the evidence in the cause, taken altogether, is not sufficient to prove and justify the jury in finding a verdict, that there was a final settlement and balance struck of all the partnership business, and a dissolution of the partnership; and a promise by the defendant to pay the plaintiff such balance,  [**10]  or any specific ascertained sum; which prayer the court refused to grant; the defendant excepted.

The judgment being against the defendant, he prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In an action of assumpsit, the plaintiffs proved, that they and defendant were partners; that in April 1841, the defendant told the witness, that two or three days before, they had dissolved partnership. In March 1841, there was a balance of cash to the credit of the firm; and in June of that year, it was drawn out by the defendant, he urging, as a reason why he drew it out, that if the plaintiffs got it, he did not know whether he could ever get any of it again; the plaintiffs further proved, that in August 1842, the defendant stated the balance of the money in bank, in March 1841, belonged to the plaintiffs, and he had drawn the sum of, &c., thereout, by check. The defendant offered no proof; HELD:

1st. That a prayer by the defendant, to instruct the jury, that the evidence was not sufficient to enable the plaintiffs to recover upon, admitted, as proof, all the facts sworn to, and all rational inferences deducible from such facts.

2nd. That the proof did not tend to prove a promise from the defendant, to pay the plaintiffs any sum.

3rd. The ground on which partners, after a dissolution, can sue each other, in relation to what had been partnership funds or effects, is, that the joint interest as partners having ceased, a new contract had been made between the parties, in their individual, as distinct from their partnership characters.

4th. The joint interest can only be terminated by an agreement, vesting a separate title or interest in the thing, to which, before that time, there had been a joint title, and the rule equally applies to money, as to choses in action.

5th. Property which belonged to three partners, cannot become the separate property of two of them, except by an express agreement to that effect.

In every case in which property has been held by partners, it is necessary, to enable one of them to maintain an action at law for it, against another, to show a final settlement of the partnership concerns, and a distribution of the property to the party claiming, which, in effect, is a release of the rights of the other.

If the claim be for money, there must be a promise to pay an ascertained sum.

It is not necessary that a witness should testify to a positive promise. As in other cases, so in this, what is sufficient proof, is a question for the jury, and the fact may be established by circumstances, and just and fair inferences from facts, as well as by positive testimony.

But, in this case, where two, of three partners, are jointly suing the third, before it can be established, that he had made himself responsible to them, there should be proof of some fact going to show, that they had, inter se, entered into a new agreement.  

COUNSEL:
By RAYMOND and PALMER for the appellants, and

By W. P. MAULSBY for the appellee.  

JUDGES:
The cause was argued before ARCHER, C. J., CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*362]  CHAMBERS, J., delivered the opinion of this court.
This is an action of assumpsit, for money had and received by defendant to the plaintiff's use, with a count also on an insimul computasset.
The plaintiff below, the appellee here, proved, that for several years prior to the suit, a partnership had existed between the parties, plaintiffs and defendant, and that from time to time, the firm had obtained credits at the Bank of Westminster, in which were considerable sums of money standing to the credit of the firm. The plaintiff proved by the admissions of the defendant, in conversation with the witness, held on the last of March or first of April 1841, that a few days before the conversation, the partnership had been dissolved, and the parties had "settled their affairs." The [**11]  plaintiff also proved by the cashier of the bank, that in a conversation with defendant, held on the 20th August 1841, the defendant stated, that of the balance standing in the said bank to the credit of the firm, on the 1st March 1841, the sum of $ 3350 belonged to the plaintiffs. This money had been checked for, and drawn out of the bank by the defendant, except a small sum, in June 1841.
No testimony was offered by the defendant, who, thereupon, moved the court to instruct the jury, that the plaintiffs, from the pleadings and evidence in the cause, were not entitled to recover, upon the ground, that no evidence had been given to prove a promise to pay the plaintiffs any balance found due on a final settlement.

 [*363]  This prayer to the court, necessarily admitted, as proof before the jury, all the facts sworn to by the witnesses, and all rational inferences deducible from such facts.
We have attentively considered the testimony, and cannot find in any part of it the slightest fact or inference, tending to prove a promise from the defendant, the now appellant, to pay the plaintiffs below, the appellee here.
The ground on which partners, after dissolution, can sue each other,  [**12]  in relation to what had been partnership funds or effects, is, that the joint interest, as partners, having ceased, a new contract had been made between the parties, in their individual, as distinct from their partnership characters. The joint interest can only be terminated by an agreement, vesting a separate title or interest in the thing, to which, before that time, there had been a joint title.
It is by no means important in this view of the case, whether the credit in the bank is to be regarded as a chose in action, or as evidence of there being so much money, the property of the firm, a question which was much debated. The same law would apply in either case.
We will treat it as money, according to the doctrine of the appellees. This money the appellant received, and the question was, whether, having been placed there as the money of the firm, consisting of three persons, it could become the separate property of two of them, except by an express arrangement and agreement to that effect?
In every case in which property has been held by partners, it is necessary, we think, to enable one of them to maintain an action for it against another, to show a final settlement of the partnership [**13]  concerns, and a distribution of the property to the partner claiming, which, in effect, if not in form, is a release of the rights of the other. If the claim be for money, we think it necessary to prove the final settlement of the partnership concerns, and a promise to pay an ascertained sum. Until this is done, each partner has an interest in the entire thing or sum of money, as he is responsible also for the whole amount of the partnership indebtedness, and, therefore, cannot at law be compelled to part with the property or funds by his co-partner.

 [*364]  It is not intended that a witness must be produced on the stand, to testify to a positive promise. As in other cases, so in this, what is sufficient proof, is a question for the jury, and the fact may be established by circumstances, and just and fair inferences from facts, as well as by positive testimony.
The present case, however, is stronger than that of one partner suing another. Their dissolution and statement of a balance, might well be regarded as circumstances, to aid any general declarations of the opposite party, which acknowledged separate ownership, and make a case for the consideration of a jury. The inference [**14]  is not entirely in opposition to the premises, to say the least of it, that on a dissolution of a partnership, and a settlement of accounts, each partner is to receive his proportionate share of the property or money remaining for distribution; but it does seem to be a most unwarrantable inference from the same facts, that one partner had made himself liable to the other members of the firm, as joint owners of the property, or joint claimants of the fund. Certainly, before such a conclusion can be reached, there should be some fact going to show, that those other members of the former firm, after a dissolution of the first partnership, had, inter se, entered into a second.
Our conclusion is, that the court erred in refusing to give the instruction in the first bill of exceptions.
The question raised by the second exception is, in effect, disposed of by what has been said. The appellant, (the defendant below,) assumed as the basis of his prayer, that the plaintiffs and defendant had been partners, and "had come to a settlement," and struck a balance in favor of plaintiffs in any particular sum; and the court was asked to say, that the jury could not find for the plaintiffs, unless [**15]  they were satisfied by the evidence, that there was a promise to pay. We think the instruction should have been given. The court refused on the ground, that it did not appear from the proof and proceedings in the cause, that any such balance existed in the hands of the defendant; nor did the plaintiff below claim a balance in the hands of the defendant, appearing by a final settlement; but claimed a certain sum of money, standing in the bank 

 [*365]  books to the credit of the firm, as allotted to the plaintiffs upon a settlement of the partnership accounts.
The partnership was fully proved; and it was also proved, that this money had been part of the partnership fund. The plaintiffs are said to claim in virtue of "a settlement of the partnership affairs, as a division and distribution of the partnership effects between themselves," so that the concession in the prayer, of "a settlement, and balance struck in favor of plaintiffs," was in accordance with the pretensions of the plaintiffs. When, therefore, the defendant received this money, he did so, either as a partner,--and if so, there was an end of the case,--or after a dissolution and final settlement of all partnership concerns,  [**16]  and a distribution and allotment to each, of his particular share. In this last case the plaintiffs, clearly, could not maintain a joint action, without an express promise. If A receives the money of B, one thousand dollars, and at the same time and under similar circumstances, receives one thousand dollars, the money of C,--a joint action by B and C to recover the two thousand dollars, cannot be sustained. The fact, that the plaintiffs claimed it as their joint property, would not make it so. The right of recovery must be determined by the proof, and if the claim is not consistent with the facts, it must fail.
After offering some testimony, as to periods at which various portions of the funds in bank were checked out, and by whom; and for what objects, the instruction, stated in the third exception, was asked by the defendant, and refused.
It is to the same effect, precisely, as the instruction moved for in the first exception, that there was no evidence to justify the finding of the several facts mentioned: that is to say, a final settlement, and balance struck of all the partnership affairs; and, a dissolution of the partnership; and, a promise to pay [**17]  the plaintiffs such balance.
What is said above will, therefore, sufficiently explain the views of the court upon this exception. The judgment of the court below is reversed on each of the exceptions: and to enable the appellees to supply the necessary proofs to sustain their action, if they can furnish it, we will order a procedendo.
JUDGMENT REVERSED, &C.  

20 of 42 DOCUMENTS 

JOHN CROSS, SURVIVING PARTNER OF ANDREW CROSS, ET AL., vs. M. I. COHEN, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 257; 1845 Md. LEXIS 25 

December, 1845, Decided 

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

The claim in this cause, arose under the following deed:

"This indenture, made the 11th October 1816, between William Warren and William B. Wood, managers of the new theatre, on, &c., of the one part, and William Gwynn, Fielding Lucas, Jr., John Frick, Jonathan Meredith, and George Hume Stewart, all of, &c., trustees on behalf of the subscribers to the stock in the said theatre, of the other part. Whereas, the several persons, whose names are contained in the list or schedule hereunto annexed, at the instance and request of the said W. W., and W. B. W., have heretofore subscribed for such and so many shares of stock in the Baltimore Theatre aforesaid, as are set opposite their respective names, and have advanced and paid to the said W. W., and W. B. W., the sum of $ 200 for each of the said shares of stock, to assist in erecting the said theatre on the three lots of ground on the east side of Holliday street, in the city of Baltimore, hereinafter particularly mentioned and described, on the express condition and promise of the said W. W., and W. B. W., that they would convey the said theatre, and the said three lots of ground on which the [**2]  same is erected, to five persons, being stockholders as aforesaid. In trust, to secure to each and every of the said stockholders and his assigns, the right of free admission of one person for each share, to all performances which shall take place or be exhibited in the said theatre to a public audience, for pay or emolument, (except on such nights as the profits arising from the performance, shall be appropriated to the benefit of some actor or actors, who shall be under contract with the managers, to perform one whole season at least,) until the said sum of $ 200, so lent and advanced for each share respectively, should be fully paid to the said stockholders, severally, or their assigns; the right of free admission as aforesaid, to be deemed and considered as in lieu only of the interest on the said $ 200, without impairing the right to receive the full principal, and such right to each share of stock, to be assignable at the will of the stockholder, and the right of free admission to be transferable generally or for any special period, not less than one whole season. And further in trust, to secure the payment of all claims against the said managers, for work and labor, and materials,  [**3]  performed or furnished, for the use of the said theatre, and for which the claimant now has, or hereafter shall have, a written acknowledgment, signed by the said W. W., and W. B. W., or by either of them, in their joint names.

Now, therefore, this indenture witnesseth, that the said W. W., and W. B. W., for and in consideration of the above recited premises, and for and in consideration, &c., have granted, &c., and by these presents do grant, &c., unto the said William Gwynn, &c., the survivors or survivor of them, and the heirs and assigns of such survivor, all those three lots, &c. To have and to hold the said three lots, &c., above mentioned, and hereby granted, &c., unto them, the said William Gwynn, &c., and the survivors or survivor of them, and to the heirs and assigns of such survivor, forever. In special trust and confidence, nevertheless, for the use, benefit and behoof of each and every of the subscribers to the stock in the said theatre mentioned, and their executors, administrators and assigns, respectively, to secure the said stockholders and their assigns, the right to free admission to all performances in the said theatre, (except as is herein before excepted,  [**4]  ) with the full permission to transfer the use of such right for any one whole season or longer, as above specified, until the said W. W. and W. B. W., their heirs, &c., or assigns, shall pay and satisfy the said respective stockholders or their assigns, the full sum of $ 200 for each share of stock subscribed, and acknowledged to be paid and advanced to the said W. W., and W. B. W. And in further trust, to secure the payment of all claims for work, labor or materials for the said theatre, acknowledged and signed by the said W. W. and W. B. W., or either of them, as before mentioned; and it is hereby declared, to be the agreement, and true intent and meaning of the parties hereto, and of those interested in the said trust, that no claim shall be made by the said stockholders, or their assigns, for the payment of the sums of money advanced on the shares of stock to the said W. W., and W. B. W., nor by the said W. W. and W. B. W., or their assigns, to destroy or put an end to the right of free admission, to which the owners of the said shares of stock are entitled, by repaying the amount of the money advanced to them as aforesaid, until the expiration of ten years after the date hereof;  [**5]  and that until default shall be made by the said W. W., and W. B. W., in the payment of any sum of money which can and shall be lawfully claimed and demanded of them, under the provisions of this deed, the said W. W., and W. B. W., and their heirs and assigns, shall and may have the full and free use, occupation, control and enjoyment of the said theatre and lots of ground, with the appurtenances, subject only to the right of free admission of the said stockholders, and their assigns, as reserved in this indenture. And the said William Gwynn, &c., for themselves, their heirs, executors and administrators, do hereby covenant, grant, promise and agree, to and with the said W. W., and W. B. W., their heirs and assigns, that on the payment of all sum and sums of money, due on account of the said shares of stock to the owners thereof, and also, all sum or sums of money that may be due and owing for work, labor or materials, in manner and form aforesaid, that then they, the said William Gwynn, &c., and the survivor or survivors of them, or the heirs of such survivor, shall and will, on the reasonable request, and at the proper cost and charge in the law of them, the said W. W. and W. B.  [**6]  W., their heirs or assigns, make, execute, acknowledge and deliver, or cause and procure to be made, executed, acknowledged and delivered, in due form of law, a good and sufficient deed or deeds, conveyance or conveyances, assurance or assurances, device or devices, in law, for the effectual conveying, releasing, and confirming unto them, the said W. W., and W. B. W., their heirs and assigns, forever, the said theatre, lots, &c., and that free and clear, and freely and clearly, acquitted, exonerated and discharged, of and from all, and all manner of claim of them, the said William Gwynn, &c., their heirs, executors, administrators and assigns, or any other person or persons whatever, claiming or to claim, by form or under them, or any of them; or by or through their, or any of their means or procurement. In testimony whereof, &c."

A schedule of names, proprietors of one hundred and twenty-six shares, was appended to this deed.

On the 28th May 1839, a bill was filed by a number of the stock holders, against the trustees and managers, praying a sale of the theatre and lot on which it was erected, and after answers, a decree was passed for a sale.

On the 25th March 1842,  [**7]  Sarah Brown and others, administrators of Stewart Brown, filed their petition, alleging they had a large claim against the theatre, for materials furnished by their intestate, for its erection and use, and being informed that a sale was delayed, by consent of parties, prayed that it might be peremptorily ordered to be made.

In 1843, John Cross, as surviving partner of Andrew Cross and Stewart Brown, of the firm of A. & J. Cross & Company, and the administrators of Stewart Brown and Thomas Symington, administrator of William Stewart, filed their petition, and after stating the previous proceedings in the cause, and the indenture of 1816, alleged, that they were claimants, whose claims were intended to be protected by the said deed of 1816, and the payment of which is secured, thereby, equally with the said stockholders, and that they are unable to obtain payment, except by a sale of the theatre. Prayer, for leave to take proof in support of their claim, and their right to demand a sale, &c.

In support of their claim, the petitioners, under the usual order of court, examined Wm. Gwynn, Esq., one of the trustees in the deed of 1816, who proved, that the firm of A. & J. Cross [**8]  & Co., of which firm the late Stewart Brown was a member, did furnish lumber for the erection of the Baltimore Theatre, which was commenced in 1812; that he does not know what was the amount of their bill for the same, but that it was considerably more than $ 2000, and was so admitted by Messrs. Warren and Wood, the managers of said theatre, for whom deponent acted as agent. From a memorandum in deponent's possession, and herewith filed, marked exhibit O, the claim of A. & J. Cross & Co., against said theatre, admitted by Warren and Wood, amounted, with interest on the 1st June 1815, to $ 2650. As agent of said Warren and Wood, deponent collected the subscriptions to the stock of said theatre, and paid the bills for them against the theatre.

That William Stewart, in his life time, furnished the stone work for the erection of said theatre, and that deponent, as agent of Warren and Wood, paid part of his claim against the theatre, and from said memorandum in his possession, (exhibit O,) the amount of his claim therefor, on the 1st June 1815, was $ 1051.28, without interest.

That he does not know the specific payments, but various payments were made by deponent on such claims,  [**9]  on the 1st May 1828; that deponent acting for Wm. Warren, had a settlement of the claim of A. & J. Cross & Co., and there was found to be due upon the 1st November of that year, from said Warren, the sum of $ 1300, as appears from the promissory note of the said Warren, produced before deponent, and herewith filed, marked exhibit B; that the said promissory note is in deponent's handwriting, and was signed by William Warren, in deponent's presence, and on that occasion, the parties admitted the sum mentioned in said note to be the amount due.

That there was due upon the claim of William Stewart aforesaid, the sum of $ 850, on the first day of July 1826, as appears from the paper marked exhibit A, produced before deponent, and herewith filed; that said paper is in the body thereof, in the handwriting of deponent, and was signed by William Warren, in his own proper handwriting.

That at an early period, after the materials were furnished, by A. & J. Cross & Co., and William Stewart, their claims were ascertained and acknowledged by William Warren, in the joint names of Warren and Wood, which certificates of acknowledgment were prepared by deponent, to certify the claims against [**10]  said theatre.

That sometime about the year 1826, said William B. Wood sold out his interest in said theatre to William Warren, and it was made a condition of said purchase, as deponent knows from the parties, that said Warren should pay all the claims of persons holding such certificates against the theatre; and that he should get said claimants to accept the said Warren's individual liability and certificate, in lieu of the joint liability and certificate of Warren and Wood, that the only two claims then unpaid, which would come under the deed of trust, were the claims of said A. & J. Cross & Co., and William Stewart, who agreed to accept the individual certificates of said Warren, upon the express condition, however, that they reserved their lien or claim under the deed of trust, which reservation and agreement is evidenced by a memorandum, appended to the claims of A. & J. Cross & Co., marked exhibit C, and which properly and truly represents the understanding and agreement of said claimants, and Warren and Wood, on the former receiving the individual certificates of William Warren; that upon receiving the individual certificates of William Warren, the joint certificates of [**11]  William Warren and Wood, were delivered up.

That in regard to exhibit C, the handwriting of which, and of the initials thereto, deponent does not know.

That he is well acquainted with the handwriting of William Warren and William B. Wood, and that he has recently examined their answers in the chancery office, referred to in the interrogatory, and the signatures to said answers are in the handwriting of said Warren and Wood, respectively; and that the paper now produced to him, and mentioned in said interrogatory, as papers marked No. 1, was in his hand at the time he examined said answers, and is in deponent's opinion and belief, a true copy thereof.

On the 2nd December 1843, William Gwynn, Esq., being cross-examined, on the part of Mendez I. Cohen, one of the stockholders in said theatre, upon certain interrogatories herewith filed, the said Gwynn further deposed and said as follows:

That the claims of Cross & Co., and Stewart, were against Warren and Wood, as managers of the theatre, and are among the claims referred to in the deed of trust, from Warren and Wood to five trustees, of whom deponent was one; deponent has no knowledge of any legal steps having been [**12]  taken, for the collection of said claims of Warren and Wood, otherwise than by proceedings in chancery, to sell the theatre property, which said Warren and Wood had mortgaged to five trustees, of which deponent was one. A bill was filed by Cross & Co., and Stewart, praying such sale; no legal steps were taken against Warren and Wood, individually, for the collection of said claims.

That the theatre, if sold, would not produce within $ 5000 of the amount due the stockholders; deponent cannot tell the number of stockholders.

The exhibit O, referred to by the witness, contained a list of claims against the theatre. The note of William Warren, for $ 1300, dated 1st May 1828, payable six months after date, to W. Gwynn, as trustee, for value received, in materials for the said theatre, when first built; endorsed; William Gwynn, trustee.

Exhibit C. "I have received from William Warren, in lieu of this, from Warren and Wood, thereby consenting to make no claim on William Wood personally, for my account against the Baltimore Theatre, but on the express condition, that I still hold my claim and lien on the theatre and lot, under the mortgage to the trustees, as well as on said [**13]  William Warren.

15th August 1826.     S. B."

Exhibit A, was the acknowledgment of William Warren, of 1st July 1826, of balance due to William Stewart, $ 850, for work and labor, and materials for the Baltimore Theatre, payable with interest, the payment, whereof, is secured by a mortgage of the said theatre to W. G. and others, in trust.

The objection raised in the Court of chancery to this deposition and exhibits, is particularly set forth in the opinion of this court.

The petition of the appellants was also answered by Warren and Wood, who admitted their claims, their origin and existence, and disclaimed all present interest in the theatre.

The Chancellor, (BLAND,) on the 15th January 1844, decreed as follows:

"Although it appears from the proofs, that the petitioners were at one time creditors, whose claims against the said managers was for work and labor, or materials, performed or furnished on the said theatre, yet, as they have now here produced no written acknowledgment thereof, signed by the said William Warren and William B. Wood, or by either of them, in their joint names, according to the terms of the said indenture, of the 11th October 1816,  [**14]  under which, alone, the said petitioners can have any standing here, in this suit, as creditors. It is therefore ordered, that the said petitions be dismissed, with costs."

From this decree, the petitioners appealed to this court.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

A deed of trust was made to secure to each stockholder in an unincorporated association, a theatre, the right of free admission, until the sum lent and advanced by them for each share, to the managers and proprietors of such theatre, should be fully paid; the right of free admission being in lieu of interest, without impairing the right to receive the full principal; and in further trust, to secure the payment of all claims against the managers, for work, and labor, and materials, performed or furnished, for the use of the theatre, and for which the claimant now has, or hereafter shall have, a written acknowledgment signed by the said managers, there being two of them, or by either of them, in their joint names. A sale of the theatre being decreed, HELD: that in the distribution of the proceeds, the stockholders had no priority over the material men.

Where it can be done without violating the plain and express terms of an instrument creating a trust, chancery will administer the fund which comes under its possession and control, under such trust, so as to give an equal portion to each creditor, which is considered but another mode of expressing its purpose, to do equal justice to all.

The order in which claims are mentioned and enumerated in a deed of trust, does not, per se, give any preference or priority of right.

There is no rule of equity which will afford relief to a party failing to comply with an express condition, except its performance be prevented by fraud, or fault of the adverse party, or by inability arising from unavoidable accident.

So where a claim, by the terms of a deed of trust, was required to be authenticated by a written acknowledgment, which the claimant "now has or hereafter shall have, signed by W and B, or by either of them, or in their joint names," the party, claimant, must comply with the condition.

But, although the written acknowledgment is not produced, a court of equity will entertain the enquiry, whether the condition has been in point of fact complied with.

Evidence that leaves no doubt of the fact, that at one time the claims were authenticated, as the deed required, yet that the certificates signed by W and B, were, at a subsequent period, surrendered, on an agreement to receive in lieu thereof, the certificate and promise of W alone, the claimants consenting to make no claim upon B personally, on the express condition, they should still hold their claim and lien under the mortgage to the trustees, shows, that the condition in the deed has been in fact complied with.

The parties were not required by the deed, to preserve the acknowledgment of their claims, and have it ready at all times to be produced with the claim.

The acceptance of the certificate of W, was no surrender of the claim under the trust. The property in the hands of the trustees, may be regarded as the primary and principal fund.

Where a creditor has a lien on a specific fund, an agreement to make no claim against one of two principals in a debt, on the express condition, that he shall retain the lien, will not defeat his remedy against the fund.

Where a bill was dismissed, not upon its merits, but under a rule further to proceed in the cause, it is not necessary to qualify the order of dismissal, by saying it shall be without prejudice to the rights of the complainants.

The act of 1832, ch. 302, sec. 5, provides, that no point relating to the competency of witnesses, or admissibility of evidence, shall be raised in the appellate court, unless it shall plainly appear by the record, that such point had been raised by exceptions filed in the cause in the chancery court.

The incompetency of a witness is not now noticed, unless objected to by exceptions.

It is an universal practice in chancery, that exceptions, like other formal papers, filed in a cause, must be signed by a solicitor of the court.

The return by an officer, before whom depositions are taken, by consent or by order of court, that objections were furnished to him to be filed, and filed in a cause, is not filing exceptions in the court of chancery, in compliance with the act of 1832, ch. 302.

The reservation of all legal exceptions usually inserted in an order of the court of chancery, permitting evidence to be taken in a cause, does not, since the act of 1832, ch. 302, authorize the Chancellor to make objections at the hearing, to the competency of a witness. That was formerly the practice of the court, but the act was passed to prevent it.  

COUNSEL:
By BROWN and BRUNE for the appellants, who contended:

1. Their claims being respectively for materials furnished for the theatre, and used in its erection, and having been, soon after such materials were furnished, acknowledged by a writing, signed by William Warren, in the joint names of himself and partner, William B. Wood, were embraced within the terms of the deed of trust, of the 11th of October 1816, and secured by its provisions, equally with the stockholders therein mentioned.

2. The subsequent surrender of these acknowledgments, and the substitution therefor of the acknowledgments signed by William Warren, in his individual name, under the agreement proved by Mr. Gwynn, did not release the rights of appellants, previously acquired, to participate in the security afforded by the deed of trust, nor impair the liens, which they then held to the property conveyed by said deed.

They cited:  [**15]  2 Sto. Eq., 521. 4 Mad., 161. 1 Collyer, 409. Clagett, et al., vs. Salmon, 5 G. & J., 351. Duffy vs. Orr, 1 Clark & Fin., 253. Kirby vs. Taylor, 6 John. C. R., 242. Powell on Devises, Ch. 35, 665. 22 Law Lib., 355. Catskill Bank vs. Messenger, 9 Cow., 37.

By GLENN for the appellees, who contended:

1st. That the petitioners, appellants, are not creditors coming within the terms of the deed of trust.

2nd. That they are to be postponed to the other creditors of the theatre.

3rd. That W. Gwynn, Esq., is not a competent witness in the case.

4th. That the petitioners have discharged all claims against the fund, by a release of Mr. Wood.

5th. That the debt of petitioners, from lapse of time, is presumed to be paid.

On the 1st point he cited: Pierpoint and Lord vs. Graham, 4 Was. C. C. Rep., 232. Cheever, et al., vs. Clarke, 7 S. & R., 510. Kirby vs. Taylor, 6 John. C. R., 242. Shaw vs. Pratt, 22 Pick., 308, is against all the authorities.

On the 3rd point he cited: Supervisors of Chenango vs. Birdsall, 4 Wend., 457. 10 Wheat., 384, 385. Greenleaf on Evid., 199, 398. Hougham vs. Sandys, 2 Sim. & Stuart, 221. 1 Con. Eng. C. Rep., 427. Fereday vs. Wightwick,  [**16]  4 Russ. C. R., 114, 115. Act of 1832, ch. 302.

On the 4th point he cited: Co. Litt., 212. Esp. N. P., 281. Steinman vs. Magnus, 11 East., 390.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*267]  CHAMBERS, J., delivered the opinion of this court.
The legal construction of the deed of trust, dated 11th October 1816, is one of the material points on which this cause must be decided, and many authorities have been cited to sustain the different views taken by the respective counsel. After a full consideration of these authorities, we have arrived at the conclusion, that the priority claimed by the appellees for the stock holders cannot be sustained.
It cannot, certainly, be successfully contended, that the origin and nature of their debt gave them stronger claims, in equity, upon the trust fund. The labor and materials furnished by the appellants, contributed to enhance the value of the trust property, which had been purchased with the funds advanced by the stockholders. The improvement of the city, and a desire to introduce theatrical amusements, doubtless operated, in some degree, as inducements for the [**17]  subscriptions and advances of stockholders, who could not fail to consider the enterprize as one of some hazard. The appellants furnished their materials and labor in the ordinary routine of their respective business operations, and must be presumed to have had at least an equal claim, and it would seem, an equal expectation of payment.
Where it can be done without violating the plain and express terms of the instrument creating the trust, chancery will administer a trust fund which comes into its possession and control, so as to give an equal proportion to each creditor, which is considered but another mode of expressing its purpose to "do equal justice to all."
There are no such provisions in this deed as to require a departure from this rule.

 [*268]  The trusts of the deed are "to secure the stockholders the right of free admission to performances," "until Warren and Wood shall pay the stockholders, or their assigns, the full sum of two hundred dollars for each share subscribed;" "and in further trust, to secure the payment of all claims for labor or materials," &c.
Now it is remarkable, that there is not any where in the deed an express stipulation, to pay the two [**18]  hundred dollars per share.
It is covenanted, that the stock holders shall not exact payment until the expiration of ten years, and that Warren and Wood shall not be permitted, for that period, to repay the advances of two hundred dollars per share, and thus terminate the right to free admission; and there are covenants securing the possession to Warren and Wood during those ten years, and binding the grantees to reconvey on payment of the money intended to be secured. All parts of the deed indicate the intention to secure the repayment of these advances, but there is no express covenant to pay. This omission seems to be scarcely consistent with the allegation, that the leading object of the deed was to secure a preference for these advances over claims for labor and materials.
It is true, this preference might be made without such express stipulation to pay, but certainly the absence of it is not calculated to impress the belief, that the preferred payment was very distinctly before the mind of those who prepared and executed the deed.
Reliance was placed on the circumstance, that the claims of the stockholders are first mentioned in the declaration of trust, and [**19]  that the claims for labor and materials are provided for as "a further trust."
It was well answered, that where more than one claim or claims were provided for, it was necessary to mention them successively, and that the order of enumeration does not give preference. There seems to be no more evidence of intended priority by connecting the two classes, as here, by the words, "in further trust," than by more brief terms of conjunction. In trust to "pay A his debt, and B his debt"--"in trust to 

 [*269]  pay A his debt, and in further trust to pay B his debt"--or "to pay A his debt, and also B his debt," are but different modes of expressing the trust to be for the payment of the two debts of A and B; and neither will, alone, entitle A to receive his claim to the exclusion of B, if the fund be insufficient to pay both.
It is objected, however, that the condition upon which, alone, the claims of the appellants were to be paid, has not been complied with, by producing the certificate of Warren and Wood, or of one, in their joint names.
There is no rule of equity which will afford relief to such a party failing to comply with an express condition, except its performance be [**20]  prevented by fraud or fault of the adverse party, or by inability arising from unavoidable accident.
This doctrine is ably discussed in the case of Bath and Montague, 3 Cases in Chancery, 55, and is sustained by the authorities cited at bar.
But the matter for consideration here, is whether the condition has been, in point of fact, complied with; and this, it is said, is proved by the evidence of William Gwynn.
His competency, as a witness, therefore, was a point much debated. It is unnecessary to say what would have been the opinion of the court, if exceptions had been taken in the Chancery court, according to the directions of the act of 1832, ch. 302.
That act provides, that no point relating to the competency of witnesses, or the admissibility of evidence, shall be raised in this court, unless it shall plainly appear, by the record, that such point had been raised by exceptions filed in the cause in the Chancery court. It is, therefore, quite unimportant that objections can be stated, which, if properly urged, would show the witness incompetent, inasmuch as this court cannot consider or notice the point, unless the act has been pursued.
The material enquiry then,  [**21]  is, have exceptions been filed in this cause, in the Chancery court?
In relation to the alleged exceptions, we learn from the record, in the return of the justice of the peace before whom the testimony was taken, that he, the justice of the peace, 

 [*270]  "returned, with the deposition, certain suggestions and protest, left with him by Nathaniel Williams, Esq., to be filed in his own behalf, and in behalf of other trustees therein named."
In another part of the record, is a paper in the following words: "Cohen and others, vs. Gwynn and others. In Chancery. Under the order of court for the taking of testimony, the majority of the trustees make, before the justice, to be annexed to his return, the following suggestion and protest:
1st. They protest against all evidence to support any claim or claims which is or are unaccompanied by a written acknowledgement signed by William Warren and William B. Wood, or by one of them, in their joint names.
2nd. They protest against any evidence, unless it is adduced to prove the claim of the petitioners, and that they are creditors secured by the deed of trust.
3rd. They protest against the evidence of William Gwynn,  [**22]   Esq., as reserved by the Chancellor.
Baltimore, 27th November 1843."
By whom filed, or when, we only know by the information in the return of the justice. This is the paper, and the only one, which is claimed as the "exceptions filed in the Court of chancery."
Without stopping to ascertain, whether the language of this paper does really import an objection to the "competency of William Gwynn, as a witness, or to the admissibility of his evidence," or whether professing, as it does in the justice's return, to be intended for a case in which Mr. Williams, with others, was a trustee, it could apply to this case, in which Mr. Williams does not appear before the court in the character of a trustee, he having been a trustee only for the term of ten years, ending in 1836, as is expressly alleged in the bill, and stated in the joint answer of himself and others; the necessary enquiry is forced upon the court, whether it be such an "exception" as the act of 1832 contemplates? It is an universal rule of practice in chancery, that exceptions like other formal papers filed in the cause, must be signed by a solicitor of the court. If a bill is not thus signed, it may, in any [**23]  stage of the cause, be taken off the files of the court. 2 Mad. Ch. 167. 

 [*271]  So of an answer. Ib., 331. A plea must in like manner be signed. Ib., 295. And so must an exception. Ib., 346. The qualification made by the second rule of the Chancery court, does not affect this case.
This practice is as proper, as it is universal. Without it, every individual in the cause, whether complainant or defendant, might file in the court papers of any and every character, which caprice, prejudice, passion or malignity might suggest, and without responsibility; whereas, a solicitor who should violate the decorum or dignity of the court, could be dealt with summarily, according to the nature and magnitude of his breach of professional duty.
This paper is not only not signed by a solicitor in the cause, but it is not signed by any one.
Nor was it "filed in the Court of chancery," within the meaning of the act. Its object was to prevent surprise, by raising points here in relation to testimony not raised in the court below. It may very well occur, that in the haste of executing a commission, or an order to take testimony, objections to portions of it may be taken, which afterwards, [**24]  on consideration, will be abandoned; or, as is frequently the case, evidence is taken without objection, which afterwards is considered inadmissible, thus showing that the taking, or omitting to take objection before the commissioner, is not a sure guide by which to know the points in relation to it, raised in the court below. This case illustrates this position:
The decree says, "it appears from the proofs, that the petitioners, the present appellants, were at one time creditors," &c., whereby, it appears, the Chancellor did act upon the testimony of Gwynn, as there was no other such proof in the cause.
In this way, objections suggested at the execution of the commission, and afterwards practically abandoned at the hearing, might be again relied upon in this court, in obvious violation of the design of the law.
The return by an officer, before whom depositions are taken, by consent or by order of court, that objections were furnished to him to be filed in the cause, is not "filing exceptions in the 

 [*272]  court of chancery, in compliance with the act of 1832, ch. 302."
It has been urged that here, by the terms of the order, "all legal exceptions" are expressly reserved.  [**25]  This is not tenable ground.
The order, with this reservation, is passed ex parte, and as matter of course, on a proper application; and according to the English practice, and the former practice in Maryland, all objections were open at the hearing, and then was the proper time for making them, the exceptions being reserved, to be then considered. 2 Ves. & Bea. 401, Murray and Shadwell.
If the order was absolute, to allow the defendant to be a witness, it might conclude the adverse party, but with the reservation, the evidence of a defendant thus taken, came before the court subject to all objections at the hearing below, or if not urged there, the objections might be stated in this court after appeal, as is now claimed. But this is exactly what the act of 1832, intended to prevent, by denying to this court the authority to notice any such objection, unless the record makes it appear, that "exceptions" were filed, not before the commissioner, but "in the Court of chancery."
In 10 G. & J. 404, Harwood v. Jones, one witness had been examined, without any notice to the adverse party, and another witness was a defendant in the cause,  [**26]  who had been examined under the commission, without any previous order; yet the court was prohibited from noticing these objections, which, but for the act of 1832, would have been conclusive.
William Gwynn's testimony, then, being in the case, does it prove a compliance with the terms of the deed? It leaves no doubt of the fact, that at one time, the claims of the appellant were authenticated, as the deed required; but the certificates signed by Warren & Wood, were, at a subsequent period, surrendered on an agreement, to receive in lieu thereof the certificate and promise of Warren alone, the claimants "consenting to make no claim on Wm. Wood, personally, but on the express condition, they should still hold their claim and lien, under the mortgage to the trustees." Now it has been conceded, that a strict compliance with such a condition, must 

 [*273]  be proved by a party claiming under it. There is, however, no rule which authorizes a court of equity, to add other or more rigid restrictions than those contained in the contract.
As in all other cases, the object and intent of the parties, as expressed in the instrument, should be ascertained, and such an interpretation [**27]  given to the whole and each part as will best effect that intention.
The condition was apparently introduced to protect others having an interest in the integrity of the fund, against claims not properly chargeable against it. As Warren & Wood being partners, had authority, each, to use the names of both, it may be difficult to discover how that protection was increased, by requiring either to subscribe "in the name of both," rather than for himself alone. It is sufficient, however, that it does plainly and clearly so require, and when the claim was authenticated by the required signature, the claimant had an immediate and positive right, as a cestui que trust under the deed.
If afterwards the acknowledgment had been destroyed by accident, would it destroy the pre-existing right? If even lost by the claimant's negligence, could that fact put an end to such right? Certainly not, while it was admitted, either that he had before the deed, or afterwards, procured the acknowledgment as required.
It is not said the acknowledgment must be preserved, and be at all times ready to be produced with the claim; there is nothing in the object or meaning of the parties that requires an [**28]  interpretation, such as these additional terms would give to their contract; and therefore, it is not requisite to prove any such additional fact.
It only remains then to be seen, whether the appellants have surrendered their rights, under the deed, by the surrender of the certificates of Warren and Wood, and by receiving the individual notes of Warren, with the express condition, that they should not thereby lose their claim and lien under the deed. None of the cases referred to on this branch of the case, are precisely similar in principle to this.
The debt was here due, originally, from Warren and Wood. They executed the deed of trust to the appellees, as trustees 

 [*274]  for their creditors, of the very property, for the improvement and increased value of which, they became debtors to the appellants, and which, it appears by the recital in the deed, was at the commencement of the enterprise agreed to be conveyed to the trustees for the purposes mentioned. The property thereby, became legally and equitably bound for the payment of these claims, and the trustees could be compelled so to apply it. They had voluntarily assumed the liability, in respect to this property [**29]  which had previously attached to Warren and Wood. When the joint notes, or acknowledgment of Warren and Wood were passed to the appellants, does not appear; nor is it, perhaps, at all important.
In fact, the original agreement, as recited in the deed, would seem to indicate, that the property in the hand of the trustees was to be regarded as the primary and principal fund.
It is said to have been pledged as the consideration for the subscriptions, and, of course, before the claims of the appellants arose; and the deed was the execution of that pledge. The acknowledgments were not required to be in terms which should make Warren and Wood personally liable, it was to be an evidence of debt against the trustees; against the fund. In this view of the case, the trustees representing the fund might well be considered as principals.
But it is not necessary to put the case on that ground. The authorities referred to, are sufficient to sustain the proposition, that where a creditor has a lien on a specific fund, an agreement "to make no claim" against one of two principals in the debt, "on the express condition, that he shall retain the lien, will not defeat his remedy [**30]  against the fund."
There has been no such long continued silence, or laches, as to amount to presumptive payment. The facts in the case account for the delay; and show repeated efforts to enforce the claim.
The only other ground on which the appellees claim that the remedy has been lost, to wit, the order dismissing the bill filed by the appellees, cannot be sustained.
The bill was dismissed, not upon its merits, but under a rule further to proceed in the cause, and in such cases it is not necessary 

 [*275]  to qualify the order by saying, that it shall be without prejudice to the rights of complainants. See Sto. Eq. Pl. 611. See 793. 1 Barbour's Ch. Pr. 246. 2 Barb. 200.
The court will sign a decree reversing the decree of the Chancellor and remanding the cause, to be proceeded on in the Chancery court according to the principles herein declared.
DECREE REVERSED AND CAUSE REMANDED.  

21 of 42 DOCUMENTS 

THE CHARLESTON INSURANCE AND TRUST COMPANY vs. JAS. J. CORNER AND THOMAS CORNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 410; 1844 Md. LEXIS 40 

December, 1844, Decided 

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

This was an action of assumpsit, commenced on the 31st December 1839, by the appellees against the appellants.

The plaintiffs declared, on the policy mentioned in the bill of exceptions, and assigned as a breach of the contract, that heretofore, to wit, on the 20th February 1839, divers goods of great value had been and were shipped and loaded at Monte Video, in and on board the said brig or vessel, in the said policy of insurance mentioned, to be carried and conveyed therein, on and for freight in and during said voyage, to wit, at the county aforesaid, and that they, the said plaintiffs, were then and there, from thence until, and at the time of the loss hereinafter mentioned, interested in the freight of the said goods so shipped and loaded as aforesaid, to a large value and amount, to wit, to the value and amount of all the moneys by them ever insured, or caused to be insured thereon, to wit, at the county aforesaid. And the said plaintiffs in fact, further say, that heretofore, to wit, on 20th February 1839, the said brig or vessel, with the said goods on board thereof, departed and set sail from Monte Video aforesaid, on her said [**2]  voyage towards Corrientes aforesaid, and that the freight of the said goods, in the case of her arrival there, would have amounted to a large sum of money, to wit, the sum of four thousand dollars; and that afterwards, and whilst the said brig was at anchor in the bay near Cape Corrientes, to wit, on the 16th of March 1839, the said brig or vessel, with said goods on board thereof as aforesaid, were on the high seas, to wit, at the county court aforesaid, with force and arms, and in an hostile manner boarded, captured, seized and forcibly taken possession of, and the American flag hauled down by the French vessel of war, the Perle, and the captain, officers and crew of the said brig Eliza Davidson, made prisoners, a part of whom were sent on board the said vessel of war, the Perle. And owing to the arrests, restraints and detainments of kings and princes, the said plaintiffs thereby, then and there lost, and were deprived of the freight of the said goods and merchandise so on board the said brig, on freight as aforesaid, at the county aforesaid; of all which said several premises, the said defendants afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, had [**3]  notice, and were then and there requested, by the said plaintiff, to pay them the said sum of $ 4,000, so by them insured to the said plaintiff as aforesaid, &c.

The defendants appeared and pleaded the general issue.

The jury found a verdict for the plaintiffs, $ 3,437.70, on which judgment was rendered.

At the trial of the cause, the plaintiffs offered in evidence the following proposal for insurance, accompanied by the letter of John 1. Mattison, of the 2nd of February 1839, and the consular certificate of R. M. Hamilton.

"Dollars four thousand, on freight of goods, estimated at--Dollars three hundred, on Chronometer.

The above sums are offered for insurance by J. J. Corner & Bro., on account of whom concerned     (citizens of the United States,)     per the American brig Eliza Davidson, Mattison master, at and from Monte Video to Cape Corrientes, and at and from thence to Boston. The vessel safe at intended to sail on or about 14th February, from Monte Video. Sailed from     N. B. Every circumstance material for the underwriters to know, so as to form a just opinion of the above risk, is disclosed in this offer. 22nd April, 1839. The premium on [**4]  the above vessel was fixed by the agent of the Charleston Insurance and Trust Company, at the agency in Baltimore, this 22nd day of April 1839, and at the rate of 1 3/4 per ct.

Accepted--J. J. CORNER & BRO."

"Monte Video, February 2nd, 1839. Messrs. Jas. J. Corner & Bro., Baltimore. Gentlemen,--Since my last, per Mentor, I have chartered the brig E. Davidson, to load part of a cargo at this port and proceed to Cape Corrientes, in the lat. of 38 [degree] south, and there load with a cargo of bale goods for Boston, allowing the shippers fifty lay days at the Cape, for the round sum of four thousand Spanish dollars. To obtain this freight, I have agreed to give them the use of what funds I may have, at par, for a draft at sight on Boston. I shall sail from here on or about the 14th inst. You will please make insurance on the amount of the charter, and $ 300 on a chronometer I bought here. The port I am about to proceed to is in the province of B. Ayres, but is not included in the blockade, as you will perceive by the annexed certificate of the U. S. Consul.

I remain your ob't. serv't., JOHN I. MATTISON."

[Consular Seal.]

"Consulate of the United States. I,  [**5]  the undersigned, consul of the United States, do hereby certify that the port of Corrientes, to which the brig Eliza Davidson is bound, is not within the limits of the blockade by the French squadron. Given under my hand and seal at Monte Video, this 2nd of February 1839.

R. M. HAMILTON."

And the policy of insurance following, which was admitted to have been signed by T. P. Williams, the authorized agent of the defendants:

Freight, Chronometer.

"By the Charleston Insurance and Trust Company. Open policy, No. 65. This policy of insurance witnesseth, that the Charleston Insurance and Trust Company have insured, and by these presents do insure James J. Corner & Bro., at and from Monte Video to Cape Corrientes, and at and from thence to Boston, as per annexed endorsements, as well in his or their own name, as in the name or names of all and every other person or persons to whom the same doth, may or shall appertain, in part or in whole, lost or not lost: beginning the adventure respectively upon the property insured, that is to say, on all lawful goods and merchandize, from and immediately following the loading thereof, and so shall begin, continue and endure until [**6]  said goods, merchandize or freight shall be safely landed: and on vessels, the risk shall begin at and from the places of departure, and so shall continue and endure till said vessel shall have arrived, and been moored at anchor twenty-four hours in safety, &c. The adventures and perils which the said Insurance Company are contented to bear, and take upon them, are of the seas, &c., enemies, pirates, &c., restraints and detainments of all kings, princes or people, of what nation or quality soever, &c.; and of all such other losses or misfortunes which have, or shall come to the damage or detriment of the property, or any part thereof, as insurers are legally accountable for. Warranted, nevertheless, by the insured, free from any charge, damage or loss, which may arise from, or in consequence of any illicit or prohibited trade, or trade in articles contraband of war, &c.

In witness whereof, the Charleston Insurance and Trust Company have caused these presents to be signed by their agent in the city of Baltimore, this 22nd day of April 1839.

THOS. P. WILLIAMS,

Agent of the Charleston Insurance and Trust Co."

"$ 4000 on freight. 300 on chronometer."

They further [**7]  offered in evidence the charter party, following, viz:

"This charter party of affreightment, made and entered into this 1st February 1839, between John I. Mattison, master of the brig Eliza Davidson, now lying in the harbor of Monte Video, of the one part, and Alfred Peabody of the other part. Witnesseth, that the said John 1. Mattison, for the consideration hereinafter mentioned, has covenanted, granted and let on freight, unto the said Alfred Peabody, the whole tonnage of the said brig Eliza Davidson, for a voyage to be made with the said brig, in manner hereinafter mentioned. And the said John I. Mattison does hereby promise, that the said brig shall be staunch, &c., and that she shall receive on board from the said Alfred Peabody, goods to the amount of sixty tons, or thereabouts, with which she will proceed to Cape Corrientes, where she will discharge said goods, and receive on board from the said Alfred Peabody, a full and complete cargo of bales, &c., the same to be put on board at the expense of the said Alfred Peabody, and when the said lading is completed, to depart and proceed to the port of Boston, where the cargo is to be discharged; and being there arrived, the said [**8]  lading to be delivered to the said Alfred Peabody, or his agents or assigns, and thus end the voyage, (excepting always against the dangers of the seas, robbers, pirates, restraints of princes and rulers, and all unavoidable accidents and calamities,) for and in consideration of which, the said Alfred Peabody consents, promises and agrees, to and with the said John I. Mattison, that there shall be paid to him, his agents or assigns, the sum of four thousand one hundred Spanish dollars, or equivalent, payable on the right delivery of the cargo at the aforesaid port of Boston. And the said John I. Mattison further promises and agrees, to allow fifty running days to unlade, &c."

"The above charter party is cancelled this day. Monte Video, April 2nd, 1839.     ALFRED PEABODY."

The plaintiff also offered in evidence, the protest made before the consul of the United States to the Oriental Republic of the Uruguay, by John I. Mattison, master, and others of the American brig, Eliza Davidson of Baltimore, who being duly sworn, did depose as follows:

"That he, the deponent, having engaged with Mr. Alfred Peabody, a citizen of the United States, to perform a voyage in the brig [**9]  under his command, from Monte Video to Loberia Chica, on the coast of Patagonia, and from thence to Boston, in the United States, did sail from the said port of Monte Video on the 20th February 1839; and that on the 23rd of same month, at 1 o'clock, P. M., made the land, the north part of Cape Corrientes, distant about ten miles, and at 4 o'clock, P. M., the harbor near Corrientes bore W. N. W. seven miles, at which time he tacked, &c. On the 24th made the land again, bearing W. N. W., the weather being boisterous, kept an offing; on the 25th, at 6, A. M., the weather having become moderate, made all sail for the land; at 10 h. 30 m. A. M., made Cape Corrientes; at 1 h. 30 m. P. M., came to anchor in the bay; on the 26th, the deponent went on shore, and returned with some laborers in the boat, and commenced discharging his cargo, &c; on the 3rd March, discharged and received a cargo on board; the 4th, weighed the anchors and run near the shore to make a better harbor--discharged and received cargo on board, &c.; the 16th same month, observed a vessel in the offing, being the first since their anchorage in the bay; at 10 A. M., she proved to be the French vessel of war, "the Perle,  [**10]  " which boarded the brig and took immediate and forcible possession, and hauled down the American flag, and made prisoner of the deponent, his officers and crew, part of whom were sent on board the Perle; these steps were taken by the French officer and his crew prior to his asking for the vessel's papers, or any question by which they could have ascertained the national character of the said vessel--eleven Frenchmen remained in charge of the brig, with their arms about them; at 4 P. M., they descended into the hold, and drew off a portion of wine and rum for their use, being part of the cargo; at 5 P. M., they attempted to get the brig under way, in doing which, they upset the windlass, and carried away the greater part of the pall plates; at 6 A. M., they concluded to remain at anchor during the night, and set a watch, five men in each, all armed--in hoisting some casks of water on board, they spilled a large quantity on the goods in the hold, which caused considerable damage; on the 17th, strong breezes from the northward and eastward; at 6 A. M., the boats of the Perle boarded us with about twenty men, and immediately got the brig under way, cutting the running rigging and breaking [**11]  many articles that came in their way; they also broached the brig's provisions, and used them without ceremony. March 18th, the French crew regularly drew from the cargo three buckets full of wine per day, and used the brig's provisions extravagantly, and the vessel was managed so badly, that the deponent considered the safety of the vessel, and his life in great danger, there being but two able seamen among the French crew; on the 20th same month, at 8 A. M., made Monte Video; at 1 P. M., came to anchor within half gunshot of the flag ship of the French Admiral, after which an officer from the Perle came on board, and took an inventory of the cargo on board, and the vessel's roll, clearance and bill of health; on the 21st, the mate of the brig was sent from the Perle on board, and the deponent was permitted to go on shore, the French crew still in the possession of said brig, and the greater part in a state of intoxication, having free access to the wine and spirits, and provisions generally; 25th, at 1 P. M., Commodore Nicholson, in command of the U. S. Squadron, came along side of the brig, accompanied by the American Consul, and took the deponent on shore for the purpose of an [**12]  interview with the French Admiral, who, through the demand of Commodore Nicholson, determined to give up the vessel and cargo on board, to the deponent, but refused any remuneration as damages for the detention and illegal capture of said brig. On the 26th same month, at 7 A. M., a boat from the Perle came along side, and placed the original crew of the brig on board, and took the French officer and crew from on board, thus delivering the vessel to the deponent, after having forcible possession for ten days, during which time the said brig suffered severely in her sails, rigging, &c., in consequence of negligence and the incapacity of the French crew. And the deponent further declares, that he was not asked for his vessel's papers until nearly half passage to Monte Video, from Loberia Chica, and that he then refused them, upon the ground that he had been illegally captured, and that the said papers should have been asked for prior to taking and holding possession of the said vessel, and that after the anchorage near the Admiral's ship, an officer from the Perle came on board and demanded the papers, which were delivered by the deponent, viz: roll, clearance, and bill of health, which [**13]  were afterwards returned. Therefore, &c.

Signed,     JOHN I. MATTISON."

And which was admitted as evidence of the facts therein recited.

The certificate of Alfred Peabody declared that, "On the first day of February 1839, I chartered from Capt. J. I. M., the brig E. D., under his command, and lying in the harbor of M. V., for a voyage hence to C. C., and thence to the port of B., for the round sum of $ 4,100; that the said brig proceeded to her first place of destination, and while there, partially laden, was forcibly taking possession of by one of the French blockading squadron, and brought to this port, by which act, the voyage was destroyed. That Capt. M., on his arrival here, claimed the full amount of the charter of his vessel, as per charter party, which I refused to comply with, on the plea, that he had not fulfilled his part of the contract by the non-completion of the voyage; that Capt. M. refused to deliver up any part of the cargo taken on board at C. C., until his charter was satisfied; that to avoid unnecessary expense and delay, we finally agreed to leave the matter to arbitration, and that it was settled accordingly. I further certify, that had Capt.  [**14]  M. refused to comply with the decision of the arbitrators, and had still insisted on the full amount of his charter, I should have protested against him, having advised the consul of the United States of my intention to that effect, and should have applied to the authorities here to have detained his vessel until the property on board of her had been delivered up to me, on my paying that portion of the charter determined by the arbitrators. In testimony whereof, I hereunto set my hand, this 30th April 1840.

ALFRED PEABODY."

Which it was agreed should be received as evidence as fully as if regularly proved under a commission.

The plaintiff also proved the awards following:

"Having been called upon to arbitrate in the case of a dispute which has arisen between Mr. Peabody, the charterer of the brig E. D., and J. M., the master of that brig, with regard to the amount that should be paid the said master, (on the discharge here of the cargo now on board that vessel,) to cancel the agreement entered into between the two parties. I beg to say, that I have perused the charter party--have also heard the explanations made by both parties, and now give it as my opinion, that [**15]  Mr. P. should pay the said Capt. Mattison $ 1,200, in full of all demands.     ALEX. ROGERS.

Monte Video, 1st April 1839."

"In the case of the brig E. D., chartered, &c. My opinion is, that in consideration of Captain Mattison having fulfilled, as far as in his power, the contract entered into, carrying and delivering the quantity of cargo agreed on, to Cape Corrientes, and having brought seventy-six bales, admitted to be one-fourth of a cargo for the vessel, to Monte Video; and further, by performance of this part of the voyage, encountered the risks and perils which the difference of freight from Monte Video to Boston, and from Monte Video via Cape Corrientes, to same port, prove to be greatest, the one, at the time, being about two thousand hard dollars, the vessel is entitled to one-half for her freight. As, however, the charterer does not derive benefit from the part of the voyage performed, to any thing near that proportion, my idea is, that the third party causing the non-fulfilment of charter, should be called on and made accountable for the difference, and suggest the following mode of settlement: that the charterer pay to the vessel $ 1,200 in full, for the part [**16]  of the voyage actually performed, receiving the bales from on board in Monte Video; and that his claim on the French Government for the balance, say eight hundred and fifty hard dollars, if recovered, be paid over to Capt. Mattison. By such an arrangement, the loss sustained would fall equally on either party, which, in equity, it should; neither being culpable for the want of performance and unlooked for difficulties that have occurred.     ROBT. C. MCLEAN.

Monte Video, 1st April 1839."

The cancellation of the charter party of the 1st of February 1839, was admitted.

The defendant thereupon proved that John I. Mattison, the master of the brig Eliza Davidson, was a part owner of the said brig, at the date of the said charter party of the 1st February 1839, and of said policy of insurance, and has so continued down to the present time; and that said owners received from Alfred Peabody the sum of $ 1,200, awarded as is hereinbefore stated. The defendant further offered in evidence the charter party, following:

"Contract of affreightment entered into before me, the undersigned, licensed broker, between Messrs. James Cruset and John I. Mattison, Captain of the American [**17]  brig, Eliza Davidson, Messrs. Southgate & Co. being her consignees.

Article 1st. Mr. James Cruset freights from her captain, John I. Mattison, the American brig Eliza Davidson, to load with meat for Havana, obliging himself to put on board from four thousand five hundred to five thousand quintals of meat, at most, and to pay for freight, $ 5,000, in gold or silver, over and above the sum of five per cent. capa, (a kind of commission not known to the translator.)

Art. 2nd. Capt. Mattison allows the freighter one hundred and thirty days for the loading at this port of the Eliza Davidson, and her discharge of cargo in Havana; and if, at the end of that time, any part of the cargo should remain on board, the freighter shall pay $ 25 per day demurrage, for every day thereafter.

Art. 3rd. Capt. Mattison obliges himself to place his vessel in all proper condition, sound and dry, to prosecute the voyage.

Art. 4th. The freighter obliges himself to provide payment for storage, and to pay for the straw which may be necessary for the proper conveyance of the meat.

Art. 5th. Capt. Mattison obliges himself to consign himself and vessel to such house in Havana, as the freighter [**18]  may designate, and will pay to his consignees two and a half per cent. commission for the collection of freight.

Art. 6th. The time above designated, will commence running from the 3rd day of May, and will cease on the day when the freighter shall advise the captain that the cargo is ready. It will begin to run in Havana, from the day that the vessel is ready to discharge; both the contracting parties sign the above contract by common consent, and bind themselves to its fulfilment respectively; the one by his cargo, the other by his vessel, apparel, freight, &c.

(Signed,)

JAMES CRUSET,

JOHN I. MATTISON."

"Before me, FRANCISCO A. GORNEZ, licensed broker.

Monte Video, May 2nd 1839."

"Note.--Twenty of the days limited above, for the loading and discharge, were consumed in Monte Video, leaving only for the discharge in Havana sixty days, (60.)

(Signed,)

FRANCISCO A. GORNEZ.

JAMES CRUSET.

Monte Video, July 13th 1839."

"The above is a correct translation of the document referred to me for translation.     S. TEACKLE WALLIS.

15th June 1843."

Which it was admitted was executed by the parties hereto. That the voyage therein [**19]  stipulated to be performed by the Eliza Davidson, (the brig mentioned in the policy of insurance,) was performed by him to Havana, and the freight of $ 5,000 earned by her, and paid to the owners; and that said voyage to Havana, was a shorter voyage than would have been that to Boston, and on the way home, to the port of Baltimore, of said brig, where she belonged.

The plaintiffs then offered in evidence the deposition of Shadrach Hudgins: that he was mate of the brig E. D. on her voyage from M. V: to C. C., and from thence to Boston, to be performed under a charter party. The voyage commenced in the beginning of the year 1839, and at M. V. they took in a cargo for Corrientes, and proceeded to Corrientes, where the cargo was landed, and they commenced taking in a cargo for Boston; and when they had taken in a part of the cargo, about one-fourth, they were seized by a French corvette, and all the crew removed to the corvette, and the brig taken possession of by the French. The French did a great deal of mischief to the said brig; left all her boats ashore; broke the windlass; destroyed the greater part of the running rigging; and the vessel was brought as a prize to M. V. He further [**20]  states, that the crew and vessel were detained about ten days in M. V., before they were released; as he understood at the time, C. was declared in a state of blockade, and said brig was prohibited from going there. After their release, they remained in M. V. upwards of forty days, when the said vessel got a freight for Havana. In consequence of this declaration of blockade, the voyage to Boston was broken up. The blockade continued for two years afterwards.

Cross examined. Witness understood that the freight for Havana, amounted to $ 4,000. At M. V., the windlass was mended; did not get new sails; had a carpenter employed about a week mending the windlass, and doing some caulking; the caulking was not occasioned by the blockade. They did not know that B. was about to be blockaded before they went there, on the contrary, all the consuls there, except the French consul, said that it was not in a state of blockade. The French were, at that time, blockading Buenos Ayres. No application was made by him, or by the captain, to his knowledge, to the French consul, to ascertain the condition of the war, or whether Corrientes was blockaded. He knew that the cargo they had in had come from [**21]  Buenos Ayres.

Examined in chief. Deponent states that the French were blockading the river Plate; that Corrientes is not in the river Plate, but 60 miles south of Cape Antonio; that in unlading the outward cargo, and taking in a part of the inward cargo, they were occupied nineteen or twenty days, during all which time, they never saw a French vessel of any kind; that they knew that the French were carrying on a general war with Buenos Ayres.

Cross examined. Deponent heard from Mr. Corner or Mr. Glenn, that the whole matter had been compromised.

Examined in chief. Deponent states that one part of the French fleet were above Monte Video, and the other off Monte Video; they saw no vessels below Monte Video.

Whereupon, the plaintiffs prayed the court to instruct the jury as follows:

1st. That the true construction of the policy of insurance, given in evidence in this case, is, that the defendants assured the risk of loss arising from restraints and detainments of all kings, princes or people, and were of course liable for the loss arising from the capture and detention of the brig by the French vessel of war, "the Perle."

2nd. The true construction of the [**22]  charter party of Peabody, also offered in evidence, is, that no freight was to be due by the charter, unless the voyage undertaken was performed, and the goods safely delivered at the termination of the voyage at Boston, and this, notwithstanding it was prevented by the said capture and detention of the Eliza Davidson, by the said French vessel of war.

3rd. That as the Cape Corrientes was blockaded on and after the Eliza Davidson was released at Monte Video from the capture and detention of said vessel of war, it was impossible for the vessel to earn her freight under said charter party, and that therefore the policy of insurance in question was forfeited, and the plaintiffs are entitled to recover.

And the defendants prayed the court to instruct the jury as follows:

1st. The defendants in the above cause, prays the court to instruct the jury, that if they shall find from the evidence, that on the 1st day of January 1839, the defendant executed the policy of insurance offered in evidence in this cause, that on the 1st day of February 1839, the charter party offered in evidence, was entered into by Capt. M., the master of the E. D.; that in pursuance thereof, the said [**23]  brig proceeded to C. C., and there discharged her outward cargo; that whilst engaged in taking on board the lading stipulated by the charterer to be furnished for transportation to B., said brig was seized by the French brig of war, the Perle, and by her held from the 16th of March 1839, till the 25th day of the same month, when said brig E. D., was surrendered to Capt. M., who, with his crew, took possession of the same; that at the time of her seizure by the French brig, said brig, E. D., had on board of her one-fourth of the cargo stipulated by the charterer, to be furnished for transportation to B.; that being in that condition, the master of said brig demanded of the charterer, (who insisted upon breaking up the contemplated voyage, upon the ground, that the port of C. C. was declared by the French, to be in a state of blockade,) the full amount of the freight stipulated for in the charter party of the 1st of February, 1839; that said charterer refusing to pay the same, the matter was submitted by the said master and the charterer to arbitration; and that the arbitrators chosen by the parties, awarded $ 1,200 to be paid by the charterer, as a compensation for what had been done [**24]  under said charter party, which was accepted by said M.; and that said charter party, by the mutual consent of the said master and the charterer, was thereupon cancelled; that said brig, E. D., afterwards, to wit, on the 2nd May 1838, was chartered for a voyage to Havana, at and for the freight of $ 5,000, as shown by the charter party offered in evidence, and that said brig performed said voyage, which was a shorter voyage than that from M. V. or C. C. to B., and received the freight stipulated to be paid them; and shall further find that said master, Mattison, at the time said policy of insurance was effected, and during the whole period covered by the transactions hereinbefore recited, was a part owner of said brig, Eliza Davidson, and still is such part owner, that then the plaintiffs are not entitled to recover in this action, on the first count in their declaration.

1st. Because no loss of freight was sustained by the plaintiffs, upon the voyage, covered by the policy of insurance, within the terms of said policy, or the perils thereby insured against.

2nd. Because upon the true interpretation of the charter party, of the 1st February 1839, the charterer, A. Peabody,  [**25]  was answerable, under the circumstances above stated, for the whole amount of freight stipulated to be paid by A. Peabody, upon the voyage to Boston, and that Captain Mattison, one of the owners of said brig E. D., having consented to the cancellation of said charter party, and thereby discharged the said Peabody from his obligation to fulfil it, has released the defendant from all responsibility, upon the policy offered in evidence in this cause.

3rd. Because the reference and adjustment at M. V. having been made, without the knowledge or consent of the defendant, and having been followed by the cancellation of that charter party, with the consent of one of the assured, M. being a part owner of said brig, discharged the defendant from all liability upon said policy.

4th. Because under the circumstance stated, the said owners of said brig E. D., laid a claim for full freight, under said charter party, and that having on board one-fourth of the homeward cargo, they had a lien on it for said freight, and that it was their duty to have prosecuted their voyage to B., after the time limited by said charter party, for the lading of said vessel, and that having relinquished said [**26]  lien, in the manner shown by the evidence, the defendant was discharged from all liability on said policy.

5th. Because by the second charter party offered in evidence, the said plaintiffs, within the period necessary to perform the voyage under the first, having carried freight to a larger amount than is claimed in the present suit, sustained no damages, which they are entitled to exact in this suit.

6th. The defendant prayed the court, further to instruct the jury, that even if the plaintiffs are entitled to recover in this case, that being the owners of but two-thirds of said vessel, the E. D., they are entitled to recover but two-thirds of the amount due upon the policy of insurance declared upon, after deducting the sum of twelve hundred dollars, received from A. Peabody, notwithstanding that they have sued for the whole amount so due.

And the court, (MAGRUDER, A. J.,) thereupon gave to the jury, the instructions prayed for by the plaintiffs, and rejected those prayed for by the defendant. The defendant excepted to the said opinion of the court, granting the prayers of the plaintiffs, and to each of them, and to the said opinion rejecting the prayers of the defendant,  [**27]  and to each of them.

The Insurance Company prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

HEADNOTES:

Freight was insured on a voyage, at and from M. V. to C. C., and at and from thence to B., estimated at $ 4000. It was due at B., on the right delivery of the cargo there. The vessel proceeded to C. C., and there delivered and took in cargo. While her lading was in progress, she was forcibly taken possession of by a foreign ship of war, and carried back to M. V.; where, after some detention, in March 1839 she was restored to her master, who claimed full freight from the charterer, which he resisted; and upon a submission to arbitration, the vessel was allowed $ 1200, and the charter party cancelled. C. C. being now blockaded, the voyage was broken up and abandoned. On the 2nd May 1830, (forty-seven days after her capture,) the master chartered her on another voyage, from M. V. to H. In an action against the underwriter, it was HELD:

1st. That as a contract of insurance is one of indemnity, the doctrine of salvage for freight, has been introduced as a fair item in the adjustment of actual loss; and that the underwriter was entitled to a credit for the sum paid the master, on account of freight.

2nd. The doctrine of salvage for freight is confined to freight earned on the particular cargo contemplated in the policy, or other freight earned on the same voyage. In such case, the insurer is only liable for the difference, because that is the extent of the actual loss by that voyage.

3rd. After time sufficient for the completion of the original voyage, had elapsed, the master of the vessel not being able to proceed on that, is at liberty to enter upon another, and distinct voyage: and the freight earned upon the latter voyage, will not enure to the benefit of the underwriter.

4th. The time in which a voyage should be performed, is a question of fact? and not to be assumed, or asserted by the court.

5th. Upon a policy for account of whom it may concern, in an action by A., where the plaintiff did not disclose by the pleading, any other interest or damage, than that which A. had, or sustained, he cannot recover for more than the proportion in which he was interested.

Where the plaintiff offered in evidence verbal and written testimony, to maintain his issue in an action of assumpsit, part of which, in writing, was admitted by the defendant, as evidence of the facts recited in it; part, as if regularly proved under a commission--another portion being a deposition of a witness, no part of the plaintiff's proof being contradicted, he cannot assume that the jury will find the facts accordingly; and pray the court to instruct them, upon that assumption.

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 them, that it proves a fact in controversy.

The jury have the power to refuse their credit to parol testimony, and no action of the court should control the exercise of their admitted right, to weigh its credibility.

A charter party granted and let on freight, the whole tonnage of a vessel, for a voyage from M. V. to C. C., and thence to B. When the lading at C. C. was completed, she was to depart and proceed to B.; where the cargo was to be discharged, and thus end the voyage. In consideration of which, the charter agreed to pay the owners a gross sum, "payable on the right delivery of the cargo at B." The vessel received cargo at M. V.; proceeded to C. C.; where a part was landed, and a part of the cargo destined to B., shipped. At this time she was forcibly taken possession of by a ship of war, and carried back, by force, to M. V.; where she was, after some delay, restored to her master. Under such circumstances, the charter party did not impose an obligation on the charterer to pay the whole freight at M. V., as if the vessel had proceeded to B. The intent of the charter was, that a full and complete cargo should be received at C. and delivered at B., to entitle the owner to full freight; the charterer being in no default.  

COUNSEL:
By Z. COLLINS LEE and NELSON for the appellants, and

By REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*426]  CHAMBERS, J., delivered the opinion of this court.
The instructions asked by the appellee, who was plaintiff below, were not based on an assumed state of facts, to be submitted to the consideration of the jury. They were moved, it would seem, in the confidence, that as the evidence was uncontradicted, the jury could not do otherwise than find the facts accordingly.
They are, in effect, an assertion by the court, in the first and second instructions, that the Eliza Davidson was captured and detained by the Perle; and in the third instruction, that Corrientes was blockaded on and after the ship's release at Monte Video. 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, 

 [*427]  does not authorize the court to direct [**28]  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. In thus incautiously expressing their opinion, the court erred.
The appellants deny the right of the appellee, to recover on the state of facts set out in the defendant's first prayer, on various grounds.
The first four reasons assigned in the record, are based upon the assumption, that the ship was entitled to full freight, and might have earned it by proceeding on the voyage, with the part of her cargo received, when she was seized and driven off.
If the construction given to the charter party by the appellants, could be adopted, this objection must be sustained. That construction is, that Peabody, the charterer, under the circumstances which occurred, was answerable for the whole amount of freight, which would have been earned by the successful prosecution and termination of the contemplated voyage. Was such the meaning of the charter? It is to be construed as other contracts, so as to effect the design of the parties, apparent by its terms. The evidence is, that about one fourth [**29]  of the cargo was taken in at Corrientes; and there is no allegation of unwillingness, or want of readiness or preparation, on the part of the charterer, to furnish the residue of the lading. It would, therefore, seem to require very explicit language to justify the inference, that in such a state of things, the charterer intended to pay full freight. If it can be demanded in a case where an enemy's force, by seizing and driving away the ship, after receiving one fourth part only of the cargo, why may it not be in a case, where one hundreth part only is taken in? If full freight is due, where, by a hostile force, the ship is prevented from loading more than a very minute portion of the cargo, why not, if, after receiving a full cargo, a hostile force were to seize and carry off a very large proportion of the cargo, before the ship had left her port of lading? In these cases, full freight certainly could not be 

 [*428]  charged. We think the apparent intent of his charter party, was, that "a full and complete cargo" should be received on board at Corrientes, and delivered at Boston, to entitle the owner to full freight; and that in the event, which actually happened, it [**30]  was at least doubtful, whether the charterer could have been compelled to pay any freight on the small portion of the cargo received, and which was violently seized, and taken to Monte Video. We think the appellants have no cause, therefore, to complain of the adjustment between Peabody and Mattison.
The next reason assigned, is, that the freight which was actually earned and received, on the voyage from Monte Video to Havana, or so much of it as would repay the loss claimed by the appellees, ought to be applied as salvage, to the relief of the underwriters, in this case.
It is rightly argued, that the contract of insurance is one of indemnity, and the doctrine of salvage for freight, has been introduced as a fair item in the adjustment of actual loss. If therefore, the particular freight, that is to say, the freight on the particular cargo contemplated in the policy, be not earned, but other freight be earned in the same voyage, the insurer will only be liable for the difference, because, that is the extent of actual loss by that voyage. No case, however, has extended the doctrine so far as is now claimed. This is not the case of a suspended voyage, afterwards [**31]  pursued, nor is it the case of a prosecution of the same voyage, with a different cargo. The first voyage was completely and finally broken up and ended, in consequence of the ship's being driven off from the port of lading, and without a prospect of permission to return. Time had elapsed sufficient for the completion of the original voyage, when, at a different port from that of her intended lading, she received a different cargo, for a different destination, on which she earned freight.
There must be some limitation, in regard to time, as well as distinction, in the application of this doctrine. It cannot be required, that a ship shall remain, year after year, awaiting the restoration of peace, or removal of an embargo, so as to allow 

 [*429]  her to return to her original port of lading; or to remain, for any indefinite period, waiting for a cargo to her port of destination. The inconvenience, not to say ruinous consequences of such a doctrine, are too manifest to require detail. In like manner, it would be quite impossible to maintain, on principles of policy, or by authority, that the first subsequent voyage, whatsoever might be the port of lading or of destination, must be [**32]  made subject to this claim for salvage, on the freight of the interrupted voyage.
Great difficulty may be found in ascertaining the precise limits, within which the doctrine should be applied; but we do not think, that any adjudged case will authorize us to include this within its letter or spirit.
The fifth reason is subject to the additional exception, noticed in considering the prayers of the appellees. The time in which either of the voyages alluded to, should be performed, is a question of fact, and not to be assumed and asserted by the court.
The last objection stated in the record, respects the right of the plaintiffs below, to recover more than the proportion, in which they were owners. This, we think, was rightly abandoned, as altogether untenable. See Phil. on Ins. 593, and the numerous cases there cited.
The result is, we concur with the court below, in their several opinions on the instructions asked for by the appellants below, but differ from that court, in respect to the opinions expressed on the prayers of the appellees, the plaintiffs below.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

22 of 42 DOCUMENTS 

MARY ALLENDER, ET AL., vs. THE VESTRY OF TRINITY CHURCH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 166; 1845 Md. LEXIS 16 

June, 1845, Decided 

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

The bill in this cause was filed on the 20th September 1837, by the appellants and others, who claimed as creditors for money paid, laid out and expended, in and about the erecting of a church in the city of Baltimore.

It appeared that on the 20th May 1807, William Goodwin conveyed to William Slater and others, two lots of ground in Baltimore, on which said lots the Trinity church, &c. hath been lately erected, in trust; that the grantees, (of whom the appellants father and testator was one,) "upon being reimbursed and paid, all and every the sums of money which hath or have already been or may hereafter be, by them or either of them paid, &c., and applied, in and about the erecting and building of the aforesaid church," shall and will release, convey and assure unto such person or persons as shall and may be legally authorized to receive the same, by a good and sufficient deed, all the estate and interest of them the said William Slater, &c., of and in the said two lots in trust for the use of the said Trinity church, &c.

The bill claimed, among others, that Joseph Allender, deceased, had laid out to the 1st January [**2]  1826, the sum of $ 5661,18; and that such debt was specifically devised by him to the complainants. The bill prayed process against the heirs at law of William Goodwin, and the vestrymen of the church, that the property may be sold for payment of debts secured by the deed, &c.

The vestrymen, the appellees, answered the bill, admitted the deed, &c.; and that they have heard and believe, that Joseph Allender, &c., paid, laid out and expended, in the erection of the said church, sums of money, but to what amount, and whether the same has ever been repaid, these defendants have had no opportunity of knowing, and therefore insist, that the complainants be put to strict proof of their claims, &c.

The heirs at law of the grantor admitted the facts of the bill.

On the 20th September 1837, a decree was passed for a sale, by assent of parties, and a trustee appointed to make it, who reported a sale for the sum of $ 3600. A variety of proceedings were then had in relation to the amount of the claims and distribution of the fund, which are sufficiently stated in the opinion of this court.

The county court, (MAGRUDER, A. J.,) rejected the claims of Joseph Allender's devisees,  [**3]  and ordered the proceeds of sales to be paid to the defendants, the vestrymen of the church.

The complainants appealed to this court.  

DISPOSITION:
DECREE REVERSED WITH COSTS.  

HEADNOTES:

In 1807, G conveyed to S and others, two lots, on which a church had then lately been erected, in trust; that the grantees upon being reimbursed all sums which have been, or may hereafter be paid and applied in and about the building of such church, release to such person or persons as shall or may be legally authorized to receive the same, all their estate in, &c. in trust for the said church. A, the surviving grantee, laid out a large sum upon the building, and devised the debt to the appellants, who, in 1837, filed a bill to sell the lots for repayment of their claim, against the vestrymen of the church: no person had been authorized to receive a release from the grantees. The vestrymen answered the bill, assented to a sale, but disclaimed knowledge of the amount of A's expenditures. HELD:

1. The act of limitations was not a bar.

2. The right of the complainants rested upon the equitable implication of a lien.

3. The non-appointment of persons to receive a release, could only be accounted for by imparting to the vestry a knowledge of the fact, that the building of the church had not been paid for.

4. The only proceeding by which a recovery could be had, was in rem.

5. The assent of the appellees was a waiver of the objection, that the claim was a stale one, and abandoned by lapse of time.

Where one and the same person is both cestui que trust and trustee, and the right to recover rests on a mere equitable implication of a lien, not recognized at law, and there is no adverse or uninterrupted possession relied on in bar, the act of limitations constitutes no defence.

To entitle a party to the benefit of the act of limitations, the claim must be such that, if exempted from that plea, it could be recovered by an action in a court of law.

The act of limitations to be available, must either be relied on by plea or answer.

By the act of 1798, ch.    , sec. 29, "No vestry can sell a lien, or transfer any of their estates or property belonging to the church, without the consent, at least, of five of their body,"--rector, church wardens, and bishop of the P. E. Church. The assent of vestrymen, to a decree for the sale of church property, in this case must be regarded as implied admission, that the debt claimed was due, as they have no power to make a voluntary sale of the property.

A notice entitled in another cause to produce books in evidence, merely filed in this, without proof of service, raises no inference against the party to whom the notice is addressed.

Primary proof in equity, stands in the place of full proof, until full proof is demanded. Such a demand dispenses with and invalidates primary proof.

It is a settled rule of evidence, 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; and such debits not being discredited nor disproved by testimony in the cause, establish the claim according to the account.

In a controversy upon an account for work and labor, materials furnished, and money paid, after a lapse of twenty-four years, suit commenced, general proof of the nature and extent of the demand being in evidence, and free from suspicion, much less detailed proof should be exacted from the claimant; than if, immediately after its origin, a controversy in relation to it had arisen.

Signatures to receipts for money paid, being in the possession of the party and his representatives claiming under him, for more than thirty years, need not be proved. They are presumed to be genuine, when they relate to transactions, which are established as having occurred in conformity to the receipts, by general and collateral proof.  

COUNSEL:
By GLENN and REVERDY JOHNSON for the appellants, and

By ADDISON and DULANY for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*168]  DORSEY, J., delivered the opinion of this court.
The claim sought to be recovered by the appellants, by the institution of the proceedings before us, has been resisted on various grounds; but the defences mainly relied on in this court, are the three following:
1st. The statute of limitations.
2dly. The staleness of the claim, from the length of time that the appellants have slept upon their rights; and
3dly. The absence of the necessary proofs to establish the same.
To determine on the sufficiency of the plea of limitations, as a bar to such a claim, it is necessary first, to ascertain the nature 

 [*169]  of the claim, and before what tribunal its recovery can be pursued.
This is not a case, strictly speaking, of either express or implied trust, where one of the parties stands in the character of a trustee, and the [**4]  other bears to him the relation of cestui que trust; but where one and the same person, was both cestui que trust and trustee. The right of the appellants to the relief they have sought, rests on a mere equitable implication of a lien, not recognized at law, and of which a court of law could in no way take cognizance: to such a court, in no form of action, could the appellants successfully apply for any adequate relief. Doctor Allender, as far as concerns the claim now asserted by his representatives, was both trustee and cestui que trust; and as the surviving joint tenant of the grantees of William Goodwin, held the property in question, until being reimbursed, all expenditures made by him in the building of the church, he should convey the same to the persons duly authorized to receive the deed of conveyance, as provided for in the deed from William Goodwin. That such persons were ever appointed, has not been pretended; and their non-appointment, although twenty-five years and more had elapsed since the completion of the church, can only be satisfactorily accounted for by imputing to the vestry a knowledge of the fact, that a conveyance could not lawfully [**5]  have been called for, by reason of the only ground that could be assigned for its refusal or postponement, to wit, unrepaid advances for the building of the church. It has not been relied on as a defence in this cause, (nor if it had, could it, upon the proofs and proceedings before us, have been successfully maintained,) that the appellees have had the adverse and uninterrupted possession for more than twenty years, of the lots of ground and premises, the sale of which was sought by the bill of complaint of the appellants. To give to the appellees the benefit of the plea of limitations, the claim must be such, that if exempted from that plea, it could be recovered by an action in a court of law. To cite authorities for this, (even if before it could be deemed requisite,) since the case of Kane vs. Bloodgood, 7 Johns. Ch. 90, cannot be necessary. Here, the appellants claim is a debt due by nobody. Neither 

 [*170]  at law nor in equity can a judgment or decree be obtained, personally binding any body for its payment. The only proceeding by which a recovery can be had, is in rem; in personam, there is no remedy. The statute of limitations, then, could interpose [**6]  no bar to the appellants right to recover, assuming it to have been formally pleaded in the answer of the appellees. But conceding that the statute of limitations could be applied to such a claim as that now before us, the concession is of no avail to the appellees, as the defence has neither been pleaded nor relied on in their answer. Chambers vs. Chalmers, et al., 4 G. & J. 420.
The second defence on which the appellees have relied is, that the staleness of the appellants claim, by reason of the great length of time during which they have forborne to prosecute it, has caused a court of equity to shut its doors against them, by refusing to take further cognizance of the subject matter of their complaints. Without stopping to enquire, whether the peculiar nature and circumstances of this case do not sufficiently account for the delay in its prosecution? whether that delay was not, in some measure, the result of equal negligence and delay on the part of the appellees? and whether that negligence and delay is not to be accounted for solely on a ground, which at once opens the doors of a court of equity to the appeals to it, by the appellants, for relief?--we proceed [**7]  to state the reasons why this defence cannot avail the appellees. By the assent of the appellees to the decree, which has been passed in this cause, they have, by necessary implication, waived the defence of which they now seek to take advantage; they have assented to the county court taking cognizance of the case, and enquiring into the intrinsic merits and justice of the claim of the appellants; they have acknowledged that there is a sum of money due to the appellants, for the payment of which, the county court were authorized, and ought to decree a sale of the property in question. Upon no other grounds could they have given their assent to the passage of the decree, which was given by the county court. By the twenty-ninth section of an act, entitled, "an act for the establishment of vestries for each parish in this State," passed at November session 

 [*171]  1798, it is enacted "that no vestry shall sell a lien, or transfer any of their estates or property, belonging to their church or churches, without the consent of five, at least, of their body, (of which number the rector shall always be one,) together with the consent of both the church-wardens; and in case there be no [**8]  rector in the parish, then it shall be necessary to obtain the consent of the bishop of the Protestant Episcopal Church of this State, for the time being, previous to any sale, alienation or transfer of any of the estates or property aforesaid." To the decree passed by the county court, no assent of the rector, church-wardens, or bishop, was given: neither of them were parties to these proceedings. If the vestry had no power to make a voluntary sale of the property of the church, they had no power to confer upon the county court an authority to decree such sale. If there was nothing due to the appellants under the deed from William Goodwin, then the vestry were wholly unauthorized to give any assent to the decree for a sale, and the assent of itself, would give to the county court no power to make such a decree. Without imputing to the vestry a gross violation of their duty, and an imposition practised upon the county court, we cannot do otherwise, than regard their assent to the decree passed in this case as an implied admission by them, that there was a debt due to the appellants, under the deed from William Goodwin, for the payment of which, they were entitled to a sale [**9]  of the church property.
The third ground upon which the claim of the appellants is resisted, is, that the proofs in the cause do not shew any thing to be due to them on account of expenditures made by Doctor Allender, in the building of Trinity church. And in support of this position they allege, that every presumption ought to be raised against their claim, because they did not exhibit, and have withheld the books of account of Doctor Allender, kept in relation to his receipts and expenditures for the church, although notified to produce them. It is true, that near the end of the record the following paper has been inserted, viz:
"Price and others vs. Allender and others. Baltimore county court, equity side. James Biays, Walter T. Allender, adm'rs of Dr. Joseph Allender. Notice is hereby given you to produce 

 [*172]  the books of the Trinity church, which Dr. Joseph Allender had, as treasurer of Trinity church, to be used as evidence before the auditor and said court, in the taking of the account and hearing of the above case, and this is signed by the solicitor of the appellees."
But this notice is not entitled as of the case then before the [**10]  court, nor does it appear when it was filed; or that the court ever acted or passed any order upon it; or, indeed, that the appellants ever had any notice of its existence. It raises, then, no inference against the validity or justice of the appellants claim, that they had not produced in court, books which they had no motive primarily to adduce, not being admissible evidence of their claim; which books, by no direct proof, are shewn ever to have been in their possession; and which, by no order of the court, or even notice served upon them from the opposite party, were they required to produce.
It has also been urged, that the county court were right in rejecting the appellants claim, because it was not authenticated in the mode prescribed by our testamentary system, for claims exhibited against the estates of deceased persons. This objection detracts nothing from the appellants right to recover. The appellees, by their answer, called upon the appellants for full proof of their claim; and this requisition per se, would have dispensed with the ordinary, pecuniary proofs of their claim, prescribed by our testamentary system, had it been made against the estate of a deceased person.  [**11]  What object could a claimant have in exhibiting primary proofs of his claim, when they would be wholly inadmissible evidence to sustain it, where full proof is required? Primary proofs stand in the place of full proof, until full proof is demanded. From that moment they cease to be any evidence in the case, and there no longer exists any necessity for their production.
We come, now, to the last defence of the appellees, the only open question in the cause, have the appellants offered sufficient evidence to substantiate a claim equal in amount to the fund to be distributed. The appellees have insisted, that conceding the proof in the cause, to shew that the appellants had expended the sum of money stated in their bill, over and above the 

 [*173]  amount of their receipts, as shewn by the testimony; yet that account X is a pleading in the cause, and is evidence for the appellees of all the credits in the account, but is no evidence for the appellants as to the debit side of that account, and thus the claim of the appellants is more than overpaid, by their own shewing. In support of such a doctrine, no authority has been referred to, and we deem it unnecessary to adduce authorities [**12]  against it. 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.
But, say the appellees, the account X is no evidence in this case, (which is undoubtedly true,) and the vouchers produced by the appellants for the alleged payments by Doctor Allender, with the testimony taken in relation to them, are wholly insufficient for the purpose for which they are offered. And they further contend, that by reason of the great length of time which has elapsed since these transactions took place, that more full and minute testimony is required in relation to those vouchers, than if the present enquiry, in relation to them, had taken place immediately after they [**13]  were given. That independently of the vouchers, it is not only necessary to prove the payment of the sums of money mentioned in those vouchers, but to prove that the materials furnished, and for which payment was made, were of good quality, were necessarily used in the building of the church, and were appropriate for the purpose for which they were used. That the services were actually and necessarily rendered, and were of the value of the payments made for them. That the work, with its value, done by each mechanic, and the necessity for such work, must be shewn, before there can be any allowance for the payments made to them. And that the handwriting of each subscriber 

 [*174]  to those receipts, must be proved by competent testimony, before they can be received as evidence of the payments they purport to attest. That after a lapse of more than twenty-five years, this great particularity and fullness of proof is required of the representatives of Doctor Allender; and that stronger proof is demanded to sustain their claim, than would have been requisite had it been the subject of judicial scrutiny immediately after its origin, are positions which we think cannot be maintained [**14]  upon any sound principles of reason, law or justice. On the contrary, in our opinion, much less detailed and conclusive proof should be exacted in support of the claim before us, than if, immediately after it originated, the present controversy had arisen.
Looking at the present case, as it is presented by the record, we do not see any material difference in respect to the proofs necessary to sustain their claim, if the appellants, instead of being complainants, as they now are, had been brought into court as defendants, to a bill filed against them by the appellees, calling for a deed of conveyance upon the terms specified in the deed from William Goodwin, and in bar of the relief prayed, they had set up the existence of the claim they are now seeking to recover. In support of such a defence, after such a lapse of time, could it be contended, that to sustain the vouchers then exhibited in that suit, as they are now in this, the fullness and particularity of proof suggested by the appellees would have been required by the court?
It must be borne in mind, that there is nothing to be found in the record, which taints with suspicion the vouchers adduced by the appellants. No proof [**15]  has been given by the appellees which discredits or proves the injustice of any one of them. After a careful examination of them, we think, that far more of them are sustained by sufficient evidence, than are necessary to establish a claim beyond that now made by the appellants, after making all deductions for the credits, satisfactorily established by the appellees. It is in proof, by the testimony of the appellees, that the church "was carefully constructed, and with great solidity," and that the erection of such a building now, would cost $ 30,000; and there is no evidence before us to shew, 

 [*175]  that when built, its erection could have been effected for a less sum of money. It is also proved, that Joseph Jeffers was the master carpenter, and Charles Stansbury the bricklayer for the building of the church. Their signatures are proved to all the vouchers to which their names are attached. The signature of James Jeffers, and his authority to receive, has been proved as to all the receipts given by him on account of his father. There has not been an insinuation in the argument, much less is there to be found in the record any proof, that the sums of money appearing [**16]  by the vouchers to have been paid to Joseph Jeffers and Charles Stansbury, were greater in amount than they ought to have received for their services as master carpenter and bricklayer, for the erection of such a building. On the contrary, it appears, that after all the previous payments made to him, Joseph Jeffers' claim for a further sum for his services in building the church were submitted to arbitration, and the sum of $ 432 was awarded to him, which was paid by Doctor Allender. It is in proof, also, that Joseph Jeffers and Charles Stansbury are both dead. Under all the circumstances of this case, then, we are of opinion, that all the receipts or vouchers signed by Charles Stansbury, and those signed by Joseph Jeffers and James Jeffers, are sufficiently established by proof, to entitle the representatives of Doctor Allender to use them, in support of the claim they are now pursuing. And we are further of opinion, that all the vouchers of the appellants avouched by the signature of Joseph Jeffers, and those by the signature of Charles Stansbury, purporting to have thereon the receipts of those in whose favor they were avouched, are [**17]  sufficiently established for the purpose above mentioned. The appellants are under no obligation to prove the signatures to those receipts. Having been in their possession, and that of Doctor Allender, whom they represent, for more than thirty years, as we may fairly presume, these receipts, under the circumstances and for the purposes for which they are brought before us, prove themselves. To hold otherwise, and carry out the views of the appellees, would be of ruinous consequence, and do flagrant injustice to trustees and agents, and would deter every prudent man from enlisting in such service. The vouchers accredited 

 [*176]  by this court, after a deduction of all credits to which they are properly subject, exceed in amount the fund to be distributed.
This court are prepared to sign a decree, reversing the order of the county court appealed from, with costs to appellants in this court; the costs in the county court to be paid out of the fund in court; and ordering the fund in controversy to be paid over to the appellants, the executors of Doctor Joseph Allender.
DECREE REVERSED WITH COSTS.  

23 of 42 DOCUMENTS 

CHARLES ROGERS AND SAMUEL MARFIELD, vs. THOMAS SEVERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 385; 1844 Md. LEXIS 38 

December, 1844, Decided 

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

This was an action of assumpsit, commenced on the 1st February 1838, by the appellee against the appellants, who pleaded non assumpsit, on which plea issue was joined.

1ST EXCEPTION. At the trial of the cause, the plaintiff offered proof, by Lerew, that Mr. Charles Rogers said, he would not pay for any work done for him, unless he, or his partner, sent a written order, or came himself; the witness said he never saw any written order from Mr. R., or Marfield, he generally saw Mr. R. there, mostly, every day, which might be the reason he saw no orders. Witness said he was a partner of Mr. Colvin during the whole time, and that his bills against R. and M. were about $ 800, or $ 900. Witness also proved, that T. D. Colvin sold to R. and M. a darkish colored carriage, with C springs, and dark blue lining; which carriage is now, or was lately in Bishop's yard, the carriage originally built by Lee; the sale might have been three, four, or five years ago; referring to a memorandum, made in deponent's presence, from the book of Colvin, he, witness, proves the time of sale in April 1836; after the sale, the carriage was brought by John Mitchell,  [**2]  or some person who drove for Mitchell, to Colvin's shop where deponent worked, seven or eight, or perhaps a dozen times, to be repaired, and deponent worked on it, and the bills for the repairs were paid by R. and M.; deponent knows that Mitchell got the carriage from R. and M., but whether he bought it or not, deponent does not know; Mitchell never told him he was the owner of the carriage, and if he had told him, witness would not have believed him: all the repairs, at all times, were paid by R. and M.; witness would not have trusted Mitchell for the repairs; has examined the accompanying bill, and the charges for the work are reasonable and fair, according to that time, And also proved by a witness, named Bishop, that he was a carriage maker, and that a certain John Mitchell brought to his shop a carriage, to be repaired; that Mitchell agreed to pay cash for the repairs, when finished. After the repairs were completed, witness refused to let the carriage go, until the repairs were paid for; Mitchell then requested witness to call upon the defendants, which he did. They agreed to pay him, and he then charged the repairs to the defendants, and suffered Mitchell to take away the carriage.  [**3]  He also proved, that the defendants, afterwards, paid for the repairs; that the contract, for the repairs, was made with Mitchell; that if he had considered the defendants responsible for them, in the first instance, he would not have objected to Mitchell's carrying away the carriage. Witness does not know what arrangement there was between Mitchell and the defendants, which induced the latter to assume the payment of the said repairs. That said repairs were not entered in his books, until he knew who was to pay for them. He also proved, that in 1838, a dark colored carriage, with blue lining and C springs, (the carriage might have been called black,) was sent to the shop of witness, by Marfield, one of the defendants, with orders to have it repaired; and that said carriage still remains at the shop. Witness could not say, that it was the same carriage on which he had formerly done repairs. The plaintiff, further to support the issue on his side, proved by Booth, that the carriage, now at the shop of the said witness, Bishop, is the same carriage upon which repairs were done, by the plaintiff, and for the amount of which, this suit is instituted to recover. Said Booth further proved,  [**4]  that Rogers, one of the defendants, was frequently at the shop of the plaintiff, while the said carriage was undergoing repairs, and that he saw it there. He, witness, however, did not hear Rogers agree to pay for the repairs, nor does he know to whom the plaintiff originally charged the same. The witness further proved, that in order to see the carriage, Rogers had to go up stairs out of his way, and out upon the open platform, where the carriage was. The plaintiff, further to support the issue on his side, offered in evidence the following account: "Rogers and Marfield to Thomas Severson, Dr. 4th June 1847." The items amounting to $ 199.07, consisting of various repairs done to a carriage, and $ 43.75 for interest; and proved, that the work done on the carriage, was as is in said bill, and that the prices therein charged for the same are reasonable. The witness further stated, that he does not know that the defendants ever undertook to pay for the repairs; that he had heard that the carriage had been brought there by the said Mitchell. The plaintiff further proved, by Col. Moale, that in a conversation, which had taken place between Col. Moale and one of the defendants, between 1835 [**5]  and December 1837, who stated, he thinks that they had a carriage, and that Mitchell drove for them.

The above evidence being taken, the defendants prayed the court to instruct the jury:

1st. That if they believed from the testimony, that Rogers, one of the defendants in this case, stated to Colvin, that he would not be responsible for any work done upon the carriages taken to him, by Mitchell, for repair, unless upon his, the said Rogers, own order, written or verbal; and if in the instances where the defendants had actually paid for such repairs, they had been made by the said Colvin, at the request of the defendants, or either of them; the facts stated in the said deposition of Lerew, are wholly incompetent to prove, that any authority was given by the defendants to the said Mitchell, to make a contract for them with the plaintiff, for the repairs for which this suit is brought: and that the said deposition cannot be considered by the jury for such a purpose.

2nd. That the facts, stated in the evidence of Bishop, are also wholly incompetent to prove, that said Mitchell was authorized by the defendant, as their agent, to contract for them with the plaintiff, for the [**6]  said repairs.

3rd. That the deposition of Lerew, and the evidence of Bishop, are altogether incompetent to establish a contract for the repairs done upon the carriage by the plaintiff, in this case, between him and the defendants; and that, unless the jury believe that a contract did exist, upon the part of the plaintiff, to do the repairs stated in the proof, and on the part of defendants, to pay him for them, then the plaintiff is not entitled to recover.

4th. That there is no evidence, in this cause, from which the jury can infer, that the said Mitchell did, in fact, contract with the said Colvin, in the character of agent for the defendants.

All which said several prayers, the court, (MAGRUDER and PURVIANCE, A. J.,) refused, because the court considered the whole case, so far as concerns the proposition of law, submitted to them on both sides, as covered by the prayers made by the plaintiffs, and granted by the court.

The defendants excepted to the refusal of the court, to grant their prayers, and to the granting of the plaintiff's prayers, but this exception was abandoned by the appellants in this court.

2ND EXCEPTION. The defendants, to support the issue [**7]  on their side, offered in evidence, by a witness, named Blasdel, that said Mitchell had left the State of Maryland, about three months ago, before the present term of Baltimore county court, and had gone, he did not know where; but that he believed that he had enlisted, and was somewhere in Florida; and also, the docket entries of the subpoena docket, to shew that a subpoena had been issued, upon the part of the plaintiff, against the said Mitchell, as a witness in this case, to the present term of Baltimore county court, and that the same had been returned "non est;" the said docket entries showing, that he had been returned, summoned, for three terms, prior to the present, on behalf of the plaintiff, and that he had never been summoned by the defendant. The defendants further offered to prove, by the said Blasdel, that said Mitchell was in possession of the carriage, on which said repairs, proved to have been done by the plaintiff, were placed; and that in a conversation with said Mitchell, he had claimed the said carriage as his, under a contract with the defendants; that they would pass their title in it to him, when he should pay the money he had agreed to give them for it.

To [**8]  the admission of which said declaration and statement of the said Mitchell, as competent evidence, the counsel for the plaintiff objected, and the court, (MAGRUDER and PURVIANCE, A. J.,) sustained the objection, and rejected the evidence. The defendants excepted.

3RD EXCEPTION. The defendants further to support the issue on their side, offered to give in evidence the following entries in the Blotter of the defendants, and offered to prove, that the same were made on the 8th April 1836, as they purport to be made in said book.

These entries were headed.

"John Mitchell to Rogers and Marfield, Dr. Baltimore, 8th April 1836. To bill of sale, and recording carriage, 6.50, per horses, 1.50." And also offered to give in evidence, the entries in the Ledger of the defendant; and offered to prove, that they were made therein, at the respective dates on which they purport to have been made.

"John Mitchell in account with Rogers and Marfield." This account consisted of various debits and credits, from 1st September 1835, to 28th April 1837, and included carriages and harness, whips, hay, oats, horses, &c., and cash.

The above evidence was offered to prove, that the bill [**9]  of sale, given in proof by the plaintiff, was designed as a mortgage between the parties to it, or as a conditional sale of the carriage therein named, being made by the defendants to the said Mitchell; and also to rebut the evidence offered by the plaintiff, that the said Mitchell acted as the servant or agent of the defendants, and to shew the true relationship which existed between the defendants and the said Mitchell. The above evidence was also offered as evidence, in connection with the testimony of Blasdel, which said evidence had been previously rejected by the court, for the purpose of establishing each of the facts above stated, if the court should be of opinion, that the same is not evidence for all the purposes above stated. To all of which evidence, the counsel for the plaintiff objected, and his objection was sustained by the court. The defendants excepted.

4TH EXCEPTION. The plaintiff, by his counsel, then prayed the court to instruct the jury as follows:

1. If the jury shall believe, that the carriage on which the repairs were made, was at the time of such repairs, the property of the defendants, and that the repairs while going on, were seen by, and approved [**10]  by the defendants, or either of them, that then the plaintiff is entitled to recover such sum, as the jury may believe from the testimony, to be a just and reasonable compensation for the work and labor done.

2. If the jury shall believe from the testimony, that Mitchell was the driver of the defendants, at the time the repairs were made, and that he took the carriage to the shop of the plaintiff, to be repaired, and that while the repairs were being made, they were shewn to, and approved of by the defendants, or either of them, that then the plaintiff is entitled to recover such sum, as the jury shall believe from the testimony, to be a just and reasonable compensation for the work and labor done, which instructions the court gave. The defendants excepted.

It was agreed in this court, that an absolute bill of sale of a carriage was offered in evidence in the court below, from John Mitchell to the defendants, dated 8th July 1836; that the account, in the Blotter of the plaintiff, (ante 387,) was first headed, "John Mitchell to Thomas Severson, Dr.," and that the name of "John Mitchell" was cancelled, and the name of "Rogers & Marfield" written above it, and that these facts [**11]  be added to the record.

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

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action to recover for repairs done to a carriage in June 1837, the plaintiff offered an absolute bill of sale of it, from M. to the defendants, dated July 1836. The defendants, for the purpose of showing that the bill of sale to them was designed to be a mortgage, or a conditional sale, and to rebut the inference, that M., who continued to be the driver of the carriage, and took it to the shop of the plaintiff, was their agent, proposed to offer in proof, entries in their Blotter, Ledger, and account books, in relation to the transactions between them and M.; HELD inadmissible to modify the bill of sale, and insufficient to rebut an agency in 1837.

Various circumstances in relation to the possession and ownership of a carriage sent to a mechanic for repairs stated and considered, making a case for the exclusive consideration of the jury, whether the repairs were made by the authority of the defendants.

For repairs made to a carriage for the benefit of the defendants, and with their knowledge and approbation, they would be liable; but whether so made, is a question for the jury.

In what character a person who takes a carriage to a mechanic to be repaired, is in possession, whether as driver, servant, agent, or owner, is a fact for the jury.

Where repairs done to a carriage, enured to the benefit of a third person, who in fact, took it to be repaired, he is responsible; and where the state of the proof enables the jury to regard the case in that aspect, it is error to instruct them imperatively, that upon finding the fact of property in the defendants, and repairs made with their knowledge and approbation, that the plaintiff is entitled to recover.  

COUNSEL:
By G. L. DULANY for the appellants, and

By LATROBE for the appellee.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*391]  ARCHER, C. J., delivered the opinion of this court.
From the evidence in the cause, we should infer, that the carriage, for the repairs of which this suit has been brought, was taken by Mitchell to the shop of the plaintiff for repair; the account for repairs, having been originally charged to Mitchell, by the plaintiff. There is evidence to show, that the property of the carriage was in the defendants, but the evidence does not conclusively show, under what circumstances Mitchell came into possession thereof. He is proved, at one period of time, to have been the driver of a carriage for the defendants, but whether at the particular period of the repairs, is uncertain. It is also in evidence, that Mitchell had repairs of the same carriage done at several times, and that defendants paid for them, and that Mitchell had [**12]  contracted with Bishop for the repair of a carriage, but whether of the one in question, 

 [*392]  is not known. It is also in proof, that the defendants saw the carriage while the repairs were being made, at several times; and it is further proved, that they were in possession of the carriage in the year 1838, having brought it to the shop of Bishop to repair, some time during that year; how long after the repairs charged in the account filed in this case, does not appear.
Under all the evidence in the case, we think it was for the jury to determine, whether the repairs were made by authority of the defendants. If indeed, they were made for the benefit of the defendants, and with their knowledge and approbation, they would be clearly liable, but whether they were so made, was surely a question which could be determined by the jury alone. The repairs may have enured to the benefit of Mitchell, unless, in regard to the carriage, he was in the condition of an agent or servant of the defendants. In what manner he was in possession of the carriage, whether as driver, servant, or agent of the defendants, or otherwise, was a fact to be found by the jury.
We therefore think,  [**13]  that the court below were in error in their first instruction to the jury in the fourth exception, which imperatively declared the right of the plaintiff to recover, upon the finding of the fact of property in the defendants, and that the repairs were made with their knowledge and approbation.
But, we think the court were right in their second instruction to the jury in the same exception: if the jury found, in addition to the facts referred to in the first prayer, the additional fact, that Mitchell was the driver of the defendants, when he took the carriage for repair, they would be clearly liable for such repairs. Mitchell, in this aspect of the case, might and ought, in the absence of evidence to the contrary, to be considered as the servant of the defendants, and if such servant took his carriage to repair, and repairs were made, and known and approved by the defendants, the verdict, in that event, should have been for the plaintiff.
We think the court were right in rejecting the account of the defendants in the third exception, against John Mitchell, 

 [*393]  as evidence for the purposes for which it was offered. If it could be admissible to prove, that the bill [**14]  of sale was in fact a mortgage, and the character of the evidence was such as could be received, we perceive nothing in the account which is sufficient to prove such fact. The other purposes for which it was offered, were not insisted upon in the argument, nor if they had been, do we think it could have been received.
The first exception, we considered as having been abandoned by the appellants.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

24 of 42 DOCUMENTS 

MARGARET DUGAN, JOHN SMITH HOLLINS AND WIFE, AND ROBERT S. HOLLINS AND WIFE, vs. JOHN S. GITTINGS AND WIFE, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 138; 1845 Md. LEXIS 15 

June, 1845, Decided 

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

The bill was filed on the 3rd January 1837, by John S. Gittings and Eleanor A., his wife, and James C. Gittings and Rebecca N., his wife, and alleged, that Cumberland Dugan was in 1798, seized and possessed of a very large real and personal estate. At this period the said C. D. had three children, one of whom, his daughter A. D., was then addressed by J. P., who afterwards became her husband; and another daughter, Margaret Dugan, who was then also addressed by William R. Smith, who afterwards became her husband, to whom respectively the addresses of said gentlemen were made, with the knowledge and approbation of their said father, and the proposals of marriage of the said J. P. to the said A. D. having been accepted, and her marriage being in contemplation, her said father, by way of advancement to her, and as a marriage portion, before the marriage gave to and put the said A. into possession of a valuable lot and dwelling in the city of Baltimore, which said dwelling the said C. D. caused to be built for the reception of his said daughter, and her intended husband, and which said house and lot are now enjoyed and owned by [**2]  said A. Your orators further state, that the said C. D. having thus advanced his said daughter A., and his said daughter M., then receiving with his, the said D's approbation, the the addresses of the said W. R. S., he, the said D., deemed it proper and just to make a provision for his said daughter M., by way of advancement, and in contemplation of her marriage with said S., similar to that which was thus made for said A.; and that accordingly, in the same year, and whilst his said daughter was receiving the addresses of said S., with the consent of said D., and in contemplation of their marriage, he, the said D., with the knowledge of said S., and before his marriage with the said M., agreed to give, and actually gave to said M., in fee for her settlement and advancement in life, and as a marriage portion, and as a provision for herself and husband, and the issue of their intended marriage, if any, the property situated and being in the city of Baltimore, being a three story brick house and lot, on the west side, &c. That the said S., at the period of his addresses and marriage, and when said advancements and gift were made to his intended wife, was himself possessed of a considerable [**3]  estate, exceeding in value the property so advanced to his said intended wife; that the said M. was, by her said father, put into the actual possession of the property so advanced to her by him, he putting her into possession thereof as her own, under said gift and advancement; that she, the said M., being so put into possession of said property as her own by her said father, with the knowledge of said S., the dwelling house on said lot was before her marriage, prepared and completely furnished in part by said S., and in part by said D., for the residence of said M. and said S., upon the celebration of their marriage; and that he, the said S., so united in preparing and furnishing the same, with the knowledge of the said gift of the said property to the said M., and believing her to be entitled to the same. That on all occasions after the said gift, and particularly whilst the said house was so being furnished and prepared, the said C. D. spoke of the said gift to his daughter M., and declared that it was intended as an advancement for her, and was made in contemplation of her said intended marriage, and that when the marriage was about to be celebrated, the said M. was put into possession [**4]  of the same notoriously as hers, and her marriage with said S., was with her father's knowledge and approbation, there celebrated on the 2nd October 1798; and the said M. and her said husband, immediately thereupon took possession and occupied said property, as the property of said M., under said gift and advancement, and continued to occupy the same for a considerable time, as her property, and not only without paying any rent to said D., but without any claim or pretence of title to the same by the said D; but on the contrary, they, the said M. and her said husband, holding, claiming and enjoying the same with the knowledge and consent of her said father, as the property of said M., under the gift and advancement aforesaid; and your orators further charge, that the said M. S. and her husband, having so taken possession of and occupied said property, continued to occupy the same after the period of their said marriage, until sometime during the year 1799, when they removed therefrom; but after their said removal from it, and until the death of the said M., which occurred in 1806, she, the said M., continued to claim and hold, and receive and enjoy, with the knowledge and consent of [**5]  her said father, all the rents, profits and issues of the said property, as belonging to her, the said M., under said gift and advancement; and your orators also state, that not only during all this period, and they so claim the same, with the knowledge of the said D.; but also, that in several instances, the rents of the same were collected and paid to the said M., as belonged to her by the agent of said D., and that in several other instances, the said D. himself, collected and paid over the rents of said property to his said daughter, as belonging to her, and that during the whole lifetime of the said M., the said D. never pretended to have any title or claim whatsoever to the said property, but on the contrary, always acknowledged the same to be property of his said daughter M.; and your orators further state, that the said M. became the mother of three children by the said S., to wit: John M. Smith, who is dead, intestate and without issue; your orator, Eleanor A. Smith,, now the wife of your orator, John Gittings; and Rebecca A. Smith, now the wife of your orator, James C. Gittings; and the said Eleanor A. and Rebecca A., your complainants, are the only heirs at law of the said [**6]  Margaret and said William R. Smith; that before the death of said Margaret, the said William R. Smith had become unfortunate, had failed in business, and ceased to pay any attention to this property up to the period of his death, which occurred on the 10th June 1818; that immediately upon the death of M., the said D. took the charge and management of said property on Market Space, rented the same out to tenants and collected the rents of the same from that period up to the day of his death, placing the money thus received among his own money, using and employing the same as his own, and has never rendered any account to your orators therefor. And your orators further state, that the said C. D. hath also, by his last will and testament, among other things, devised and bequeathed as follows: "I give, devise and bequeath to my friend, Isaac McKim, his heirs and assigns, the following property, in trust for my grandchildren hereinafter named, as follows, that is to say, my three story brick house and the lot on the west side of Market Space or Cumberland Row, in the city of Baltimore, situate about, &c., which pieces of property I hereby devise to the use of my two grandsons, namely, C.  [**7]  D. Hollins, son of my daughter Cordelia Margaret, and Cumberland Dugan Hollins, son of my daughter Rebecca, their heirs and assigns as tenants in common to be conveyed to them by my trustees, when they respectively attain the age of twenty-one years, and in the meantime to pay over the rents, issues and profits of the same to my wife during the term of her natural life, if she should live so long; and on the event of her death, before my said grandchildren attain to the age of twenty-one years respectively, to pay over the rents, issues and profits thereof to my daughters, Rebecca Hollins, Cordelia and Margaret Hollins, equally, and in further trust to convey the same in fee simple, should my said grandsons, or either of them, die before the said age of twenty-one; that is, one moiety to the use of my daughter Cordelia Margaret, in fee, if her son dies before the said age, and the other moiety to the use of my daughter Rebecca, if her said son should die before he attains the said age." Which will has been duly admitted to probate, the said Cumberland having, since the making thereof, died, and your orators are ready to produce a duly authenticated copy thereof, &c.; charge that by [**8]  the said will, the said C. appointed his wife, Margaret Dugan, his sons, Hammond Dugan, and Frederick James Dugan and William McKim, executors of his said will, but that the three last having renounced the execution of said will, letters testamentary have been granted to the said Margaret, alone, who hath received into her hands assets more than enough to pay all claims due by the deceased, C. D. And your orators further state, that E. A. and R. A., two of your orators, were married whilst minors, and have remained under coverture ever since, and that Rebecca Dugan, daughter of said C., is married to John S. Hollins, and that Cordelia Margaret, another daughter of said Cumberland, is married to Robert S. Hollins. And you orators further state, that during the life time of said C., and within three years before the filing of this bill, your orators often time applied to him for a conveyance of said house and lots, and for an account and payment of the rents and profits by him received therefor, and since his death they have applied to said executrix of said Cumberland, and the other defendants therefor, all of which reasonable requests have been constantly refused by them, all of which [**9]  actings, &c.

Prayer, that the defendants may be decreed to convey the said property mentioned and described as given to said M. S.; that said defendants be forever enjoined from intermeddling with of claiming title to the same, and that the said executrix of said Cumberland Dugan may account, &c.

The joint and several answers of Margaret Dugan, John Smith Hollins and Rebecca Hollins, his wife, Robert Smith Hollins and Cordelia Margaret Hollins, his wife, alleged it to be true, that Cumberland Dugan was, in the year 1798, seized and possessed of a considerable real and personal estate, the value of which these respondents believe to be greatly exaggerated by the said complainants in their said bill of complaint. That at that period, the said C. D. had three children, viz, A., who intermarried with J. P.; M., who intermarried with William R. Smith; and George Dugan; and that as these respondents are informed, and believe, Margaret's intermarriage with the said William R. Smith was before the intermarriage of A. with the said J. P; that they are unable to state the precise dates of either of said marriages; that the house and lot fronting on Gay Street, &c. These respondents,  [**10]  further answering, deny that the said C. D., by way of provision or advancement, or in contemplation of the intermarriage of his daughter Margaret, with William R. Smith, in the year 1798, or at any other time, upon any other consideration, gave or agreed to give to the said Margaret, in fee for her allotment and advancement in life, as a marriage portion or provision for herself and husband, and the issue of their intended marriage, if any, the property being and lying in the city of Baltimore, being a three story brick house and lot, on the west side of Market Space, or Cumberland Row, situate about thirty feet north of Pratt Street, and between, &c., having a front of about twenty-seven feet, and a depth of about sixty-five feet, together with a lot in the rear thereof, purchased by the said Cumberland Dugan of John O. Donnell, particularly described in said bill of complaint. That after their intermarriage, the said W. R. S. and M. his wife, occupied, for a short period, a house and lot on Cumberland Row, belonging to said C. D., but whether the house and lot described by the complainants in their said bill of complaint, these respondents neither admit nor deny, but they aver,  [**11]  that it was so occupied by the consent and sufferance of the said C. D., without their paying any rent therefor, and that they went into the possession of the same as the property of C. D., and not as their own. They aver, that the title to said property never was in the said W. R. S., or M., his wife, but that the same was, and remained in C. D., who never parted, or intended to part therewith, and that the occupancy or possession of this or any other house on Cumberland Row, belonging to said C. D., by said W. R. S., and M., his wife, never was regarded by said D. as a possession connected with title, or a claim of property, but as permissive on the part of said D., for the temporary accommodation and convenience of his daughter. These respondents further answering, deny that after the said W. R. S., and M., his wife, gave up the possession of said property, and until the death of said M., (which they admit to have occurred in the year 1806,) she, the said M., continued to claim, hold, receive and enjoy, with the knowledge and consent of her father, C. D., the rents, profits and issues of said property, as belonging to the said M., under any supposed gift or advancement, or that [**12]  the said Cumberland Dugan ever admitted her right to receive such rents and profits; on the contrary these respondents affirm, that the said C. D., at all times, as well during the occupancy by said W. R. S. and wife, of the house and lot on Cumberland Row, as afterwards, not only up to the death of Mrs. Smith, but up to that of his own death, continued to exercise all proper acts of ownership over said property, by paying taxes, receiving all rents, making all repairs, alterations, &c., the same as he did in regard to all other property of which he was possessed, and to which he had title; and that not only did the said Cumberland so exercise all acts of ownership over said property, with the knowledge and without the molestation of said W. R. S. and wife, or either of them, under any pretended claim of title, but that from the period of the death of said Margaret, till that of the death of W. R. S., her husband, which occurred in the year 1818, the said C. D. continued to manage and deal with said property as his own, without any question of his right so to do by the said W. R. S., and without any pretence that the same had been given to the said Margaret by the said C. These respondents,  [**13]  further answering, insist for further defence upon the provisions of the statute of frauds and perjuries as a sufficient answer to the claim of property asserted by the bill of complaint of the said complainants. These respondents admit the death of W. R. S., and M., his wife, and that the complainants are their only living children and heirs at law. They likewise admit the death of C. D., and the execution of his testament and last will which has been duly admitted to probate, and that the devise of the property herein before referred to, is correctly recited by the complainants in their said bill. They also admit, that by said will, the said C. D. appointed his wife, Margaret Dugan, and his sons, Hammond Dugan, Frederick James Dugan, and William McKim, executrix and executors, the three last of whom have renounced said trust, and that letters testamentary upon said estate have been granted to said M. D. alone, by the Orphans court of Baltimore county, who has received the assets shewn by her returns to said Orphans court which she is prepared to produce whenever the same may be required. These respondents are unable particularly to state, the amounts received by C. D. for the rents [**14]  of the property referred to in this answer, nor the persons from whom, or the times when the same were received. These respondents have no knowledge of the applications alleged to have been made by the complainants to the said C. D., for a conveyance of said property, and a payment of the rents and profits thereof, but are aware that on or about the 30th day of January 1834, U. S. Heath, Esquire, on the part of the complainants, addressed to the said C. D. a note, now herewith produced, marked A, and which they pray may be regarded as a part of this their answer, to which the said C. returned the answer now likewise produced, herewith marked B, which they pray may be also regarded as a part of this their answer; and they further insist upon the lapse of time and the statute of limitations as a defence to the pretended claims and demands set up by the complainants in their said bill. These respondents are not aware, nor do they believe that C. D. kept books of any kind, in which charges are made against his daughters, Abigail and Margaret, not having found in any of the books of the deceased, accounts opened or against the said A. and M., but this respondent, M., who as executrix, is [**15]  in possession of the books of the deceased, is prepared to produce.

The exhibits filed with the bill, showed, that on the 30th January 1834, the complainants sought of Cumberland Dugan an amicable settlement of their rights, which he declined; denying their right to any part of the property claimed by them.

After the filing of answers, much proof was taken, and a variety of deeds, records, and other documents, were also produced in evidence; all of which are sufficiently stated in the preceding bill and answer, and in the opinion of this court.

On the 4th March 1841, Baltimore county court, (R. B. MAGRUDER, A. J.) decreed, that the complainants are entitled to a specific performance of the contract, entered into by Cumberland Dugan, with his daughter, Margaret Dugan; and that the defendants, the devisees of the property in question, to wit: C. D. Hollins, infant son of Rebecca Hollins; C. D. Hollins, infant son of Cordelia M. Hollins; J. S. Smith; John S. Hollins, and Rebecca, his wife; R. S. Hollins, and Cordelia, his wife; by a good and sufficient deed, convey to the female complainants, in fee simple, the house and lot, &c.; a trustee was appointed, to convey for [**16]  the infants.

And that Margaret Dugan, one of the defendants, widow of the said C. D., account with for, and pay over to the complainants, the rents and profits of the said property, so decreed to be conveyed, so far as she may have received the same, from the time of the death of the said C. D., to the present time, with interest; that J. S. Smith, the trustee of R. H., also account and pay over rents which he has, or had in his hands when he became a party to this suit. The decree then directed an audit and account. Payment, also, by the present tenants, of what they still owed, and also an account with M. D. as executrix of C. D., from death of W. R. Smith to death of C. D., with liberty to take further proof, and a reservation to the infant defendants to shew cause, after arrival at age, within, &c.; and for costs against M. D.

The judge assigned as reasons for the decree:

1st. The proof is clear, unequivocal, and uncontradicted, that Cumberland Dugan intended to give, and did give to his daughter Margaret the house and lot in Cumberland Row, described in the proceedings of this cause, in contemplation of marriage, and as a marriage portion for his said daughter.  [**17]  

2nd. That he put her in possession of the said house and lot before the marriage, and that the marriage actually took place in said house, and that she and her husband occupied the said house and lot until the spring of 1799, and that afterwards her father, from time to time, for many years, paid her the rents of the said house, and treated, and declared, and considered the house as her property.

3rd. That he never set up any right or title to the house, but on the contrary, a short time before Mrs. Smith's death, withheld the payment of the rents, upon the ground that he had a claim against the husband of his said daughter, a reason and ground entirely consistent with, and in affirmance of, the fact of a gift to his daughter, as an advancement and marriage portion.

4th. That although the said agreement was not in writing, yet the above facts demonstrate such a part execution of the contract as takes the case out of the statute of frauds, because the putting in possession, the payment of rents, and the withholding, for a short period before his daughter's death, the rents for the reason assigned by Dugan, are all facts, taken together, which would not have been done [**18]  unless on account of the agreement.

5th. That not to decree a performance, and to permit the statute of frauds to operate, would enable Dugan to perpetrate a gross fraud upon the marriage parties.

6th. That the payment of rents by Dugan to his daughter, Mrs. Smith, for so long a time after her removal from the house in question, to the Rope Walk, forbids all idea of any substituted gift of another house in lieu of the one originally given.

7th. That there is no evidence to show, that the Rope Walk property was a gift by Dugan to Mrs. Smith, his daughter, in substitution of the house and lot in Cumberland Row. The exception taken by the complainants' counsel, and filed among the proceedings, to that portion of Mrs. Bosley's answer to the third cross-interrogatory, which states, that Mr. Cumberland Dugan gave a deed of the Rope Walk property to his daughter, Mrs. Smith, being sustained by the court, that portion of her testimony being clearly inadmissible.

8th. That there is nothing in the circumstances of this case to show, that the claims are of so stale a nature, or that there has been such laches on the part of the complainants in not sooner bringing their suit,  [**19]  as that it ought not to be, at this late period, heard in a court of equity, nor ought the statute of limitations to be a bar. The relations between Dugan and his son-in-law, Wm. R. Smith, the father of the female complainants, would, in my judgment, prevent any charge of laches up to the death of Smith, even if a legal representative of Smith were here claiming, and at that period some of the children were of tender years, and all of them were under twenty-one; Eleanor, one of the female complainants, was but a few months above the age of twenty-one when she married, and she is covert, still her husband being alive; and one of the complainants, Rebecca, the other female complainant, was married under twenty-one years, being only about eighteen years, and at the time of the bringing of this suit her husband, James C. Gittings, was alive, and united with her as a co-complainant; laches in bringing forward this claim at so late a period, does not apply to a case like this, which may be regarded as one between parent and child, and should be looked at in that view by the judicial eye. To such a case, laches does not apply. 3 Dessauss., 517, 519. Caborne vs. Godfrey.

9th. The reason [**20]  for taxing the costs to the defendant, Margaret Dugan, as executrix of C. Dugan, is that the trustee for the infant defendants, and the other defendant's rights not to be burdened with costs, if no injustice be thereby done to other persons, and as the whole controversy was with the testator, C. Dugan, commencing with his refusal in his lifetime to recognize the rights of the complainants, and continued by a devise of the property under his will, and the defence of this suit having been made in affirmance of his acts and intentions, the costs ought, perhaps, properly to fall upon his estate.

The auditor of the court reported several accounts:

Account A.--Charged two-thirds of the rents, from 10th Dec. 1818, the time of the death of W. R. S., with interest to the 10th Dec. 1841. The interest was charged upon each year's rent as it fell due, and the account amounted to $ 10,870.81.

The auditor reported that he only allowed two-thirds of the rents, because the personal representatives of John Smith, the deceased brother of Rebecca and Eleanor, were not before the court.

He also reported, that the sum of $ 3601.12, for rents due since the death of Mr. Dugan to 12th [**21]  Oct. 1840, with like interest as in the preceding item. Other accounts were stated, and various exceptions taken to them. The county court affirmed account A, and awarded payment by Margaret Dugan, as executrix of C. D., to each of the daughters of Mr. Smith, one-half of the sum of $ 10,870.81, with interest from 10th Dec. 1841, from which decree the defendants appealed to this court.

The appeal on behalf of the infant children of Rebecca and Cordelia Hollins, represented by John Spear Smith, was dismissed.  

DISPOSITION:
CAUSE REMANDED.  

HEADNOTES:

Under the act of 1830, ch. 185, sec. 1, orders or decrees passed in an equity case, previous to the final decree, are open for revision in the appellate court by force of the very words of that act.

The act of 1841, ch. 11, repeals that branch of the 1st sec. of the act of 1830, ch. 185, which denies to a party the privilege of appealing from any decree which was not final in its character, and restored to him the right of an immediate appeal from the particular decrees enumerated in that section; yet it leaves in force the other branch of that section, as to the effect of an appeal from a final decree when taken.

The act of 1841, ch. 11, did not contemplate a total repeal of the act of 1830, ch. 185. It repealed only that portion of the latter act which had abridged the right of appeal.

Statutes in pari materia, are to be construed together.

A latter statute on a given subject, not repealing an earlier one, in terms, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the whole subject matter.

Where a father, in 1798, knew that his daughter had entered into an engagement of marriage, of which he approved, and being a man of fortune, declared it to be proper and just that he should make an advancement, in contemplation of marriage, to her, as he had done to another daughter; and accordingly, a short time before her marriage, announced his determination to give her a house, and in fact did verbally give it to her in fee, as a marriage portion. It appeared also, that the house was prepared for his daughter, and she placed in possession of it by her father, as her own property; that these arrangements were known to the intended husband, and the marriage there celebrated; that the parties there resided for some months, and from that period, the daughter, to the time of her death, in 1806, was in the enjoyment, under the gift, of the rents of the property, with the knowledge and consent of her father; sometimes paid to her by him, and sometimes by his agent. HELD: that these circumstances constitute a mass of proof upon the factum of the gift, which it is impossible to resist.

A mere verbal, voluntary, executory agreement, although founded on the meritorious consideration of love and affection, cannot be enforced by a court of equity, and the party who made it may, at his will, violate or abandon it.

An agreement made by a father with his daughter, in contemplation of her marriage, by way of advancement, and as a marriage endowment, followed by her marriage as then contemplated, has for its support a valuable consideration. It cannot be revoked by the father. The marriage is a consideration which vests the interest in the donee against all the world. The daughter is regarded as a purchaser, as much so, as if she had paid for the property an adequate pecuniary consideration.

The delivery of the property by the father to the daughter, under such circumstances, in pursuance of the gift and fulfilment of the condition on which it was to attach, withdraws the contract from the reach of the statute of frauds.

Performance of the consideration, and change of possession under the contract, are the two ingredients, which when combined, have always been regarded as relieving a parol agreement from the operation of the statute of frauds.

The answer of the widow and executrix of a father, who had made an advancement to his child of a first marriage, of which the respondent had no personal knowledge, is not within the general rule, that it can only be disproved as an answer responsive to the bill, by two witnesses, or by one witness with strong corroborating circumstances.

An answer which does not admit the allegations in a bill, puts the complainant on proof thereof, and leaves him to sustain them as they can.

Where a father made a parol gift of real property to a child, in contemplation of marriage, and executed the same by delivery of possession, the court will not infer, that subsequently, another piece of property was substituted by consent, the conduct of the father to the time of his child's death, and after the period when the alleged substitution was supposed to have been made, being entirely inconsistent with the existence of such consent.

The husband is tenant by the curtesy of the equitable inheritance of his wife.

D, the father, in 1798, made a parol gift of real property to his daughter, as a marriage endowment, and delivered her possession. Her husband in 1801, became a bankrupt, and assigned all his property to D. In 1806, the daughter died, leaving three infant children. In 1818, the husband died. To the period of the husband's death, D must be regarded as occupying the property in the character of assignee of the husband, and then, for the first time, the statute of limitations was put in motion by his adverse claim.

In the year 1820, one of the daughters came of age, and married in 1821. In 1822, another daughter married, and came of age in 1825. The son died unmarried. The bill was filed in 1837, before the lapse of twenty years from the death of the complainant's father, the bankrupt, to procure a conveyance of the house and lot, and an account and payment of the rents received by D, since the death of their mother, in 1806, against the heirs and devisees, and executrix of D. HELD, that in the application of the statute of limitations:

1. That as to the daughter who married before she came of age, it was not competent for her to avail herself of any other disability than that of infancy, the disability which existed at the time her cause of action accrued.

2. A party is protected by the disability which exists at the time his right of action first accrued, because the case is within the express terms of the statute.

3. If there are in existence several disabilities, at the time the right of action accrues, the statute does not begin to run until the party has survived them all.

4. The operation of the statute cannot be prevented by cumulative disabilities. If subsequent disabilities were to be regarded, the right of action might be saved for centuries.

5. A court of equity, in applying the statute of limitations analogically, would not permit tho claim of a party to real property to be affected by any devolution of time short of that which would have barred him at law in action of ejectment.

6. If the parties, complainants here, could have recovered their rents from D, in an action of indebitatus assumpsit, or it was a case of concurrent jurisdiction, at law or in equity, then the act of limitations, in relation to personal actions, would have been a bar after three years.

7. The rents and profits in this case could not have been recovered at law, they would be payable only upon the successful assertion of title to the property, and as the contract resting in parol would have been void at law, no recovery in that court could have been obtained; the doctrine of part performance is peculiar to the chancery courts, and is not regarded at law, as taking a case out of the statute of frauds. Hence limitations are no bar to the recovery of rents and profits in equity, under the circumstances of this case.

The case of Caborne vs. Godfrey, 3 Ves., 517, overruled as to the plea of limitations.

Where an executrix alleges in her answer that she has received the assets of her testator, as shown by her return to the Orphans court, which she is prepared, when required, to produce, this is not an admission of the sufficiency of assets; and as the complainants failed to prove such sufficiency, this is a failure on their part to establish, by proof, a material allegation in their bill. The appellants, the defendants in equity, are not precluded by the act of 1832, ch. 302, from raising that question in this court; and under that act the cause is therefore remanded.  

COUNSEL:
By JOHN NELSON and REVERDY JOHNSON for the appellants, and

By MCMAHON and GLENN for the appellees.  

JUDGES:
The cause was argued before DORSEY, SPENCE and MARTIN, Judges.  

OPINIONBY:
MARTIN 

OPINION:

 [*151]  MARTIN, J., delivered the opinion of this court.
It appears from the record in this case, that the original decree was passed by Baltimore county court, as a court of equity, on the 24th of March 1841. The final decree ratifying and confirming the auditor's report, was pronounced on the 25th of March 1843. An appeal was taken on the part of all of the defendants from this decree, on the 10th of October of the same year, but the appeal which was entered [**22]  by the infant 

 [*152]  defendants having been dismissed, the case is presented upon the appeal alone of Mrs. Margaret Dugan, John Smith Hollins and wife, and Robert S. Hollins and wife.
In this condition of the case, the counsel for the appellees have contended, that the decree of the 24th of March 1841, not having been appealed from within the period prescribed by the act of 1785, ch. 72, is not now open for objection in this court; that the decree is conclusive as to the matters settled by it, and it must be regarded as establishing the appellee's right to the property decreed to be conveyed; and also to an account of the rents and profits thereof, from the death of William R. Smith, leaving open only the questions, as to the proper statement and adjustment of that account. The proposition stated by the counsel for the appellees is, that as the decree of the 24th of March 1841, was one from which the appellants had the right to appeal, they were obliged to exercise the privilege, upon the authority of the case of Strike against McDonald, 2 H. & G. 191; and having failed to do so in due time, the matters adjudicated by that decree, are to be regarded [**23]  as conclusively established, and not now open for objection or examination in this court.
By an Act of Assembly of 1830, ch. 185, sec. 1, it is provided, "that no appeal shall hereafter be allowed from any decree or order of the chancery court, or county court, sitting as a court of equity, unless it be a final decree, or order in the nature of a final decree; and that upon appeal from a final decree or order, in the nature of a final decree, within the time limited by law for such appeals, all previous orders and decrees passed in the cause, shall be open in the appellate court, in the same manner as if such previous orders or decrees had been as heretofore appealed from, within nine months from the time of the passing of the same." These are the provisions of the act of 1830, and it is clear, that if that clause of the first section, which declares, that upon an appeal from a final decree, all previous orders and decrees passed in the cause, shall be open in the appellate court, is still in force, the right to inquire into the correctness of the decree of 1841, belongs to the appellate court, for it has been conferred by the express terms of the 

 [*153]  statute. The language [**24]  of the act has been made so comprehensive, as to embrace all orders or decrees, whether they are matured decrees, professing to establish all the rights in controversy between the parties, as in the case of Strike against McDonald, 2 H. & G. 191, or mere interlocutory and preparatory orders, as in the case of Snowden against Dorsey, 6 H. & J. 114. If the order or decree in dispute, was passed in the cause, and was previous to the final decree, it becomes open for revision in the appellate court, by force of the very words of the statute. The only question, therefore, that can arise on this branch of the case is, whether this clause of the first section of the act of 1830, has been repealed by the act of 1841, ch. 11?
By the first section of that act, it is declared, "that so much of the first section of the act of 1830, ch. 185, as takes away the immediate right of appeal from any decree or order of the court of chancery, or any county court, for the sale, conveyance or delivery of real or personal property, be, and the same is hereby repealed; and that from any such decree or order heretofore, or hereafter to be passed, the right of an immediate [**25]  appeal is hereby given;" and we are satisfied, that although the legislature have directly repealed that branch of the first section of the act of 1830, which denied to the defendant the privilege of appealing from any decree which was not final in its character, and restored to him the right of an immediate appeal, from the particular decrees enumerated in its first section, they have left in force that part of the section which declares, that on an appeal from a final decree, all previous orders shall be open in the appellate court, in the same manner as if such orders had been, as heretofore, appealed from.
It is perfectly obvious, from an inspection of the act of 1841, that the legislature did not contemplate a total repeal of the act of 1830. To what part then of the act of 1830, did they propose to apply the repealing power? An answer to the question is to be found in the words of the first section, which declare, that so much of the antecedent act as takes away the immediate right of appeal from any decree of the court of chancery, for the sale, conveyance, or delivery of real or personal property, 

 [*154]  is repealed; and it is manifest, that the object was to repeal [**26]  only that portion of the former act, which had abridged the right of appeal. The Court of Appeals had decided, in the December term 1840, in the case of Lee against Pindle, 11 G. & J. 362, that the object of praying an appeal, and filing an appeal bond, under the proviso contained in the first section of the act of 1830, was not to effect an immediate removal of the cause to the Court of Appeals, but that it merely suspended the execution of the decree, for the sale or delivery of the specific property, until a final decree was passed, when the whole case might be brought up for review in the appellate court; and the legislature, believing that a party ought to possess the right of appealing immediately from decrees of this nature, repealed, in this respect, the act of 1830, without, however, imposing on the defendant the obligation of appealing from such decree, or depriving him of the right of having it reviewed in the appellate court, on an appeal from the final decree, as secured to him by one of the provisions in the former act.
There is, we think, no ground for contending, that the provision in the act of 1830, under which the appellants have claimed the [**27]  right to subject to the review of this court, the decree of the 24th of March 1841, has been repealed, either directly or by implication. These two statutes being in pari materia, are to be construed together. A latter statute on a given subject, not repealing an earlier one, in terms, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the whole subject matter. 20 Pick. 408. 21 Pick. 292. 9 Cow., 437. 5 Hill, 221. 11 Coke, 63. Dwar. on St., 675.
Having disposed of this preliminary point, and considering the whole case as properly before us, we proceed to an examination of the grounds, on which the appellants claim a reversal of the decree, pronounced by the county court.
The first point made in the cause, and that which was pressed with most emphasis, is, that the appellees have entirely failed to establish by evidence, the existence of any such contract or gift, as is charged in the bill, and that Cumberland Dugan 

 [*155]  never gave or promised to give, the property mentioned in the bill, to the mother of the appellees, as a marriage [**28]  endowment.
The bill alleges, that the late Mr. and Mrs. Smith were married in the month of October 1798. That the alliance was contracted with the knowledge and the approbation of Mr. Cumberland Dugan, the father of Mrs. Smith. That Mr. Dugan was also the father of Mrs. Purviance, and that after she had become engaged, he, in the autumn of the same year, gave to her as a marriage portion, the house in which the Judge and Mrs. Purviance now reside. That he was at this time a man of ample fortune. That having advanced one daughter, and the other being at the time addressed, with his approbation, Mr. Dugan deemed it proper and just, to make a similar provision for his daughter, Margaret, by way of advancement, and in contemplation of her marriage with Mr. Smith. That accordingly, a short time before the marriage of Mrs. Smith, he announced his determination to give to her the house in Cumberland Row, (the subject of the present controversy,) and that he in fact, did give to her, in fee, the house in question, a short time before the celebration of the marriage, as a marriage portion. That this establishment was prepared for the reception [**29]  of his daughter, and she was placed in possession of it, by Mr. Dugan, as her own property. That these arrangements were known to the husband. That their nuptials were celebrated there. That they continued to reside in this house until the spring of 1799, and from that period to the time of the death of Mrs. Smith, she was in the enjoyment under the gift, of the rents arising from this property, with the knowledge and consent of her father, and that the rents were sometimes paid to her, either by Mr. Dugan or his agent.
The object of the bill is two-fold. First, to procure a conveyance of the house and lot in controversy, to the complainants, from the devisees of Cumberland Dugan; and as consequent upon the assertion of a title to the property, an account and payment of the rents received by Mr. Dugan.
These are the material statements and allegations of the bill, and we are satisfied that they have been fully established by the testimony in the cause.

 [*156]  The delivery of the possession of this house to Mrs. Smith, prior to her marriage, as her own property under the gift. The fact that she resided there with her husband until the spring of 1799,  [**30]  and then removed, only that Mr. Smith might prosecute with more convenience, the affairs of a partnership, which had been concerted by Mr. Dugan, between Mr. Smith and the brother of Mrs. Smith, in the business of the Rope Walk. The payment of the rents issuing from this property by Mr. Dugan, or his agent, until within a few months before the death of Mrs. Smith, and then withheld that they might be applied by Mr. Dugan to the discharge of some responsibility in which he had become implicated for Smith. The declarations of Dugan, before the marriage, and after it had been solemnized, that he intended to give, and had given this property to his daughter as a marriage advancement or portion, and his declaration after the death of his daughter, "that it was her property, and should go to her children," constitute a mass of proof upon the factum of the gift, which it is impossible to resist.
It is true that a mere verbal, voluntary, executory agreement, although founded on the meritorious consideration of love and affection, cannot be enforced by a court of equity, and the party who made it may, at his will, violate or abandon it. In Pennington vs. Gittings, 2 G. & J. 208, [**31]  this court said: "The consideration of natural love and affection is sufficient in a deed, but a mere executory contract that requires a consideration, cannot be supported on a consideration of blood, or natural love and affection; there must be something more, a valuable consideration, or it is not good, and cannot be enforced at law, but may be broken at the will of the party. And being void at law for want of a sufficient consideration, chancery cannot sustain and enforce it." 2 Story's Com. Eq., Sec. 987.
But this is not the character of the contract now under examination. Having been made in contemplation of, and as a marriage endowment, it has for its support a valuable consideration. It cannot be revoked or violated at the will of the party who made it. The marriage was a consideration which vested the interest in the donee against all the world; she is to be regarded 

 [*157]  as a purchaser, and as much so as if she had paid for the property an adequate pecuniary consideration, 1 Jno. Ch. Rep. 271. It cannot be necessary to cite authorities to maintain the proposition, that marriage is to be regarded as a valuable consideration. In Buchanan vs. Deshon, 1 H. & G. 280, [**32]  the Court of Appeals, in speaking of a marriage contract, say, that it was founded upon a consideration which was valuable, and one upon which the law looks with a favorable eye. The same doctrine is announced by the Supreme Court in the case of Magniac vs. Thompson, 7 Peters 348. The late Mr. Justice Story, stating in the opinion of the court, delivered by him, "that marriage, in contemplation of the law, is not only a valuable consideration, but is a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution."
We are, also, very clearly of opinion, that the delivery of this property by Mr. Dugan to his daughter, in pursuance of the gift, and the fulfilment of the condition on which it was to attach, by the consummation of the marriage, extracted this contract from the reach of the statute of frauds. The consummation of the marriage, in a case like this, is to be considered as equivalent to the payment of the purchase money in a pecuniary contract, in both cases the consideration is discharged. There is to be found then, in this case two ingredients, which when combined, have always been regarded as relieving [**33]  the parol agreement from the operation of the statute,--performance of the consideration, and a change of possession under the contract. Drury vs. Conner, 6 H. & J. 288. 2 Stor. Com., Sec. 763. 1 Sug. V. 143. 18 Ves. 328.
Before we leave this branch of the case it is proper to state, that we do not consider the answer of Mrs. Margaret Dugan as within the general rule, that an answer asserting a fact responsive to the bill can only be disproved by two witnesses, or one witness with strong corroborating circumstances. The doctrine on this subject is stated with great perspicuity and precision by the late chief justice of this court, in the case of Pennington vs. Gittings, 2 G. & J. 208, and is directly applicable to the question before us. He says:--"A plaintiff, by calling on the 

 [*158]  defendant to answer the allegations in his bill, upon oath, makes the answer evidence; and as one witness would only be equivalent to the answer, and the plaintiff to prevail, must have preponderating proof, it is necessary that he should have another witness, or circumstances in addition to the testimony of one, in order to turn the scale.  [**34]  But looking to the answer as testimony only, it must be treated as any other testimony, and the weight of it must, from the very nature of evidence, in some degree depend on the fact it asserts. Therefore, when an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but amount to an assertion of his impressions, and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only, and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge. And upon the obvious principle, that when a witness asserts a fact, of which further developments in the course of his examination prove him to be in a situation to prevent his having a full knowledge of the subject, his testimony is not entitled to the weight of that of a man swearing to facts which may be fully within his knowledge. The answer in this case is of that description, and is not, we think, such as to require the testimony of two witnesses, or one with circumstances to out weigh it. But as it does not [**35]  admit the allegations in the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed responsive features of the answer." 9 Cranch 160. The principle which withholds from an answer of this description, the weight to which it would be entitled, if it came from the party to the transaction, cannot be changed by the period at which the complainant may have filed his bill, no matter by what motives he was influenced in postponing the institution of his suit, because the answer being in its nature testimony only, the influence to be attached to it must always depend on the fact it asserts, and the position of the party who makes the assertion.

 [*159]  Assuming that the gift claimed by the appellees was originally made, and so made and executed as to have been valid in law against the donor or settlor, we do not think that the proof in the cause shews, as has been maintained by the counsel for the appellants, the substitution of another property, (described as the Rope Walk,) in place of the house in contest, by the consent of all parties concerned, even if the appellants could avail themselves of this ground of [**36]  defence under the pleadings in the cause.
Mrs. Smith died in 1806. The deed from George Dugan to Judge Purviance, as her trustee, conveying the property described as the Rope Walk, was executed on the 1st of June 1803. And yet we find Cumberland Dugan paying to his daughter the rents of the property in Cumberland Row, to within a few months of her death, and after her demise affirming that the house belonged to her, and should go to her children. These facts are entirely inconsistent with the idea, that there was, with the consent and understanding of all parties, a substituted gift of another property for that which was originally given.
It appears, also, that so far from the independent matter thus relied on, having been advanced by the answer as a ground of defence, the argument presupposes the existence of an agreement and gift, which the answer directly repels, and it may perhaps be doubted, upon the case of Boone vs. Chiles, 10 Peters 177, whether it would have been competent for the appellants to have availed themselves of this defence, under the pleadings in the cause. We do not mean, however, to determine this question, and overrule [**37]  this objection to the decree, on the ground that there is no evidence to support it.
The propositions which we propose next to examine, are those presented by the pleas of the statute of limitations and lapse of time. This defence has been taken by the answer, and the enquiry is, has it been sustained?
It is clear, that William R. Smith was entitled to a life estate, as tenant by the curtesy, in this equitable inheritance of his wife. 1 Rop. 19. 5 Mad. R. 249. And the principle is now established by the case of Morgan against Morgan, 5 Mad. R. 248, 

 [*160]  that the husband is tenant, by the curtesy, of the equitable inheritance of his wife, notwithstanding a direction to pay the rents and profits to her separate use, during the coverture; the receipt of the rents and profits being a sufficient seisin in the wife. The Vice Chancellor adopted the opinion of Lord Hardwicke, in Roberts against Dixwell, 1 Atk. 603, as containing the true doctrine on this subject.
The interest of William R. Smith, in this estate, passed to Cumberland Dugan, as his assignee, by force of the deed of the 13th of August 1801, and Dugan must be regarded [**38]  as occupying the property, in this character, until the death of Smith, in 1818. It is manifest, therefore, that no cause of action had accrued to the appellees, in respect to this estate, until 1818, when their father died. At this period, then, for the first time, the statute of limitations was put in motion by the adverse claim of Dugan.
It appears that one of the appellees, Mrs. Eleanor Gittings, was of age in July 1820, and married in the spring or winter of 1821; and that Mrs. Rebecca Gittings attained the age of twenty-one years in 1825, and was married in 1822. And notwithstanding, in the case of Mrs. Rebecca Gittings, there was coverture before the termination of her infancy, it was not competent for her to avail herself of any other disability than that of infancy: the disability that existed at the time her cause of action accrued. The doctrine upon this subject, was correctly stated by the counsel for the appellants, and not disputed by their opponents. The rule is this: a party is protected by the disability that exists at the time his right of action first accrued, because the case is within the express terms of the saving clause in the statute.  [**39]  For the same reason, if there are in existence several disabilities, at the time the right of action accrues, the statute does not begin to run until the party has survived them all. But it is now firmly established, that you cannot prevent the operation of the statute by cumulative disabilities. 3 Johns. Ch. 138. 4 Mass. 182. 7 Serg. and R., 210. Mercer vs. Selden, 1 HOW 37. The whole doctrine was examined with elaborate care by Chancellor Kent, in the case of Demarest against Winkoop, 3 Johns. Ch. 129,

 [*161]  and the opinion pronounced by him, has been received as containing the correct rule upon the subject. If subsequent disabilities were to be regarded, the right of action might be saved for centuries; and the statute would be rendered incapable of accomplishing the important purposes for which it was passed.
The bill was filed on the 3rd of January 1837, and as between that period and 1818, when the right of action accrued, twenty years had not elapsed, a right of entry in the plaintiffs would not have been tolled, had they been clothed with the legal title, and a court of equity, in applying [**40]  the statute of limitations analogically, would not permit the claim of a party to be affected by any devolution of time, short of that which would have barred them at law, in an action of ejectment. 10 Wheat. 152. We think, therefore, the appellee's claim to the property is not barred, either by limitations or lapse of time.
It has, however, been contended by the counsel for the appellants, that although the appellees are not barred, so far as their claim for the property is concerned, yet they are barred by limitations and lapse of time, from recovering any rents, except such as were received by Mr. Dugan, within three years before the filing of the bill. The ground upon which this argument has been placed is, that it would have been competent for the plaintiffs, on the case made in their bill, to have recovered the rents from Dugan, in an action of indebitatus assumpsit, and it was a case, therefore, of concurrent jurisdiction, between the courts of equity and law.
It is true, that the statute of limitations, in all cases of concurrent jurisdiction at law and in equity, is equally obligatory in each court. In such cases, courts of equity do not act so much [**41]  in analogy to the statute, as in obedience to it. They apply the statute as it would have been applied at law. In Murray against Coster, 20 Johns. 576, Chief Justice Spencer said:
"All, however, I mean to deduce from this consideration is, that it is impossible in a case like this, where there was ample remedy at law, that the change of the forum should produce a 

 [*162]  change in the rights of the parties; for beyond all doubt, had the respondents sued at law, the appellants could have pleaded the statute; whether successfully or not, remains to be considered. I have, therefore, no hesitation in saying, that in a case where there is a concurrent jurisdiction in the courts of common law and of equity, the rule must be the same, and the statute of limitations may be pleaded with the same effect in the one court, as the other."
The same doctrine is announced by Chancellor Kent, in 7 Johns. Ch. 90 at p. 124, Kane vs. Bloodgood, where he says:--
"I understand this proposition to mean, that if the party has a legal title, and a legal right of action, and instead of proceeding at law, resorts to equity; instead of bringing his action of [**42]  account, or detinue or case for money had and received at law, files his bill for an account, the same period of time that would bar him at law, will bar him in equity. This is the principle that pervades the cases." 2 Sh. and Lef., 607.
This being the principle by which courts of equity are governed, in the application of the statute of limitations, if the counsel for the appellants could have maintained the proposition, that the appellees had a remedy at law for the recovery of the rents, the statute would have operated as a positive bar.
But it is clear, we think, that the rents and profits of this property could not have been recovered at law, by the appellees, either in indebitatus assumpsit, or any other form of action.
It is evident, that in a case like this, the right to the rents would be consequent only upon the successful assertion of title to the property, and as this contract, resting in parol, would have been absolutely void at law, no recovery in that court could have been obtained. The doctrine of part performance is peculiar to the chancery courts, and is not regarded at law as taking a case out the statute of frauds. Jackson vs. Pierce, 2 Johns. 221. [**43]  
Another insuperable objection to the maintenance of an action at law, would have been, that in that court the plaintiffs could not have stood upon their equitable title.
In Matthews vs. Ward, 10 G. & J. 443, the Court of Appeals declared, that the doctrine of Lord Mansfield, in 

 [*163]  3 Burr 1901, has been receded from, and that it had been repeatedly decided, that the legal estate shall prevail against the equitable title. In Doe vs. Wroot, 5 East 138, Lord Ellenborough says: "We can only look at the legal estate; if the devisees have an equitable interest, they must claim it elsewhere, and not in a court of law." 7 East 22. 2 Johns. 226.
In Welsh vs. Welsh, 5 Ohio 425, at p. 430, it is said: "Does it follow that because the plaintiffs have an equitable claim against the defendant, he can enforce this claim if he sues in assumpsit. If he prosecutes his suit in a court of law, he must in assumpsit, as well as in any other form of action, show that he has a legal right of action. When this is shown, the action will be governed by equitable circumstances."
The same proposition is established in  [**44]  Kane against Bloodgood, and would have been held by a court of law, as fatal to the recovery of the plaintiffs. Chancellor Kent, in speaking of the case of Lawly against Lawly, 9 Mod. 32, says: "In this case, lands were settled, by will, on trustees; and one of the trust was, that if the son's wife survived, she was to receive the rents and profits of the land, as the same were at that time let. Her husband, afterwards, greatly increased the rent, and upon his death, his wife enjoyed the whole of the rents, making no distinction between the original and the additional rent. A number of years after her death, her executor was sued by the devisee in tail, being a grandson of the testator, for an account of the surplus rents received by her, and by her executor. The plea of the statute of limitations was overruled, because the estate in law was in trustees, and the executor was decreed to account for the improved rents received by her, or by him, since her death."
There is no reason given, the Chancellor says, for this decree, but what is to be inferred from the single observation, that the estate in law was in trustees, and that must be understood to mean,  [**45]  that the plaintiff in the bill had not the legal title, and could not have maintained an action at law. Again, he says: "It was a suit by one cestui que trust against the representative of another cestui que trust, for receiving more of the rents than belonged to her; and I can see no reason why, as between 

 [*164]  them, the statute could not have been applied, unless we adopt the plain rule, upon which alone the decision is intelligible and just, that the plaintiff was a cestui que trust, without any title or remedy at law." 7 Johns. Ch. 115. Without pursuing this subject further, or adverting to other objections that might have been raised against a recovery at law, we think that the only remedy open to the appellees is, that which they have adopted, the assertion of their title to the property in a court of equity, and as consequent upon that title, an account and payment of the rents and profits. In our opinion, therefore, the court below committed no error in overruling the plea of the statute of limitations.
It is scarcely necessary to add, that we do not adopt the proposition supposed to have fallen from the learned Chancellor, in the case of Caborne vs. Godfrey, 3 Desaus. Eq. 514, [**46]  that in controversies between parties standing in the relation of parent and child, "the statute of limitations does not apply, and time is unimportant," for the plain reason, that the court have no power to interpolate into the statute new exceptions and provisions. But we place our opinion on the ground, that as the bill was instituted by the appellees, within less than twenty years from the period at which their right of action accrued; and as their claim for an account and payment of the rents was incidental to, and consequent upon their assertion of title to the property, they are not barred by either limitations or laches.
We think, however, that the decree of the county court was erroneous on the question of assets.
In Evans vs. Iglehart, 6 G. & J. 171, this court said, "the rule upon the subject of assets is different in the court of equity from what it is at law. Where you seek to charge an executor or administrator, in his representative character, before the latter tribunal, assets are presumed, unless as a fact it is put in issue by the pleadings, but before the former tribunal, assets in his hands, must be alleged, and if denied or not admitted, must [**47]  be proved." In Warfield vs. Gambrill, 1 G. & J. 503, it was decided, "that a respondent submitting to answer must answer fully, but if the answer be defective, and insufficient to meet the allegations and interrogatories of the bill, the complainant, 

 [*165]  desiring a further response, must except to the answer. If he do not, he cannot rely on the silence of the respondent in relation to any material allegation, but must prove it." And in Young vs. Grundy, 6 Cranch 51, the Supreme Court say, "that if the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing."
Mrs. Dugan states, in her answer, that she has received, as the executrix of Cumberland Dugan, the assets shewn by her return to the Orphans court, which she is prepared, when required, to produce. Surely this cannot be regarded as an admission of the sufficiency of assets, unless upon the principle asserted in Smith vs. Smith, 4 Paige Ch. 432, "that as the executrix does not in her answer state that there is any deficiency of assets, the court must presume there is sufficient for the purposes of the suit." A [**48]  proposition directly in conflict with the decisions, both of this and the Supreme Court.
The decree below, in this respect, was clearly erroneous, and as the objection is directed not against any vice or infirmity in the bill, or to the competency of witnesses, or to the admissibility of testimony, but because the complainants failed to establish, by proof, a material allegation in their bill, the appellants are not precluded, by the act of 1832, ch. 302, from raising it in this court. 7 G. & J. 143 at p. 155.
It appearing to us that the substantial merits of the case will not be determined by affirming or reversing the decree of the county court, and that the purposes of justice will be advanced by permitting further proceedings therein, and further testimony to be taken in relation to assets, in pursuance of the 6th section of the act of December session 1832, ch. 302, the cause will be remanded to Baltimore county court, as a court of equity.
CAUSE REMANDED.  

25 of 42 DOCUMENTS 

NICHOLAS PHELAN AND ROBERT BOGUE vs. JOS. CROSBY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 462; 1845 Md. LEXIS 4 

June, 1845, Decided 

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

This was an action of assumpsit, brought on the 3rd June 1841, by the appellants against the appellee. They declared upon the common counts, to which the defendant pleaded the general issue.

The plaintiffs, to support the issue on their part joined, offered in evidence to the jury, that on the 3rd day of March 1841, they had sold and delivered to the defendant, a quantity of segars, to the amount of $ 494.25. The defendant thereupon offered in evidence the following bill and receipt:

________________________________________________________________________________
"Baltimore, March 3rd, 1841.   	
Mr. J. Crosby bought of Phelan & Bogue,	
3000 Segars in bundles, a	$ 10,	$ 30 00	
 23 1/4 M do. in flat boxes a	10,	232 50	
 25 3/4 M do.     do.     a	9,	231 75	
   Six months, due Sept. 3-6.	
		$ 494 25	
________________________________________________________________________________

Received payment for above, as follows:

________________________________________________________________________________
R. Moore's note, date Dec. 16, '40,	
  five ms. due May 16, for	$ 484 79	
Interest on am't of note, from May	
  16th to September 3,	8 55	
Cash for balance,	91	
		$ 494 25	
________________________________________________________________________________

PHELAN & BOGUE."

And proved the signature to the said receipt to be in the hand writing of the plaintiffs.

Whereupon [**2]  the plaintiffs produced in court, and offered to deliver up to the defendant, the note of R. Moore, mentioned in said bill and receipt; and proved, that the said Moore, on the 4th day of May 1841, applied for the benefit of the insolvent laws.

The defendant then offered in evidence by Mr. Lanahan, a competent witness, that in the spring of 1841, he had a conversation with Phelan, one of the plaintiffs, in which Phelan stated to witness, that he and Bogue had sued, or were about to sue the defendant; that defendant had swindled them. That witness then inquired of him, whether in the sale of the segars referred to, they had not agreed to take Moore's note at their own risk? That Phelan replied they had, and that the defendant had refused to endorse said note, (which it was admitted, at the time it was passed to plaintiffs was in blank, and in favor of no particular payee,) and requested the plaintiffs before receiving it, to inquire into the credit and condition of the said Moore; that said plaintiff had, accordingly, made inquiry of R. Lemmon & Co., and F. Boyle, and that upon their representation of Moore's solvency, had traded the segars for the note.

The plaintiffs thereupon [**3]  offered in evidence, that the defendant, in the fall of 1840, and winter of 1841, held several notes of said Moore, one of which, for $ 733, fell due on the 17th January 1841, and was unpaid at maturity. That another, for $ 473, fell due on the 18th February 1841, and was also unpaid at maturity. That the defendant, after said notes were due and unpaid, applied to said Moore to renew said notes in divided sums, making four notes, all of which were drawn in blank. That at the time they were signed, said Moore stated to the defendant, that he could not pay them at maturity; that defendant replied, that made no difference, he wanted to get them discounted at bank, and that if he, Moore, was not able to pay them when they fell due, that the defendant would pay or assist Moore to pay them. The witness stated, that the note hereinbefore mentioned, was not one of said four renewed notes. Said renewed notes having been given for the debt of another, for whom Moore was an endorser, whereas the note in question, was given by Moore for a debt contracted by himself with the defendant. The plaintiffs further offered in evidence by John P. Adams, a competent witness, that sometime in the winter [**4]  of 1841, the defendant offered the note in question, in blank, to witness in exchange for segars. That witness, in conformity with a suggestion from the defendant, who refused to endorse said note, made inquiries in regard to the drawer, which proving unsatisfactory, he declined the arrangement proposed by, and returned the note to the said defendant. They also proved by Mr. Plowman, a competent witness, that about the same time, in 1841, he was applied to by the defendant, who stated his wish to trade said note for sugar, with M. Bathurst & Son, and requested said Plowman to negotiate said arrangement for him, that Plowman declined to do so, unless the defendant would endorse the note, which he refused to do. That defendant then applied to witness to know, what he would take to guarantee said note? Witness declined to make such arrangement, and inquired of defendant, why he would not endorse the note himself? who replied, that he did not like to put his name on the back of the note of Moore, who had already suffered others held by him, to lay over.

Whereupon the plaintiffs offered the following prayers:

1. That the receipt given in evidence in this cause, is no evidence [**5]  of payment, and that it is no bar to the plaintiffs' recovery, on their surrendering up to defendant the note of Moore, mentioned in said receipt.

2. If the jury believe, that the defendant, when he gave the note of Moore to plaintiffs, knew that the maker of such note was in a failing condition; that passing it off to plaintiffs, was a fraud upon them, and is no bar to their suit in this case.

3. If the jury believe, that when Moore gave the note aforesaid to defendant, he stated to him his inability to pay them at maturity; and that Crosby said to Moore, he did not expect him to pay them, but he wanted them to get discounted, and would pay them himself, or help said Moore to pay them, at maturity; and if the jury further find, that Crosby knew said Moore's notes were laying over and had been protested, and prevailed on Moore, in the close of February or beginning of March, to give him the note now in question, dating it in December previous; and that defendant, when he passed said note to plaintiffs, concealed this information from plaintiffs, then this note is no bar to plaintiffs' recovery, if such note proved to be of no value, and the same is now tendered to be delivered [**6]  to the defendant.

And the defendant offered the following prayers:

1. If the jury find from the evidence, the sale and delivery of the goods, for which this suit is brought by the plaintiffs, to have been made to the defendant on the 3rd day of March 1841, for the sum of $ 494.25; and shall also find, that the note of Robert Moore, produced in evidence, was received by said plaintiffs from said defendant, in payment of said sum, and without the right of recourse to said defendant, by said plaintiffs, in the event of said notes being dishonored, and not paid, that then the plaintiffs are not entitled to recover in this suit, unless the jury shall find the transfer of said note, by the defendant to the plaintiffs, to have been fraudulently made.

2. If the jury find from the evidence, the sale and delivery stated in the preceding prayer, and that the same was made upon a credit of six months, from the 3rd of March 1841, that then the plaintiffs are not entitled to recover in this suit, although the jury shall believe, that the note of Robert Moore, mentioned in said first prayer, was received by said plaintiffs but as collateral security, and not in payment for said goods,  [**7]  said credit not having expired when this suit was instituted.

All of which, with the exception of the first and second prayers, offered on the part of the defendant, the court, (MAGRUDER and PURVIANCE, A. J.,) refused.

To which refusal to grant the plaintiffs' prayers, and to the granting of the defendant's prayers, and each of them, the plaintiffs excepted.

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

DISPOSITION:
JUDGMENT AFFIRMED, WITHOUT PREJUDICE.  

HEADNOTES:

The plaintiff proved, that on the 3rd March 1841, he sold and delivered to the defendant a quantity of merchandize, to the value of $ 494.25, and there rested his cause. The defendant offered in evidence a bill of parcels, for the same merchandize, of the same date and amount, at six months, due 3-6 September 1841, on which was written by the plaintiffs: "Received payment for above as follows, R's note, dated 16th December 1840, a 5 ms., due 16th May for $ 484.79. Interest on amount of note from 16th May to 3rd September, $ 8.55. Cash for balance, $ 0.91." The plaintiff produced the note in court, and offered to deliver it up; and proved, that on the 4th May R. applied for a release under the insolvent laws. The note was in blank, and the defendant, at the time he passed it to plaintiff, refused to endorse it. There was evidence given, without exception, that the plaintiffs, after inquiry about R., at the request of the defendant, agreed to take the note at their own risk; that the defendant knew, before the time of his purchase, that R. did not pay his notes at maturity, and also evidence from which the jury might infer fraud on the part of the defendant. HELD:

1st. Under the act of 1825, ch. 117, this court only reviews the questions decided by the county court, so that, where evidence is given without exception, the parties cannot object to its admissibility in this court.

2nd. That the receipt was evidence of payment, and the plaintiffs, upon the surrender of the note of R., were not necessarily entitled to a verdict.

3rd. That the knowledge by the defendant, when he passed the note, that its maker was in a failing condition, did not, under the circumstances of the case, make the passing of the note a fraud upon the plaintiffs.

4th. That there was no evidence that the defendant concealed the information he had, in relation to R., from the plaintiffs, at the time of passing away the note.

5th. That if the note of R. was received by the plaintiffs in payment, without recourse to the defendant, in the event of its being dishonored, then he is not entitled to recover, unless the jury shall find the transfer to have been fraudulently made.

6th. That if the sale was made upon a credit, not expired when the action was brought, then the plaintiffs are not entitled to recover in assumpsit, although the note was received but as collateral security, and not in payment.

A judgment at law reversed, without prejudice.  

COUNSEL:
By GLENN and REVERDY JOHNSON for the appellants, and

By NELSON for the appellees.  

JUDGES:
The cause was argued before DORSEY, SPENCE, MAGRUDER and MARTIN, J. MAGRUDER, J., dissenting.  

OPINION:

By the other Judges:
JUDGMENT AFFIRMED, WITHOUT PREJUDICE.  

DISSENTBY:
MAGRUDER 

DISSENT:

 [*467]  MAGRUDER, J., delivered the following dissenting opinion upon the 2nd prayer of the defendant.
The plaintiffs in error, brought this action in Baltimore county court, for goods sold and delivered, and the proof in support of their claim, as set forth in the bill of exceptions, was, that "on the 3rd March 1840, they sold and delivered to the defendant, a quantity of segars, to the amount of $ 494.25."  [**8]  This is the sum which they claimed, and upon this proof, they rested their claim.
The defendant, in order to resist this claim, and to prevent a recovery by the plaintiff, offered in proof, a bill of parcels, dated on the same day, charging the defendant with "segars," at 6 mo., due Sept. 3rd-6th, $ 494.25.
At the foot of this bill, it is stated. "Received payment for above as follows:

________________________________________________________________________________
R. Moore's note, dated 16 Dec'r. 1840, 3 months	
  due May 16, for	$ 484 79	
Interest on amount of note, from May 16, to Sep-	
   tember 3,	8 55	
Cash for balance	91	
	
	$ 494 25"	
________________________________________________________________________________

And then follows the signature of the plaintiffs in error.
This paper, offered by the defendant, he contended, proved,
1st. That the claim of the plaintiffs against the defendant, for the segars, was satisfied by the acceptance of the note: and
2ndly. It was insisted, that the claim, (if not satisfied,) was not due until September 6th, and that the action was prematurely brought.
Whether upon either of these grounds the defendant was entitled to a verdict, we are required to decide.
One ground of defence to the action then is, that unless he was guilty of an alleged fraud, the defendant [**9]  has been paid for the segars, and no recovery could be had, although the institution of this suit had been delayed until the credit expired. This defence is grounded upon the paper, which was offered in evidence by the defendant, (the bill and statement which 

 [*468]  follows it,) and this paper, it is said, is to be taken in connection with, and its meaning may be ascertained by the parol evidence, which the defendant adduced.
It is true, that a mere receipt, (not under seal,) is but prima facie evidence, that the sum of money mentioned in it, was paid, and of course, oral evidence is admissible to contradict it, to prove what sum was paid, and when paid. Abundance of authority to this effect, may be found collected in 2nd Saunders, on Pleading and Evidence, 308, 309, (1st Am. Edit.) When, however, an attempt is made by oral proof, to contradict the receipt, it is usually made, not by the party who offers it in evidence, but by his adversary. By what evidence the claim was established in this case, the bill of exceptions does not inform us, but at no period of the trial, could this paper have been admitted, if offered by the plaintiffs. It was introduced into the cause [**10]  by the defendant, and shall he, who offers the written testimony, be permitted, by parol proof, to falsify it? To insist that its meaning ought to be disregarded, if its meaning, when collected from its words, is not corroborated by the oral proof?
The general rule is, that parol proof is not admissible to alter or vary, (to falsify) the written paper, and this rule is to be observed, even when the parol testimony is offered by the adverse party, except in cases of latent ambiguity, fraud, mistake, or surprise. Hence, the rejection of parol testimony, in the case of Kemmil vs. Wilson, 4 Wash. C. C. 308, and in Batturs vs. Sellers & Patterson, 6 H. & J. 249, and in other cases, many of which are to be met with in the report of the latter case. See also 1st Phil. on Ev. 410, a receipt not under seal, is an exception to the rule; but a paper, one object of which is to furnish an acknowledgment of the receipt of money, may contain other matter, which cannot be varied, or contradicted by oral proof. In the case of Batturs, just mentioned, if, at the bottom of the bill of parcels, there had been a receipt in full, signed by the other party, and [**11]  in an action by the latter party, to recover the prices of the broad cloths, the defendant had offered in evidence that receipt, no 

 [*469]  doubt, oral proof would have been admissible, to explain or vary it, but the receipt at the bottom, would not have authorized the defendant to offer the parol testimony, which the report of the case tells us, was rejected by the court.
We are told in Phillips 443, 444, of cases, in which oral proof of independent facts, collateral to the written instrument, may be admitted, but that doctrine has no application to this case.
It is undisputed, in this case, that almost every thing which was received by the plaintiffs, for their segars, consisted of a note of hand, of a third person, and that note, (the names of the parties, the sum for which it was given, the date, time of payment, and every thing said about the note,) is accurately described in the receipt, yet the parol proof was offered, to contradict the written paper, if the words of the written paper, do not mean precisely what the defendant wishes them to mean. I entertain the opinion, that, without introducing another exception to the general rule, which declares parol testimony [**12]  to be inadmissible, to vary, or contradict a written instrument, this parol testimony, (offered by the defendant too,) must be entirely disregarded in deciding the question, whether the transfer by the defendant, and acceptance by the plaintiff, of the promissory note, mentioned in the receipt, was an extinguishment of so much of the plaintiffs' claim, for the segars, or only entitled the defendant to a credit on account thereof, when the money was received from the maker of it? The case of Kellogg vs. Richards, 14 Wend. 116, seems to sustain this opinion.
If indeed, in a case like this now before us, parol proof is admitted to contradict the written instrument, with what propriety could the Court of Appeals, in the case, 2 G. & J. 494, undertake to say, what the meaning of the paper was, and to collect that meaning from its words? Surely the absence of parol testimony, expressly contradicting it, could not have taken the meaning of the contract from the jury, if (in case there was any such testimony,) the verdict of the jury was to be influenced by it. The case went back to be tried again, 

 [*470]  and it was sent back, with this opinion of the [**13]  court; yet if the party who had been unsuccessful in the Court of Appeals, had been so fortunate upon the second trial, as to prove by a witness, something about the meaning of the parties to that paper; some acknowledgment by his adversary, which might be understood by the jury to mean, that the plaintiff did not understand the contract, as the Court of Appeals understood it, would such parol testimony have authorized the second jury, to interpret the contract, otherwise than as it had been interpreted by the court of dernier resort?
But it is said, that the parol testimony was admitted, without objection. True, but this cannot alter the law of the case. For what purpose it was introduced, does not appear; but its introduction into the case, even by consent, could not authorize us to learn from it the meaning of the instrument, if the law requires, that its meaning be collected from its words. Parol testimony, introduced without opposition, that the testator declared it to be his meaning, to devise a fee, could not be admitted to change the meaning of the will, when interpreted by its words, and thus make a fee of an estate for life.
The question then, according to my view of [**14]  the case, is: What was the contract between those parties, in relation to this note? Was the note received by the parties, as collateral security, or in satisfaction, as an extinguishment of the claim of the plaintiffs, for the segars? and the answer to this question, must be found in the written paper.
In the case of Glenn vs. Smith, 2 G. & J. 493, it was decided by this court, that to give the acceptance of a note, the effect of an absolute payment, or extinguishment of a debt, a contract that it should be so, must be shown, and that this was not sufficiently done by the receipt in that case. The receipt said, that the promissory note had been received, "in payment of the above account." Is the paper, the legal effect of which is now to be ascertained, like that, in the case last mentioned? Was its operation only to suspend the plaintiffs' right of action, until the note of Moore became due?

 [*471]  Now, it is going very far to say, that a man has not been paid for his goods, when he, who alone is interested in a denial of the payment, acknowledges that something which he has received, was received by him in payment. This however, is res adjudicata [**15]  . In the case before us, the plaintiffs say something more. They give the credits, to which the defendant is entitled, as well as the price of the article which they sold to him, and after crediting the amount of the note, and the interest upon it, it being ascertained that those two credits, still leave a balance due for the segars. The next acknowledgment by the plaintiffs is, that on the self same day, when the note was received by them as payment, they received "cash for balance." Surely, when the creditor acknowledges that the balance of his claim has been paid, and paid to him in cash, he ought not to be allowed to say, that the whole debt, with the exception of the balance, (which is admitted to be paid,) is still due. This would be, to deprive a creditor of the privilege of making his own contract with his debtor, and in this case, of exchanging his segars for the promissory note of a third person; and this, by assuming that he did not mean what the words, which are used by himself, to express that meaning, must by him have been understood to mean.
The plaintiffs' cause of action then, is not, in my opinion, to be found in this paper, but in the alleged fraud, which when [**16]  established, deprives the defendant of a right to set up this paper as evidence, to defeat this claim, established by other testimony; and I now proceed to notice the second ground of defence.
On the part of the plaintiffs, it is contended, that even if this note was taken in satisfaction of the claim, yet they may recover the amount of it, in an action for goods sold and delivered, provided, that the proof which they offered, satisfied the jury, that the defendant acted mala fide, having at the time of the transfer of this note, to the plaintiffs, knowledge of the insolvency, or failing circumstances of the maker of the note so transferred, and not communicating that knowledge to the plaintiffs.

 [*472]  Whether the defendant acted fraudulently in this transaction, was a question to be decided by the jury, and not by the court. The authorities tell us, what if proved to the satisfaction of the jury, would evidence fraud in the vendee. If, (to give an example,) the vendee purchased the goods, with a preconceived design, of not paying for them, then no property passes to him, and the vendor has a right to treat the contract as a nullity, and the vendee, as a person who acquired [**17]  the possession of them tortiously. 17 E.C.L. 330. So if the defendant, by fraud, procured the plaintiff to sell his goods to an insolvent, and then got the goods into his possession, in such a case, the plaintiff is not restrained, by any agreement, to give a credit, from suing for the goods, as for goods sold and delivered to him, who is in possession. See Hill vs. Perrott, 3 Taunt. (Eng.) 274, and in 1st Stephens Nisi Prius 285, it is said, that an action lies before the credit has expired, if the time given, was after the sale, and not making any part of the original contract, or if the sale, (purchase,) was not bona fide.
In deciding this question, the court is required to assume, that the jury might have inferred from the testimony adduced by the plaintiffs, that the conduct of the defendant, was fraudulent; that at the time of the transfer of this note to the plaintiff, it was, if not quite, almost as valueless as a counterfeit bank note; that the circumstances of the maker, were known to the defendant, and not made known by him, to the plaintiff. If the facts be so, what is to prevent the plaintiffs from recovering?
Even in the case, on [**18]  which the counsel for the defendant principally relies, (Fergusson vs. Covington, 14 E.C.L. 307, and 17 E.C.L. 330,) it is conceded, that before the credit expires, the plaintiff may sue and recover in damages, the value of the goods fraudulently obtained, provided his action be trover, and not assumpsit, for goods sold and delivered. The ground of this decision, so far as the reporter could inform us, was, that the only contract proved by the plaintiff, was a contract or sale on credit. This shows that the cases 

 [*473]  are different. The plaintiffs' proof in this case, intimates nothing about a sale on credit. All that is said in regard to a sale upon credit, came from the defendant.
But it is insisted, that in this case, the law will not imply a promise, because there was an express promise. If the plaintiffs then choose to sue, before the expiration of the credit, they must abandon the assumpsit, and sue for a tort. The amount of the argument is, that if there existed at one time between them, what the parties supposed at that time to be a valid contract, although the law pronounces it to be no contract, there is yet an [**19]  express contract, which will prevent the law from implying a contract. But this cannot be correct. The plaintiffs make out their case, without relying on the alleged contract. They may offer such proof, as was deemed to be sufficient in the case. In 3rd Taunton, the fraudulent contract is introduced into the case, and relied on by the defendant. So soon as he attempts to establish it, the plaintiffs prove it to be fraudulent, and insist, that they have a right to treat it as a nullity, and do so treat it. If it be a nullity, how can it be regarded as an express contract, and thereby prevent the law from implying, in favor of the plaintiffs, an assumpsit to pay the value of the goods? So soon as the fraud, which vitiates that contract, is established, the case is precisely what it would have been, if there had not been furnished any proof, that such a contract ever was contemplated by the parties, and the case made out, will be, that the defendant got possession of the property of the plaintiffs, and in a way which will authorize them, not only to institute an action for a tort, but also upon assumpsit. Why not in this case, as well as in the case of Hill vs. Perrott, 3 Taunt. (Eng.) 274, [**20]  say, that the law will imply a contract, to pay for the goods, from the circumstance of their having been the plaintiffs' property, and having come to the defendants possession, if unaccounted for? Can the defendant prevent the plaintiffs from suing upon this implied contract, by setting up an agreement, (to give credit,) which he fraudulently obtained? The answer to this, is to be found in the same case in Taunton. The defendant "cannot be permitted to account for the possession, 

 [*474]  by setting up the fraudulent purchase." And this, because "no man must take advantage of his own fraud."
In 15 Johns. 475, the court say, that the special contract, as to the manner of payment being void, on account of the fraud, the plaintiff may disregard it, and bring assumpsit for goods sold. The fraudulent misrepresentations, made by the defendant, vitiated the whole contract. In 6 Johns. 110, it is stated, that the taking of a note, under a fraudulent misrepresentation, was no payment, and any term of credit, which the taking of the note may have implied, became void. So in 15 Mass. 75, Chief Justice Parker, in delivering the opinion [**21]  of the court, said: "The credit was obtained upon an offer of adequate security. The security was wholly worthless. The consideration for the credit therefore failed, and the money thus wrongfully obtained, could not for an instant, be conscientiously retained. See also 2 Johns. 455, and the remarks of C. J. Eyre, in De Symonds vs. Minwicke, 1 Esp. 430, and those of Lord Kenyon, in Packford vs. Maxwell, 6 Del. 52.
It would seem, that according to a case relied on by the defendant, (in 17 Eng. Ch. Reports,) the plaintiff had a right to regard this contract, (as to the time of payment,) as a nullity, and to sue before the expiration of the credit, if he sued for a tort. If so, what is there in the case, to prevent them from waiving the tort, and suing upon an implied assumpsit. This is frequently done. See Stockett v.Watkins' adm. 2 G. & J. 326.
In one of the English cases, (4th East 147,) in which it was decided, that the plaintiff could not, in that case, (unlike this,) bring an action of assumpsit, until the credit expired, although he might sue on the special agreement. Lord Ellenborough [**22]  was reluctant to non-suit the plaintiff, although there was no attempt to prove, that the defendant, in the purchase of the goods, acted mala fide. Another judge, (Le Blanc,) in his decision, seems to have been influenced by, perhaps, an extravagant fondness for "the forms of action:" "In all cases, without express authority to the contrary, it is better 

 [*475]  to keep the forms of action as distinct as possible, instead of running one into another." This remark may be entitled to some weight, in any case, to which it can, with truth, be applied. But for the form of action adopted in this case, as a substitute for trover, (which all admit, might have been instituted by these plaintiffs, and at the time this suit was brought,) it is believed, there will be found "express authority" in the cases, to which reference has been given. In a case like this, and in which the court, in deciding upon this exception, must assume, that all the justice is on the side of the plaintiff, I do not consider myself at liberty to disregard such decisions, pronounced by such learned judges, because of any thing to be found in the cases cited, and relied on by the counsel for the defendant.  [**23]  
My opinion is, that the judgment of the court below, ought to be reversed.
JUDGMENT AFFIRMED, WITHOUT PREJUDICE.  

26 of 42 DOCUMENTS 

JOHN B. SEIDENSTRICKER vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 374; 1844 Md. LEXIS 36 

December, 1844, Decided 

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

This was an action of assumpsit, brought to September term 1844, of said court, by the State against the appellant, as collector of State taxes for the city of Baltimore, for money collected. The defendant pleaded non assumpsit.

Judgment was rendered for the plaintiff, subject to the admission, "that there is a sum of money in the hands of the defendant, collected by him on account of taxes due under the act of 1841, but he claims to retain the same on the ground that he looks to the State for his commissions as collector, and has a right to retain for his commissions. The question is submitted to the court, whether the State or the city of Baltimore is to pay the defendant his commissions. It is agreed, that a pro forma judgment for $ 100 may be entered in favor of the plaintiff, with the right to the defendant of appealing to the Court of Appeals, to have said question decided there, and judgment entered there in accordance with the opinion of the court."

The defendant accordingly prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the act of 1st April 1841, ch. 23, imposing a direct tax of twenty cents in the hundred dollars, it was designed, that such tax should be paid into the treasury, and the collector's commissions, by the counties or cities respectively, making the levy, by an additional levy, and not by the treasury. 

COUNSEL:
By T. P. SCOTT and MARSHALL for the appellants, and

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

JUDGES:
The [**2]  cause was argued before ARCHER, C. J., DORSEY, CHAMBERS and MAGRUDER, J.  

OPINIONBY:
CHAMBERS 

OPINION:

 [*375]  CHAMBERS, J., delivered the opinion of this court.
The sole question in this case is, whether, by the true interpretation of the act of 1st April 1841, ch. 23, imposing a direct tax, the twenty cents in the hundred dollars, thereby directed to be levied, included the commission allowed to collectors, or whether such commissions were to be paid by an additional levy.
The 62nd section directs the counties to defray all expenses not provided for by the law. The only provision which could be contemplated, must have been a provision for the payment of such expense. If an expense provided for, is taken to be an expense which the act directs to be incurred, then all the expenses incident to the execution of this law are provided for. Thus the 27th section directs the clerks of the levy courts to perform certain duties, for such compensation as the said courts may deem proper. The 47th section directs the collectors to perform certain duties for a compensation, (not less than three, nor more than six per centum on the monies paid by him,) to be fixed by the said levy courts. In [**3]  neither is it expressly said, out of what fund shall the compensation be taken. Is the expense in the one case provided for by the act, and not in the other? The 46th section makes it the duty of the collectors to collect certain proportions of the tax on or before certain specified days; and the 47th section requires them, on the same days, to pay over to the collector all 

 [*376]  monies collected, or which ought to have been collected on those days respectively, evidently intending, that the payment should be of the proportions of the assessment, which proportions were, in the contemplation of the legislature, aliquot parts of the whole assessment.
Some reliance has been placed on the language of the 47th section, which gives the commission on the money "paid into the treasury," and not on the amount collected; but it will appear, by reference to the 45th section, that so far as relates to the counties for which collectors are, by the act appointed, the per centum allowed for commission, appears to be allowed as to some, on the amount paid over, and as to others, on the amount assessed, in cases where it was quite impossible to design thereby, any difference in the fund [**4]  from which they were to be paid.
We think it clear, from all the sections referred to, that the act designed the clear sum of twenty cents in the hundred dollars to be paid into the treasury.
JUDGMENT AFFIRMED.  

27 of 42 DOCUMENTS 

JOSEPH I. JONES vs. TRUEMAN BELT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 106; 1844 Md. LEXIS 13 

December, 1844, Decided 

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

The bill in this cause, which was filed on the 28th November 1838, by the appellee, alleged, that he is the owner in fee simple of a tract of land situated at the intersection of the Washington Branch of the Baltimore and Ohio Rail Road, and the turnpike road between Baltimore and Washington, at a place called Beltsville; that upon the said tract of land he has a house and improvements, occupied and used as a tavern stand, the value of which mainly consists in its being a stopping and watering place of the trains of cars passing on the rail road between B. and W.; that before your orator erected his present improvements on the said tract of land, he enquired of and ascertained from the B. and O. R. R. Company, that they would make the said intersection a stopping and watering place, provided a supply of water could be obtained in the vicinity, sufficient to fill the tank or reservoir that it would be necessary for the said company to erect, for the use of the engines, drawing trains on the said branch road. He being interested in the matter, made enquiry at once, and aided in his examination by the officers of said company, ascertained that [**2]  a supply of water could be obtained in requisite abundance from certain springs on the land belonging to a certain Joseph J. Jones. That the place on said land where said springs were found, presented at the time no appearance of an open and running spring, available in its then condition, for useful purposes; but was a damp, wet and sobby piece of ground, indicating the existence of springs of water, which might be made available by digging down, walling a reservoir, and collecting the small streams of water into one head; the evidence of the supply of water being satisfactorily ascertained, application was made to the said Jones, for permission to collect the springs and conduct them by suitable pipes to the intersection of the two roads aforesaid, there to furnish a supply of water to the tank or water station proposed to be built. That the said Jones at once assented to the use of the said springs of water, with the understanding, that when the said springs were collected into a common reservoir, and the same walled up, one half of said reservoir should be left open for the use of said Jones, and upon condition that your orator would agree to indemnify the said Jones for all damages [**3]  that he might sustain in the opening of the ground, for the purpose of laying down pipes to conduct the water from the spring to the water station aforesaid, the said Jones requiring no other compensation for the use of the springs in their then condition, than the use of one half of the spring when it should, by digging and walling, as aforesaid, be made available for useful purposes; and the agreement, aforesaid, of your orator, to indemnify the said Jones for damages that he might sustain in laying down the pipes aforesaid. That the said R. R. Co. being unwilling to incur the expense of erecting the water station necessary to receive the water from the spring, without an assurance that they should have the use of the water, and being unwilling to meddle with the springs without the consent of the proprietor of the land, required that your orator should obtain from the said Jones a binding evidence of his assent. That your orator accordingly applied to the said J., for a deed of conveyance of the said springs, with the rights necessary to the use of them for the purpose aforesaid; that the said J. made no objection to the execution of such an instrument, but alleged that he had recently [**4]  purchased the land, and had himself, as yet, no deed for it, but that as soon as he obtained a deed, he would execute such an instrument as was requested by your orator, and required by the said R. R. Co.; and the said J. accordingly addressed a letter to the said R. R. Co., in which he bound himself to execute to your orator a proper conveyance of the said springs, and the rights appendant to their use, and your orator bound himself to the said company to furnish to them the supply of water so to be obtained as aforesaid. And your orator here brings into court and files as a part of his bill of complaint, copies of the original papers, shewing the demand of the said company upon your orator, the obligation of your orator to the said company, witnessed by the said J., and the obligation of the said J. to convey when he, himself, should procure a title, which papers are retained by and filed in the office of the B. and O. R. R. Co., and cannot be at this stage of this proceeding obtained by your orator, wherefore he annexes the copies aforesaid, certified under the seal of said company, and which he prays may be taken as part of this, his bill of complaint. And your orator further states,  [**5]  that the said company did, on the execution of the said papers proceed to dig and wall the said springs and bring them into one head, over one half of which they built a covering, capable of being locked up, for their own use, leaving the other half open for the use of the said Jones, who thereby obtained a handsome spring, and ample supply of water, where he had, originally, nothing but a marshy and useless spot of land; and that the said company, also, erected a tank or water station at the intersection of the roads aforesaid, and laid down pipes to lead the water into it from the said springs, and that the said company have, in accordance with their understanding with your orator, ever since made use of the said water station for the purpose of supplying the engines of their trains with water; and your orator further states, that he gave an instrument of writing as agreed upon, as aforesaid, to the said Jones, in which your orator agreed to indemnify him for all damages which he might sustain, by the digging of his fields or grounds for the purpose of laying down the pipes aforesaid. And your orator further states, that he put up considerable and expensive buildings at the intersection [**6]  of the roads aforesaid, and appropriated the same to the purpose of a tavern stand; and that the same are now under rent to a tenant, upon the condition, that one half of the rent now reserved is to be abated, should the said company cease to use the said water station as heretofore; and your orator further states, that he has been informed and believes, and so your orator expressly charges, that the said Jones hath now got a title to the said land, and is in a situation to convey the said spring and rights appendant thereto, to your orator. That he has been at all times willing and ready, and that he is now willing and ready, to indemnify the said Jones for all and any damage that he may have sustained by reason of the digging for and laying down the pipes aforesaid; but that the said Jones hath never made any demand upon your orator for damages, nor does your orator believe that he has sustained any, inasmuch as the said Jones has now an available supply of water which he had not before, and the fields around the said spring are in grass. Nevertheless, your orator is ready, and tenders to pay whatever damage the said Jones may have sustained, as agreed upon between them; and your [**7]  orator further states, that the said Jones now wholly and peremptorily refuses to convey to your orator, as originally agreed upon, alleging, that your orator has not paid him a consideration for the said spring, and with a view to compel your orator to pay to him such sum as the said Jones may please to demand, as consideration for the use of said spring, and not as damages for laying down said pipes through his fields, threatens to take up the said pipes, or otherwise to stop the flow of water from said spring to the said water station, and has actually given notice to the said company, not to water their engines at the said station, and your orator expressly charges, that the claim thus set up by the said Jones is without a shadow of right, and is done maliciously and fraudulently for the purpose of injuring your orator, and with a view to compel him to pay for the said spring, contrary to the intention and agreement of the said Jones, when the said spring was made available, as aforesaid; and your orator expressly charges, that the consideration to the said Jones for the privilege of using the said springs, was the advantage that the said Jones expected to derive and has since [**8]  derived, from the making of the same available to him for useful purposes, and the agreement of your orator to indemnify for all damages done by opening the ground to lay pipes, as aforesaid; and your orator further charges expressly, that it was in consequence of the undertaking of the said Jones to convey, as aforesaid, that your orator went to the expense of building and improving his property, as aforesaid. And your orator charges, that the interruption of the supply of the water of said spring, will at once deprive his property of the advantage of being a water station, which it now has, and besides reducing the rent paid by the present tenant one half, will otherwise seriously and irreparably injure his said property. And your orator expressly charges, as his belief and apprehension, that the said Jones will, if not restrained by authority of this honorable court, take up the said pipes, or otherwise interrupt the flow of water from the said spring to said water station, doing to your orator thereby, a wrong, which no action at law can compensate; and your orator charges expressly, that the said Jones hath given notice to the said company to cease to use the said water station,  [**9]  supplied from the said spring, all which actings and doings are contrary, &c.

PRAYER, that the said Jones convey to your orator the spring or springs aforesaid, with the rights appendant thereto, and that he may be restrained from interfering with the supply of water to the said water station, from the said spring or springs; for further and other relief; for an injunction to restrain Jones, &c., from digging up the pipes leading from the spring on the said Jones' land, now used to supply the water station of the B. and O. R. R. Co., at the intersection, &c. at Beltsville. &c.

Exhibit. "The President of the B. and O. R. R. Co., requires of Trueman Belt an instrument of writing, with, at least, one surety, under a penalty equivalent to expense incurred by the said company in erecting the water station, commencing at Jones' spring and ending at the said Belt's store, (the contract price is three thousand, seven hundred dollars, more or less,) to convey the piece of ground offered to the board, for a house for engines, cars, &c.; also, the exclusive right to the spring belonging to the said Jones, with free egress and ingress, necessary to improve and keep the same in perpetual [**10]  repair.     JONATHAN JESSOP."

"PRINCE GEORGE'S COUNTY, Md., September 25, 1835.

I, Trueman Belt, do this day hereby bind myself, my heirs, administrators, and assigns, to execute or cause to be executed, as soon as practicable, to the B. and O. R. R. Co., the necessary instrument or instruments of writing, conveying to the said R. R. Co. a full and complete title to the premises herein mentioned, or intended to be mentioned, according to the true intent and meaning of the within instrument of writing, in the penalty of the sum herein mentioned, that is to say, three thousand, seven hundred dollars. In witness, &c.

(Signed,) TRUEMAN BELT, (Seal.)

Witness, (Signed,) Joseph J. Jones.

To PHILIP E. THOMAS, Esq."

"Mr. Trueman Belt having applied to me for my spring, for the use of the B. and W. R. R. Co., and I having agreed with the said T. B., to convey to him the right of said springs, and being informed by him that the said company require a legal conveyance of the premises, previous to commencing the work necessary to convey the water from said spring or springs to said Belt's new store, all I can say or do, at present, is, that I have lately purchased [**11]  the land on which said spring or springs are situated, and have not as yet obtained a legal title thereto, but expect to get it soon, and will immediately thereafter execute, or cause to be executed to the said T. B., his heirs, or assigns, a good and sufficient title to the within mentioned premises, for which I hereby bind myself, my heirs, administrators and assigns, in the full and just sum of three thousand, seven hundred dollars. In witness whereof, I hereby affix my hand and seal, this 25th day of September, 1835. (Signed,) JOSEPH J. JONES, (Seal.)

Witness, Amos A. Williams."

The Chancellor, (BLAND,) on the 28th November, 1838, ordered subpoena and injunction, as prayed.

The defendant's answer admitted, that the said complainant is the owner in fee, of a tract or parcel of land, situate at the intersection of, &c. at &c., and upon said land the said complainant has a house and improvements, which are now used and occupied as a tavern stand, and the value thereof, in a great measure, consists in its being a stopping and watering place for the trains of cars, passing on the Rail Road between B. and W. This defendant knows nothing of any enquiries made by the said [**12]  complainant of the said B. and O. R. R. Co., or of any agreement made between them for establishing a water station for the said company, at the aforesaid place; nor has he any particular knowledge of the examinations made by the said complainant, individually, or in concert with the agents of the said company, or others, upon the lands of this defendant or others, for the purposes of discovering water for the uses of the said road. But he believes that some such examinations were made, and that it was known to the said complainant that there were on the lands of this defendant, and convenient to the tavern stand of the complainant, springs of water, from which a supply might be obtained in requisite abundance for all the purposes of the said tavern stand, and of a water station of said company. This defendant denies that said land where the said springs existed, presented at the time of the pretended discovery thereof, no appearance of an open and running spring, available, in its then condition, for useful purposes; on the contrary, he avers, that on said land, at the very place indicated by the defendant in his bill, and at the very time of the said pretended discovery, there was,  [**13]  and for many years before had been, a spring of running water; which spring, at the aforesaid time, was used, and for many years before had been used by your orator and his family, and by the former owner of said land and his family, for the supply of water for all their domestic or family purposes; and this fact was well known to the said complainant at the time of his aforesaid pretended examination; and this defendant admits, that in the vicinity of the aforesaid spring the ground was damp, wet, and sobby, and indicated the presence or existence of other springs of water, which might be collected into one head and made available for the purposes of a water station, as aforesaid; but all this was before the time of said pretended discovery well known to this defendant, and might have been discovered by the complainant without encountering all the labor which he pretends that he devoted to the purpose. And this defendant admits, that after the complainant discovered that a supply of water for the purposes aforesaid, could be obtained from the aforesaid land of this defendant, he applied to this defendant for permission to collect said springs into one reservoir, on the land of this [**14]  defendant, and thence to conduct them through the land of this defendant by suitable pipes, to the intersection of the aforesaid roads, and there to furnish a supply of water to the tank or water station there proposed to be built, offering at the same time to this defendant to pay to him so much as he reasonably deserved to have for said privilege, to which proposition this defendant acceded; but this defendant being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which he might thereby be subjected, it was agreed and understood between the said complainant and this defendant, that the former might enter on the lands of this defendant, and thereon erect a reservoir for the purpose of collecting said waters, and lay pipes through the lands of this defendant, for conveying said waters to the tank or reservoir to be erected at the water station of the said company, as aforesaid, and that at a future day this defendant and the said complainant should ascertain and fix the sum to which the said defendant should be entitled, as aforesaid. This defendant denies that he agreed to permit the said [**15]  complainant to use his aforesaid springs for the purposes aforesaid, upon or with the understanding, that when the said springs were collected into a common reservoir, and the same walled up, that one half of said reservoir should be left open for the use of this defendant, and upon condition that the complainant would agree to indemnify this defendant for all damage that he might sustain in the opening of his ground for the purpose of laying down pipes to conduct the water from the said spring to the water station aforesaid; and he further denies that he required no other compensation for the use of the said springs in their then condition, than the use of one half of the spring, when it should, by walling and digging, as aforesaid, be made available for useful purposes, and an agreement, that the said complainant would indemnify this defendant for damages which he might sustain by laying down pipes as aforesaid; on the contrary, this defendant avers, that he did insist upon and require compensation to be made him by the complainant for the use of his aforesaid springs, and yielded to the complainant the privilege aforesaid, only in faith of the complainant undertaking to pay him [**16]  therefor, so soon as the amount which he deserved to have could be ascertained, and that nothing ever passed between the said complainant and this defendant about dividing said reservoir; but for some time after the same was erected, it was open for the common use of this defendant and the said company, and afterwards, at the solicitation of an agent of the said company, this defendant agreed that the said company might divide the said reservoir, leaving open one part thereof, might cover in the other part thereof for their own use, and he denies that the arrangement between the said complainant and himself in reference to the damages which he should sustain, by the entering upon and opening his ground for the purpose of laying or repairing said pipes, was intended to affect his right to compensation for the use of his springs, as aforesaid, nor can it have any such influence; and this defendant avers, that agreeing with the complainant, as is herein before admitted, and understanding that the B. and O. R. R. Co. desired some assurance that he had agreed to permit the water to be taken from his springs to the station of the said company, he did agree to write, and actually signed a [**17]  letter to the President of said company, of which the paper JJJ, No. 1, and filed herewith as part of this answer, professes to be a copy; but, he submits, that the same does not profess to state the terms of the agreement between the complainant and himself, but simply admits the fact that an agreement between them had been made, and expresses the willingness of this defendant to abide by and execute the same; and this defendant denies that the complainant at the time aforesaid required him to make a conveyance for said springs, this defendant was not prepared at the moment to make any such conveyance, as he had no legal title to the land, and it was always expected by this defendant, that he was to be satisfied for his springs before he should be required to convey them to the complainant, and this defendant wrote the letter aforesaid in the confidence, that the said complainant would be as prompt to comply with his part of the agreement aforesaid, as this defendant. And this defendant admits, that after the receipt of the aforesaid letter, the said company proceeded to dig out and wall up the aforesaid spring, and some time afterwards, and after this defendant and the said company,  [**18]  had in common used the whole reservoir, the said company with the permission of this defendant, as aforesaid, covered over one half part thereof, and this defendant admits, that he has now in the other part of the said reservoir an abundant supply of water, but he insists that he had, before such improvement made, a sufficient supply for all his purposes; and that the water, which formerly was of the first quality has, by the walling up and introduction of metallic pipes therein, become greatly deteriorated, so that his condition at present is by no means as good as it was formerly. And this defendant also admits, that the said company has erected a tank for water, at the intersection of said roads, and laid pipes to lead the waters from said springs thereto, and has established a water station at the aforesaid place; and this defendant admits, that the said complainant executed to him the instrument, marked Exhibit JJJ, No. 2, and filed as part of this answer, but the same was intended merely to indemnify this defendant, from the damages which he might sustain from the agents of the company, in entering on his aforesaid lands, and opening the same for the purpose of laying or repairing [**19]  the water pipes, as aforesaid, and was not intended to set out, nor does it set out, the terms upon which the use of his springs was to be given to the said complainant, as that contract was to be complied with as soon as the parties could determine what compensation was to be given to this defendant, it was not deemed important to reduce the same into writing; and this defendant admits, that after said agreement, the said complainant made considerable improvements on his aforesaid lands, and although he knows nothing of the agreement between the complainant and his lessee, he has yet no doubt and is willing to admit, that the said premises rent at this moment for more than they would rent in case the water station of the said company, now at the place, was broken up. And this defendant denies that he has obtained a legal title to said land, and even if he had, he admits that he would be unwilling to execute a conveyance of his springs to said complainant, and he denies his obligation to make any such conveyance until he is compensated, as well for the use of the springs, as for the injury he has sustained by the constructing of the reservoir and laying pipes through his lands, and [**20]  he admits too, that he has given notice, as well to the complainant as to the company, of his aforesaid claims, and of his resolution to cut off the supply of water from said station, unless his reasonable demands are complied with; and he again denies that he conceded to the complainant the right or privilege of using said springs, in consideration of the advantage that he expected to derive from making the same available, as aforesaid, and of the agreement of indemnity, as aforesaid, and he begs leave to deny that he wishes to injure the property of the said complainant, or to deprive him of any of the advantages which he anticipated from his improvements thereon. He is willing to abide by his agreement, and he only requires that it may be executed by the said complainant, and this defendant denies all fraud with which he is charged, and prays that the injunction heretofore granted in the cause, may be dissolved, &c.

The Exhibit JJJ, No. 1, filed with defendant's, was a copy of the instrument sealed by him on the 25th September, 1835, addressed to Philip E. Thomas, Esq. (See page, 112.)

The Exhibit JJJ, No. 2, viz:

"Know all men by these presents, that I, Trueman Belt,  [**21]  of, &c., am held and firmly bound unto Joseph J. Jones, of &c., in the sum of $ 3,700, to be paid to the said J. J. J., his &c., which payment well and truly to be made and done, I bind myself, my &c., firmly by these presents, sealed with my seal and dated this 25th September, 1835.

Whereas the above named Trueman Belt, has contracted with the above named Joseph J. Jones for the exclusive use of his, (the said Joseph J. Jones,) springs, for the purpose of conveying water therefrom, for the use of the Baltimore and Ohio R. R. Co., and the right to enter by such way as may be most convenient, and open a ditch to convey the water from said springs by pipes to the said Belt's new store. Now the condition of the above obligation is such, that the above named Trueman Belt shall, at all times, save harmless the said Joseph J. Jones, his heirs and assigns, and make good to him or them, all the damages that he, the said Joseph J., his heirs or assigns may sustain, by the said Rail Road Company entering upon the said Jones' land, for the purpose of opening the necessary conveyance of said water, as above specified, and also for entering thereon for the purpose of making any repairs that [**22]  may ever be necessary, then the obligation to be void and of none effect, else to remain and be of full force and virtue in law.     TRUEMAN BELT, (Seal.)

Signed, sealed and delivered, in the presence of Amos A. Williams."

The complainant then pleaded the general replication, and a commission was issued: so much of the proof as is essential, will be found in the opinion of this court.

At July term, 1843, (BLAND,) Chancellor, decreed, that the injunction be made perpetual; that the defendant Joseph J. Jones, forthwith execute, acknowledge and deliver, according to law, a good and sufficient deed, conveying from him unto the plaintiff, Trueman Belt, his heirs and assigns, all right, interest and use, of, in, and to the lands in the bill of complaint mentioned, to the extent and upon the terms as therein set forth; and costs.

From this decree the defendant appealed to this Court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Where a complainant alleged the existence of a contract with the defendant, accompanied with collateral circumstances, and called upon him not to state what the contract was, but to admit or deny the existence of the agreement and circumstances set forth; and the defendant, in his answer, averred another agreement between him and the complainant, and denied the collateral circumstances: the statement of the agreement by the defendant in such case is not simply responsive to the contract he was called on to admit or deny. It is not such a denial as requires two witnesses, or one with concurring circumstances to disprove it; nor in this case was it necessary to disprove the denial of the collateral circumstances by the same amount of proof.

It is a general rule, that a positive denial, in an answer of the contract stated in the bill, should be contradicted or outweighed by the proof of two witnesses, or one witness and pregnant circumstances; but the principle on which it is predicated is not one of universal application.

As where two papers were exhibited in the cause; admitted in the defendant's answer, and declared by the court to be the agreement of the parties, they are sufficient to control the answer denying the agreement, without the aid of any oral testimony in their support.

The cases to which the rule was introduced to apply, must be those in which the facts denied depended on oral testimony; or oral and circumstantial evidence; not where they were conclusively proved by the production of the written contract of the parties.

Neither are the exceptions to the rule confined to cases, where the contract denied, has been formally signed and executed; as where a verbal contract is made, to which no witness could testify, and a complainant, charging and seeking its performance, were to exhibit with his bill various letters written by the defendant to third parties, stating the contract, all which letters, the answer denying the contract, admitted to be genuine; this would dispense with the general rule in question.

A defendant cannot exempt himself from the obligation to make a conveyance which he stipulated to make, on the ground that he has not the legal title.

A vendee, against whom a decree for specific performance of a contract of purchase is sought, may object the want of title in his vendor, as insuperable in ordinary cases.

Ordinarily Chancery will not compel a purchaser to pay the purchase money and accept a defective title. But a vendor has no interest in setting up his own want of title.

A decree which refers to the bill for a description of the lands on which it is intended to operate, is not vague and uncertain in that respect.

This court, in affirming the decree of the Court of Chancery, will make such appropriate additions to its terms, as may be necessary to secure to both parties the benefits, advantages and prospective rights for which they mutually stipulate, in relation to which the decree appealed from was silent, or not sufficiently precise.  

COUNSEL:
By ALEXANDER for the appellant, and

By PRATT and LATROBE for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*119]  DORSEY, J., delivered the opinion of this court.
The real question [**23]  in dispute in this case, looking to the merits of the matters in controversy, is, whether agreeably to the contract between the parties, the appellee was bound to pay any thing to the appellant for the use made of his springs, and the water conveyed from them?
According to the contract alleged in the bill, no such payment was to be made. But this allegation is positively denied by the answer, which asserts, that the appellee applied to the appellant for permission to collect said springs into one reservoir, on the land of the appellant, and thence to conduct them through his lands by suitable pipes, to the intersection of the Washington branch of the Baltimore and Ohio Railroad, and the turnpike between Baltimore and Washington, and there to furnish a supply of water to the tank or water station, there proposed to be built; offering at the same time to the appellant, to pay him so much as he reasonably deserved to have for said privilege: to which proposition the defendant acceded; but that the appellant, being at the time unable to say what sum he would demand for the privilege aforesaid, not knowing what would be the extent of loss and inconvenience to which he might [**24]  thereby 

 [*120]  be subjected, it was agreed and understood between the said appellee and appellant, that the former might enter on the lands of the latter, and thereon erect a reservoir for the purpose of collecting said waters, and lay pipes through the appellant's lands for conveying said waters to the tank or reservoir, to be erected at the water station of the said company as aforesaid, and that at a future day, the appellant and appellee should ascertain and fix the sum to which said appellant should be entitled, as aforesaid.
The argument on behalf of the appellant appears to assume, that it is requisite not only to remove the effect of the appellant's denial of the agreement charged in the bill, by the proof of two witnesses, or that of one witness and pregnant circumstances; but that it is requisite by like testimony to disprove the agreement, and its concomitant circumstances set out in the appellant's answer. The correctness of this assumption may well be questioned, when by adverting to the bill, it appears that the appellant was not called on to state what was the contract between the parties, but to admit or deny whether he made the agreement charged in the bill.  [**25]  To such a bill it can hardly be assumed, that the appellant's statement of the contract was simply responsive to that which he was called on to admit or deny.
There having been no exceptions taken in the court below, either to the admissibility of testimony or insufficiency of the averments in the bill, to which the testimony, is to be applied, let us see whether the appellee has proved a case in its general outlines or essential parts, correspondent with that stated in the bill: and in the next place let us inquire, whether the proof so offered is sufficient, also, to countervail the positive denial in the appellant's answer?
The nature of the transaction in question, makes it apparent, that the inspection of the springs by Samuel Sprigg and Amos A. Williams, two of the railroad directors, and the conversation then held with the appellant, was prior in point of time to any definite contract between him and the appellee; as the sole motive of the appellee to enter 

 [*121]  into the contract, was to carry into effect a contract in regard to the erection of a water station by the Rail Road Company; which, of course, and as the testimony shews, it would not enter into,  [**26]  until it had ascertained that the supply of water was adequate. Until then, the company agreed to contract with the appellee, it cannot be presumed that he entered into any definitive contract with the appellant. The testimony of Sprigg, shows, that for the construction of the reservoir and use of the water, the appellant desired no compensation, unless he sustained an actual injury thereby; and at that time he could not conceive how he could be thus injured. Under such impressions, that he should in this respect have made the contract stated in the bill of complaint is in a high degree probable. But we think there is no room for conjectures or probabilities on the subject, when we advert to the appellant's exhibits JJJ No. 1, and JJJ No. 2, which in the view of a court of equity, constitute one written agreement between the parties in relation to the matters now in controversy. Instead of one written agreement, signed by both parties, each gave to the other an instrument of writing, containing the stipulations by which the subscribers were to be respectively bound. JJJ No. 1, enumerating the acts to be done by the appellant, and JJJ No. 2, the duties required of the appellee;  [**27]  in execution of their agreement, JJJ No. 2, disproves the statement of the agreement as made by the answer, sustains the allegation in the bill, that nothing was to be paid by the appellee to the appellant, for the use of the springs and the water, and of itself outweighs the positive denial of that fact by the answer. It is not pretended by the answer, nor has any proof been offered to establish it, that there was any separate stipulation for the payment of the amount of damages done to the springs, and of the value of the abstract privilege of using the water. The answer itself repudiates such an idea. If then, it were the design of the appellant to insist on such a claim, for what conceivable reason was such a stipulation left out of JJJ No. 2. There is no allegation that it was done by fraud or mistake. We must therefore 

 [*122]  regard such a claim as forming no part of the contract between the parties.
Having expressed our opinion as to the merits of this controversy, we will now consider some of the objections, taken by the appellant to the chancellor's decree, most, if not all of which, are rather of a technical character, than otherwise. And first, as to the appellant's [**28]  objection to the decree, that it has been passed against the positive denial in the answer of the contract stated in the bill, which denial has not been contradicted or outweighed by the proof of two witnesses, or one witness and pregnant circumstances, according to the well established principles of a court of equity. In answer to this objection we have only to say, that the principle on which it is predicated is not one of universal application, though undeniably true as a general rule; yet to the circumstances of this case it has no application. Here the two papers which this court have declared constitute the agreement of the parties were exhibited, and admitted, in the appellant's answer, and are sufficient to control the denials in the answer, without the aid of any oral testimony in their support. The cases, to which the rule was intended to apply, must be those in which the facts denied, depended on oral only, or oral and circumstantial evidence; not where they were conclusively proved by the production of the written contract of the parties. Nor are the exceptions to the rule confined to cases where the contract denied has been formally signed and executed by the parties.  [**29]  As for example; suppose a verbal contract were made, to which no witness could testify, and never had been reduced to writing, and executed as the agreement of the contracting parties, and a complainant charging and seeking the performance of such contract, were to exhibit with his bill twenty letters written by the defendant to third persons, stating the contract in every particular: all of which letters were admitted to be genuine by the answer; which however denied the contract. Could it be contended that such letters would be less satisfactory than the proof of twenty witnesses who may have heard the defendant, on one 

 [*123]  occasion only, state or admit the same facts that were contained in the letters? Or that although the proof of two such witnesses would be sufficient to entitle the complainant to the decree he sought, yet that the twenty letters would not? The absurdity of applying this Chancery rule to such a case is too glaring to be countenanced for a moment.
Another objection urged to the Chancellor's decree, is that it enjoins the execution of a conveyance by the appellant before he has acquired a legal title to the premises to be conveyed; upon the acquisition [**30]  of which title only he bound himself to convey. If this objection as to want of title were made by a vendee, against whom a decree for the specific performance of a contract of purchase was sought, it would be insuperable in ordinary circumstances. As ordinarily a Chancery court would not compel a purchaser to pay the purchase money, and accept a defective title. But what interest the vendor has in setting up a defect in his own title, as a bar, to a conveyance called for by a vendee, who is willing to accept such defective title, it is difficult to conceive. He certainly cannot be prejudiced by such a conveyance, and consequently it forms no ground for the reversal of the Chancellor's decree at his instance. And such a defence comes with a bad grace from the appellant, after having nine or ten years before executed his exhibit J J J, No. 1, and without having assigned any reason or apology for his having so long neglected to perfect his title.
The next objection raised to the decree is, that it is too vague and uncertain in defining the thing to be conveyed, and that it directs the conveyance of the title of the appellant to all the lands mentioned in the complainant's bill.
We [**31]  do not think the decree, upon a fair interpretation of it, obnoxious to the exceptions thus taken to it. It refers to the bill, as showing the lands on which the conveyance was to operate, and the extent of the right or interest intended to be transferred. From the nature and circumstances of this whole transaction, it is manifest, that it was not necessary nor intended that there should be a conveyance of the land itself; but of a mere 

 [*124]  privilege or easement exercisable upon, or flowing out of the land to which it was applicable. As this contract was made for the purpose of securing a beneficial easement to the rail road company, and as the rail road company, by its agents, have contracted with the appellant, that one half of the reservoir should be left open for the use of the appellant, to which the appellee hath assented, it is right and proper that the conveyance directed by the said decree, should make provision for the same; and should also secure to the appellee the privilege of entering on the lands of the appellant, for making all necessary repairs to the pipes conveying the water from the reservoir to the water station, upon the said appellee, his heirs, executors,  [**32]  administrators or assigns, thereafter paying to the said appellant, his heirs and assigns, for the damage done to him or them, as the case may be, by the making of the said repairs; and should also secure to the said appellees, his heirs and assigns, an entry upon the said lands of the appellant for the purpose of making the necessary repairs to the said reservoir, and rendering it effective for the purpose for which it was constructed. And for the purpose of providing for these objects and removing all doubt as to the nature of the interest in the lands of the appellant, designed to be conveyed to the appellee, this court will sign a decree affirming the decree of the Chancellor, with costs, and making the appropriate additions thereto, to accomplish the objects aforesaid. For the recovery of the damages, if any, which the appellant has sustained by the laying down of the pipes by which the water is conveyed from the reservoir to the water station, he is left to his remedy upon his exhibit J J J, No. 2.
DECREE AFFIRMED.  

28 of 42 DOCUMENTS 

JOHN WELLS, WILLIAM MILLER, AND LEVIN P. CLARKE, vs. JAMES BISCOE, CLAIMANT OF PROPERTY ATTACHED AS OF SAMUEL B. HICKOX.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 406; 1845 Md. LEXIS 40 

December, 1845, Decided 

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

On the 11th October 1841, the appellants sued out an attachment against the goods of S. B. Hickox, which was laid upon a lot of pig iron, valued at $ 540, and for which, Ellicott & Brothers, gave a receipt to the sheriff, as left by him on storage with them.

At the return of the writ, James B. Biscoe appeared, and claimed the iron as his own property; interposed such claim against the condemnation thereof, and ruled the plaintiffs to reply to his claim.

At a subsequent term, the plaintiff moved the county court to enter a judgment of condemnation, as for want of a plea to the attachment, which that court refused; and then the plaintiffs replied, that the iron was not the property of the claimant; on which issue was joined.

The case was then submitted on the following statement:--

It is admitted, in this case, that the iron in controversy was the property of Samuel B. Hickox, the defendant in the original suit, and was placed by him on storage with Messrs. Ellicott, in whose hand the attachment was laid. That on the 7th October 1841, before the issuing of this attachment, Hickox assigned the said iron to Biscoe, the claimant [**2]  bona fide, in payment of his note for $ 300, at sixty days, dated the 8th August 1840, then due, and held by Biscoe; that he gave the order on the Messrs. Ellicott, which is shewn in evidence, (marked A,) and that they accepted the said order some eight or ten days before the issuing of the attachment, and afterwards held the iron on account of Biscoe. That Hickox was, at the time of said transfer, and of the issuing of this attachment, a non-resident. That said order was not recorded, nor was any record made of said transfer, before the issuing of this attachment. It is admitted, that the debt upon which this attachment was issued, was due to the plaintiffs. If the court should be of opinion, that the above transfer is valid, the court to enter judgment for the claimant, otherwise for the plaintiffs.

Exhibit A. "Baltimore, October 7, 1841. Messrs. Ellicott & Brothers, gentlemen, please to deliver to Mr. James Biscoe, the high pig metal in your store, or any part thereof, that he may call for, and I will pay freight and charges, and oblige yours, &c., Samuel B. Hickox.--26 1/2 tons."

Endorsed.--"Received to be recorded, the 17th day of December 1841, at two o'clock, P. M.  [**3]  ; same day recorded in liber TK, No. 64, folio 320, one of the records of Baltimore county, and examined per Thomas Kell, clerk."

The county court was of opinion, that the assignment mentioned and referred to in the foregoing statement of facts, is a valid and bona fide assignment; and that the goods and chattels, so as aforesaid attached, as of the goods and chattels of the said Samuel B. Hickox, are not the goods and chattels of the said Samuel B. Hickox, as the said James Biscoe, claiming as aforesaid, hath, by his claim and plea aforesaid alleged. Judgment for the claimant, from which the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A non-resident had goods in the State, which he assigned, bona fide, in payment of a precedent debt, to a resident; and the warehouseman, with whom the goods were deposited, accepted the order of the assignor to deliver them to the assignee. A few days after this, they were attached, as the property of the non-resident assignor. The assignee appeared in the cause and claimed them; HELD, it was not necessary that the assignment should have been recorded, under the act of 1834, chap. 79, sec. 3, to perfect the transfer.  

COUNSEL:
By DULANY for the appellant:--

Who relied upon the third section of the act of eighteen hundred and thirty-four, section seventy-nine, which declared, that where any attachment shall be laid upon the chattels, &c., of a non-resident defendant, no transfer assignment of such chattels, &c., shall have any effect against such attachment, unless the same shall have been recorded in the office of the clerk of the county in which such attachment shall have issued, before the time of such issuing. This attachment cannot be defeated [**4]  without giving effect to the unrecorded assignment, which the court will not do.

By DAVID STEWART for the appellee:--

The iron was passed in payment of a previous claim. It was a payment. The Ellicotts were mere custodiaries. The order transferred the possession, and was accepted. It was not an assignment of the title; it was symbolical delivery, perfected by acceptance, equivalent to actual delivery. 24 Pick., 42. 1 Taunt., 459. 14 East., 308. 5 John. R., 335.

The construction of the act contended for, would prevent sales of merchandize, where the vendor was a non-resident. It was never intended to apply to such transactions, nor to assignments consummated by delivery. It was not intended by the act to do more than require recording, where the right of the assignee rested in action, as distinguished from possession, either in himself or his agent.  

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

OPINION:

 [*408]  BY THE COURT--
JUDGMENT AFFIRMED.  

29 of 42 DOCUMENTS 

ELIZABETH CASEY'S LESSEE vs. WILLIAM INLOES, JOSHUA INLOES, JAMES HOOPER, JONATHAN CHAPMAN, AND WILLIAM TYSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

1 Gill 430; 1844 Md. LEXIS 2 

June, 1844, Decided 

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

This was an action of Ejectment, commenced by the appellant on the 20th August 1841, who declared for all that lot or piece of ground on Fell's Point, in the city of Baltimore: Beginning for the same at the south-west intersection of Alice Anna street and Caroline street, and running westerly on Alice Anna street one hundred and seventy feet to Spring street, (formerly Petticoat alley,) and then southerly, bounding on the east side of Petticoat alley, or Spring street, to the water of the dock commonly called the City Dock, then easterly bounding on the water of said dock to Caroline street, then northerly bounding on Caroline street to the beginning, containing one and an half acre of land, more or less, with the appurtenances, situate and being in Baltimore county aforesaid, which Elizabeth Casey had demised, &c.

The defendants pleaded not guilty, and took defence under the warrant of resurvey for all the land lying between the west side of Caroline street and the east side of Spring street, and the south side of Alice Anna street and the north side of Lancaster street.

1ST EXCEPTION. At the trial of this cause the plaintiff to [**2]  support the issue on her side, offered in evidence the following papers, to wit:

A patent granted by the State of Maryland to Alexander Mountenay for Mountenay's Neck, dated 30th June 1663.

A deed from Robert Blunt to James Todd, 4th October 1695.

A deed from James Todd to John Hurst, of the 3rd March 1701.

A deed from said Todd to Charles Carroll, of the 16th June 1701.

And the deed of mortgage from John Hurst to Richard Colegate, of the 13th October 1702.

A deed from said Hurst to Thomas Sheridine, Thomas Sligh, of the 19th March 1749.

The will of Richard Colegate, 8th of August 1721, devising Mountenay's Neck to his two sons, John and Thomas Colegate.

A deed from said John and Thomas Colegate to Thomas Sheridine and Thomas Sligh, of the 15th November 1750.

A deed from Thomas Sheridine to Thomas Sligh, of the 26th June 1756.

A deed from Charles Carroll to Thomas Sligh, of the 31st May 1759.

A deed from Thomas Sligh to Thomas Hammond.

The grant of Alexander Mountenay for 200 acres in Patapsco river, Mountenay's Neck, described the land as follows, to wit:

A parcel of land called "Mountenay's Neck," lying in Chesapeake [**3]  Bay, and on the north side of a river called Patapsco, and on the north side of the north-west branch of the said river: Beginning at a marked red oak by a little branch, and running up along the north-west branch, for breadth, west-north-west one hundred perches over a cove unto a marked white oak, by a line drawn north-north-east running into the woods, for length, three hundred and twenty perches by a line drawn from the said north-north-east line, running east-south-east one hundred perches, by a line from the said east-south-east line running south-south-west unto the first marked red oak three hundred and twenty perches, containing and now laid out for two hundred acres, more or less; together with the rights, profits and benefits thereunto belonging, (royal mines excepted.) To have and to hold the same unto him the said Alexander Mountenay, his heirs and assigns forever, &c.

ROBERT BLUNT to JAMES TODD, IN FEE. This indenture describes the land as all that parcel of land called "Mountenay's Land," lying on the north side of the Patapsco river, in the Province aforesaid: Beginning at a marked red oak, by a little branch, and running up the north-west branch west-north-west [**4]  one hundred perches, over above to a marked white oak standing on a point, then running north-north-east into the woods three hundred and twenty perches, then running east-south-east one hundred perches, then running south-south-west three hundred and twenty perches to the first marked tree, for two hundred acres of land, more or less; together with all the profits, rights and benefits thereunto belonging, or in any wise appertaining. To have and to hold, &c.

JAMES TODD deed to JOHN HURST. This indenture described the land conveyed by it in fee as one hundred and thirty-five acres and one half of one acre of land, being part of a certain tract or parcel of land called and known by the name of "Cole Harbour," lying and being in the county aforesaid; and also one hundred sixty and four acres and one half of an acre of land, being part of another tract or parcel of land formerly belonging to Alexander Mountenay, late of the aforesaid county and province, deceased, and purchased by the said James Todd: Beginning at a bounded white oak on a point, being the first bounded tree of Cole Harbour, by the north-west branch, and running down the river or branch east-south-east, for breadth,  [**5]  one hundred and forty perches to a locust post on a little point, and then with a line drawn north-north-east with the line of Mountenay's land, for length, two hundred and twenty-four perches to a bounded white oak standing in the said line, then with a line drawn west-north-west one hundred and forty perches to a red oak standing in the north-north-east line of the said land of Mountenay's, then running with the said land south-south-west fifty-six perches to a white oak, then with a line drawn north-west, two degrees south, for the length of two hundred and four perches to a gum tree standing near the said branch, then with a line drawn south-south-west seventy-five perches to a white oak standing in the corner of the old field by the falls or branch aforesaid, then with a line drawn south-east and by south to the said branch, and with the said branch south-east and by south to the first bounded tree, surveyed and laid out for three hundred acres of land, more or less, to be holden of the manour of Baltimore; together, &c.

JAMES TODD deed to CHARLES CARROLL. This indenture, made the sixteenth day of June, in the year of our Lord one thousand seven hundred and one, between James [**6]  Todd of Baltimore county, gentleman, and Penelope his wife, of the one part, and Charles Carroll of Anne Arundel county, gentleman, of the other part. Whereas the above said James is seized in fee simple of three several tracts of land, all lying in Baltimore county, one called Todd's Range, and originally laid out for five hundred and ten acres; another called Mountenay's Neck, containing two hundred acres, and the third called Bold Venture, containing one hundred and sixty acres, all of which said tracts or parcels of land are contiguous one to another. And whereas the said James has covenanted with one John Hurst, of the said county of Baltimore, to convey and make over unto him and his heirs, one hundred and fifty acres out of the said tract called Mountenay's Neck, and one hundred acres out of the said tract called Todd's Range.

Now this present indenture witnesseth, that the said James and Penelope his wife, &c., have given, &c., the said Charles Carroll, and his heirs, all that the remaining part of the said tract of land called Mountenay's Neck, as also all that the remaining part of the said tract called Todd's Range, as also all that entire tract called Bold Venture,  [**7]  with all, &c. To have and to hold the said remaining part of the said two tracts called Mountenay's Neck and Todd's Range, as also all that entire tract called Bold Venture, with all and singular the appurtenances thereunto belonging, or in any wise appertaining, unto him the said Charles Carroll, his heirs and assigns forever, &c.

JOHN HURST mortgage to RICHARD COLEGATE of one hundred thirty-five acres and one half part of an acre of land, being part of a certain tract or parcel of land called and known by the name of Cole Harbour, lying in the county aforesaid; and also one hundred sixty and four acres and one half part of an acre of land, being part of another tract or parcel of land formerly belonging to one Alexander Mountenay, late of the aforesaid county and province, deceased, and purchased by James Todd of the aforesaid county, gentleman: Beginning at, &c.

JOHN HURST conveyance to THOMAS SHERIDINE AND THOMAS SLIGH. This indenture, made the nineteenth day of March, seventeen hundred and forty-nine, between John Hurst of, &c., of the one part, and Thomas Sheridine and Thomas Sligh of, &c., of the other part, witnesseth, that the said John Hurst, for, &c., by these [**8]  presents hath given, granted, &c., unto them the said Thomas Sheridine and Thomas Sligh, their heirs and assigns, one hundred thirty-five acres of land and one half part of one acre of land, being part of a tract of land called and known, by the name of Cole's Harbour, lying in the county aforesaid; and also one hundred sixty-four acres and one half part of an acre of land, being part of another tract or parcel of land formerly belonging to one Alexander Mountenay, late of the county and province aforesaid, deceased, and purchased by James Todd of said county, gentleman: Beginning at, &c.

The will of Richard Colegate, dated 8th August 1721, and proved 6th February 1721, devised as follows:

And I also give my said sons John and Thomas, three hundred acres of land, being part of Cole's Harbour and Mountenay's, (which land I had of John Hurst,) and all the houses, orchards and corn fields to them, or either of the said tracts, belonging, to be equally divided between them and their heirs and assigns forever.

JOHN COLEGATE AND THOMAS A. COLEGATE conveyance to THOMAS SHERIDINE AND THOMAS SLIGH, dated 15th Nov. 1750, for the land mentioned in their father's will, in fee.

THOMAS [**9]  SHERIDINE to THOMAS SLIGH. To all to whom these presents shall come, greeting: Whereas, a certain John Colegate and Thomas Colegate did, by indenture bearing date on or about the fifteenth day of November, in the year one thousand seven hundred and fifty, and made, or mentioned to be made, between the said John Colegate and Thomas Colegate of the one part, and Thomas Sheridine's late father, deceased, a certain Thomas Sligh of the other part, for and in consideration of one hundred pounds, sterling money, to them the said John Colegate and Thomas Colegate in hand paid, at or before the sealing and delivery thereof, grant, &c., unto them the said Thomas Sheridine and Thomas Sligh, their heirs and assigns forever, all that part of two tracts or parcels of land called Todd's Range or Cole's Harbour and Mountenay's Neck, situate, &c.: Beginning for the part thereby conveyed or mentioned, or intended to be, of the aforesaid tract or parcel of land, at a bounded white oak on a point, being first bounded tree of Cole Harbour, by the north-west branch, and runs down the river or branch east-south-east, &c. And whereas, my said late father, Thomas Sheridine, after being jointly with the aforesaid [**10]  Thomas Sligh, by virtue of the conveyance aforesaid, seized and possessed of the aforesaid piece or parcels of land hereby conveyed, or mentioned so to be thereof, on or about the 29th day of May, 1752, died so seized and possessed, living the aforesaid Thomas Sligh, who survived my said late father, and who now continues as survivor, seized, and yet is actually possessed of the aforesaid three hundred acres of land. And whereas, I am eldest son and heir-at-law of the said Thomas Sheridine, deceased, for which reason the said Thomas Sligh is desirous of having conveyed to him my right or claim which I may have to the said three hundred acres of land, so as aforesaid conveyed. Now know ye, that I, Thos. Sheridine, son and heir of the aforesaid Thomas Sheridine, deceased, for and in consideration of the sum of fifty pounds, sterling money, by the said Thomas Sligh to me in hand paid, have remised, released and forever quit-claim unto him the said Thomas Sligh, his heirs and assigns forever, all that the aforesaid three hundred acres of land.

CHARLES CARROLL deed to THOMAS SLIGH, 150 Acres, part of Mountenay's Neck and Todd's Range. This indenture, made the thirty-first day of May,  [**11]  in the year of our Lord one thousand seven hundred and fifty-nine, between Charles Carroll, of the city of Annapolis, in Anne Arundel county, esq., of the one part, and Thomas Sligh, of Baltimore county, merchant, of the other part, witnesseth; whereas Charles Carroll, Esq., late of the city of Annapolis and county of Anne Arundel aforesaid, deceased, by his last will and testament in writing, bearing date the 1st day of December 1718, amongst other things therein contained, bequeathed all his lands in Baltimore county to his sons Charles and Daniel, as also all his mortgages, as by the said will, duly proved and recorded, may appear. And the said Daniel Carroll, by his last will and testament in writing, bearing date the 12th day of April, 1734, did will and authorise Charles Carroll, party to this deed, to sell all his lands which should not in any one tract exceed five hundred acres, as by the said will and testament duly proved and recorded may appear.

Now this indenture witnesseth, that the said Charles Carroll, for, &c., to him in hand paid by the said Thomas Sligh, &c., unto him the said Thomas Sligh, his heirs and assigns, all the northernmost end of a tract of land called [**12]  Mountenay's Neck, beginning at the end of two hundred and twenty-four perches in the eastermost line of the said land, and running thence north-northeast seventy-six perches; then west-north-west one hundred and forty perches; then south-south-west seventy-six perches; then east-south-east one hundred and forty perches to the beginning. And all that part of Todd's Range, except thirteen and a half acres, which he hath already agreed to exchange with the said Thomas Sligh, beginning at the end of the south-south-west seventy-six perches course, of part of Mountenay's Neck above mentioned, and running thence south-south-west fifty-six perches; then north-west one hundred and forty perches; then east one hundred and forty perches to Mountenay's Neck; then to the beginning, containing one hundred and fifty acres, more or less; together with all the rights, profits, benefits, privileges and appurtenances thereunto belonging or in any wise appertaining. To have and to hold unto him the said Thomas Sligh, his heirs and assigns forever.

THOMAS SLIGH deed to THOMAS HAMMOND, 14 1/4 a. pt. Mountenay's Neck. This indenture, made the thirty-first day of January, in the year of our Lord one [**13]  thousand seven hundred and fifty-nine, between Thomas Sligh, of the one part, and Thomas Hammond, of, &c., of the other part, witnesseth, that the said Thomas Sligh, for, &c., hath given, &c., unto him the said Thomas Hammond, his heirs and assigns forever, all that part of a tract or parcel of land called Mountenay's Neck, lying, &c., beginning for the part hereby bargained and sold, at a bounded post set up for the beginning boundary of the whole tract called Mountenay's Neck, standing near the eastern shore side of the north-west branch of Patapsco river, and running thence north-north-east fifty-four perches and fourth part of a perch, north forty-seven degrees west, forty-five perches and three-fourths part of a perch, unto Peter Lettick's part of said land; then bounding on said Lettick's part, south twenty-one degrees and fifteen minutes, west fifty-seven perches unto the aforesaid north-west branch of the Patapsco; then bounding on the said north-west branch the two following courses, viz: south sixty-eight degrees east, sixteen perches; south thirty-two degrees east, twenty-two perches and half a perch, until it intersects the first line of the whole tract, and then bounding [**14]  on that line reverse of the same to the beginning post, containing fourteen acres and one-fourth part of an acre, more or less.

And the plaintiffs further proved that the said Thomas Hammond died before the Revolution, leaving William Hammond his eldest son and heir at law, and that he inherited all the real estate of his father Thomas.

And further offered in evidence two deeds from said William Hammond to John Cornthwaite, of the 20th December, 1775, and of the 2nd April, 1779; two deeds from John Cornthwaite to John Hammond, of the 24th December, 1779, and of the 7th June, 1780; a deed of trust from John Hammond to John Anderson, of the 4th of March, 1795.

WILLIAM HAMMOND to JOHN CORNTHWAITE. Conveyance. This indenture, made this twentieth day of December, seventeen hundred and seventy-five, between William Hammond, of, &c., shipwright, of the one part, and John Cornthwaite, of the same place, merchant, of the other part, witnesseth, that the said William Hammond, for, &c., hath granted, &c., unto him the said John Cornthwaite, his heirs and assigns forever, all that piece or parcel of land situate, lying and being in the south-east addition to Baltimore town, being [**15]  part of a tract or parcel of land called Mountenay's Neck, and is contained within the following metes and bounds, courses and distances, viz: Beginning for the part hereby bargained and sold at the north-west corner of Caroline street and Wilkes street, and running thence along Wilkes street westerly seventy feet; thence southerly parallel with Caroline street to the out-line of the said tract of land called Mountenay's Neck; thence running and bounding therewith to Caroline street aforesaid; and thence by a straight line to the beginning; together with all, &c.

WILLIAM HAMMOND to JOHN CORNTHWAITE. This indenture, made this second day of April, seventeen hundred and seventy-nine, between William Hammond, of, &c., shipwright, of the one part, and John Cornthwaite, of the same place, merchant, of the other part. Witnesseth, that the said William Hammond, for, &c., hath granted, &c., unto him, the said John Cornthwaite, his heirs and assigns forever, all that piece, part or parcel of land, situate, lying and being in the south-east addition to Baltimore town, being a part of a tract of land called Mountenay's Neck, and is contained within the following metes and bounds, courses [**16]  and distances, viz: Beginning for the part hereby bargained and sold at the end of seventy feet westerly from the north-west corner of Caroline and Wilkes street, and running thence along Wilkes street, westerly, one hundred feet to Petticoat lane; thence running and bounding on Petticoat lane, southerly, into the water; thence running and bounding on and with the water, easterly, parallel with Wilkes street one hundred feet, to that part of the said land by the aforesaid William Hammond heretofore sold to the said John Cornthwaite; and then running and bounding therewith by a straight line to the beginning, together with all, &c.

The two deeds from John Cornthwaite to John Hammond, reconveyed the lots described in the two preceding deeds from William Hammond to John Cornthwaite.

JOHN HAMMOND to JOHN ANDERSON. Deed. This was a conveyance in trust, dated 4th March, 1795, reciting, amongst other matters: "And whereas, a marriage is intended shortly to be had and solemnized between the said John Hammond and a certain Elizabeth Anderson, the sister of the above named John Anderson, and the said John Hammond being desirous of conveying the above described ground in trust for the [**17]  use of the said Elizabeth Anderson, his intended wife, after his decease, and for the other uses hereinafter mentioned, he the said John Hammond hath agreed to execute these presents;" and in consideration thereof conveyed the legal estate to John Anderson, in fee, in trust for the use of John Hammond, for life, without impeachment of or for any manner of waste, and also with such power of leasing as is hereinafter contained. "And from and immediately after the decease of the said John Hammond, then to the use and behoof of the said Elizabeth Anderson, if she shall survive him, and her assigns, for and during the term of her natural life, without impeachment of or for any manner of waste, and also with such power of leasing as is hereinafter contained, and from and immediately after the determination of the said several estates, then to the use of the said John Anderson and his heirs during the lives of the said John Hammond and Elizabeth Anderson, and the life of the survivor of them, upon trust to support and preserve the contingent uses and estates hereinafter limited from being defeated or destroyed, and for that purpose to make entries or bring actions as occasion shall require;  [**18]  but nevertheless to permit and suffer the said John Hammond and his assigns during his life, and after his decease the said Elizabeth Anderson, (if she shall survive him, and her assigns during her life,) from time to time to receive and take the rents, issues and profits of the said premises to and for his, her and their own use and benefit respectively, and from and immediately after the decease of the survivor of them, the said John Hammond and Elizabeth Anderson, to the use and behoof of all and every the children of the said Elizabeth Anderson, by the said John Hammond lawfully to be begotten, to be equally divided between or among them, if more than one share, and share alike, as tenants in common, and not as joint tenants, and to their heirs and assigns forever; but if any of the said children shall not have arrived at the age of twenty-one years at the decease of their said parents, then upon his further trust," &c.

And the plaintiff also proved that John Hammond intermarried with the plaintiff in this case soon after the execution of the said last mentioned deed; that she was the sister of said John Anderson; that John Anderson died about the year 1805, and John Hammond [**19]  soon after him.

The plaintiff further offered in evidence the permission to John Hammond, of the Baltimore Port Wardens, to extend his ground to the south side of Aliceana street, dated 11th September, 1784; also the patent of Todd's Range, 1st June, 1700, viz:

"At a meeting of the Baltimore Port Wardens, Baltimore, September 11th, 1784, present, Samuel Purviance, president, John Sterett, Samuel Smith, Thomas Elliot, Richard Ridgely, Thos. Russell, Daniel Bowly, William Patterson, Robert Henderson. The board took into consideration the application of John Hammond, and thereupon ordered, that John Hammond shall be permitted to extend his wharf in a south direction, parallel with Caroline street, to the south side of Aliceana street extended, he, the said John Hammond, engaging to leave the width of Aliceana street open forever hereafter as a public highway."

And the patent to James Todd, for Todd's Range, dated 1st June, 1700, for all that tract or parcel of land heretofore called by the name of Cole's Harbour, but now called Todd's Range, "beginning at a bounded white oak, standing in the line of a parcel of land formerly belonging to Alexander Mountenay, and now in [**20]  the possession of the aforesaid Todd, and running west to a bounded red oak standing by a small branch called the Spring Branch, then more west seventy-five perches, to a double white oak, in all containing three hundred and twenty perches; then north-northeast, two hundred seventy-five perches to a red oak, being a bound tree of the aforesaid Mountenay's line to the first bounded tree, containing and now laid out for five hundred and ten acres, more or less, according to the certificate of survey thereof, taken and returned into our land office, bearing date the seventeenth day of February, one thousand six hundred and ninety-eight, and there remaining, together with all the rights, profits, benefits and privileges thereunto belonging, (Royal Mines excepted.) To have and to hold, &c.

The plaintiff also offered a record of a judgment and recovery in ejectment in the Provincial Court, of Yoakley and Company's agent, lessee, vs. John Hurst, April session, 1705, for "the three hundred acres of land aforesaid, lying in the county aforesaid, and late in the tenure or occupation of James Todd, of the aforesaid county, planter, beginning at a bounded white oak on a point, being the first [**21]  bounded tree of Cole Harbour, by the northwest branch, and running down the river or branch, east-southeast, for breadth one hundred and forty perches, to a locust post on a little point, and then with a line drawn north-north-east, with the line of Mountenay's land, for length of two hundred twenty-four perches to a bounded white oak, standing in the said line, then with a line drawn west-northwest one hundred and forty perches to a red oak, standing in the north-northeast line of the said land of Mountenay's, then running with the said land south-southwest fifty-six perches to a white oak, then with a line drawn northwest two degrees south, for the length of two hundred four perches to a gum tree, standing near the said branch, then with a line drawn south-south-west seventy-five perches to a white oak, standing in the corner of the old field by the falls or branch aforesaid, then with a line drawn southeast and by south to the said branch, and with said branch southeast and by south to the first bounded tree."

And also offered in evidence a certified extract from the debt books, viz:

I hereby certify that in the debt book for Baltimore county, for the year 1754, in page [**22]  21, there is the following entry, viz:

________________________________________________________________________________
	RENT.	
Thos. Sligh, Dr. part of Mountenay's Neck, 100 acres,	£  0 4 0	
  Also in the debt book for said county, for the year 1755, in	
page 22, is the following entry, viz:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1756, in	
page 24, is the following entry, viz:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1757, in	
page 19, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1758, in	
page 23, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1759, in	
page 20, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 184 acres,	£  0 7 4	
Part of Mountenay's Neck and Todd's	
Range, 150 acres,	0 6 0	
  Also in the debt book for said county, for the year 1760, in	
page 20, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1761, in	
page 19, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 200 acres,	£  0 8 0	
  Also in the debt book for said county, for the year 1762, in	
page 19, is the following entry:	
Thos. Sligh, Dr. part of Mountenay's Neck, 184 acres,	£  0 7 4	
Part of Mountenay's Neck and Todd's	
Range, 150 acres,	0 6 0	
  Also in the debt book for said county, for the years 1763,	
1764, 1765, 1766, 1768, and 1769, in page 19, are the fol-	
lowing entries, viz:	
Thos. Sligh, Dr. part of Mountenay's Neck, 184 acres,	£  0 7 4	
Part of Mountenay's Neck and Todd's	
Range, 148 acres,	£  0 5 11	
________________________________________________________________________________

 [**23]  

The plaintiff further proved that some time after the death of the said John Hammond, the plaintiff in this case intermarried with a certain Robert Casey, who departed this life some time before the impretation of the writ in this case.

The plaintiff further offered in evidence the lease from John Hammond to Thomas McDowal, dated the 8th February, 1798, for the lot marked No. 10 on the plat.

The plaintiff also offered in evidence the ordinance of the Mayor and City Council, of the 11th March, 1823.

The plaintiff further, by Ephraim Smith and others, offered in evidence the plots and explanations in this case, and proved that the location of the above deeds, patents, record and permission were correctly made thereon; and proved that John Hammond, during his lifetime, filled up and improved a part of his lot on the east side of Caroline street, fronting on the water, and in this way, and by a wash that came down Caroline street, a bar was made above ordinary high-water mark, which extended in part to the property leased to McDowal; that after this lease McDowal continued to fill up his lot until about the year 1800, when he erected a house and enclosed it with a board [**24]  fence; that the ground at the time when it was thus enclosed was raised above ordinary high tide, and that it has remained in that condition until the present time; that John Hammond, during his lifetime, and the plaintiff, since his death, have collected the rent of the property leased to McDowal; that the northern blue shaded line, beginning at A, shows correctly where the water ran at ordinary high tides in 1783. And the more southern blue shaded line, beginning at C, show the water line in 1801; that the water continued to flow nearly in the same way until the year 1824, with the exception of the improvement and filling up made by Hammond and McDowal, as above mentioned. That there was a great wash that came down Caroline street, crossing the square of the plaintiff from the southeast intersection of Fleet and Caroline streets, and flowing in a southwesterly direction towards Spring street, where it insersects Aliceana street; that the deposits of this wash was very considerable, and the effect of it was to render the water on the upper part of the square of ground above Aliceana street much shallower than it was before, so that there was on each side of the wash a mud flat, that [**25]  was left nearly bare at low tides, but the water was shallower above than it was at Aliceana street; that the wash down Caroline street was diverted in an easterly direction from the cove in 1808, when the deposite was stopped; that along the north side of Lancaster street there was filling up by the city before any was done north of it, and that along that line there were considerable deposites of earth made at places, the water running in the intervals between them; that this was four or five years before the city began to fill up above; that along Harford run there was a good deal of deposites by alluvion at that period, so that Harford run could not be passed through except by tunnels; that John Hammond was in possession of the property from Wilkes to Fleet streets, and filled it up east and west of Caroline street, and collected the rents from McDowal's house, and Mrs. Casey since his death; that McDowal built a house about the year 1800, a year or two after he got his lease, on the ground marked on the plat leased by him from Hammond; and further, on cross examination, proved that William Inloes' fence could not be seen from Wilkes street; that the logs of the fence did not join [**26]  Inloes' ground, but commenced rather eastwardly of Caroline street, and by said Smith; that the old people used to laugh at Inloes for putting it up; that one Spencer had a fence extended from a point west of Spring street towards Canal street; that Spencer's fence and Inloes' did not join, and that Inloes' fence did not go as far as Spring street.

And the plaintiff further offered evidence by James W. Collins, that he was City Commissioner and Port Warden in the year 1823; that in that year the whole north line of Lancaster street from Canal street east to west side of Caroline street, had been for some time logged; that along the line there are deposites of earth thrown there by the mud machines, and that the mud running over had gone toward filling up the ground immediately north of the north line of Lancaster street, and to fill up at the east side of Caroline street very little ground showed, except at the corner of Canal street; that there was an opening at Caroline and Lancaster streets, through which scows went; that from Lancaster street northerly, above Aliceana street, (with the exception of the ground projecting as marked on the plat as Inloes' ground, near the corner [**27]  of Aliceana street and Strawberry alley,) the water ran in 1823 along the eastern side of Strawberry alley, and was deep there, and that the water covered the ground (except where there were the deposites aforesaid, which did not extend to Aliceana st.) northerly from Lancaster street beyond Aliceana and westerly of Strawberry alley; that he left the work of filling up in 1829; that the ground had been thrown over the north side of Lancaster street, but had not in 1829 filled up as far as Aliceana street; that he saw nothing of William Inloes' fence in 1823.

And the plaintiff further proved by William Davy, that he married in the family of Thomas Hammond, having married the daughter of William Hammond, who was the eldest son of Thomas; that Thomas died before the revolution, and that William, as the eldest son, inherited his estate under the English law; that Thomas Hammond had two sons, was a sea captain, and died in Boston; that he lives at the corner of Bond and Wilkes street, and has lived there many years, and knows how the water ran in 1819; that Caroline street was lower than Strawberry alley, and the water would run through it high up; that the filling up along Aliceana [**28]  street and Caroline street, was completed four or five years ago in a proper state for passing from Fleet street down to Aliceana street. Six or seven years ago the ground from Lancaster to Aliceana street was not yet filled up; that the fence of William Inloes was put up between 1808 and 1812; that the water at high tide ran over it, and the tide was enough to break it down with ice, and that it broke away at times and was kept up by repairs seven or eight years; and that he does not know that it remained until the city filled up; that it was before the war that he saw it last renewed; that it was a trifling affair to stop the mud; that boats could, in a smart tide, go over it; that it extended westerly about two or three hundred feet, but not west of Spring street; that it was made of stakes driven down into the mud seven or eight inches wide and about an inch thick; that the stakes did not go up to the land, and that between them and the land there were logs which went about half a square, and about sixty feet out; that there was no wash where the logs were; that the wash ran down Caroline street to Inloes' said fence, and was by it turned westerly of the fence; that he saw Inloes [**29]  repairing his fence two or three times; that Inloes said he wanted to go to Eden street to fill up his lot; that witness built houses for Inloes on Aliceana street, west of Strawberry alley; that he knew Joshua Inloes' wharf; that the water was deep at its north and south sides, and that vessels could come up to it, carrying seven or eight feet depth of water; that William Hammond died in 1783 or 1784; that before he died he had sold nearly all his property; that he left a son Thomas and three daughters, and that this Thomas died, while a boy, in the year 1797.

The plaintiff further offered proof by Joseph Owens, that in the year 1819 he was appointed City Commissioner and Port Warden, and so continued until 1825; that in 1823 the water flowed to the eastern side of Strawberry alley, above Aliceana street and from Lancaster street, and was deep there; that he acted as City Commissioner under the ordinance of 1823 for filling up the cove, and under the ordinance contracted with parties for filling up to the extent as required according to the ordinance by the Commissioner of Health, the limits for the filling up were (as shown by witness on a plat, now exhibited, made by the city,  [**30]  ) along the eastern side of Strawberry alley, extending northerly, but not as far westerly as between Caroline and Spring streets. Cross examined, he says, that the owners of ground south of William Inloes' lot entered into contracts under the ordinance for filling up; that he does not remember that any improvements or filling up was, under the ordinance of 1823, directed by the Board of Health to be made in front of the grounds on Wilkes street; that he does not remember calling on Mrs. Casey as an owner of ground on Wilkes street, nor on what owners there he called; that the depositing of mud could have been seen from Wilkes street; that no notice was given by any one owning lots on Wilkes street, not to go on with the filling up.

The defendants, to prove the issue on their part, offered in evidence the following patents, deeds and other papers, to wit:

The escheat patent of Mountenay's Neck, dated 7th July, 1737.

The patent of Island Point to said Fell, dated 15th June, 1734.

The will of William Fell, (the elder,) dated 12th January, 1746.

Deed of Edward Fell to Thomas Sligh, dated 19th August, 1758; also, deed from Samuel Wheeler and wife to David Jones,  [**31]  22nd March, 1685.

The patent of Bold Venture, dated 20th March, 1695.

The escheat certificate of Mountenay's Neck, dated 14th April, 1737.

The patent of Long Island Point, dated 10th July, 1671.

The certificate of Fell's Prospect to Edward Fell, dated 20th May, 1761.

The following is a copy of the patent of Mountenay's Neck in the case of Rogers, et al, lessee vs. Moore:

WILLIAM FELL'S PATENT--200 ACRES MOUNTENAY'S NECK. Charles, &c. Know ye, that whereas William Fell, of Baltimore county, by his petition to our agents for management of land affairs within this province, did heretofore set forth that there was escheat unto us a certain tract or parcel of land, called Mountenay's Neck, lying and being in the county aforesaid, originally, on the 30th day of June, 1663, granted unto a certain Alexander Mountenay, for two hundred acres under old rent; that afterwards, on the 22nd of March 1685, a certain Samuel Wheeler and Ann, his wife, by their indenture of bargain and sale, conveyed the said land to a certain David Jones, who died thereof possessed, intestate, and without heirs, by which means, or for want of heirs of the said Alexander Mountenay, or regular [**32]  conveyances from the first taker up, the same is become escheat unto us as aforesaid, and the petitioner being the first discoverer thereof, humbly prayed to be admitted to its purchase, be the same escheat by the means aforesaid, or by any other ways or means whatsoever, and &c.

We do therefore, in consideration thereof, and other the premises, hereby give, grant and confirm unto him the said William Fell, all that the aforesaid tract or parcel of escheat land, now resurveyed, and called Mountenay's Neck, lying and being in the county aforesaid: Beginning at a bounded white oak standing on the north side of the north-west branch of Patapsco river, and near the mouth of a small branch descending into the north-west branch, which tree was bounded by commissioners appointed to examine evidences concerning the bounds of the same tract of land, at the place where the original beginning tree did stand, and running thence up the said north-west branch and over the mouth of a cove west-north-west one hundred perches to a bounded red oak, at or near the place whereat the second bounded tree did stand, thence north-north-east three hundred and twenty perches, east-south-east one hundred [**33]  perches, and thence south-south-west (as expressed in the grant,) unto the beginning, containing and laid out for two hundred acres, more or less, according to the certificate of resurvey thereof, taken and returned into our land office, bearing date the 27th day of April, 1737, and there remaining, together with, &c.

WILLIAM FELL--PATENT--85 ACRES--ISLAND POINT. Charles, &c. Know ye, that whereas Carroll, of the city of Annapolis, in Anne Arundel county, Chirurgeon, by his humble petition to our agent for management of land affairs within the province, did heretofore set forth that a certain William Poultney, of Baltimore county, died, was possessed of a tract of land called Island Point, situate on a branch of Patapsco river, granted unto the said Poultney for one hundred acres, by patent bearing date the 10th day of July, Anno Domini 1671, and died thereof possessed Anno Domini 1674, and although an alien, made a will and devised the same to Edward Monfrett, likewise an alien, in the words: "Item. I give and bequeath unto Edward Monfrett, of Patapsco, all my lands, goods and chattels;" whereby the said Monfrett, as the petitioner conceived, had but an estate for life, although,  [**34]  that he the said Poultney was capable of devising the said land, and that after the decease of the said Monfrett, the said land would come to the heirs of the said Poultney; but so it was, that no heirs of the said Poultney or Monfrett had since appeared to claim the said land, by means whereof, or some other the causes before set forth, the petitioner conceived the same become escheat unto us as aforesaid, and inasmuch as the petitioner had been the first discoverer, prayed to be admitted to its purchase, and &c. In pursuance whereof, it is certified into our land office, that the said tract is resurveyed, by which it appears that the whole now contains the quantity of eighty-five acres, whereof fourteen acres is vacant land added, for which said escheat and vacancy the said Charles Carroll has, according to our instructions to Edmund Jenings, esq., our present judge of our land office, bearing date at Annapolis the 14th of June 1733, paid and satisfied unto Daniel Dulany, esquire, our present agent and receiver general, for our use, as well the sum of seven pounds sterling, being one-third part of the value set on the said escheat, as also the sum of six shillings sterling, for the [**35]  rights to the vacancy added; but before our grant thereon to him did issue, he the said Charles Carroll did, on the 4th of June 1734, for a valuable consideration, assign, sell, transfer and make over unto William Fell, of Baltimore, his heirs and assigns forever, all his right, title and interest, of, in and to the said land and the certificate thereof, who has supplicated us that our letters patent of confirmation may now issue unto him, which we have thought fit to condescend unto. And we do, in consideration thereof and other the premises, hereby give, grant and confirm unto him the said William Fell, all that the aforesaid tract or parcel of escheat land, with its vacancy added, now resurveyed, and still called Island Point, lying and being in Baltimore county: Beginning, &c.

The last will of William Fell, dated 12th January 1746, devised as follows:

In some good degree of the fear of Almighty God, it seemeth good to me, William Fell, of Baltimore county in the province of Maryland, to make and declare this to be my last will and testament, relating to those things it hath pleased God to bless me with in this world, in manner and form, following: First. My will and desire [**36]  is that all those debts, &c.

Item. I give and bequeath unto my son Edward Fell, three tracts of land, called Long Island Point, Cole Harbour and Trynkeltfield; also, all the south part of a tract of land called Mountenay's Neck, as shall be found lying on the south side of the main road now lying through the said tract, &c.; also, I give and bequeath unto my daughter Catharine the remaining north part of my tract of land already mentioned by name of Mountenay's Neck, lying on the north side of the main road aforesaid, and, &c.

EDWARD FELL to THOMAS SLIGH, 200 Acres Mountenay's Neck. By indenture dated 17th August 1758, conveyed all his, the said Edward Fell, his right, title, interest, property, claim and demand, as well in equity as in law, of, in and to all that tract or parcel of land and premises, lying and being in the county aforesaid, on the north-west branch of Patapsco, called Montany's Neck, containing two hundred acres, more or less. To have and to hold the said bargained tract or parcel of land and premises, with the appurtenances, and every part and parcel thereof, unto him the said Thomas Sligh, his heirs and assigns forever, and to his and their only proper [**37]  use and behoof.

SAMUEL WHEELER AND WIFE to DAVID JONES. Know all men by these presents, that I, Samuel Wheeler, and Ann Wheeler, my wife, for divers good causes and considerations hereunto moving, have made, constituted and appointed, and do, by these presents, ordain, constitute and appoint my well-beloved friend, Thomas Lightfoot, for me and in my stead, to transfer, convey and make over unto David Jones, of Baltimore county, all that parcel of land called Mountenay's Neck, being two hundred acres of land, lying upon the north-west branch of Patapsco river, and we, the said Samuel and Ann, do hereby ratify and confirm and allow what our said attorney shall act or do in the premises, to be of as much strength and power in law as we ourselves were then and there present. Witness our hands and seals this     1686.

SAMUEL WHEELER, (Seal.)

ANN WHEELER,   (Seal.)

Signed, sealed and delivered in the presence of us, Edward Batson, William Baroll.

June 1st, 1686. In open court in Baltimore county, Mr. Thomas Lightfoot came and acknowledged himself to be the attorney of Samuel Wheeler and his wife, for the making over a parcel of land unto the within mentioned [**38]  David Jones, called Mountenay's Neck.

Memorandum. That the blank in the above power of attorney was left in the original record.

Certified--per,    ROGER MATTHEWS, Transcriber.

Transcribed from liber C, No. 1, folio 189.

This indenture, made the twenty-second of March, in the year of our Lord God everlasting, one thousand six hundred and eighty-five, between Samuel Wheeler and Ann Wheeler, of Cecil county, his wife, in the province of Maryland, gentleman, of the one part, and David Jones, of Baltimore county, of the aforesaid province, gentleman, of the other part, witnesseth, that the said Samuel Wheeler and Ann Wheeler, his wife, for a valuable consideration already in hand received, have bargained, sold and made over, and do, by these presents, absolutely bargain, &c., from me, my heirs and assigns, unto the aforesaid David Jones, his heirs and assigns, all that tract or parcel of land called Mountenay's Neck, lying in Baltimore county and upon the north side of Patapsco river, and upon the north side of the north-west branch of the said river: Beginning at a marked red oak by a little branch, and running up to the north-west branch west-north-west one hundred [**39]  perches, over a cove into a marked white oak standing on a point, then running north-north-east into the woods three hundred and twenty perches, then running east-south-east one hundred perches, then running south-south-west to the first tree, for two hundred acres of land, more or less. Together with all the estate, right, title, interest, claim and demand whatsoever, of him the said Samuel Wheeler or Ann Wheeler, his wife, their heirs, executors or administrators. To have and to hold, &c.

This conveyance of land, with the appurtenances thereof, was acknowledged and made over by Thomas Lightfoot, the attorney of Samuel Wheeler and Ann Wheeler, unto David Jones, and was then and there acknowledged to be their act and deed, before us, this 1st day of June, 1686, in open court in Baltimore county.

Signed, per order,

THOMAS HEDGE, Cl'k Balt. Co.

Transcribed from liber C, No. 1, folio 290, 300, 301 and 302.

JOHN OULTON'S PATENT, 161 Acres--Bold Venture. Charles, &c. To all, &c: Know ye, that for and in consideration that John Oulton, of Baltimore county, in our said province of Maryland, hath due unto him one hundred sixty-one acres of land within our said province,  [**40]  being due unto him by virtue of a warrant for five hundred acres, granted him the 26th November 1695, as appears in our land office, and upon such conditions and terms as are expressed in our conditions of plantations of our said province, bearing date the 5th day of April, 1684, and remaining upon record in our said province of Maryland. We do hereby grant unto him the said John Oulton, his heirs and assigns, all that tract or parcel of land called Bold Venture, lying on the north side of Patapsco river, and on the north side of Whetstone branch: Beginning at a bounded white oak, standing by the branch side, it being a bound tree of Pountny's Point, and running thence north-north-east fifty-eight perches to a bounded red oak of Mountenay's, then with Mountenay's land west-north-west one hundred perches to a bounded white oak of Mountenay's, then with Mountenay's long line north-north-east three hundred twenty perches, then west-north-west fifty-four perches, then south-south-west three hundred twenty perches to a bounded ash, then south-south-west two degrees southerly twenty-four perches to the river side, then down the river south-south-east two degrees easterly eleven perches,  [**41]  then south-south-west two degrees southerly twenty-four perches, then with a direct line to the first tree, containing, and now laid out for one hundred sixty-one acres of land, more or less, according to the certificate of survey thereof, taken and returned into our land office, bearing date the 23rd December 1695, and there remaining, together, &c. To have and to hold the same unto the said John Oulton, his heirs and assigns forever, &c.

April 14th, 1737. Whereas William Fell, of Baltimore county, by his petition to his lordship's agent for management of land affairs within this province, has set forth that there is escheat unto his lordship a certain tract or parcel of land called Mountenay's Neck, lying and being in the county aforesaid, originally, on the 30th day of June, 1663, granted unto a certain Alexander Mountenay, for the quantity of 200 acres, under old rent; that afterwards, on the 22nd March 1685, a certain Samuel Wheeler and Ann, his wife, by their indenture of bargain and sale, conveyed the said land to a certain David Jones, who died thereof possessed, intestate, and without heirs, by which means, or for want of heirs of the said Alexander Mountenay, or regular [**42]  conveyances from him as first taker up, the same is become escheat to his lordship as aforesaid; and the petitioner being the first discoverer thereof, humbly prayed to be admitted to its purchase, be the same escheat by the means aforesaid, or by any other ways and means whatsoever, and a special warrant to resurvey the same, with liberty of adding any vacant land that can be found thereto contiguous, &c.; that upon return of a certificate of such resurvey, he paying his lordship's agent such reasonable price as shall be agreed upon for the purchase of said escheat, and making good rights to the vacancy added, might have his lordship's letters patent of confirmation issue unto him thereon, which is granted him, provided he complies with all requisites, and finally sues out such grant within two years from the date hereof. Lay out, therefore, and carefully resurvey for and in the name of him the said William Fell, the aforesaid tract or parcel of escheat land called Mountenay's Neck, according to its ancient metes and bounds, and by your outlines adding any vacant land you can find thereto contiguous, whether cultivated or otherwise, not running your lines, &c. In testimony, &c.

LAND [**43]  OFFICE, Annapolis, 24th Oct. 1842.

Dear Sir,--Yours of the 22nd inst. I have just received. Herewith I hand you a copy of the warrant of escheat obtained by William Fell in 1737, upon Mountenay's Neck. There is no petition to be found, either on record or on file, in this office. The warrant sets forth that William Fell, by his petition to his lordship's agent, &c.; but this appears to be the form of all the warrants issued under the proprietary government without any petition being filed. If a petition had been filed, it would of course have been recorded with the warrant, and made a part of the record. Applications for warrants, I presume, were frequently made under the proprietary government in person and not in writing, as is also the case under the State Government. I have never been able to find any petition for a warrant, either on file or of record, in this office, and have therefore concluded that none were ever filed. Under the State Government, when application is made for a warrant of escheat, we insert in the warrant such description of the land as is furnished us by the party applying for the warrant, the want of due precision being at his risk. I can send you nothing [**44]  more than a copy of the warrant. (In haste.)

Yours, very respectfully,

G. G. BREWER.

William F. Giles, Esq.

WILLIAM POULTNEY, Patent 100 Acres--Long Island Point. Caecilius, &c. Know ye, that we, for and in consideration that William Poultney, of the county of Baltimore, in our said province of Maryland, planter, hath due unto him one hundred acres of land within our said province, by assignment from Robert Wilson, the assignee of Capt. Thomas Beason, due the said Beason for transporting John Greene and Sarah Sandstead into the said province, to inhabit, as appears upon record. And upon such conditions and terms as are expressed in our conditions of plantation, &c., do hereby grant unto him the said William Poultney all that parcel of land called Long Island Point, lying in Baltimore county, on the north side of Patapsco river, and on the north-west branch of the river: Beginning at a bounded locust standing at the head of a round bay, and running down the said bay south-south-west eighty perches to a bounded Spanish oak at the mouth of said bay, and from the said oak up the said branch north-west thirty-six perches, then west-south-west one hundred perches, then [**45]  west-north-west seventy-two perches to the bottom of Long Island Point, then north-east sixteen perches, then east and by south sixty perches, then north and by east eighty perches to a bounded red oak of a parcel of land laid out for Alexander Mouutenay, then north-north-east by Mountenay's land seventy-six perches, and then to the first bounded tree, containing, and now laid out for one hundred acres of land, more or less, together, &c., in fee, dated 10th July, 1671.

MR. EDWARD FELL'S CERTIFICATE--Fell's Prospect, 343 Acres--Patented the 20th May 1761. Rent per annum £  13 9s sterling, charged to the Rent Roll.

BALTIMORE COUNTY, Sct: By virtue of a special warrant, granted out of his lordship's land office, bearing date by renewment, October 23rd, Anno Domini 1760, to lay out and resurvey for Edward Fell, of Baltimore county, the following tracts or parcels of land, viz: Long Island Point, lying and being in Baltimore county, originally, on the 23rd of October 1670, granted unto a certain William Poultney, for one hundred acres, under new rent; Copius Harbour, originally, on the 10th day of August, Anno Domini 1684, granted unto a certain John Copius, for one hundred acres,  [**46]  under new rent; Carter's Delight, originally, on the 10th day of December, Anno Domini 1717, granted John Carter, for one hundred acres, under new rent; and Trinket Field, originally, on the 18th day of August, Anno Domini 1736, granted unto William Fell, father of the aforesaid Edward Fell, for eighteen acres, under new rent, to be laid out according to their ancient metes and bounds. Nevertheles, correcting and amending any errors in the original surveys, and by my outlines adding any vacant lands I could find thereto contiguous, whether cultivated or otherwise, &c. I, William Smith, deputy surveyor of Baltimorc county, have carefully resurveyed for and in the name of him the aforesaid Edward Fell, the aforesaid tracts or parcels of land, according to their ancient metes and bounds: Beginning, for Long Island Point, at a bounded white oak standing at the head of a round bay on the north-west branch of Patapsco river, and at or near the spot where stood a bounded locust, the original bounded tree, and running thence down the said bay, south-south-west eighty perches, thence north-west thirty-six perches, west-south-west one hundred perches, west-north-west seventy-two perches, north-east [**47]  sixteen perches, east by south sixty perches, north by east eighty perches, to a bounded red oak, of a tract of land called Mountenay's Neck; then north-north-east by Mountenay's seventy-six perches, then with a straight line to the beginning, containing, and laid out for one hundred acres, more or less; and for the resurvey made by William Fell on the aforesaid tract or parcel of land, bearing date the 5th day of June, 1734, as by patent: Beginning at the aforesaid bounded white oak standing at the head of a round bay on the north-west branch of Patapsco river, and running thence south four degrees west sixty-six perches, south sixty-three degrees west fourteen perches, north forty degrees west thirty perches, north eighty-seven degrees west forty-two perches, south fifty degrees west fifty-six perches, south seventy-three degrees west twenty-four perches, north fifty-five degrees west fifty-four perches, north forty-five degrees east sixteen perches, south eighty degrees east sixty-four perches, north three degrees east eighty perches, north-north-east seventy-six perches, thence with a straight line to the beginning, containing, and now laid out for eighty-five acres. Copius Harbour:  [**48]  Beginning at a bounded red oak, being a bounded tree of Kemp's Addition, and running from thence north-west thirteen perches to a bounded water oak standing near the said branch, then running west and by south thirty-two perches to a bounded locust of Long Island Point, then running north fifty degrees forty-five minutes west one hundred and thirty perches to a bounded red oak, thence north-east one hundred and fifty-six perches, then south-east by south ninety-six perches, bounding on Kemp's Addition, thence with a straight line to the beginning, containing, and laid out for one hundred acres. Carter's Delight: Beginning at a bounded red oak standing in or near the given line of Mountenay's Neck, and running thence north sixty perches, north seventy-eight degrees east one hundred and thirty perches, south eighty-seven degrees east fifty perches, south fifty-nine degrees east sixty-eight perches, south forty-two perches, north sixty-four degrees west eighty-six perches, south eighteen degrees west twenty-four perches, south thirty degrees west twenty-two perches, south thirty-six degrees thirty minutes west twenty-six perches, thence with a straight line to the beginning, containing,  [**49]  and laid out for one hundred acres, more or less. Trinkett's Fields: Beginning at a red oak bounded with twenty-four notches, a bounded tree of Copius Harbour, and running thence north-north-east one hundred and twenty-three perches, south-east by south forty-seven perches, thence with a straight line to the beginning, containing, and laid out for eighteen acres, more or less, which said tracts or parcels of land contains in the whole three hundred and three acres; thirty-three acres, part thereof, is taken away by elder surveys and lost in navigable water, which I have excluded. I have also added to the residue of the said tracts seventy acres of vacant land, and three acres of escheat, as part of Long Island Point, not heretofore escheated, and liberty now given to escheat the same, and have reduced the whole into one entire tract, bounded as follows, viz: lying in Baltimore county: Beginning at a bounded white oak standing at the head of a round bay on the north side of the north-west branch of Patapsco river, being the same bounded white oak expressed in the former grant to be the beginning of Long Island Point, and running thence bounding on the said round bay the six following [**50]  courses, viz: south twelve degrees west ten perches, south twenty-three degrees east six perches, south eleven degrees west twenty-six perches, south ten degrees east twelve and a half perches, south fifteen degrees west fourteen and a half perches, south fifty-three degrees west six and a half perches, to the bottom of the round bay; then running and bounding on and up the said river the nine following courses, viz: north seventy-six degrees west seven perches, north thirty-six degrees west twenty-two perches, north sixty-five degrees west sixteen perches, west twenty-six perches, south fifty-eight degrees west thirty-eight perches, south forty-six degrees west thirty perches, south eighty-eight degrees west twenty-six perches, north sixty-one degrees west thirty-four perches, north thirty-six degrees west nine perches, to the bottom of Long Island Point, as expressed in the original grant; then running and bounding with the river the ten following courses, viz: north thirty-eight degrees east eight perches, north fifty-eight degrees east seven perches, south sixty-eight degrees east twenty perches, south eighty-six degrees east twenty-eight perches, south seventy-seven degrees east [**51]  ten perches, north twenty-five degrees east eighteen perches, north eight degrees east ten and a half perches, north nineteen degrees west fourteen and a half perches, north eight degrees east twenty-eight perches, north thirty-three degrees west sixteen and a half perches to the first line of Mountenay's Neck, and running with the said line reversely south sixty-seven degrees and thirty minutes east eight perches to a post, the beginning of Mountenay's Neck, then running and bounding reversely with his given line, north seventeen degrees east two hundred and thirty-eight perches to the beginning tree of Carter's Delight, still running and bounding on Mountenay's Neck, north seventeen degrees east sixty-seven perches, until it intersects the second line of Carter's Delight, then running and bounding with the said line north seventy-eight degrees east one hundred and eleven perches to the end of the said line, still bounding on the said land south eighty-seven degrees east fifty perches, south fifty-nine degrees east sixty-eight perches, south forty-two perches, north sixty-four degrees west eighty-six perches, south eighteen degrees west twenty-seven perches, until it intersects the [**52]  sixth line of Kemp's Addition, then bounding with the said land reversely west-north-west thirty-six perches to the end of the fifth line of the said land; then running and bounding with the land aforesaid, the five following courses, viz: south by west twenty-four perches, south-west by south eighty perches, south-east by south eighty perches, south by west one hundred and twenty perches, south-east thirty-two perches to the beginning tree of Kemp's Addition and the second tree of Parker's Haven; then bounding on Parker's Haven reversely the two following courses, viz: east-south-east seventy perches, north by east two hundred and sixty-five perches until it intersects the seventh line of Kemp's Addition, then running south thirty-seven degrees east thirty perches to a creek called Harris' creek; then running down and bounding on the said creek the fifteen following courses, viz: south eleven degrees west fifty-one perches, south fifty-five degrees west sixteen perches, south twelve degrees west sixty-one perches, south fifty-four degrees east six perches, south nineteen degrees west four perches, south sixty-nine degrees west six perches, south ten perches, south thirty-six degrees [**53]  east fourteen perches, south thirty-two degrees west eighteen perches, south sixty-three degrees west four perches, south fifteen degrees west sixteen perches, south four degrees west thirty-eight perches, south twenty-two degrees west twelve perches, south thirty-six degrees west fourteen perches, south sixty-four degrees west nine perches, to the mouth of the said creek; then running and bounding with the river the five following courses, viz: north eighty-two degrees west forty-six perches, north sixty degrees west sixteen perches, north thirty-three degrees west seventeen perches, north fifty degrees west twenty-four perches, north twenty-three degrees west sixteen perches, then with a straight line to the beginning, containing, and laid out for three hundred and forty-three acres of land, more or less, to be held of the manor of Baltimore, by the name of Fell's Prospect. Resurveyed March the 10th, 1761.

WM. SMITH, D. S., B. County.

May 12th, 1761. The certificate and plot disagree in the direction of the fifty-fifth course, disallowed.

U. SCOTT, Exam'r.

May, 20th, 1761. Examined and passed.

U. SCOTT, Exam'r.

On the back of which certificate was the [**54]  following receipt, viz:

I have received the sum of three pounds thirteen shillings for the within vacancy, and eleven shillings and six pence for the three acres escheat. Patent may therefore issue with his Excellency's approbation,     EDW'D LLOYD.

20th May, 1761. Approved,     H. SHARPE.

The defendants then offered in evidence leases for terms of years from Ann Fell to Abraham Inloes, dated 17th Feb. 1768; from same to Geo. Fletcher, dated 3rd Nov. 1768; to same 15th April 1768; to William Scarff, dated 27th May 1768; to William Rowles, dated 16th September 1769, for the lots 5, 6, 7, 8, 9, on Bond street.

And also gave in evidence that each of said papers was truly located by them on the plats in this case; and also proved that said Inloes, and the other defendants, and those under whom they claimed, have been in possession of said lots on Bond street, claiming title to the same, upwards of thirty years before the institution of this suit. And then proved that William Inloes became entitled, as heir of Abraham Inloes, to the ground marked on the plat by the No. 5.

And the defendants then further offered in evidence the following ordinances of the Mayor [**55]  and City Council of Baltimore, to wit: Of 4th May, 1801; 24th March, 1813; 25th March, 1814; 28th May, 1814; 11th March, 1823; 13th April, 1826.

And the following acts of Assembly, to wit: Of 1783, ch. 24, sec. 9; 1796, ch. 68; 1745, ch. 9.

And then the defendants read in evidence the following receipts of payment of taxes to the city of Baltimore, and for filling up for the ground in dispute in this case--(all which are omitted as not material to this report.)

City Commissioners' Office, Baltimore, 27th June, 1838. I hereby certify that the following named persons, viz. William Inloes, J. S. Inloes, Godfrey Meyer, James Hooper, A. B. Harrison, George Chapman, and J. L. Chapman, have paid the amount charged them respectively for filling up a square of ground situated between Caroline and Canal streets, and Aliceana and Lancaster streets.

By order,     R. B. VARDEN, Cl'k, C. C.

The defendants then further to prove the issue on their part, offered evidence, by -- Graves, that he has resided forty-seven or forty-eight years on Fell's Point, and has that long known the property now in dispute; that William Inloes' fence was put down in 1807 or 1808, and continued,  [**56]  he thinks, nine or ten years; that it began at about the middle of Caroline street, and went westerly, he would not say as far as Spring street; that a great deal of wash at that time come down Caroline street; that the wash went against the fence of Inloes aforesaid, and was turned by it westerly of the fence; that the wash southerly of Fleet street spread, the ground being flat; that the fence was made for filling up, and that was known in the neighborhood, and that it had the effect of filling up by catching the sediment as it came down; that persons looking could see the fence from Wilkes street; that he cannot say it was standing when the city began filling up; that the fence was of inch board, nailed to the log; that persons owning the ground on Bond street claimed water rights, and that therefore Inloes ran out; that he knew Joshua Inloes' wharf; that Joshua Inloes married his sister, and that he was apprentice to Joshua Inloes; that the wharf was up in 1795, and extended fifteen or twenty feet westerly of Strawberry alley; that Joshua Inloes had a fence from his wharf; that William Inloes' fence began about the middle of Caroline street; that he saw Inloes six or seven times [**57]  repair it in that number of years; that it continued eight or nine years; that he thinks he saw it since 1814, but will not speak positively; that the wash which went down Caroline str't, was turned eastwardly into Ann street about the year 1808, but that still some wash came down until a few years past; that the fence caught some of the wash; that before the fence was put there, there was no ground at the place, and afterwards there was, both on the north and south side of the fence; that the muddy water would go through the fence; that at low tides the fence was bare; that when the fence was put up it was about three feet above the ground; that when witness last saw it, it was eighteen inches above the ground at low tides; that Chapman, in 1826 or 1827, built the warehouse marked on the plat.

And the defendants further offered evidence, by Peter Foy, that he was a member of the Board of Health from the year 1818 to the year 1825; that the filling up of the cove was not completed till last year; that in 1814 or 1815 a part of the filling on Lancaster street was completed; that the square in dispute has been enclosed six or seven years; that Chapman's glass house was built in [**58]  1826 or 1827; that eighteen months or two years afterwards the water was expelled from the square by the discharge from the mud machines, and then water was let in and run over the sediment so as to spread it, which was done by the city authorities; that witness went with the city commissioners, under the ordinance of 1823, to owners of ground on Bond street, for making contracts under the ordinances, but that he does not remember to whom he went, and all asked signed but Inloes, but he said it was not a nuisance, for his lot did not want it; that Joshua Inloes' wharf stood about 1794, 1795, or 1796; that it ran out fifty or sixty feet westerly of Strawberry alley; that he saw William Inloes put a fence, or some contrivance, about 1808 or 1809, in the rear of his (Inloes') lot, to catch the sediment, or that the fence was made by driving down stakes of one or one and a quarter inch stuff into logs or scantling, or something; that the stakes were there a number of years; saw some of them in 1823; that the tops of them contributed to impede the course of the sediment north and south of Aliceana street; the ground was bare at low tides; common tides covered it, and ten or twelve years [**59]  ago the water flowed over the ground above Aliceana street; the ground is considerably lower than the beds of the streets; Inloes has been claiming title to the ground as it made, and claimed as owner of the lot under his father, and to be entitled to follow the water; the wash down Caroline street was over flat ground after leaving Fleet street, and then spread; that he does not know whether the fence was kept up in 1813 or 1814; that he passed often where he might have seen it if he had looked; that any person could have seen it from Wilkes street; does not recollect taking notice of it.

The defendants further offered evidence, by Walter Frazier, that he began to work on the mud machine in 1818, and continued till 1841; that in 1818 the mud was depositing on Lancaster street, and that up Harford street, for a distance, there was firm land; that at time the tide went up back of William Inloes' ground, and that a gap for boats was left in Spring street, at Lancaster street; that he saw Inloes' fence in 1818 and in 1825 or 1826, the last year of the filling up, and that in 1825 there was firm land along it on Inloes' lot. It was made of stakes driven down, and could have been seen [**60]  from Wilkes street by any person looking at it; has seen Inloes repairing the fence somewhere about Caroline street; that William Inloes always claimed to go to Harford run, and said his father's deed would carry him to Jones' Falls; that Inloes fence stopped the wash. There was a fence as far as Eden street; witness saw it when he was filling up Eden street; that in 1819 there was firm land at the corner of Canal and Lancaster streets; that witness used to cut grass there; that the squares above Aliceana street, between Eden and Caroline streets, were covered with water after the lower squares were filled up. Cross examined, he says, that the square in dispute was enclosed eight or ten years ago, and that the fence was put around it after the filling up was finished; that Inloes' fence began on the east side of Caroline street, and ran west of it; that the first time he saw it was in 1817 or 1818; that it was made of stakes driven down and boards nailed to it; that in 1819 there was no attention paid to it, as the ground was filling up; that the stakes, when he first saw the fence, were broken off, and were then some two or three feet apart; that in 1818 the stakes were three feet [**61]  above the mud, and that when the lot was filled up it was filled three or four feet above the tops of the stakes.

And the defendants further offered evidence, by Abraham Parks, that he remembers that about thirty years ago Inloes' fence was first done; that witness was in the business of hauling dirt and gravel, and asked Inloes' leave to throw out dirt and stones on his lot; that the lot went out then, which was about twenty years ago, pretty far; does not know whether it was high ground beyond Caroline street; that it was dry a good smart place beyond Caroline street. That he speaks of the street (Aliceana street) west of Caroline street as dry about one hundred feet out; he got permission of Inloes before the war to cast dirt and stone along his fence, and did so; he had the filling up of the street, (Aliceana,) and hauled a good many loads to it after he got Inloes' permission; that the fence was up then; that Inloes' fence was repaired from time to time.

The defendants further offered evidence, by Alexander J. Bouldin, surveyor of Baltimore county, that he executed a special warrant as for vacancy in the year 1836, for a piece of ground, including the ground now in question,  [**62]  issued to James Tracy and the heirs of John Hammond, and returned the survey to the land office.

And the plaintiff thereupon, further to prove the issue on their part, offered evidence by said Bouldin, that the ground now in question was not yet enclosed on the -- August, 1839, and that William Inloes claimed the ground now claimed by him, on the ground, as he stated, that he had a right to follow the water and to go wherever the water went.

And the plaintiff further offered testimony, by -- Abbott, that one Spencer made a fence, with stakes driven down, beyond Spring street, and that was in his opinion the fence mentioned in Frazier's testimony, as extending to Eden street from Spring street.

And the plaintiff further offered to prove by said Bouldin, that at all times while the ground was making in the cove, it was the prevalent opinion in that neighborhood that the title to the ground, making by nature or artificially, was in the State or the city, and not in any owners of any of the banks of the cove. But to the admission of this testimony the defendants objected, and the court (ARCHER, C. J.) refused to admit the same to be given. The plaintiff excepted.

2ND [**63]  EXCEPTION. And the plaintiff and defendants having respectively offered the testimony stated in the aforegoing bill of exceptions, which is made part of this bill. The plaintiff thereupon, further to prove the issue on her part, offered in evidence the following certificate from the debt book of the Province of Maryland. (See ante pages 446, 447.)

And the defendants, further to prove the issue on their part, offered to read in evidence the following certificate from the rent-roll of the Province:

________________________________________________________________________________
Acres.	Rent.	
200	0 8 0	Mountenay's Neck,			Thomas Sligh from	
					Thomas Sheredine,	
					26th June,	1756	
		Escheat.	Acres.	Rent.  	
		Land originally so called	10   	005   	Peter Lettage	
		 lying on the north side			from Thos. Sligh,	
		 of the N. w. branch of			20th May,	1757	
		 Patapsco river.  Resur-			Thos. Sligh from	
		 veyed 27th April, 1737,			Bryan Philpott,	
		 for William Fell.			9th June,	1758	
			200   	080   	Thos. Sligh from	
					Edward Fell,	
					14th August,	1758	
			14 1/4	007   	Thomas Hammond	
					from Thos. Sligh,	
					31st January,	1759	
100	0 4 0	 Thomas Sligh,			Thos. Sligh from	
					Charles Carroll,	
					Esq. 31st May,	1759	
100	0 4 0	 Thomas Sheredine,	2   	001   	John Brustal from	
					Thos. Sligh, 28th	
					June,	1759	
		   Possessors.	4   	002   	John Hammond	
					Dorsey from Thos.	
					Sligh, 6th	
					November,	1759	
			4   	002   	William Young	
					from Thos. Sligh,	
					8th November,	1759	
			8 3/4	004 1/2	Alexander Stewart	
					from Thos. Sligh,	
					28th November,	1759	
			2   	001   	Daniel Bernet	
					from Thomas	
					Sligh, 28th	
					February,	1761	
			   	   	Peter Woolriek	
					from Thomas	
					Sligh, 21st May,	1762	
			6   	003   	Jacob Myers from	
					Thomas Sligh, May	
					3rd,	1766	
			9 1/2	005   	John Deaver from	
					Thomas Sligh,	
					July 17th,	1766	
			9   	004 1/2	John Deaver from	
					Thomas Sligh,	
					March 28th,	1767	
			6   	00   	Jacob Myers from	
					Thomas Sligh, 2nd	
					July,	1768	
			1   	001   	James Sterret	
					from John Askers,	
					26th September,	1771	
			1   	001   	James Sterret	
					from John Devour,	
					8th May,	1773	
			   	   	J. Cornthwaite &	
					G. Hopkins from	
					J. Devour, 21st	
					June,	1773	
________________________________________________________________________________

 [**64]  

[Seal place.]

In testimony that the aforegoing is a true copy from the old rent roll for Baltimore county, No. 1, folio 220, one of the records belonging to and remaining in the Western Shore Land office of Maryland, I have hereunto set my hand, and affixed my official seal, this 8th day of November, 1842.

GEO. G. BREWER, Reg. Land Office, W. S. Md.

The plaintiff objected to the admission of said last testimony, and the court (ARCHER, C. J.) allowed the said paper to be read in evidence. The plaintiff excepted.

3RD EXCEPTION. And the plaintiff and defendants, having offered the testimony stated in the aforegoing bills of exception, which is made a part of this bill, the plaintiff, further to prove the issue on her part, offered in evidence the patent of Rogers' Inspection:

MR. WILLIAM ROGERS--patent fifty three acres--Rogers' Inspection. Frederick, &c. Know ye, that whereas, William Rogers, by his humble petition to our agent, for management of land affairs within this Province, did set forth, that a certain John Boreing had, on the 20th day of April, seventeen hundred and forty-two, surveyed and laid out for him a tract or parcel of land called Boreing's [**65]  Convenience, lying and being in the county aforesaid, containing seventy-five acres, by virtue of an assignment for that quantity from Thomas Sheredine, being part of a warrant for four hundred acres, granted said Sheredine the twenty-fourth day of October, seventeen hundred and forty-one, as per the certificate thereof, taken and returned in the land office might appear; the petitioner further showed that the said certificate had laid over since in the office postponed, and no patent had ever yet issued thereon, and as the two years for suing out such grant was expired, the petitioner was desired, that by sundry of our proclamations published, the certificate aforesaid was become null and void, and the land and premises therein mentioned subjected to the benefit of the first discoverer, and inasmuch as the petitioner was the first discoverer; and desired to take up and pay for the same, humbly prayed a special warrant to resurvey the aforesaid tract, with the liberty of adding any contiguous vacancy, and return of a certificate of such resurvey, he paying the caution money, and complying with all other requisites usual in such cases, might have our grant issue unto him thereon, which [**66]  was granted him; and accordingly a warrant on the twenty-seventh day of April, seventeen hundred and fifty-nine, unto him for that purpose did issue; but the said warrant not yet being executed, it was on the eighteenth day of June, seventeen hundred and fifty-nine, renewed and continued in force for six months longer from that date, with liberty therein given to include a certain tract of escheat land called Bold Venture, contiguous to the former tract, originally granted unto a certain John Oulton, for one hundred and sixty-one acres, died seized thereof intestate, and without heirs, by which means the same became escheat to us, humbly prayed to be admitted to the purchase of the said escheat, being it escheat by the means aforesaid, for any or other ways or means whatsoever. In pursuance whereof it is certified in our land office that the aforesaid tracts or parcels of lands are surveyed, by which it appears that that tract called Boreing's Venture, clear of elder surveys, contains no more than the quantity of twenty-seven acres, and that that parcel of escheat land called Bold Venture, also clear of elder survey, contains no more than the quantity of twenty-one acres; and that [**67]  there is the quantity of five acres of vacant land added, for which he has paid, &c. We do therefore hereby grant and confirm unto him the said William Rogers, all them the aforesaid two tracts or parcels of land now resurveyed and called "Rogers' Inspection," beginning for the first mentioned part in the east line of a tract of land called "Todd's Range," and where the said east line of Todd's Range interests the west side of "Jones' Falls," and running thence, bounding on and with the said east line of Todd's Range, east one hundred and ninety-eight perches, until it intersects the south-southwest, three hundred and twenty perches, line of the original escheat tract of land called Bold Venture, then bounding on and with that line south-southwest, twenty-nine perches, until it intersects the east line of a tract of land called Cole's Harbour, then bounding on and with that line of Cole's Harbour, east sixty perches, until it intersects the north-northeast, three hundred and twenty perches, line of a tract of land called "Mountenay's Neck," then bounding on that line to the end thereof, north-northeast forty-four perches, then west-northwest fifty-four perches, unto the end of the [**68]  west-northwest, fifty-four perches, line of the original escheat tract, called "Bold Venture," then south-south-west twenty perches, until it intersects the east, one hundred and eighty-one perches, line of a tract of land called Garrow Barrow, then bounding on that line reversed, of the same west one hundred and twenty-two perches unto the end of the south, six degrees west, thirty-seven perches, line of said land, then bounding on that line, reverse of the same, north six degrees east, twenty-nine perches and three quarters of a perch, until it intersects the east line of a tract of land called "Hanson's Wood Lot," then bounding on that line, reverse of the same, west twenty-one perches and half a perch, until it intersects the south by west line of a tract of land called Salisbury Plains, then bounding on and with that line to the end thereof, south by west thirty-nine perches, then bounding and with the given line of Salsbury Plains, north forty-one degrees and thirty minutes west, ninety-one perches and half of a perch, until it intersects the given line of a tract of land called Lunn's Lot, and then with a straight line to the place of beginning; containing and laid out for fifty [**69]  acres and the fourth part of an acre, more or less. Beginning for the other part at a bounded white oak standing near the side of the northwest branch of Patapsco, it being the second bounded tree of a tract of land called Mountenay's Neck, and running thence, bounding on the said land, east-southeast seventy-one perches, unto a creek of the said northwest branch, then bounding down with the said creek, south twenty degrees, west seven perches unto the mouth of said creek, then bounding upward on said northwest branch, the four following courses, viz: north fifty-eight degrees west, thirty-five perches, south eighty degrees west, sixteen perches, north seventy-four degrees west, ten perches, north thirty-three degrees west, twenty perches, and then with a straight line to the beginning; containing, &c.; to have and to hold the same, unto him the said William Rogers, his heirs and assigns forever, in the year, viz. the feast of the Annunciation of the Blessed Virgin Mary and St. Michael, the Arch Angel, by even, &c.

And thereupon, the plaintiff and defendants, respectively, prayed the court in their respective parts, as follows:

Plaintiff's Prayers from No. 1 to 16.

1st.  [**70]  If the jury shall find from the evidence that a patent was granted by the State of Maryland to Alexander Mountenay for Mountenay's Neck, on the 30th June 1663, and a deed from Samuel Wheeler and wife to Daniel Jones, of the 22nd March 1685, and the deed from Blunt to Todd, of the 4th October 1689, and the deed from Todd to Hurst, of the 3rd of March 1701, and the deed from Todd to Charles Carroll, of the 16th June 1701, and the deed of mortgage from John Hurst to Richard Colegate, on the 13th October 1702, the deed from said Hurst to Thomas Sheridine and Thomas Sligh, of the 19th March 1749, and the will of Richard Colegate of the 8th day of August, 1721, in favor of his two sons, John and Thomas Colegate, and a deed from the said John and Thomas Colegate to Thomas Sheridine and Thomas Sligh, of the 15th November 1750, a deed from Thomas Sheridine to Thomas Sligh, of the 26th June 1756, a deed from Charles Carroll to Thomas Sligh, of the 31st May 1759, the deed from Thomas Sligh to Thomas Hammond; and that said Thomas Hammond died before the Revolution, leaving William Hammond, his eldest son and heir at law, and that he inherited the land of his father Thomas, as such heir; and if [**71]  the jury find the two deeds from the said William Hammond to John Cornthwaite, of the 20th September 1775 and of the 2nd of April 1779, and the two deeds from John Cornthwaite to John Hammond, of the 24th September 1779 and of the 7th June 1780, and the deed from John Hammond to John Anderson, of the 4th March 1795. And if the jury believe that John Hammond intermarried with the plaintiff in this case soon after said last mentioned deed, and that she was the sister of John Anderson. And if the jury believe that said John Anderson departed this life about the year 1805, without ever having been married, and that said John Hammond also died soon after him, and that the plaintiff in this cause afterwards intermarried with a certain R. Casey, who also departed this life before the institution of this suit. And if the jury further find from the evidence that said James Todd was in possession of Mountenay's Neck as early as the year 1700, and that those claiming under said Todd have continued in possession of the same, or parts thereof, according to their deeds, or as they became entitled thereto by will or descent, down to the present time, and also the record of ejectment of 1703, that [**72]  John Hammond was in actual possession of that part of Mountenay's Neck embraced in the deeds to him from Cornthwaite, during his life, and filled up on the water front of his lot, and in this way and by the wash from the upper ground through Caroline street, other land was made fast land, and added to his, and if he leased the same, or a part thereof, to McDowal, as stated in the evidence, and collected the rent from him; and that if, since the death of the said Hammond, those who claim under him have been in possession of the said property, and collected the rents thereof, or of such portions as have been leased, then if the jury believe the preceding facts, they are bound to presume a deed from said Alexander Mountenay, or those claiming under him, to said Samuel Wheeler and wife, and from said David Jones to said Robert Blunt, or his ancestor, for the tract of land called Mountenay's Neck.

2nd. And if the jury believe, in addition to the facts set forth in the above or first prayer of the plaintiff, that the square of ground between the City Dock and Aliceana street, and Caroline and Spring streets, was filled up and made fast land by the authorities of the city of Baltimore,  [**73]  under the ordinance of 1823, and the other ordinances given in evidence, and was completed about the year 1836, and the defendants were in possession thereof at the institution of this suit, then the plaintiff is entitled to recover.

3rd. If the jury believe the facts sets forth in the plaintiff's first and second prayers, and also, that plaintiff, and those under whom she claims, have been in possession of the part of said property, by having a house erected upon it, and by the actual enclosure of a board fence, then the defendants cannot avail themselves of any title from presumption, except of such part as they can prove that they have also been possessed of by actual enclosure for twenty years next before the impetration of the writ in this cause.

4th. That the defendants in this case cannot avail themselves of the benefit of a presumption of a grant to them for the property in dispute, unless they show by strong proof a continuous and uninterrupted possession thereof for twenty years next before the institution of this suit.

5th. That there is no evidence in this case to prove such possession.

6th. That the defendants cannot be allowed to avail themselves of [**74]  any possession so as to defeat the title of the plaintiff, further than such possession is located on the plats in this case.

7th. That the acts and possession of any one of the said defendants cannot avail the other defendants by affording to them the benefit of a presumption of a grant.

8th. That before the jury can find a title in the defendants, or any one of them, by presumption of a grant from the plaintiff, or those under who she claims, they must believe in their conscience, and find as a fact, that such grant was actually made.

9th. And that such grant was made by the plaintiff to the defendants, by deed regularly executed and acknowledged.

10th. That if the jury believe the evidence in this case, they cannot presume a grant from the plaintiff, or those under whom she claims, to the defendants, or either, from any acts or possession of the defendants, given in evidence, between the years 1783 and 1823.

11th. That the title of the plaintiff cannot be affected by adding together the different possessions and acts of the defendants, at long intervals, in point of time, so as to make out twenty years, nor can the possession of the defendants on the east [**75]  side of Caroline street be connected with possession on the west side thereof, so as to make out the twenty years; but possession from which the presumption may be created, must be confined to the property in dispute.

12th. That the statute of limitations of James does not apply to the circumstances of this case, as stated in the evidence.

13th. If the jury find the patents, deeds and ordinances offered in evidence in this cause by the defendants, and that they were so offered by the defendants to show that they had the superior, better and more ancient right to extend, fill up, and improve in front of their own lots, than the plaintiff, and those under whom she claims, have in front of her lot, then no possession which has been proved in this case on the part of the defendants, or any of them, can give rise to a presumption of a grant to the defendants from the plaintiff, as the claim of a better title on the part of the defendants than the plaintiff ever had, if the jury find such claim, is wholly inconsistent and at war with such presumption.

14th. That if the jury believe that Island Point was resurveyed and other land added to it by William Fell in 1761, and that [**76]  the whole were included in one tract under the name of Fell's Prospect, and that a patent of the same was granted to said Fell at the above date, and if they believe from the fact that the defendants have offered in evidence the said patent in this cause, as part of their title that they cannot now claim under the patent of Island Point, as a subsisting independent patent, but they must claim, if at all, by the relation to it of the patent of Fell's Prospect.

15th. That, even if the jury should believe from the evidence that Thomas Sligh claimed under the escheat patent of Mountenay's Neck to Edward Fell in the year 1737, still the said Thomas Sligh, and those claiming under him, have a right to go back by relation to the original patent of Mountenay's Neck in 1663, and to date their title from that period.

16th. The plaintiff further prayed the court to instruct the jury, that if they shall believe the evidence offered in this case by the plaintiff and defendants, then they may and ought to presume a deed from A. Mountenay, or his heirs, to Wheeler and wife, and from Daniel Jones, or those claiming under him, to Robert Blunt, or his ancestor, for the tract of land called [**77]  Mountenay's Neck.

Defendants Prayers, No. 1 to 4.

1st. That if the jury find that the tract called Bold Venture was granted as given in evidence by the defendants, and that the same is truly located on the plats in the cause by defendants, that then the patent of Mountenay's Neck gives no title to the lessors of the plaintiff to the lot of ground for which the defendants have taken the defence on the plats.

2nd. That if the jury find the existence of the grants of Long Island Point and Island Point, offered in evidence by the defendants, and that the location of the first tract of those is as made by defendants, and the location of the latter is according to either of the locations of the same as made by the defendants; and if they also find, that in 1734, when the survey of said latter grant was made and the patent granted, the water of the Patapsco ran up to and adjoined the line of said tract, according to one of the locations thereof aforesaid, that is to say, the line from red K to red L, or run east of that line, that then the defendants, and those under whom they claim, were as between themselves and the lessors of the plaintiff, and those under whom they claim,  [**78]  the elder riparian owners of the water lots on Bond street, in front of which, the lots run in controversy, included within the defendants defence on the plats in the cause, to the legal ownership of the plaintiff of the lots on Wilkes street; and if the jury find those facts, that then the plaintiff is not entitled to recover.

3rd. That if the jury find the existence of the grants of Long Island Point and Island Point, offered in evidence by defendants, and that the location of the first of these tracts is as made by defendants, and the location of the latter is according to either of the locations of the same as made by defendants; and if they also find, that in 1736, when the survey of said latter grant was made and the patent granted, the water of the Patapsco river ran up and along the line of said tract, according to either of the locations thereof aforesaid, that is to say, the line from red K to red L, or ran east of that line; and if the jury shall also believe that Mountenay's Neck rightfully escheated, that then defendants, and those under whom they claim, were as between themselves and the lessors of the plaintiff, and those under whom they claim, the elder riparian [**79]  owners of the water lots on Bond street, in front of which the lots now in controversy, included within the defendants defence on the plats in the cause to the ownership of the plaintiff of the lots on Wilkes street, and if the jury find these facts, then the plaintiff is not entitled to recover.

4th. If the jury find that the tracts of land aforesaid, Bold Venture, Long Island Point and Island Point and Fell's Prospect were granted, as offered in evidence by defendants, and that the locations thereof as made by defendants are correct; and if they also find that the defendants, and those under whom they claim, have, from the year 1795 to the present time, been claiming and being in possession of the lots on Bond street, numbered from 5 to 9, as those lots are located on the plats in the cause, and always also claimed the right to improve their said lots by extending them into the water, under the authority of the Act of Maryland of 1745, ch. 9, and to be entitled to the land which might be so made out of the water in front of said lots; and if the jury further find, that one of the owners of said lots, that is, lot No. 5, in the year 1795, extended the front of his said lot from [**80]  D to L, claiming to have the right to do so as aforesaid, and took possession thereof, and he, and those claiming under him, ever since exclusively held and owned the same as the fee simple owners thereof; and if they further find, that afterwards, in the assertion of the same right, the defendant, Inloes, claiming to have the right to do so, and to be entitled to the land which might be made by him in front of the said lot owned by him, erected the fence from P to Q, in the rear of the said lot No. 5, for the avowed purpose, by means thereof to intercept all the wash or sediment which, from any cause, might come down against the said fence, and to cause the same to settle there, and convert the water there then into land, as a part and parcel of said lot No. 5 extended, and also throughout openly declared that he had and claimed the right, if the city would permit it, and would, as soon as they did permit it, carry and extend his said lot over and across Eden street and as far as Canal street; and if they also find, that when said fence was so as aforesaid made by Inloes, the city of Baltimore had passed its ordinance of the 1st May 1801, given in evidence by defendants; and if they [**81]  find, that from time to time the washings and sediments aforesaid settled in and along said fence from P to Q, so as to make portions of the same dry land as late as 1810, and that as soon as the same became land, the same was taken possession of by Inloes claiming title to the same, and using it absolutely as his own; and if they further find, that for the like purpose of making the whole of his said lot to extend to the limits of said fence, he caused dirt from time to time, from 1805 to 1818, to be hauled and deposited along the same, and in that way, with the aid of the washings deposited in the same place, to convert the same into land, and that as the same was so made, he took possession thereof, and used, and claimed title to the use of the same; and if they further find, that the city afterwards passed the ordinances of the 24th March 1813, 25th March 1814, 25th May 1816, 11th March 1823 and 13th April 1826; and if they also find, that the city acted under said ordinances, and went on from time to time to make the improvements contemplated by the same in that part of the property on the plat which lies between Lancaster and Aliceana streets on the north and south, and Canal [**82]  street on the west, and Bond street on the east, to and with the aid and at the expense, as far as the same was charged to individuals, of the defendants, and those under whom they claim, on account of the lots aforesaid on Bond street; and if they further find, that as soon as the said ground was made by all those conjoint means, and from time to time as the same was made, the defendants, or those under whom they claim, took adversary possession of each and every part thereof, lying annexed to and in front of their said several lots on Bond street, and that as streets were opened over and across to them, they paid the assessment upon said property, levied by the city authorities for the making of such streets, and they also paid all the other taxes which have been levied upon said property since the same was made, and always, during all of said period, claiming title to said property, and being in the adversary use and possession thereof; and if they further find, that during the said period the said defendants, and those under whom they claim, always asserted their right to extend their said lots on Bond street east to Canal street, and that such claim of right and such possession [**83]  of the property as was from time to time taken by them, and such means as were adopted by them to make such extensions, were all notorious and well known to the lessors of the plaintiff; and if they further find that plaintiff, or those under whom she claimed, never claimed or used her or their right to extend her said lot on Wilkes street further than Aliceana street, and never gave any notice to the defendants or those under whom they claim, that when the particular property in dispute should by them, at their expense, be made, that she would claim title to the same, or in any manner disturb the right and interest of the defendants, or those under whom they claim in said property when the same should be made, and that they never have paid or offered to pay the taxes on the same; and if they further find that Chapman, one of the defendants, in the year 1826 or 1827, built the glass house at the corner of Caroline and Lancaster streets, and has, until the institution of this suit, held peaceable possession of the same, claiming title to the same; if they also find that Hammond and Pinkney's heirs claiming title to the lots on Wilkes street immediately north of that part of the property [**84]  made as aforesaid by defendants, which lies between the west side of Caroline street and Spring street, together with a certain Klinefelter, took up said part of said property, and the square lying immediately west thereof, and running into Canal street, as vacant land, without they, the said Hammond and Pinkney's heirs, claiming the same by virtue of their title to the said lots on Wilkes street; and if they further find that neither said plaintiff nor any other proprietor of the lots on Wilkes street have ever paid or tendered to pay to the defendants, or any one else, the expense of making said property; that then, first, the lessor of the plaintiff is barred by the statute of limitations from recovering in this suit the land included within the lines of the defendants defence as located upon the plats; or if not so barred, that then, second, the jury may and ought to presume that the proprietors of that part of Mountenay's Neck lying immediately north of the first line of that tract, as located on the plats from black M to black N, and immediately north of the ground so made as aforesaid by the defendants, and those under whom they claim, which was adjoining to and immediately [**85]  west of the defendants lots aforesaid on Bond street, as far as and including the whole of said ground embraced in the defendants said defence, have granted the same to the defendants or those they claim under; or third, that then they may and must presume that the patent of Mountenay's Neck, in whom, at any time prior, riparian right to improve under the said act of 1745, or those claiming under them, may have existed, had surrendered and granted to the defendants, or those under whom they claimed such right, so as to authorise and entitle said defendants, and those under whom they claim, to improve, to the exclusion of such and those claiming under him, their said lots on Bond street to the same purpose and with the like effect as if they, the said defendants, and those they claim under, were, by virtue of grants from the State, the riparian proprietors of said lots prior, in point of time and right, to the said patentee and those claiming under him of Mountenay's Neck.

Whereupon the court granted the first and sixteenth prayers of the plaintiff, and rejected her prayers numbered from two down to fifteen inclusive, and rejected the first, second and third prayers of the defendants,  [**86]  and granted their fourth prayer; to the granting of the fourth prayer of defendants, and to the rejection of her prayers from two to fifteen, the plaintiff excepted, and to the granting of first and sixteenth of plaintiff's prayers, and to the rejection of their first, second and third prayers, the defendants excepted.

4TH EXCEPTION. The court having decided, as stated in the preceding exception, upon the several prayers of the plaintiff and defendants, the plaintiff gave in evidence the deed from Samuel Wheeler and Ann his wife, to David Jones, of 22nd March, 1685, heretofore offered by defendants, and it being agreed that all the evidence in the prior exceptions should be considered as a part of this exception, the plaintiff, by her counsel, prayed the court to instruct the jury, as follows:

1. That there is no evidence of adverse possession, for twenty years before the institution of this suit; and that the plaintiffs are not barred by any possession which the defendants or any of them have proved.

2. That the bar of adversary possession cannot apply in this case, unless it be shown to have been defined and uninterrupted; and that the defendants are not entitled to [**87]  any portion of the land in controversy, not included in such definite and uninterrupted possession, and except so far as the defendants shall have shown such possession, and for the term of twenty years before the bringing of this suit.

3. That if the jury believe that the land in controversy did not become fast land, so that the water did not flow over it at ordinary tides, within twenty years before the bringing of this suit, then no adversary possession thereof can be found to bar the plaintiff's recovery.

4. That there is no evidence in this case from which the jury are at liberty to presume that any deed or grant was ever made by the lessor of the plaintiff or those under whom she claims, of the land in controversy, or the right to extend into the water.

5. That the jury cannot presume any such deed or grant, if they believe that the defendant Inloes claimed the right to extend his wharf, by virtue of his ownership, under title from his father, of the land on Bond street, and with permission of the city.

6. That the jury, to make the presumption of a deed or grant as above mentioned, must be satisfied that in point of fact a deed was executed by the plaintiff's [**88]  lessor, or some one under whom she claims, of their interest in the land in controversy, or their right to extend the land into the water to the defendants, or some one of them.

All of which prayers the court (ARCHER, C. J.) refused to grant. The plaintiff excepted.

5TH EXCEPTION. The counsel for the plaintiff further prayed the court to instruct the jury upon the evidence given, as stated in the preceding bills of exceptions, which is to be taken as a part of this bill of exception, that there is no evidence in this cause that any one of the defendants, except Inloes and Chapman, ever had possession of any portion of the property in dispute, even for a day, or made any entry into it, previous to the time when it was filled up and made fast land by the city of Baltimore in the year 1836, or when the jury may find that it was filled up; that there is no evidence that Chapman ever had possession of any of said property, or exercised acts of ownership over it previous to about the year 1826; and that if the jury believe the facts set forth in the plaintiff's first, second, and third prayers, then the plaintiff is entitled to recover against all the defendants except Inloes;  [**89]  which the court (ARCHER, C. J.) refused to grant. The plaintiff excepted.

6TH EXCEPTION. The patents and deeds of records offered in evidence by the plaintiff, being offered, subject to all exceptions to which the same might be liable, the defendants, by their counsel, objected to the admissibility in evidence of each and every of said patents, deeds, and records; but the court overruled the objection, and suffered each and every of said patents, deeds, and records to be given in evidence to the jury. The defendants excepted.

The parties then filed the following agreement, to wit:

It is agreed that the plats on file in this case, or made for the parties, may be used to every effect in the Court of Appeals, as if the same were copied and sent up with the record; and that the explanations in like manner may be used; and that neither the plats nor the explanations need be copied into the transcript for the Court of Appeals. It is agreed, also, that the plat of the city designating the improvement to be made under the ordinance of 1823, may be also used without being copied with the transcript, and likewise the plat of Fell's Addition to Baltimore town, of 1773; and that [**90]  all the ordinances and laws given in evidence in the above case may be read in the Court of Appeals from the printed laws and ordinances, and that the same shall not be copied in the record. It is also agreed that the plot from the City Atlas of 1824, offered in evidence, shall not be inserted into the record, but a copy of the same, by A. J. Bouldin, may be used in the Court of Appeals.

The verdict and judgment being against the lessor of the plaintiff, she appealed to this Court.

Explanations of the plot published with this report, which however only contains such portions of the survey, as give a general view of the controversy.

1. The plaintiff claimed from W to X, then to the water of the City Dock, then bounding on the water of the Dock to Caroline street, and then on Caroline street to W.

2. The defendant took defence for all the land lying between the W. side of Caroline, and E. side of Spring street, and the S. side of Aliceana street, and N. side of Lancaster street.

3. M is the admitted beginning of Mountenay's Neck, as surveyed in 1737, for Wm. Fell, and the N. W. line from that point, is its first line.

4. Bold Venture was located by the plaintiff [**91]  in three ways. The first line of which was from the southern A to M, and located as a tract for 161 acres. It was also located as clear of elder surveys according to the recitals in the patent of Rogers' Inspection, of the 28th Sept. 1759, in two other modes, the lines of both of which parcels are clear of this controversy, and do not affect it. In that patent the original grant is assumed to have encroached on elder surveys.

5. V to W to X and Y, shew the permission of the Port Wardens of Baltimore to John Hammond, in 1784, to extend his improvements into the water west of Caroline street, to the Port Warden's line on the south.

6. The deeds from John Cornthwaite to William Hammond, were so located by the plaintiff as to show a claim to the water line of the river at Y and V, the water at one time flowing to the shore at those points.

7. The defendants located W to X to 109 to 110 and to W, as being in their possession.

8. The defendants located Bold Venture as beginning at the southern A, and thence to M, and with the line from M to N, so as to include a part of the City Dock, and as conforming to the original grant for 161 ac's.

9. The line of the water [**92]  as if flowed in 1783, is shown by the dotted lines from A to Y, V, B, C, F, according to the depositions of E. Smith and William Dawson for the plaintiff.

10. The line of the water as it flowed in 1801, according to defendants depositions, is shown by the dotted line south of the preceding line from G to F.

11. The dotted line from L to O shows the line of logs run out by Joshua Inloes.

12. The dotted line from P to Q west, shows the water-fence as extended by William Inloes.

13. The numbers 5, 6, 7, 8, 9, show the leases from Ann Fell, on Bond street; No. 5 being to Abraham Inloes.

14. No. 1 to 11 shows the water in 1734 W. of the leased lots which are located on the original plats with shaded lines as bordering on the water.

15. No. 10, located as the lease from John Hammond to Thomas McDowall, 28th February, 1798.

[SEE PLOT IN ORIGINAL] 

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

A prevalent opinion, in the neighborhood of the premises claimed in an action of ejectment, even if known and adopted by the lessor of the plaintiff, as to her legal rights, whether founded in error or not, does not, at law, prevent the running of the statute of limitations, nor repel the legal presumption of a grant arising from long continued, and acquiesced in, adverse possession.

A certified copy of the rent-roll, extracted from the debt books of the Lord Proprietary, under the hand and seal of the Register of the Land office, having relation to the possession of the tract of land claimed in an action of ejectment, is competent evidence for the defendant in all cases of controverted possession, or when possession is relied on as evidence for the presumption of a grant.

The rent-rolls are books which were kept in the several counties of the State, during the Proprietary Government, by officers called rent-roll keepers, and were designed to show, in the respective counties, the grants of land made by the Lord Proprietary, the names of the subsequent alienees thereof, of those who were in possession of the same, and the quit-rents with which they were chargeable.

An escheat patent is conclusive evidence of the fact of an escheat grant.

Extracts from the rent-rolls may tend to disprove possession under an escheat patent, in a particular person, at a given period, by not showing that such person, at such period, was in possession, nor that quit-rents were charged to him on account of such escheated lands, as also by showing that others were charged therefor.

Where a tract of land was patented in 1663, and no conveyance from the patentee, but a deed for the same land in 1685 was in proof, from W. to J., and another deed for the same tract in 1689, from B. to T., with proof of title, from T. to the lessor of the plaintiff, who brought her action of ejectment in 1841, but no evidence that W., J, or B. had ever been in possession, or how W. or B. acquired or claimed title, the court cannot be called upon to instruct the jury that they are bound to presume a deed from the patentee or those claiming under him, to W., or from J. to B. or his ancestor, for such tract of land; though it would have been competent to have required an instruction to the jury that they must presume a deed from the patentee, or those claiming under him, to B., from whom the paper or record title was perfect.

A continuous possession of twenty years or upwards, in a party, or those claiming under him, will authorise him or them to supply the absence of a conveyance to such party from one seized before him, by requiring the court to instruct the jury to presume such a conveyance.

No direct proof of possession in a given party can be reasonably expected after a lapse of one hundred and fifty years.

The certificate of the surveyor of the county, made in 1698, that a tract of land began at a bounded white oak, standing in the line of a parcel of land formerly belonging to M., "and now in the possession of the aforesaid T," returned to the land office about nine years after a deed to T., is evidence of T's. possession of the land referred to as formerly belonging to M.

So proceedings in ejectment, commenced in 1704, by C. against H., the grantee of T., in which the premises sued for were described as late in the tenure and occupation of T., and the lessor of the plaintiff, recovered judgment upon title derived from H., are evidence that T. had been in possession, is confirmatory of the surveyor's certificate, and that H. was in possession at the institution of the suit.

A recital in a deed, dated in 1756, professing to be made by the son and heir-at-law of one joint tenant, conveying land to the surviving joint tenant, and declaring that he "now continues as survivor, seized, and yet is actually seized of such lands," is evidence in 1843, that such survivor was possessed at the date of the deed.

Where a plaintiff in ejectment deduces a regular paper title from two grantors, the possession of either, the other necessary circumstances concurring, will enable him to ask the presumption of a conveyance to the party in possession.

It is not universally true that possession of land is a matter of fact which must be proved by the same kind of testimony requisite for the proof of any other fact or occurrence.

Possessions of modern date, susceptible of proof by living witnesses, may be within the general rule; but as to those of such antiquity, that the brevity of human life demonstrates that such proof cannot be had, these are not within the rule.

Certificates of public surveyors, entries in debt books, recitals in deeds of ancient date, are evidence to prove ancient possession of lands.

Facts of great antiquity, resting wholly in parol, of which no written evidence can be presumed to exist, may be established by hearsay evidence.

A plaintiff in ejectment, who claims title under two grantors, is not estopped from setting up the paramount title of the one, or alleging that he derived no title from the other.

The true principle of estoppel, as applicable to deeds, is to prevent circuity of action, and to compel parties to fulfil their contracts; thus, a party in a deed asserting a particular fact, and thereby inducing another to contract with him, cannot, by a denial of that fact, compel the other party to seek redress, against his bad faith, by suit; but the court will decide upon the rights of the parties, without subjecting them to the expense and delay of a new litigation; and this they will do, not on the ground of concluding the parties from showing the truth, but because the whole truth being shewn, the justice of the case is not changed.

The general principle is well established, that possession of a part of a tract or parcel of land, by him who is legally entitled to the entirety, carries with it possession to the extent of his legal rights; and no wrong-doer can, in contemplation of law, by entry, or the exercise of acts of ownership thereon, acquire the possession of any part thereof, but by actual enclosure, or ouster, actual or presumptive.

The grounds on which the presumption of a deed rests at law, are, that the rightful owner has so long submitted to acts of ownership over his property, exercised by another, without ever having sued for the recovery of his property, or damages for the unlawful invasion of his rights, that he is presumed to have granted them to him, by whom the acts of ownership are exerted.

By the act of 1745, ch. 9, sec. 10, "all improvements, of what kind soever, either wharfs, houses, or other buildings, that have or shall be made out of the water, or where it usually flows, (as an encouragement for such improvers,) be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever." In the year 1698, a patent issued for a parcel of land called M's Neck, lying in Chesapeake Bay, and on the N. side of a river called Patapsco, and on the N. side of the N. W. branch of said river: Beginning at a marked red oak by a little branch, and running up along the N. W. branch, for breadth, W. N. W. 100 p. over a cove unto a marked white oak, &c. HELD:

1st. That the patentee of this land, and those claiming under him, had by virtue of the act of 1745, a mere privilege of acquiring property by its reclamation from the water; that until reclaimed, she had no property; no possession; no right, under that act.

2nd. That a party, by erecting a fence for thirty years and upwards, on a part of the low grounds adjacent to such tract designated as the cove, in front of that part of M's Neck claimed by the plaintiff, which was covered by the flow of the tide, and claiming below it, did not furnish evidence of such an uninterrupted, continuous possession, as was essential to the presumption of a grant to the person making and extending such fence.

3rd. That being erected on navigable water, without the limits of the land owned by the patentee, it gave him no right of action.

4th. That ejectment would not lie, there being no title in the land.

5th. That trespass, in which the law implies an injury, whether sustained or not, could not be maintained for want of ownership in the soil.

6th. A party in possession of land adjacent to a navigable stream, who runs a fence from his land into the stream, across the front of another adjacent proprietor, gains no possession by such an act, which is in itself a trespass.

The principle, that where one stands by and sees another laying out money upon property, to which he has himself some claim or title, and does not give notice of it, he cannot afterwards in equity and good conscience, set up such claim or title, does not apply to an act of encroachment on land, the title to which is equally well known, or equally open to the notice of both parties; but the principle applies only against one, who claims under some trust, lien or other right, not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice.

Where defence is taken on warrant of resurvey, all possessions, whether relied on to prove title, for illustration, or to disqualify witnesses examined on the survey, must be located on the plots of the cause.

Where several defendants, in an action of ejectment, claim title to several and distinct parcels of the land sued for, as by separate and independent leases, and there is no evidence to show any possession in any person under whom two or more of the defendants claim to derive title, a presumption of a grant, founded on the possession of the claimant of one lot, cannot enure to the benefit of the claimant of a separate and distinct lot, of which no such possession had ever been held.

The presumption of a grant is an inference of law arising out of particular facts, and may exist, although the jury, in their consciences, may disbelieve the actual execution of any such grant.

A prayer made in such form or terms that it would have a tendency to mislead the jury, as in the necessity of finding as a fact, what is an inference of law, should not be granted.

In a case where a jury may be authorised to presume a grant to defendants in possession, such presumption may be made, either of a grant from the plaintiff, or from any person under whom the plaintiff derived title, according to the proof.

Upon every discontinuance of the possession of a wrong-doer, by operation of law the possession of the rightful owner is restored, and nothing short of an actual adverse and continuous possession for twenty years can destroy his right, or vest a title in the wrong-doer.

When a court as an inference of law, arising from proof of possession, directs a jury to presume a deed, it is done upon principles of public policy, for the protection of ancient possessions.

All that the law requires to raise the presumption is, that the possession should have been actual, adverse, exclusive, and continuous, and under claim of title.

A party cannot call upon the court to instruct the jury where defence is taken on warrant, as to the effect of a patent not located upon the plats, nor given in evidence to the jury.

The court cannot be called upon to say that an original patent must be construed by reference to its relation to another patent, founded on a resurvey of the same land, where the second patent did not appear in evidence, and where the same parties claimed under both patents.

Upon an escheat the State takes as the ultimus hoeres of that, to which, the person was entitled, whose death, without heirs, created the escheat.

An escheat grant, in one sense of the term, is the creation of a feudum novum; the grantee takes the property granted as a new fief or feud, so far as regards his relationship, obligations, and duties to the State, and the estate, upon the terms specified in the grant.

But the limits, privileges, appurtenances, and priorities of the estate granted by escheat patent, and the liens and incumbrances to which it may be subjected, exist independently of the inquiry, whether the grant be of an ancient or a new feud.

The State acquires by escheat, not only that which was originally granted, but all the rights, privileges, priorities and appurtenances incident to the land itself, and with which it was held by the person who died seized without heirs.

The escheat grantee, upon the terms specified in his grant, takes the estate granted in the same condition in which it may have devolved on the State, except so far as it may be affected by the doctrine of merger or extinguishment.

An escheat grant relates to the original grant, and passes to the escheat grantee all that passed to the original grantee, and which was held by him, whose death, without heirs, occasioned the escheat.

The relation of the escheat grant to the original grant is not intercepted by an intermediate patent, unless, at the time of granting the same, the escheat right had accrued.

Until the occurrence of the event which constitutes the escheat, the interest of the Lord Proprietary in relation to it, was a mere possibility, and could not be the subject of a grant.

The doctrine of estoppel does not apply to grants made by the State. They only pass the title which the State had at the time of the grant, and not that subsequently acquired.

An escheat grant is prima facie evidence that the land granted is liable to escheat, at the date of issuing the escheat warrant, and not antecedently.

M. was patented in 1663. In 1734, J., including a part of M., was also patented, and in 1737 an escheat warrant and patent issued for M. The two last patents were granted to F., under whose devisee, the plaintiff claimed M. by his deed of 1758. HELD: that the conveyance passed M., as it was held under the original patent of 1663, be the effect of the patent of J. what it may.

As far as regards any conflict of rights between the parties to this cause, the defendants, under the act of 1745, had a right to extend westwardly in front of their lots to the west side of Caroline street and no further; and the lessor of the plaintiff had a right to extend her grounds to the City Dock, on the south side of Lancaster street.

A grant, though for the most part covered with water, still passes to the grantee all the soil under the water, included within its outlines, with all the rights of property incident thereto, subject only to the rights of the public as to fishing and navigation. If encroached on, the grantee may maintain trespass or ejectment.

The act of 1745, ch. 9, never was designed to give one land-holder the power of extending his improvements over the land of another.

The right of the riparian proprietor to extend his improvements into the water, is intercepted by a grant from the State to another person of the land covered by the water of a navigable stream, over which such proprietor might otherwise have been entitled, under the act of 1745, to make improvements.

The heir of lessee for a term of years of a lot bordering on the water, under the act of 1745, ch. 9, sec. 10, is not the riparian proprietor of such lot.

Where possession was essential to the acquisition of title to land, and title to the creation of a riparian right, any prayer founded on that right, which did not submit the fact of possession to the jury, should be rejected.  

COUNSEL:
By MAYER and DULANY for the appellants, and

By GILES and MCMAHON for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*486]  DORSEY, J., delivered the opinion of this court.
With the county court's refusal [**93]  to admit the testimony offered by the plaintiff in his first bill of exceptions, and objected to by the defendants, we entirely concur. It was immaterial and irrelevant to any of the issues in the cause. A prevalent opinion in the neighborhood, even if known and adopted by the lessor of the plaintiff, as to her legal rights, whether founded in error or not, does not at law prevent the running of the statute of limitations, nor repel the legal presumption of a grant arising from adverse possession, long continued and acquiesced in.
We also concur with the county court in admitting to the jury the certificate of the rent roll, offered in evidence by the 

 [*488]  defendants, as stated in the plaintiff's second bill of exceptions. The rent rolls, which are books kept in the several counties of the State during the Proprietary Government of Maryland, by officers called rent roll keepers, were designed to show, in the respective counties, the grants of land made by the Lord Proprietary; the names of the subsequent alienees thereof; and the names of those who were in possession of the same; and the quit-rents with which they were chargeable. In all cases of controverted possession,  [**94]  or where possession was relied on as evidence for the presumption of a grant, certified extracts from the rent rolls, showing who were the possessors of the lands at the period in question, have been received by the courts of Maryland as competent testimony. But though the evidence objected to was admissible, after the testimony previously given in the cause, it is difficult to conceive why it should have been offered by the defendant,; or if offered, why objected to by the plaintiff. If adduced as evidence of the escheat grant to William Fell, it could neither benefit the defendant nor damnify the plaintiff; as the escheat patent itself, which is conclusive evidence of the fact, had already been in evidence before the jury. And if it were produced as evidence of William Fell's possession under his escheat grant, so far as it proved any thing, it disproved that fact, by showing that he never was in possession under his escheat grant, and that no quit-rents had ever been charged against him. It would be extremely difficult to account for the rent roll keeper's wholly omitting to charge William Fell with the quit-rents as the possessor of Mountenay's Neck, upon any [**95]  other hypothesis, than that upon an investigation into the subject by the rent roll keeper, he discovered (what the testimony in this cause renders more than probable,) that William Fell took nothing under his escheat, and consequently was not charged with the payment of quit-rents. But the effect of this rent roll extract is not only to disprove that William Fell was the possessor, or chargeable with the quit-rents of Mountenay's Neck, but it shows that previous to the year 1756, and more than two years before the conveyance from Edward Fell to 

 [*489]  Thomas Sligh, Thomas Sligh and Thomas Sheridine were the possessors of Mountenay's Neck, and charged with the quitrents payable thereon. Facts strongly corroborating (if corroborating testimony were wanting,) the evidence the plaintiff had before offered in support of his claim and pretensions.
The plaintiff's counsel, by the first prayer in the third bill of exceptions, call upon the court to instruct the jury, that, if they believe the facts enumerated in the prayer, "they are bound to presume a deed from said Alexander Mountenay, or those claiming under him, to Samuel Wheeler and wife [**96]  , and from said David Jones to said Robert Blunt, or his ancestor, for the tract of land called Mountenay's Neck." These enumerated facts do not show that the plaintiff, or any of those under whom she has offered evidence of her deduction of title, ever held under either Wheeler and wife, or Jones, or received from them any conveyance of Mountenay's Neck, or that they, or either of them, ever were possessed of any part thereof. The only fact tending in the slightest degree to connect Wheeler and wife and Jones with the tract of land called Mountenay's Neck, is the isolated deed from Wheeler and wife, by Thomas Lightfoot, their alleged attorney, to David Jones. In the absence of all proof that Wheeler and wife were entitled to the land, or had been in possession of any part thereof, or that Robert Blunt, or those claiming under him, ever acquired, or claimed to hold title or possession under either Wheeler and wife or Jones, upon what ground could the court be called on to direct the jury to presume a deed from Alexander Mountenay, or those claiming under him to Wheeler and wife, and from David Jones to Robert  [**97]   Blunt? There is not a scintilla of evidence from which it can be legitimately inferred that Blunt derived either title or possession from Jones, or that Wheeler and wife, or Jones, or any person claiming under them, were at any time in possession of the land in question. Upon what basis then could the plaintiff rest the presumption, which she demanded of the jury through the agency of the court?
Had the plaintiff have required of the court an instruction to the jury, that they must presume a deed for Mountenay's 

 [*490]  Neck, from Alexander Mountenay, or those claiming under him, to Robert B. Blunt, it would be difficult to discover a reason why it should not be granted. From Robert B. Blunt the paper or record title of the plaintiff was perfect, the only link, in her chain of title, which was wanting, was that from Alexander Mountenay to Robert B. Blunt. To supply this defect, by way of legal presumption, all that was requisite was to prove to the jury a continuous possession of twenty years or upwards, in Robert B. Blunt, or those claiming under him. And of this fact there was abundant proof. Far more than from the antiquity of the [**98]  possession proved, and nature and circumstances of the case, could reasonably have been required or expected. The conveyance of Robert B. Blunt to James Todd, for Mountenay's Neck, bore date on the fourth day of October, in the year sixteen hundred and ninety-five. Of Robert B. Blunt's possession, no direct proof has been offered; and none could reasonably be expected, after a lapse of nearly one hundred and fifty years. But of the possession of his grantee, James Todd, there is proof, and that too coming in such an unquestionable shape, that it cannot be doubted. About three years after the date of the deed from Blunt to Todd, on the 17th of February 1698, the surveyor of Baltimore county, a public officer of the Lord Proprietary, who was upon the land and an eye witness of what he stated, who could have had no motive for misrepresentation, in the discharge of a necessary official act in respect to the survey of the tract of land called "Todd's Range," certifies to the register of the Land Office, that it began "at a bounded white oak, standing in the line of a parcel of land formerly belonging to Alexander Mountenay, and now in the possession [**99]  of the aforesaid Todd." On the 13th of March 1701, James Todd conveyed that part of Mountenay's Neck, connected with the present controversy, to one John Hurst, who, by deed of mortgage bearing date on the 13th day of October 1702, to secure the payment of £  123, 6s. 4d., conveyed the same to Richard Colegate, who, in the Provincial Court of the April term 1705, recovered judgment in ejectment for the said mortgaged premises against said Hurst; but no 

 [*491]  writ of habere facias possessionem, as far as the record discloses that fact, appears to have issued thereon. The institution of this action of ejectment to April term 1704, by Colegate against Hurst, is evidence that Hurst was, at that time, in possession of the mortgaged premises; as had they, at that time, been in the possession of any other person, the judgment could have been of no avail to the plaintiff. And the declaration describes the mortgaged premises sued for as late in the tenure or occupation of James Todd, of the aforesaid county, planter. Thus confirming, as to Todd's possession, the previous certificate of the surveyor of Baltimore county.
In March, 1749,  [**100]  John Hurst, in consideration of £  5, conveyed to Thomas Sheridine and Thomas Sligh, as joint tenants, the same lands conveyed to him by James Todd. And on the 15th of November, 1750, in consideration of £  100 sterling, John and Thomas Colegate, devisees of Richard Colegate, conveyed the same lands to said Sheridine and Sligh in joint tenancy. Whether the possession continued in Hurst till his conveyance to Sheridine and Sligh, or had previously passed from him to the Colegates, in this question of presumption of a deed, is of no importance; the plaintiff deducing a regular paper title from both, the possession of either is equally available to the plaintiff. And there is not a shadow of proof that the possession was in any other person.
In June, 1756, Thomas Sheridine, the elder, being dead, his son and heir-at-law, Thomas Sheridine, conveyed the said lands to Thomas Sligh, reciting in part the said conveyance from said John and Thomas Colegate to Thomas Sheridine, the elder, and Thomas Sligh, and that the said Thomas Sheridine and Thomas Sligh, in virtue of the said conveyance, were jointly [**101]  "seized and possessed" of the said lands, and that his said father died "so seized and possessed, living the aforesaid Thomas Sligh," "who now continues, as survivor, seized, and yet is actually possessed of the aforesaid lands." For falsely making such a recital, Thomas Sheridine, the younger, as far as the record discloses, could have had no conceivable motive.

 [*492]  The extract from the debt books is evidence that Thomas Sligh, in 1754, was in possession of 100 acres, part of Mountenay's Neck; and the extract from the rent roll, given in evidence by the defendants, shows that in 1756, if not before, Thomas Sligh and Thomas Sheridine were stated by the rent roll keepers of Baltimore county, to be the possessors of 200 acres of Mountenay's Neck. And the said extract from the debt books show, that from 1755 inclusive, till the year 1759, when he conveyed a part thereof to Thomas Hammond, (under whom the plaintiff claims,) Thomas Sligh was possessed of the said 200 acres, part of Mountenay's Neck. For a period then of sixty years, that is, from 1698 to 1758, the plaintiff has shown a continuous possession in those under whom she claims [**102]  title. A stronger case for presuming a deed, on the ground of possessions of an ancient date, has rarely occurred in a court of justice.
But it is said that possession is a matter of fact which must be proved by the same kind of testimony requisite for the proof of any other fact or occurrence. To this proposition, as applicable to the case before us, we cannot assent. If the possession relied upon were of modern date, so that it might fairly be presumed as susceptible of proof by living witnesses, then would the objection urged present itself with imposing force. But as to the possessions in question, they are of so great antiquity, that the brevity of human life demonstrates that such testimony cannot be obtained. If the certificate of the surveyor be not evidence in this case, upon what principle is it that entries in the debt books are evidence to prove ancient possessions of lands? And if the recitals, in these deeds, as to possessions, be not evidence, upon what principle is it that you admit hearsay evidence of ancient boundaries or runnings of the lines of old tracts of land? Or, how is it that you admit entries made in the books of a third person by the person whose duty [**103]  it was to make them, and to whom no inducement to have made false entries could be imputed? In Mima Queen and child vs.  Hepburn, 11 U.S. 290, 7 Cranch 290, 3 L. Ed. 348, the Supreme Court decided that hearsay evidence is incompetent to establish any 

 [*493]  specific fact, which is in its nature susceptible of being proved by witnesses who speak from their own knowledge. But what must we presume would have been their decision, if, of facts of great antiquity, resting wholly in parol, of which no written evidence can be presumed to exist, hearsay evidence should have been offered? Why, that it was competent. The recitals here relied on are all made by persons wholly uninterested in the truth or falsehood of the facts recited.
It is also insisted that the plaintiff is precluded from relying on these possessions as furnishing a presumption for a deed from Mountenay, or those claiming under him, to Blunt, because Thomas Sligh having, in 1758, accepted a deed of conveyance from Edward Fell, the plaintiff, who makes title thro' Thomas Sligh, is estopped from setting up a title paramount, or alleging that she derived no title under the conveyance from [**104]  Fell to Sligh. If this doctrine of estoppel, as here contended for, be sanctioned, the condition of Sligh, and those claiming under him, is deplorable indeed. Sligh is as thoroughly estopped by the deed from Hurst, and also by that from the Colegates, as he is by that from Fell. Their seniority or juniority neither adds to, nor detracts from their several efficacies as estoppels. If he sets up a title under the deed from Hurst, the reply would be, you have accepted a deed from the Colegates or Fell, and you are estopped from asserting a title derived in any other way. If he asserts his title under the Colegates, the deed accepted from Hurst or Fell would present to him a barrier equally unsurmountable. And the same would be the effect of either of the deeds from the Colegates or Hurst, if his title were insisted on under the deed from Fell. So that having made separate purchases of the titles of three claimants, he has no title at all; but if he had taken a deed from only one of them, he might perhaps have acquired an indefeasible title. The inconsistency and injustice of applying the doctrine of estoppel to a grantee, [**105]  who claims nothing under the deed which he seeks to repudiate, cannot be more strongly illustrated than when attempted to be applied to a case like the present, where it is manifest that Sligh never, for a moment, 

 [*494]  supposed, that in taking a conveyance from Fell he designed to relinquish and abandon all the title to Mountenay's Neck, which he had acquired under the deeds from the Colegates and Hurst; and to admit that thenceforth he claimed no other title to Mountenay's Neck than that transferred to him by Edward Fell. That such was not the understanding of Edward Fell, is apparent from the terms of the deed, which do not profess, in the usual form, to convey the land itself; but simply the right, title and interest of Fell therein. In taking a conveyance from Fell, Sligh's only object was to purchase his peace, or remove a cloud which overshadowed his title. The difference in the amount of purchase money paid to the Colegates and Fell, fully sustains this view of the transaction. To the former, for their title, was paid £  100 sterling; to the latter, £  50 current money. The deed from Fell to Sligh has performed its [**106]  office, and consummated the contract between the parties. Fell has received his £  50, and Sligh obtained as its equivalent the asserted claim of Fell. The deed between them never was designed to have any further or prospective operation; to all intents and purposes it is functus officio. That the distinction which we have taken, as respects estoppel, when applied to a conveyance of the land itself, and the mere interest of the grantor in the land, is well founded. See 4 Ba. Abr. 192, Tit. leases and terms for years, letter O, and the authorities there referred to, where it is stated, that, "if a man takes a lease for years, of the herbage of his own land, by indenture, this is no conclusion to say, that the lessor had nothing in the land at the time the lease was made, because it was not made of the land itself."
The true ground upon which estoppels are applied to deeds is given in the case of Jackson, ex dem of Varick, vs. Waldron and wife, 13 Wendel. 178, where it is said, that "the true principle of estoppel, as applicable to deeds, is to prevent circuity of action, and to compel parties to fulfil their contracts; thus, a party in a deed asserting a [**107]  particular fact, and thereby inducing another to contract with him, cannot, by a denial of that fact, compel the other party to seek redress, against his 

 [*495]  bad faith, by suit; but the court will decide upon the rights of the parties, without subjecting them to the expense and delay of a new litigation; and this they will do, not on the ground of concluding the parties from showing the truth, but because the whole truth being shewn, the justice of the case is not changed." And in Blight's lessee vs.  Rochester, 20 U.S. 535, 7 Wheat. 535, 5 L. Ed. 516, a most able exposition of the doctrine of estoppel is given by Chief Justice Marshall, showing that it does not or ought not to apply as between grantor and grantee, and preclude the grantee from showing a prior and superior title in the grantee, to that transferred by the deed of the grantor. The true doctrine upon the subject is also correctly stated in 4 Ba. Abr. 190, Tit. leases and terms for years, letter O, as follows: "but if such lease for years were made by deed poll of lands, wherein the lessor had nothing, this would not estop the lessee, to aver that the lessor had nothing in those lands at [**108]  the time of the lease made, because the deed poll is only the deed of the lessor, and made in the first or third person; whereas the indenture is the deed of both parties, and both are, as it were, put in and shut up by the indenture; that is, where both seal and execute it, as they may and ought; for otherwise, if the lessor only seals and executes the indenture, the lessee seems to be no more concluded, than if the lease were by deed poll; for it is only the sealing and delivery of the indenture, as his deed, that binds the lessee, and not his being barely named therein, for so he is in the deed poll; but that being only sealed and delivered by the lessor, can only bind him, and not the lessee, who is not to seal and execute it. And it should seem, that such lease by deed poll binds the lessor himself as much as if it were by indenture, because it is executed on his part with the very same solemnity, and therefore it should seem, he is bound by such lease by way of estoppel."
We think the county court, therefore, erred in granting the plaintiff's first prayer in the third bill of exceptions.
The second prayer of the plaintiff, in the third bill of exceptions,  [**109]  involving in it the decision of most of the defendants' 

 [*496]  prayers, we will forbear to express any opinion upon it till we have disposed of the defendants' prayers.
The plaintiff's third prayer in this bill of exceptions calls on the court for an instruction to the jury, that if, in addition to the facts stated in the first and second prayers, they also believe, "that the plaintiff, and those under whom she claims, have been in possession of the part of said property, by having a house erected upon it, and by the actual enclosure of a board fence, then the defendants cannot avail themselves of any title from presumption, except of such part as they can prove that they have also been possessed of, by actual enclosure, for twenty years, next before the impetration of the writ in this cause." And this prayer, we think the county court ought to have granted, if it be assumed that, but for such presumption, the plaintiff is entitled to the property in controversy. The general principle being now too well established to require the adduction of authorities in its support, that a possessio pedis of part of a tract or parcel of land, by him, who is legally entitled to the [**110]  entirety, carries with it the possession to the extent of his legal rights: and no wrong-doer can, in contemplation of law, by entry or the exercise of acts of ownership thereon, acquire the possession of any part thereof, but by actual enclosure, or ouster, actual or presumptive. But such an assumption of title in the plaintiff cannot be made, as we shall hereafter show, and therefore the prayer was properly rejected by the court.
The instruction required by the plaintiff's fourth prayer was, "that the defendants in this case cannot avail themselves of the benefit of a grant to them for the property in dispute, unless they show by strong proof, a continuous and uninterrupted possession thereof for twenty years, next before the institution of this suit." This prayer, we think, the county court erred in not granting. Uninterrupted, continuous possession is essential to the presumption of a grant, and by "strong proof," was meant nothing more than such proof as would satisfy the jury of the existence of the fact, for the establishment of which it was offered.

 [*497]  The fifth prayer was, "that there is no evidence in this case to prove such possession." The object (the [**111]  meaning) of which proposition was, that the evidence before the court was not sufficient to authorise it in instructing the jury to presume a grant to the defendants. After a minute and thorough examination of all the facts in the case, and of the law which applies to them, we are of opinion, that this instruction ought to have been granted. The grounds, upon which rest the presumption of a deed, are, that the rightful owner has so long submitted to acts of ownership over his property exercised by another, without ever having sued for the recovery of his property, or of damages for the unlawful invasions of his rights, that he is presumed to have granted them to him by whom the acts of ownership are exerted. Let us now see how far this presumption is applicable to the case before us, and ought to be insisted upon by the present appellant. To do this, we must bear in mind that the property, of which it is sought to deprive her, was not at the time of the alleged encroachments upon her rights, her freehold, or any tangible or visible property, or a franchise, or easement, of which she then had the capacity of enjoyment. It was a mere privilege of acquiring property by its reclamation [**112]  from the water, and until reclaimed she had no property; no possession; no right which could be violated or encroached upon by any body. Inloes' fence, which from its duration is the only trespass or possession relied on as the basis of this presumption, it must be borne in mind, was erected in navigable water, and far without the limits of the land owned by the appellant. What action could the plaintiff, or those under whom she claimed, have maintained on account of the erection of Inloes' fence? Ejectment would not lie, there being no title in the land. Trespass, in which the law implies an injury, whether sustained or not, could not have been maintained, by reason of the want of ownership of soil, whereon the fence was erected. An action on the case could not be supported, because the gist of such action is actual damage or loss to the plaintiff; and the erection of Inloes' fence, so far from inflicting damage or loss, conferred a substantial 

 [*498]  benefit, by aiding in the consummation of what was indispensable to the fruition of the valuable franchise with which the plaintiff had been invested by the laws of the State and ordinances of the city of Baltimore [**113]  . Upon what principle then of reason, justice, common sense, or analogy, can this doctrine of presumptive grants be applied to the case now before us?
But the nature and extent of the interest acquired by improvers, under the act of 1745, ch. 9, and the state and condition in which the improvement must be, before any right of property vests in the improver, under the Act of Assembly, does not now, for the first time, arise in this court. The decision in the case of Giraud's lessee vs.  Hughes and al, 1 G. & J. 249, unless overruled, is decisive, in the plaintiff's favor, of the question we are now considering. There, Christopher Hughes being the owner of the land running to the water, the defendants, on whom his interests devolved, claimed title to the land in dispute, as being an improvement made by his tenant, under the acts of 1783, ch. 34, and 1745, ch. 9; and proved that his said tenant had, in pursuance of the provisions of said Acts of Assembly, made the said improvement (which was a wharf,) so far as to enclose the same, by the necessary logs, in 1789, and had the wharf filled up in the middle and north side thereof, and partly so on the east and south parts [**114]  of the same; but that the logs of the said wharf, so made, had, "by injuries and decay in several parts, fallen down, (the top log entirely around,) and have not been repaired since: that part of the ground, filled up within the logs, had been, and still is, used and occupied as a distillery of turpentine; and that the water flows all round over the logs of said wharf, and within the same, from ten to twenty feet, according to the state of the tides." That in 1789, his said tenant having moved off, the said Christopher Hughes took possession of the premises, and by himself, his tenants, and the defendants, his heirs-at-law, held the said wharf ever since, till the trial of the cause in 1828. In that cause, the Court of Appeals decided, that, in order to vest any title in the wharf, it 

 [*499]  must be completed; and that by reason of such incompletion of the improvement, neither Christopher Hughes, nor his tenant, had acquired any title thereto, under the said Acts of Assembly. Without overruling this decision, can it, for a moment, be contended that William Inloes, by erecting and keeping up a straight line of fence, in the manner described by the testimony in the case [**115]  before us, acquired a title to the property now in controversy? And if so, to what extent does this extraordinary fence confer title on its owner? Does it vest in him all filling up that may be caused by it, either immediately or remotely; to the north or to the south; to the east or to the west? Nay, it is relied on, as not only giving title to William Inloes, but to all the other defendants, who hold their lots by separate leases, wholly unconnected with, and independently of, William Inloes. Upon what ground this reliance is placed, it would be difficult to conjecture. If, in virtue of this fence, a deed is to be presumed to Inloes from the owner of the water rights of Mountenay's Neck, (which rights, the raising of the present question of course concedes,) then is he entitled to the entire improvement, in dispute, to Lancaster street, to the utter exclusion of his co-defendants. In making this fence, Inloes, according to the proof, never designed to do more than extend and fill up his own lot; and upon no conceivable principle could any presumption of a deed cover more than the extension in front of his own lot, which would leave his co-defendants wholly [**116]  unprotected against the claim of the plaintiff, by any presumptive bar, from ancient, continuous, adversary possessions. But suppose it were conceded, that the lines of Mountenay's Neck did, by their original location, embrace the land now in controversy, would that enable the defendant Inloes to hold it upon the principle of the presumption of a deed to him? The only ground for such a presumption rests on the construction and continuance of his fence, as stated by the witnesses. This fence, it will be borne in mind, at neither end, nor at any part of it, touched his enclosures or soil, nor was it connected with any thing, natural or artificial, which could render it an enclosure or possession of any thing more than 

 [*500]  the ground which the fence itself covered. In its original construction, it was nothing more than a mere trespass, and its subsequent repairs were, as well in fact as in law, but repeated trespasses. In 3 H. & McH. 621, Davidson's lessee vs. Beatty, the court say, that, "where a person shows title to a tract of land, as for instance, Black Acre, and is in possession of part, possession of part is possession of the whole." And in [**117]  such a case, "where a person claims by possession alone, without showing any title, he must show an exclusive, adverse possession by enclosure, and his claim cannot extend beyond his enclosures." "Where two are in possession of a tract or a house, it is his possession, who has the right." In Cheney vs. Ringgold's lessee and al, 2 H. & J. 87, this court say, "when two are in mixed possession of the same land, one by title, and the other by wrong, the law considers him, having the title, as in possession to the extent of his rights." And in Hall vs. Gittings, 2 H. & J. 112, that "where two persons are in possession of land, the one by right, and the other by wrong, it is the possession of him who is in by right." The Supreme Court of New York have decided, in Jackson vs. Camp, 1 Cow. 605, at page 609, that, "entry under claim of title, is generally sufficient to constitute an adverse possession, and it is not immaterial whether the title be valid or not." "But if claim is not founded on a deed or writing, the possession is limited to actual occupancy and substantial enclosure, definite and notorious." And in Jackson, &c., vs.  [**118]   Schoonmaker, 2 Johns. 230, that "to make out an adverse possession in ejectment, the defendant must show a substantial enclosure, an actual occupancy, definite, positive and notorious; it is not enough to make what is called a possession fence, merely by felling trees and lapping them one upon another round the land." Upon the principles of these adjudications, how can it be contended, that simply upon the possession arising from Inloes' fence, you are to presume a conveyance (as far as the fence indicates, of indefinite extent,) of the land lying to the north, south, east and west of it? And such conveyance is to be presumed, not only to Inloes himself, but to all other 

 [*501]  lessees, deriving distinct and independent titles from the lessor of Inloes. As authority against the raising of such a presumption, see the case of Lessee of Potts vs. Gilbert, 3 Wash. C. C. 475, 19 F. Cas. 1203.
The extent to which lot owners may make their improvements, in reference to each other, under the act of 1745, cannot, at this time of day, be a subject for contest. In Dugan and al vs. The Mayor and City Council of Baltimore, 5 G. & J. 357, [**119]  this court declared that this Act of Assembly vests, in the improver, no title to improvements not made pursuant to the provisions thereof. That "the improvements, authorised and encouraged, were those made by improvers in front of their own lots, not of their neighbors. The legislature never designed such an invasion of the rights of private property; nor, indeed, had they the power to legalise it, if such had been their design." A similar construction had been previously given to the act of 1745, in Harrison vs. Sterett, 4 H. & McH. 540.
The right of extending her lot, or wharfing out to the city dock, under the act of 1745, and the ordinances of the city of Baltimore, was a franchise; a vested right, peculiar in its nature; a quasi property, of which the lessor of the plaintiff could not lawfully be deprived, without her consent. And if any other person, without her authority, made such extension, no interest or estate in the improvement vested in the improver, but it became the property and estate of the owner of the franchise. The fact that the improvement was made by the city officers or agents, and paid for by the defendants, does not at all vary the [**120]  case, or change the relative rights of the parties, as was correctly decided by this court in the case of Wilson vs. Inloes, 11 G. & J. 351.
On the part of the defendants, it has also been contended, that Mrs. Casey, and those under whom she claimed, having stood by and seen Inloes expend his money in erecting his fence and repairing the same, on the property now in dispute, and giving no notice of her or their title to the same, are ever after precluded from asserting their rights to the prejudice of Inloes, 

 [*502]  and those claiming under him. But there is no ground for such a defence in this case. The plaintiff's right to the privilege in controversy, must be presumed to have been as well known to Inloes, as to the plaintiff, and the giving of notice would have been an act of supererogation. The true doctrine applicable to such cases, was decided by the court in the case of Gray v. Bartlett, 37 Mass. 186, 20 Pick. 186, that where one stands by and sees another laying out money upon property, to which he himself has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience,  [**121]  set up such claim or title, does not apply to an act of encroachment on land, the title to which is equally well known, or equally open to the notice of both parties; but the principle applies only against one, who claims under some trust, lien or other right, not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice.
The sixth prayer asks the court to instruct the jury, "that the defendants cannot be allowed to avail themselves of any possession, so as to defeat the title of the plaintiff, further than such possession is located on the plats in this case." And in refusing it, we think there was error: it being a well established principle of the ejectment law of Maryland, that where defence is taken on warrant, all possessions, whether relied on to prove title, for illustration, or to disqualify witnesses examined on the survey, must be located on the plots in the cause.
In refusing the seventh prayer of the plaintiff, (which is, "that the acts and possession of any one of the said defendants, cannot avail the other defendants, by affording to them the benefit of a presumption of a grant,") we think the county [**122]  court also erred. There is no evidence to shew any possession in any person, under whom two or more of the defendants claim to derive title; but on the contrary, they all claim title under separate and independent leases. There is no privity of any kind between them. They all possess distinct rights of extending their respective lots into the water. How then can the presumption of a grant, founded on the long continued 

 [*503]  possession of the owner of one lot, enure to the benefit of the owner of a separate and distinct lot, of which no such possession had ever been held?
We approve of the county court's refusal of the eighth prayer, "that before the jury can find a title in the defendants, or any one of them, by presumption of a grant from the plaintiff, or those under whom she claims, they must believe in their conscience, and find as a fact, that such grant was actually made." The granting of such a prayer would have had a tendency to mislead the jury, by inducing them to believe that the presumption of a grant could not be made, unless the jury, in point of fact, believed in the execution of the grant; whereas, it is frequently the duty of the jury to find such presumption,  [**123]  as an inference of law, although in their consciences they may disbelieve the actual execution of any such grant.
The ninth prayer was properly refused, not only for the reason we have stated in support of the refusal of the eighth prayer, but because it confined the jury to the finding of a deed executed by the plaintiff herself, and would have precluded them from finding, if the proof had warranted it, a deed from any of the grantors, under whom she might claim.
The tenth prayer, we think, ought to have been granted for the reasons stated by us in the consideration of the court's refusal of the fifth prayer.
The eleventh prayer also, the county court should have granted. The possessions of the defendants on the east side of Caroline street, not interfering with or being adverse to any of the rights of the plaintiff, or those under whom she claimed, could form no basis for the presumption of a deed for the property in dispute, which lies wholly on the west side of Caroline street. That the title of the rightful owner, in a case of mixed possession, (which is the most favorable condition in which the defendants can be regarded,) cannot be barred "by adding together [**124]  the different possessions and acts of the defendants, at long intervals, in point of time, so as to make out twenty years," is a principle too well settled to require a reference to authorities to sustain it. Upon every discontinuance 

 [*504]  of the possession of the wrong-doer, by operation of law, the possession of the rightful owner is restored: and nothing short of an actual, adverse and continuous possession for twenty years, can destroy his rights, or vest a title in the wrong-doer.
The twelfth prayer too, we think, should have been granted, as well from the nature of the plaintiff's rights, to which the statutory bar is attempted to be interposed, as the total insufficiency of the possession and acts relied on as constituting the bar.
The thirteenth prayer is as follows: "If the jury find the patents, deeds and ordinances, offered in evidence in this cause, by the defendants, and that they were so offered by the defendants to show that they had the superior, better and more ancient right to extend, fill up and improve in front of their own lots, than the plaintiff, and those under whom she claims, have in front of her lot, then no possession which has been proved [**125]  in this case on the part of the defendants, or any of them, can give rise to a presumption of a grant to the defendants from the plaintiff, as the claim of a better title on the part of the defendants than the plaintiff ever had, if the jury find that such claim is wholly inconsistent, and at war with such presumption." In refusing this prayer, the county court, we think, were right for two reasons. First, because it requires the court to instruct the jury, that if the patents, deeds and ordinances were offered to shew a claim to a superior title in the defendants, then they cannot presume a deed to the defendants, because such claim is inconsistent with such presumption; although, for aught that appears in the prayer, the jury might believe, that at the date, and during the continuance of the possessions and acts of the defendants, they the defendants had no knowledge of such their claim to a superior title, and did not rely on it, but held the possession, and did the acts referred to, under a knowledge and admission of the original superiority of the title of the plaintiff, and those under whom she claims; and that the defendants claimed to hold their possession in virtue of a deed [**126]  to them from the plaintiff, or those under whom she claimed. The author of the prayer doubtless 

 [*505]  designed that the court's instruction should have been given upon the assumption that the possession and acts of the defendants were the result of their claim of original superiority of title, but such was not the state of facts, on which the instruction was refused by the court. And secondly, we approve of the court's rejection of this prayer, even if it had been presented upon the statement of facts, on which, we presume, it was designed to have been based. When a court, as an inference of law, arising from proof of possession, directs a jury to presume a deed, it is done, upon the principles of public policy, for the protection of ancient possessions, not upon the ground that it believed that the deed presumed ever had an existence in point of fact, or that the party relying on such possession, either at its commencement, or during its continuance, claimed to hold under any such deed, or was silent as to the claim under which he held. The inference of law would be the same; the court would direct the jury to make the same presumption. All that the law requires to raise the [**127]  presumption, is, that the possession should have been actual, adverse, exclusive and continuous, and under claim of title. If the presumption of the deed was a matter of fact, which the jury were only authorised to find on their belief of its existence, and the evidence of possession, which was the basis of the presumption, was taken and held under claim of a distinct and different title, then it would be competent for the court to instruct the jury, that there was no evidence whereon the existence of such a deed could be presumed.
The fourteenth prayer was properly rejected by the court below. It called on the court to instruct the jury as to the effect of the patent of a tract of land called "Fell's Prospect," which was neither located upon the plots, nor given in evidence to the jury. It also asked the court's instruction to the jury, that the defendants cannot claim under the patent of "Island Point," as a subsisting independent patent, but they must claim, if at all, by the relation to it, of the patent of "Fell's Prospect;" a prayer which this court could not grant, as Long Island was not only granted under the alleged patent of "Fell's 

 [*506]  Prospect [**128]  ," to Edward Fell, under which the defendants claim title, but was devised to Edward Fell by the last will and testament of his father William Fell, in 1746, to whom "Island Point" was granted, by patent bearing date in 1734.
The fifteenth prayer demanded an instruction, "that even if the jury should believe from the evidence that, Thomas Sligh claimed under the escheat patent of Mountenay's Neck to Edward Fell, (meaning William Fell,) in the year 1737, still the said Thomas Sligh, and those claiming under him, have a right to go back, by relation, to the original patent of Mountenay's Neck in 1663, and to date their title from that period." In opposition to this prayer, a variety of grounds have been strongly urged. First, it is insisted that an escheat grant creates "feudum novum," operating only from its date, independently and unconnected with the original grant, and that the doctrine of relation has no application to such grants; that upon the failure of the heirs of the first grantee, or the occurrence of other cause of escheat, the land vested in the Lord Proprietary, or vests in the State, since the organization of our State Government,  [**129]  as a part of the public demesne, and is held by the Lord Proprietary, or the State, and the escheat grantee, as if no previous grant had ever been made of it. We do not deem it necessary to examine the various authorities referred to, as shewing the character in which the Lord Proprietary or State acquires, or the nature of the interest acquired in, lands liable to escheat. Sir William Blackstone, in the 2nd volume of his Commentaries, p. 245, in speaking of the title which the Lord of a Seignory acquires by an escheat, says: "Sir Edward Coke considers the lord by escheat, as in some respects the assignee of the last tenant, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus hoeres, and therefore taking by descent, in a kind of caducary succession." And in Matthews vs. Ward's lessee, 10 G. & J. 443, on page 451, this court have said: "In analogy, therefore, to the admitted condition of allodial property, and in conformity to the reason and justice of the thing, when the owner of real estate dies without heir, 

 [*507]  the State is ultimus hoeres, and takes the property for the benefit [**130]  of all." Ultimus hoeres, of what, did Sir Edward Coke, or this court mean? Assuredly, of that to which the person was entitled, whose death, without heirs, created the escheat. An escheat grant, in one sense of the term, is the creation of a feudum novum: that is, the grantee takes the property granted, as a new fief or feud, as regards his relationship, obligations and duties to the State. And what may be said of the State, is true as to the Lord Proprietary. He takes the estate granted upon the terms specified in the grant. But what is the estate granted? What are its limits, privileges, appurtenances, and priorities? To what liens and incumbrances it may be subjected, are matters existing independently of the inquiry, whether the grant be of a feudum novum, aut antiquum. When the State acquires title to land by escheat, it is not thereby invested with that, only, which it originally granted, and nothing more or less. It is invested with all the rights, privileges, priorities and appurtenances incident to the land itself, and with which it was held by the person, by reason of whose default of heirs, it had become escheat. The State, thus succeeding to the [**131]  rights of such person, takes the property subject to all liens and incumbrances imposed upon it by him, or those under whom he derives title. And the escheat grantee, upon the terms specified in his grant, takes the estate granted, in the same condition in which it may have devolved on the State, except so far as it may be affected by the doctrine of merger or extinguishment.
To prove that an escheat grant does not relate to the original grant, and pass to the escheat grantee all that passed to the original grantee, and which was held by him, whose death, without heirs, occasioned the escheat, no authority has been referred to. And that the reverse is the well settled law of Maryland, appears by reference to the case of Hall vs. Gittings, 2 H. & J. 112, where the court say: "An escheat grant relates to, and operates to pass, the whole of the original tract escheated." And to the case of Howard vs. Moale, 2 H. & J. 249, on page 251, where "the court refused to direct the jury, that 

 [*508]  an escheat grant did not include any land included in the original grant, except the same was included within the metes and bounds of the escheat grant,  [**132]  as particularly described; and that the escheat grant did not, by legal operation, convey all the land included within the original grant, unless the particular metes and bounds of the escheat grant did also include the same:" and said that "a grant for escheat land will relate back to the original grant." And that "an escheat certificate and grant do, by operation of law, relate to the original tract, and is strictly within the principle and rule of law of relation between grants and certificates." The same doctrine will be found in Dorsey on Ejectment, 78.
But it is insisted on the part of the appellees, that, conceding Mountenay's Neck, the original, to have carried with it the title to the property now in controversy, by the escheat grant to William Fell, of "Island Point," in 1734, this title or franchise was granted to William Fell, and became appurtenant to Island Point, under whom the appellees claim. Without inquiring whether, under any state of circumstances, such could be the effect of the escheat grant of Island Point, let us see whether such could be the construction of that grant, even conceding, that in terms it had embraced land included [**133]  within the limits of Mountenay's Neck. The appellees first insist, that although it should be conceded that Mountenay's Neck was not liable to escheat in 1734, when the patent for "Island Point" issued; yet, that the Lord Proprietary is estopped from denying that it was so escheatable, and that whether then escheatable or not, is a matter of no importance, as the grant passed the contingent or possible right of acquiring the property by escheat, which right was then in the Lord Proprietary. And in support of the latter proposition, the case of Bladen's lessee vs. Cockey, 1 Harr. & McHen. 230, has been referred to, as shewing that the relation of an escheat grant to the original grant, shall not defeat an intermediate grant, including the lands contained in the original grant. In the regular report of that case, no such question appears to have been decided by the Provincial Court or Court of Appeals. But the reporter 

 [*509]  appends "a note of Samuel Chase, Esq., then a practising attorney or the Provincial Court," stating, "it has been determined that the relation of an escheat to the original certificate, shall not defeat mesne lawful grants. This was [**134]  the case of Bladen's lessee vs. Cockey, (about October 1776,) the substance of that case was as follows: a tract of land called "Carse's Forest," was originally granted to Robert Carse, in 1696. It was granted to George Stewart as escheat in 1746. In June, 1721, the same land was granted to John Cockey, by the name of "Cockey's Folly." The question was, whether the grant to Cockey in 1721, was not an elder title than the escheat grant to Doctor Stewart in 1746, under whom Bladen claimed. Whether "Carse's Forest" was escheatable in 1721 or not, does not appear. If it were, then was the decision, imputed to the Provincial Court, in perfect accordance with subsequent decisions in this State upon like questions. But it the fact were otherwise, then must we express our decided dissent from this alleged decision of the Provincial Court. Until the occurrence of the event which constitutes the escheat, the interest of the Lord Proprietary, in relation to it, was a mere possibility, and could not be the subject of a grant. Such in effect was the decision in the case of Partridge's lessee vs. Colegate, 3 Harr. & McHen. 340. And in Hall vs. Gittings, 2 H. & J. 112, [**135]  the court say, "escheat is that possibility of interest which reverts to or devolves on the Lord, upon failure of heirs, of the original grantee, and he cannot grant the land again until that event happens; and if he does, his grant will pass nothing:" and land not liable to escheat at the time it was included in a grant on a survey made in virtue of an escheat warrant on another tract, but which afterwards became escheat, will not pass under such grant, and the State is not estopped from granting it to any other person." And in Howard vs. Moale, 2 H. & J. 249, the court decided, that "a grant of land, surveyed under a common warrant, will not pass land not then liable to escheat, but which afterwards became escheat, and as such was granted to a third person." But apart from these decisions, the inapplicability of the doctrine of estoppel 

 [*510]  to grants of land made by the State or Lord Proprietary, is clearly shown in Codman and others vs.  Winslow, 10 Mass. 146. Such grants and patents issue upon the statement of facts made by the grantees, and the recitals and assumptions of facts, therein contained, are, in fact, but the suggestions of the [**136]  grantees. In such grants or patents, nothing passes but the title which the grantor then possessed, not that subsequently acquired.
But it is urged by the appellees, that conceding the law to be, as we have stated it, that it does not apply to William Fell's patent for "Island Point," in 1734, because "Mountenay's Neck" was then liable to escheat, of which liability, the only evidence offered, is the escheat warrant and patent to William Fell, of Mountenay's Neck, in 1737. An escheat grant is prima facie evidence that the land granted is liable to escheat. But liable at what time? At the date of the issuing of the escheat warrant, and not antecedently. The escheat warrant for "Mountenay's Neck," which issued in April 1737, is no evidence of its liability to escheat in 1734.
Suppose, however, we are wrong in the views we have taken of the operation of the grant of "Island Point," in 1734, and that it passed to the patentee a portion of "Mountenay's Neck," or of the franchises incident to it; of what avail is it to the appellees? William Fell, by the patents of 1734 and 1737, being entitled to both tracts of land, and his devisee, Edward Fell [**137]  , having, by his deed of 1758, conveyed "Mountenay's Neck" to Thomas Sligh, it passed to him, with all its appurtenances, in the same manner that it was held under the original patent of 1663. See the case of Mundell vs. Perry, 2 G. & J. 193.
As far as regards any conflict of rights between these parties, Inloes and the other defendants had, under the act of 1745, a right to extend westwardly, in front of their lots, to the line of the eastern end of the City Dock, extended northwardly; that is to say, to the west side of Caroline street, and no farther; and the lessor of the plaintiff had the right to extend her grounds to the City Dock, at the south side of Lancaster 

 [*511]  street. Upon the aforegoing views, this court think that the plaintiff's fifteenth prayer ought to have been granted.
The court below erred in granting the plaintiff's sixteenth prayer, upon the grounds stated by us in the examination of the propriety of its granting the plaintiff's first prayer in the third bill of exceptions.
We concur with the county court in their refusal to grant the defendants' second and third prayers, and dissent from its [**138]  granting the defendants' fourth prayer in the third bill of exceptions, upon the grounds we have stated in reviewing the court's opinions upon the various prayers of the plaintiff, contained in that exception.
And we concur with the rejection of the second and third prayers for an additional reason. In those prayers, they put to the jury the finding of certain facts, none of which relate to the acquirement of title by the defendants in virtue of possession; and these prayers are predicated upon the assumption, that the defendants had shewn a clear paper title to their several lots, by means of which they assert a title to the property in dispute. But this assumption of title is wholly unsustained by the evidence before the jury. They severally claim title to their respective lots under leases from Ann Fell, who, by the record, is not shown to have had any title to the lots attempted to be leased. And, waiving this defect, which, of itself, is an insuperable objection to the court's instructing the jury that the defendants are "the elder riparian owners of the water lots on Bond street," the court could not have granted the prayer, because the only evidence to show [**139]  William Inloes (apart from his possession,) was entitled to lot number five, was, that he was the heir of Abraham Inloes, the lessee for a term of years.
The first prayer of the defendants, "that if the jury find that the tract of land called "Bold Venture," was granted as given in evidence by the defendants, and that the same is truly located on the plats in the cause by defendants, that then the patent of "Mountenay's Neck" gives no title to the lessor of the plaintiff to the lot of ground for which the defendants have taken the defence on the plats," we think ought to have been 

 [*512]  granted. "Bold Venture," embracing all the land between the line of "Mountenay's Neck," from M to N, and the City Dock, covers of course, the ground now in controversy, as effectually as if it had been fast land, at the time the "Bold Venture" was originally surveyed. The act of 1745, ch. 9, never was designed to give one land-holder the power of extending his improvements over the land of another. If such had been the design of the legislature, it possessed not the power of effecting it, in the mode provided by that Act of Assembly. The grant of "Bold Venture [**140]  ," though for the most part covered with water, still passes to the grantee all the soil, under the water, included within its outlines, with all the rights of property incident thereto, subject only to the rights of the public, as to fishing and navigation. If it had been encroached on by any person, as by driving of piles and erecting a wharf, or building a house thereon, an action of trespass or ejectment could have been maintained by the patentee, or those claiming under him. See the case of Browne vs. Kennedy, 5 H. & J. 195.
Upon the views we have expressed in relation to "Bold Venture," we could not do otherwise than approve of the county court's refusal to grant the plaintiff's second prayer in the third bill of exceptions.
From what we have said in relation to the three preceding bills of exceptions, it follows, that we dissent from the county court's refusal to grant the four first prayers of the plaintiff in the fourth bill of exceptions; but concur with it in its refusal of the fifth and sixth prayers of the plaintiff.
As "Bold Venture" bars the plaintiff's recovery as against any of the defendants, we approve of the county court's refusal to grant [**141]  the plaintiff's prayer in the fifth bill of exceptions.
No ground of error has been suggested to us, and we have discovered none, in the court's admitting the testimony objected to by the defendants in the sixth bill of exceptions.
We approve of the acts of the court in the first and second bills of exceptions, and of their refusal to grant the plaintiff's second, eighth, ninth, thirteenth and fourteenth prayers, and 

 [*513]  the defendants' second and third prayers in the third bill of exceptions, but we dissent from the court's granting the first and sixteenth prayers of the plaintiff, and its refusal of the plaintiff's third, fourth, fifth, sixth, seventh, tenth, eleventh, twelfth and fifteenth prayers, and the defendants' first and fourth prayers in the said exception; and concur with the court in its refusal of the four first prayers of the plaintiff in the fourth bill of exceptions, and dissent from its refusal of the plaintiff's fifth and sixth prayers; and we concur with the county court in its refusal of the plaintiff's prayer in the fifth bill of exceptions, and also with its overruling the defendants' objection to the testimony mentioned in the sixth bill of exceptions.  [**142]  
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

30 of 42 DOCUMENTS 

JOHN WALTER, USE OF SUSANNA WALTER, vs. DANIEL WARFIELD, AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 216; 1844 Md. LEXIS 24 

December, 1844, Decided 

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

This was an action of debt, commenced on the 18th August 1838, by the appellants against the appellees. The plaintiffs declared on a bond of Daniel Warfield and his sureties, to John Walter, to prosecute the action of replevin, mentioned in the exceptions, with effect, dated 25th July 1836. The defendant pleaded general performance; and the plaintiff replied by way of breach, setting out the proceedings in replevin; and the judgment thereon, that the plaintiffs, the appellees aforesaid, "should take nothing by their writ, and that the said Walter should have a return of the said goods and chattels, in said condition mentioned, to be detained to him forever irrepleviable, and that he should recover his costs &c.," that no return was made, nor costs paid, and so, &c. Rejoinder by the appellees, that, &c., in said condition mentioned, did well and truly return the goods and chattels, &c., on which issue was joined.

The plaintiff, to support the issue on his part, offered in evidence the replevin bond, the record in the replevin suit, mentioned in the condition of said bond, and the docket entries, as follows:

"Daniel Warfield and Samuel [**2]  Mactier vs. John Walter. Replevin, nar. and notice to plead, filed. Replevied and delivered, as per schedule, and defendant summoned. 1st September 1836--appearance, rule, plea; same day, motion for a return of property. 30th December 1836--pleas, non-cepit, and property, and notice to reply filed; rule, replication, service of copy and notice of rule admitted; same day, similiter to 1st plea, and general replication to 2nd plea filed, service of copy admitted, continued. January 1837, continued. May, continued. September, continued. January 1838, continued. May term--15th June 1838, jury sworn. 18th June 1838, verdict for the defendant. Judgment on the verdict for a return of property and costs.

Defendant's costs, $ 49.39 1/2.

    Test,     THOS. KELL, Clk."

The defendant, John Walter, in the action of replevin, pleaded. 1st, non-cepit. 2nd, property in Susanna E. Walter.

The plaintiffs, W. and M., joined issue on the 1st plea. 2nd plea, property in themselves.

And further to prove the said issue, the plaintiff offered testimony by Hiram C. Walter, of the value of the property taken by the said writ of replevin.

The defendants, in order to show [**3]  that the property in question was not in the plaintiff, at the institution of the said action of replevin, but in a certain Susanna E. Walter, the same person mentioned in the plea of the present plaintiff, filed by him as defendant in the said action of replevin, and making said offer only with a view to mitigate the damage in the present action, proposed to ask said witness if he was not the original owner of said property, and whilst such, did not execute a bill of sale of said property, conveying and transferring the same to said Susanna E. Walter, and in connection with said proof, offered with the like purpose to read in evidence to the jury, an authenticated copy of said bill of sale, to said Susanna from said Hiram, and to prove that the said bill of sale contains and conveys the property in dispute in this case. The bill of sale was dated 16th May 1835.

To the admissibility of which evidence the plaintiff's counsel objected, but the court (PURVIANCE, A. J.,) overruled the objection, and suffered the said proposed evidence to be given to the jury in the present case, as evidence in mitigation of damages, for the purpose for which the same was, as aforesaid, offered to [**4]  be given; the plaintiff excepted.

2ND. EXCEPTION. The plaintiff and defendants having given the evidence in support of the issue on their respective parts, stated in the foregoing bill of exceptions, and which is made part of this exception, the plaintiff to show himself entitled to recover for said Susanna's benefit the full value of the chattels mentioned in this suit, further offered to prove, that the plaintiff, at the time of the replevying of said chattels, held and claimed the same only as agent of said Susanna E. Walter, named in the pleadings in said replevin suit, and that the plaintiff defended the same for her, and at her expense, and under her direction; and that this suit was instituted at her instance and for her use, and has been conducted by the plaintiff for her use, and at her expense; and that this suit has been entered for her use on the docket, under an order signed by the plaintiff, but for the first time this day by virtue of the order signed as aforesaid, dated and filed this day, and which order is as follows:

"John Walter vs. Daniel Warfield and others. In Baltimore county court. Mr. Kell,--Enter this case for the use of Susanna E. Walter. JOHN [**5]  WALTER. CHARLES F. MAYER, Plff's Att'y. 13th December 1842."

But the defendant objected to the admission of said testimony, offering at the same time to give in evidence, that heretofore, to wit, on 30th December 1836, there was brought by said Susanna against the said defendant, Warfield, and Mactier his partner, plaintiffs in said replevin, an action of trespass, for the taking and carrying away, by virtue of said replevin, the same property, the value of which is now sought to be recovered for her use in this action, in the manner stated in this exception; and that in the said action of trespass, she recovered a verdict and judgment in Baltimore county court, at September term, 1838; but which judgment was afterwards reversed, on appeal, by the Court of Appeals, upon the ground that the from of action was misconceived, as well as upon the error of opinion of the county court in the third exception in said case, (it being agreed, that the record of said case in the Court of Appeals, and the statement of the case, and the opinions of the county court and of the Court of Appeals, shall be read in argument of this case in the Court of Appeals, from the report of the case in 11 [**6]  Gill & Johnson's reports, page 80, &c., to have the same effect as if said case were set out at length in this exception.)

The plaintiff then, in further support of the issue on his part, offered to prove, that the present suit was suspended on his part, from the time of its institution until the decision had taken place in the above mentioned case of trespass, and purposely so, to abide the issue of said trespass case; the defendants, however, not being informed of such purpose, nor their counsel, until yesterday, after the case was called, the jury sworn, and the plaintiff had given his evidence stated in his first exception, (the offer of this latter evidence so stated as made by the plaintiff in this exception, was, however, after this suit was, as aforesaid, entered for the use of said Susanna;) and the court refused to allow the testimony of the plaintiff, offered as aforesaid, to be given. To the admission whereof, the defendants had, as above stated, objected, upon the ground as well of the evidence stated as aforesaid, by the defendants, as upon the general ground, that the evidence, so objected to, was inadmissible; and the court, (PURVIANCE, A. J.,) being of opinion [**7]  and so directing the jury, that the plaintiff can recover in this action only the amount of damage sustained by him personally, in consequence of the taking of the property from his possession. And the plaintiff objecting to the testimony offered, as aforesaid, by the defendants, as set forth in this exception, the court overruled the objection and allowed said testimony to be given. Whereupon, to said direction of the court, and to the refusal of the court to allow to be given the testimony aforesaid, offered by the plaintiff, and to the court's admission of that offered as aforesaid by the defendants, the plaintiffs excepted.

3RD. EXCEPTION. The plaintiff and defendants having respectively offered the evidence to support the issue on their parts, stated in the foregoing bills of exceptions, which was admitted as evidence, and not excluded, and which is made part of this bill of exceptions, the plaintiff prayed the court to direct the jury, that on the evidence given in this cause, if believed by the jury, the plaintiff is entitled to recover the value of the property mentioned in the schedule, returned with the writ of replevin, and offered in evidence, notwithstanding they [**8]  may find, that at the date of the institution of said replevin suit, and at the date of the bringing of the present suit, the title to said property was in Susanna E. Walter, or any other person. But the court refused to give said direction; to which refusal, the plaintiff excepted.

The jury found their verdict for the plaintiff, and assessed his damages at $ 50, and his claim being for a much larger sum, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

D. sued out a writ of replevin, and gave the usual bond, with the other defendants as his sureties, to J.; at the trial of the replevin, the defendant, J., pleaded non cepit, and property in S.; and the plaintiff D., pleaded property in himself. The issues were found for J., with a judgment for a return of property. In an action on the replevin bond, entered for the use of S., the defendants, D. and his sureties, were permitted to prove in mitigation of damages, that the property really belonged to S., that J. had no personal interest in it; and maintain, that he could recover in this action only the amount of damage sustained by him, personally, in consequence of the property being taken from his possession, and could not increase the damages to the extent of S's right, by showing that he was her agent.

The damages which an obligee in a replevin bond can recover from the obligors, are only such as he has suffered personally, by reason of the institution and failure of the action of replevin.  

COUNSEL:
By MAYER for the appellants, and

By WARD and REVERDY JOHNSON for the appellees.  

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

OPINION:

 [*221]  BY THE COURT.
JUDGMENT AFFIRMED.
NOTE.--The court refused the application of the appellant, to hear a re-argument of this cause.  

31 of 42 DOCUMENTS 

F. DE LIZARDI ET AL., vs. JACOB J. COHEN, JR., ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 430; 1845 Md. LEXIS 42 

December, 1845, Decided 

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

On the 27th March 1837, the affidavit of Benjamin I. Cohen, of the firm of Jacob I. Cohen, Jr., & Brothers, that Joseph L. Joseph, Solomon Joseph, and Moses Henriques, citizens of New York, partners, under the firm of J. L., and J. Joseph & Co., were justly indebted to Jacob I. Cohen, Jr., &c., of the firm of J. I. Cohen, Jr., & Brother, in the sum of $ 50,000, with an account for that sum, for money had and received for the use of C. & Brothers, were filed in said court, upon which an attachment issued against the goods, &c., of Joseph & Co. This attachment was laid upon five hundred and ten shares of the capital stock of the General Insurance Company, and two hundred and forty-seven shares of the capital stock of the Canton Company. The writ against the defendants, was returned non sunt.

At the return of the writ, John N. Gossler, David W. Gantley, and John Ward, claiming the property attached, interposed a plea, that it ought not to be condemned as the property of Joseph & Company, and said, that the same were not of the goods and chattels of the said J. & Co. The plaintiffs, in the attachment, replied, that the property of the said [**2]  stock was in the defendants, J. & Co., at the time of laying the said attachment, on which issue was joined.

After a continuance, the plaintiffs prayed, that the sheriff should have leave to amend his return, which was granted, and the return was amended, so as to show a levy upon fifteen thousand shares of the capital stock of the American Life Insurance and Trust Company, on which the appellants claimed the stock, and pleaded, that one thousand shares of the stock, last mentioned, was not the property of J. & Co.

At a subsequent term, Gossler and Gantley withdrew their plea, and the plaintiffs replied to the other claimants, that the property in the stock, of the A. L. I. & T. Co., was in J. & Co., on which issue was joined.

The claimants then moved to quash the attachment, for various reasons assigned by them, which are sufficiently stated in the opinion of this court, and of which no disposition was made by the county court. Upon the trial of the plea, the jury found a verdict for the plaintiffs.

EXCEPTION. At the trial of this cause, the defendants, claimants of the one thousand shares of the stock of the American Life Insurance and Trust Company, being part [**3]  of the property attached, in the case of Cohen and others, against Joseph and others, in this court, for the purpose of maintaining their title to said stock, offered as a witness Solomon J. Joseph, one of the defendants in the said attachment suit, and offered to prove, that the said witness, on the 6th December 1842, was duly discharged from all his debts, contracts and engagements, by a decree of the district court of the United States, in and for the southern district of New York, under and by virtue of the act of Congress, entitled, "an act to establish a uniform system of bankruptcy throughout the U. S., passed August 19th, 1841, which said certificate is in the following words: "In bankruptcy.--In the matter of Solomon J. Joseph, a bankrupt.--At a district court." &c.

To the competency of which witness, the plaintiffs objected, and the court, (ARCHER, C. J., and PURVIANCE, A. J.,) sustained the objection, and refused to admit the said witness to be sworn; to which refusal the defendants excepted, and prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

HEADNOTES:

C sued out an attachment against the goods of J, which was returned, attached as per schedule. At the return term, L appeared, claimed the goods, and pleaded, they were not the property of J, on which issue was joined. It was the only issue in the cause. At the trial, L offered J, who had previously been discharged under the bankrupt law of the United States, as a witness, to disprove the property in himself. HELD, that he was competent.

The witness was not responsible for the costs of the suit; and, in upholding the title of the claimants, was testifying against his own interest.

A defendant, in an attachment cause, returned non est, being called by a claimant, as a witness, to prove that the property attached did not belong to the witness, who made no objection to being sworn, not liable for costs, nor interested in the event of the suit, even if he was to be regarded as a party to the record, that fact would not disqualify him as a witness.

The general rule is, that a party to the record, is not a competent witness, for he is generally, either interested in the object of the suit, or responsible for costs.

The form in which this rule of exclusion has been stated by the courts, pre-supposes that it is subject to exceptions; and 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 of dispute, and is willing to be sworn, he is not within the operation of the general rule.

Bills of exchange drawn in New York, upon a house in London, and there accepted and paid, if, in connection with other circumstances, they create a claim by the acceptor against the drawer, are to be considered as creating one in London, which is the place of the contract.

A debt thus created in London, is not extinguished by a discharge of the debtor under the bankrupt act of the United States.

In a contest between two creditors of a discharged bankrupt, one of whom resided in this country, and the other in London, where the cause of action arose, the latter cannot prove by the bankrupt, his title to property hypothecated to him as collateral security, by the witness, who, still remaining liable to the foreign creditor, is interested in sustaining his claim for his own relief.  

COUNSEL:
By DAVID STEWART and MEREDITH for the appellants, and

By MCMAHON and REVERDY JOHNSON for [**4]  the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*433]  MARTIN, J., delivered the opinion of this court.
It appears in this case, that a writ of attachment was sued out of Baltimore county court by the appellees, on the 27th March 1837, against the lands, tenements, goods and chattels, rights and credits, of J. L., and S. Joseph & Co., which was returned at the succeeding May term of the court, "attached as per schedule." At the September term of the same year, the sheriff, with leave of the court, amended his return, so as to include in the property attached, fifteen hundred shares of the stock of the American Life Insurance and Trust Company.
During the pendency of this attachment, at the January term 1838, the appellants interposed a claim and plea, to a thousand shares of the stock, alleging, that they were not the property of Joseph & Co. At the September term 1838, the appellees, as plaintiffs, filed a replication to the above mentioned claim and plea, on which issue was joined.
At the trial, the appellants, for the purpose of maintaining their title to the stock, offered as a witness [**5]  Solomon J. Joseph, one of the defendants in the attachment suit, of Cohen and others, against Joseph and others, before referred to, and accompanied the offer with a copy of his discharge, under the bankrupt law of the United States, dated the 6th December 1842, certified by the clerk, under the seal of the district court of the United States, for the southern district of New York. This discharge, although not authenticated as required by the act of Congress, prescribing the mode in which instruments of 

 [*434]  this kind are to be proved, was admitted without objection, and is, therefore, to be considered as properly in the cause.
In this posture of the case, the counsel for the appellees objected to the examination of Joseph, as an illegal and incompetent witness. The objection was sustained, and the witness excluded. And the single proposition presented for our determination, is, that which respects the correctness of the opinion thus pronounced by the court below, on this question of evidence.
It was not pretended, that Solomon J. Joseph was responsible for the costs of this suit. It appears from the record, that they were adjudged to be paid by [**6]  the appellants. But the competency of this person, as a witness, was disputed on two grounds:
First. Because he was directly interested in maintaining, by his testimony, the title of the appellants to the stock in controversy; and
Secondly. That as this contest, between the appellants and appellees, was merely collateral to the attachment suit, Joseph was to be regarded as a party to the record, in the technical sense of that term, and being so, he was properly excluded from testifying on the objection in the abstract, that he was a party to the record, irrespective of the question of his responsibility for the costs, or his interest in the object of the suit.
We have seen that the discharge of Joseph, under the bankrupt law of the United States, though imperfectly authenticated, was to be treated as in evidence in the cause, and by adverting to the motion made by the appellants, for the purpose of quashing the attachment, it will be perceived, that the debt, for the payment of which this stock was hypothecated, was created by bills of exchange, drawn by the Joseph's & Co., in New York, in favor of various persons, on Lizardi & Company, trading in [**7]  London, and there accepted and paid.
Under such circumstances, the counsel for the appellees contended, that while the debt of the appellees was extinguished by the discharge of Joseph, under the bankrupt law, that of the appellants being a London contract, and not reached by the discharge, was not extinguished; and that he was, therefore, directly interested in supporting the claim of the appellants.

 [*435]  But, an insuperable answer to this view of the question, is, that looking alone, as this court is obliged to do, to the facts disclosed by the bill of exception, it does not appear that there was any debt due from Joseph to Lizardi & Company. And this being the position of the case, it is clear, that the witness, in upholding, by his testimony, the title of the appellants to the stock in dispute, would testify against his own interest. So far, then, as the question of interest was concerned, the witness was, in our opinion, clearly admissible.
The counsel for the appellees have, however, contended, that assuming that Joseph was neither responsible for the costs of this suit, or interested in maintaining, by his testimony, the title of the appellants [**8]  to the stock claimed by them, yet being a party to the record, he was for this reason incompetent.
As it appears, that when the appellants proposed to swear Solomon J. Joseph, as a witness, he interposed no objection to his examination, and did not place himself, as he might have done, on his privilege of exemption as a party to the record, we must presume, that he was willing to testify; and this being assumed, and it having been established, that he was not liable for the costs of the suit, and that so far from being interested in sustaining the cause of the party by whom he was called, that his interest was to be found on the other side, we think, even if he was to be regarded as a party to the record, a proposition we do not consider it necessary to decide, that fact did not disqualify him from being a witness.
It is certainly true as a general rule, that a party to the record, is not a competent witness, for he is generally either interested in the object of the suit, or responsible for costs.
In the case of Owings against Wright and Kent, decided at the present term, this general proposition is announced. The court say:--"The general rule is, that a party to the [**9]  record, cannot be examined as a witness."
In the case of Willings and Francis, against Consequa, Pet. C. C. R., 307, Judge Washington, when speaking of an objection like this, to the competency of a witness, says: "The general rule of law certainly is, that a party to a suit, cannot be a witness. But it is equally so, that the interest 

 [*436]  which that party has in the event of the suit, both 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." It is manifest from the language of the Supreme Court, in De Wolf against Johnson, 10 Wheat. 367, that they considered that the responsibility to which a party to the record is generally exposed in respect to the costs, if he had no interest in the event of the suit, was the reason why he could not be examined as a witness. The court say, in referring to the deposition of Prentiss:--"He may have had little or no interest in the event of the suit, except as to the costs; but still, while a party to the record, he could not be examined."
It will be seen, from an examination of the cases, that the form in which this rule [**10]  of exclusion has been stated by the courts, presupposes that it is subject to exceptions. And 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.
The true and sound doctrine upon this subject, is to be found in the opinion delivered by Chief Justice Tindall, in the case of Worrell against Jones, 7 Bing. 395.
He says, "that at the trial of this issue, the plaintiff proposed to call Edward Jones as a witness, to prove the continuance of the ancient tenancy. No objection could arise, on the ground that Edward Jones was interested to procure a verdict for the plaintiff, who called him. The witness did not, himself, object to be examined; but an objection was made on the part of William Baker, the defendant, who had pleaded; and the question reserved for our consideration, is, whether a defendant who has suffered judgment by default, and who consents to be examined, is an admissible witness, where he has no interest in the event of the suit; and the only objection to his admissibility [**11]  is this--that he is a party upon the record? And upon this question, we are of opinion, that the evidence was admissible. No case has been cited, nor can any case be found, in which a witness has been refused, upon the objection in the abstract, that he was a party to the suit; on the contrary, 

 [*437]  many have been brought forward, in which parties to the suit, who have suffered judgment by default, have been admitted as witness against their own interest; and the only enquiry seems to have been, in a majority of the cases, whether the party called was interested in the event or not; and the admission or rejection of the witness, has depended on the result of this enquiry. The exclusion on the ground of interest, is a known principle of the law of evidence; and so much did Lord Chief Baron Gilbert consider this as the only solid objection against the evidence of a party to the suit, that, after laying it down as a general rule, that no man interested in the matter in question, can be a witness for himself, he states, that several corollaries may be deduced from this rule; of which he gives as the first: that a plaintiff or defendant cannot be a witness in his own cause; for [**12]  these are the persons who have a most immediate interest, and it is not to be presumed, that a man who complains without cause, or defends without justice, would have honesty enough to confess it. That a party to the record should not be compelled against his consent, to become a witness in a court of law, is a rule founded in good sense, and sound policy; it forms the point of the decision, in the case of the King against Woodburn, 10 East., 395, and the decision of that case leads to the necessary inference, that if the party consents to be examined, he is then an admissible witness."
In the case of the City Bank of Baltimore against Bateman, 7 H. & J. 104, the Court of Appeals say:--"That the admissions of a party on the record, are always evidence against himself, because, being a party, he cannot be compelled to give evidence against his interest in a court of law." Leading necessarily to the inference, that if he is called to testify against his interest, and consents to be examined, he is a competent witness.
The same doctrine is held by the court, in the case of Lampton against Lampton, 6 T.B. Mon. 616; and in Steele against  [**13]   the Phoenix Insurance Company, 3 Binn. 306, Chief Justice Tilghman, when examining this subject, says: "The reason of the law, is the life of the law. Now what good 

 [*438]  reason is there, why a man's testimony should be excluded, merely because his name is placed on the record, as a party to a suit in which he has no manner of interest."
We think, both upon principle, and on authority, that the party proposed to be called by the appellants, was a legal and competent witness, and that the court below erred in excluding him.
We have already said, that the motion made by the appellants to quash the attachment, discloses the facts, that the debt, for the payment of which this stock was pledged, was created by a bill of exchange drawn in New York, by J. L. and S. Joseph & Co., in favor of various persons, on the appellants, trading in London, and there accepted, and paid by them;--and as this case is to be returned on a procedendo, it is proper for the court to declare, what influence these facts, if they had been proved by the appellees, and incorporated into the bill of exception, would have had on the question of the competency of the witness.  [**14]  
It was contended by the counsel for the appellants, that as this bill of exchange was drawn in New York, it was to be regarded as a New York contract, and therefore covered by the discharge of Joseph, under the bankrupt law of the United States.
But to this proposition we cannot accede. On the contrary, we think it an established principle, that as this bill of exchange was accepted in London, and there paid by the appellants, London is to be considered as the place of the contract.
In the case of Lewis against Owen, 4 Barn. & Ald. 653, a rule was laid to shew cause why an exoneretur should not be entered on the bail piece, the defendant having obtained his certificate under a commission of bankruptcy in Ireland. It appeared from the affidavits, that the debt for which the action was brought, arose from the plaintiffs, while residing in England, accepting and paying bills of exchange, drawn upon them by the defendant, while residing in Ireland, for his accommodation.
The court said, the debt must be considered to have arisen where the money was paid; and that a certificate under a commission 

 [*439]  of bankruptcy in  [**15]  Ireland, could not discharge a debt contracted in England. The same doctrine is established by the case of Burrows against Jemimo, 2 Strange 73. Story Conf. Law, Sec. 274. Chitty on Bills, 736. Story on Bills, 163.
Treating London, then, as the place of the contract, it is clear, and indeed was not disputed, that the debt thus created, could not be reached and extinguished by the discharge of Joseph, under the bankrupt law of the United States. No principle of international law is more firmly settled, than that a discharge of this character can have no extra-territorial operation. The late Judge Story, in his able commentaries on the conflict of laws, speaks of the doctrine as well established:--that the discharge of a contract, by the law of a place where the contract was not made, or to be performed, will not be a discharge in any other country. Conf. L., Sec. 283. Smith vs. Buchanan, 1 East 11.  Lewis vs. Owen, 4 Barn. & Ald. 654.
It follows from the views thus expressed, that if these facts had been proved at the trial, and made a part of the exception, the position of the witness must have been materially [**16]  altered. Under such circumstances, while his discharge under the bankrupt law, would have operated upon, and extinguished the debt of the appellees, it would have left unaffected that of the appellants, and he would have been directly interested in maintaining by his testimony, the claim and title of the appellants, and therefore inadmissible.
In the form in which the case is now presented to us, we reverse the judgment of the court below, with costs, and order a procedendo.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

32 of 42 DOCUMENTS 

ALEXANDER C. BULLITT vs. ANDREW MUSGRAVE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 31; 1845 Md. LEXIS 10 

June, 1845, Decided 

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

This was an action of assumpsit, commenced on the 3rd September 1842, by the appellee against the appellant.

The plaintiff declared for work done, materials found, goods sold, for money had, and upon an insimul computasset.

The defendant pleaded non assumpsit, on which issue was joined.

1ST EXCEPTION. The plaintiff to support the issue on his part, offered in evidence the following depositions, viz:

1. That of George Moore, taken for the plaintiff under the act of 1828, who deposed, that he had knowledge of the fishing shore called Possum Nose, rented by Andrew Musgrave from Thomas James Bullitt; that he does not know whether there were any improvements on said fishery before said M. went there, and does not know what improvements said M. put thereon; that witness came on from home, which is at Havre de Grace, having work to do on the Potomac, some time in October or November 1841; that at that time witness and Sellman, and Crook were in partnership, which was not then dissolved, and they then had it in contemplation to rent the Possum Nose fishery. Witness asked Mr. Sellman whether he had executed a lease with Mr. Bullitt,  [**2]  the defendant, or not, he stated that he had not; that he had seen the lease of old Mr. B. to A. M., which gave M. the power to remove all the buildings and improvements put on said fishery by said M., and as witness was going on, he authorized the witness to say to Mr. B., the defendant, unless he, said B., would purchase the improvement, or suffer them, (the witness and Sellman, and Crook,) to purchase them and retain out of the rent, they would have nothing to do with the shore. On the 9th of December then next following, as witness thinks, or thereabouts, it was however on the day the arbitration took place, witness called at Mrs. Murdoch's, at Dumfries, where Mr. B., the defendant, was at the time, and repeated to Mr. B. the said conversation which had taken place between the witness and Sellman. Mr. B. stated that he had sued M. for a trespass, and that said M. owed him some rent, consequently they did not speak; that he, said B., authorized the witness to go and buy the property of M., put up by said M. on the Possum Nose, as low as witness could, and in case witness and M. could not agree, to leave it to two men, and if they could not agree, to call in a third person, as to [**3]  the price, and that whatever they agreed, he, said B., would pay it; but, said he, recollect that whenever my claim for damages, and I expect to recover a good deal, and rent is settled, whatever remains I will pay it. Witness went down on the shore the same morning and saw Mr. M. and stated distinctly to M. the conversation which witness had had with B. Mr. M. said, "I am perfectly satisfied to leave it to men, but I have done him no damage; I owe him some rent, which I have been always ready to pay him, but he distrained on my property before it was due." Witness and Mr. M. went down to the fishery, and Mr. M. asked $ 1500 for the improvements, and witness offered him $ 500. Witness then told M. that it was impossible for them to agree, and that he supposed they would have to leave it to men, and M. said that he was perfectly satisfied to do so; witness said that he was a stranger, and unacquainted with the men there, and wished to have a competent man on his side; that witness would like to have witness' partner at the fishery above, being the Marsh fishery, Zebulon A. Kanky, as one of the referees, but that he, said M., might object to said Kanky on that ground, that he was witness'  [**4]  partner. Said M. stated that he considered Mr. K. a gentleman, and that he had no objections to him, and that he, said M., would choose Mr. Anness. Witness and M. then both agreed, if the referees should not agree, to call in a third person, and whatever their decision might be, to abide by it. The referees, Kanky and Anness, did not agree, and they called in Cockerill, and the paper herewith filed and marked "Exhibit A," is the arbitration which the said three referees K. A. and C. signed; that the said paper marked Exhibit A, was prepared under the authority of Mr. B, the defendant, and unless it had been prepared, witness and Sellman & Crook would not have rented said P N. fishery. Sellman & Crook, witness being a silent partner with them, rented at the annual rent of $ 850, the P. N. fishery, Stony Point fishery and Timber Branch fishery, but only worked the P. N. fishery. Witness considers the rent very reasonable with the improvements, but would not have the Possum Nose fishery for one year for nothing, if the improvements mentioned in the arbitration had not been there. The other two fisheries, Stony Point and Timber Branch, witness considers as worth nothing in any case. After [**5]  the conversation between M. and witness, M. took witness over the improvements on P. N. fishery, and put witness into possession, and said to him, "mind, this is your property, I deliver it all over to you, and if it burns down, it is at your risk." Witness considered, that in receiving this property from Mr. M., he took charge of it under the authority he derived from Mr. B. That he purchased the said improvements for Mr. B., and not for S. & C. and himself; that witness signed the agreement endorsed on Exhibit A, and that in signing said agreement as George Moore & Company, he considered himself as acting as the agent of Mr. B., the defendant; that witness, when he went down to P. N. fishery, offered Mr. M. $ 500 for the improvements, but, on account of the snow, was unable to ascertain their extent and value; that afterwards, when he came to know them fully, he considered the value put on them by the arbitrators as low enough. Mr. B. was on the ground on the day of the arbitration, but witness does not know whether he talked to the arbitrators, or went over the buildings and improvements. That witness has heard the deposition of Nicholas Suter in this cause, and that all the improvements [**6]  mentioned in said deposition, by said Nicholas Suter, existed when witness went to Possum Nose fishery, and the other places, as he has above mentioned; that a high freshet in 1842, carried away sixty feet of the shed at Possum Nose, which witness saw there when Sellman & Crook took possession of the shore, and which, in consequence, Mr. Suter could not have seen; that witness collected as many of the boards of the said sixty feet of shed as he could find, and put them away; that two of the houses are covered with shingles, with the exception of about three feet on one end of one of them.

2. Nicholas Suter, a witness for the plaintiff, also, proved various repairs and improvements put up on the Possum Nose fishery from 1835 to 1843, necessary to a fishery.

3. John Rogers, also a witness for the plaintiff, gave evidence of his improvements; and that in 1839, the buildings and improvements on Possum Nose fishery were complete, and the best on the river for a rented shore. Witness has followed the fishing business nearly twenty-four years, and the improvements, in his opinion, would be worth full two years rent of the unimproved property. During the space between 1836 and 1839,  [**7]  the whole character and condition of the shore aforesaid, was much improved by Mr. Musgrave, so as to increase its value as a fishing property. While witness was there, he did not observe any wood-cutting going on; did not see any wood carried off. A field or two near the shore was enclosed with pine poles, barely enough for a fence.

4. Henry Moore, a witness for plaintiff, also proved similar facts.

5. Thomas M. Davidson also proved, that he never had any conversation with Mr. Bullitt relating to said shore, but was present at a conversation between said Bullitt, the defendant, and said Musgrave, the plaintiff, about the paying for the improvements on said shore. It was about one year ago, either in last February or last March. Witness and Mr. Musgrave were going down Pratt street together, and they stopped into Mr. Lutts' hotel; they went in, and Mr. Bullitt was sitting there behind the stove. Mr. Musgrave went up to him and slapped him on the shoulder, and asked him how he was. Some little conversation took place between them, and at last Mr. Musgrave said to him, "I think it very hard Mr. Bullitt, that I cannot get paid for my property." Mr. Bullitt replied, that their [**8]  lease would expire in about two years; he then began to talk about Mr. George Moore's fishing the place, and the character of the place. Mr. Musgrave said again, that he thought it very hard that he could not get paid for his property, and Mr. Bullitt said, "you must and shall be paid for your property," and told Mr. Musgrave that his property was still there. The conversation all this time was concerning the said fishery.

The exhibit marked A, referred to in the foregoing depositions, is as follows, to wit:

Report of Mr. Wm. Cockrill, Richard Anniss and Z. A. Kanky, as regards the property on Opossum Nose fishery.

We agree, that Mr. Andrew Musgrave should receive the sum of $ 1000 for the following property, to wit: The houses, sheds, with all the apparatus thereto affixed with nails, also all loose plank, oven, &c. Capstan, platform and gallows, and repairs on Stony Point shore, with repairs on wagon house.

November 29th 1841.

WM. COCKRILL,

RICHARD ANNISS,

Z. A. KANKY.

(Endorsed.) We, Andrew Musgrave and George Moore & Co., do agree to abide by the within appraisement, as witness our hands and seals, this 29th November 1841.

ANDREW MUSGRAVE,  [**9]  

GEO. MOORE & CO.

John P. Phillips, for the defendant, testified, that he was counsel for Alexander C. Bullitt in two cases of attachment or distress for rent, in the county court of Prince William, against Andrew Musgrave, and was also counsel for said Bullitt in three actions of covenant in the circuit superior court of law and chancery of Prince William county, and in an action on the case in the same court; all of the said cases were in the name of said Bullitt, in his own right, or as administrator of the late Thomas J. Bullitt, of Maryland, and involved questions under two leases, made by the said Thomas J. Bullitt, in his life time, to said Andrew Musgrave, &c. The papers in the said cases in the county and superior court, will shew the objects of each suit, better than I can explain them here. At the May term of the circuit superior court of law and chancery for Prince William county, 1842, Alexander C. Bullitt was in attendance upon that court, and he did authorize me to compromise and settle his differences with said Musgrave, arising under the said leases. I did converse with said Musgrave at the time of the term of the court aforesaid, on the subject of his controversies [**10]  with said Bullitt, with a view to carry out a compromise between them, which I understood said Musgrave to be anxious to effect. The terms of the compromise, as I understood it, was, that the said Bullitt should dismiss all his suits against said Musgrave, except one, and take a judgment on that one against said Musgrave, for the sum of $ 452.13, with interest from the first day of May 1842, and the costs of that suit; and that thereupon, all matters of difference between said Bullitt and said Musgrave, arising upon said leases, were ended and settled. I certainly considered Mr. Bullitt and Mr. Musgrave as having by that compromise, settled all differences between them arising upon said leases. I do not now recollect that I heard of any other matters between them, except some small accounts for money, rent, &c., which were included in the settlement. I understood the parties as being desirous to settle all their differences, and I have no doubt that was the understanding of both parties at the time. I certainly should not have advised Mr. Bullitt to dismiss his suits against Mr. Musgrave, and leave Musgrave at liberty to set up any claim he might make against Bullitt. After the compromise [**11]  was agreed upon, and before judgment was entered up, Musgrave paid to Bullitt the sum of $ 300 in cash, and the judgment was entered up for the residue of said sum, being $ 152.13, with interest and costs as aforesaid. In the conversations on the subject of the compromise, the claims of said Musgrave under the lease for the fishery shore, were alluded to; he set up in those conversations, all his claims, as I understood him, under the lease. I recollect the plank, &c., which, under the lease, he was to have a right to remove, were alluded to. I considered, and as already stated, I believe Mr. Musgrave considered the compromise as a full settlement of all his demands against Bullitt, and all Bullitt's demands against him under said lease. I do not know the character of Mr. Musgrave's suit against Mr. Bullitt, and therefore cannot say that I know any thing further, which would be of any service to the parties.

Joseph S. Farrow also proved, that during the May term of the circuit superior court of law and chancery of Prince William county, in 1842, and after Musgrave and Bullitt had compromised their differences, I heard Musgrave say that they, the said Musgrave and Bullitt, had [**12]  settled their affairs or business, and that he was glad of it; that he had to pay several hundred dollars, some three or five hundred dollars, and further said deponent saith not.

Washington S. Norville also proved that he was at the May term of the superior court of Prince William county in 1842, in company with the plaintiff, Musgrave, who desired me to endeavor to bring about a compromise of the several suits pending between the plaintiff and defendant, for damages for cutting wood and for rent; the said plaintiff authorized me to propose to the defendant, that if he would dismiss his suits for damages for cutting wood, he, the said defendant, might take judgment for his rent, and it should end their legal controversies in Virginia, and fully discharge all claims and demands of every nature whatever, which the plaintiff had against the defendant under dealings in Virginia. I was not present when any conversation took place between the plaintiff and John P. Philips, nor was I present when the final arrangement was made between the parties as to their differences above referred to. I heard the plaintiff say, on the day of the compromise, that he would sue the defendant in Baltimore,  [**13]  and I am under the impression that he made this declaration before the compromise was made. I never heard the plaintiff say any thing about such a suit afterwards. Acting as a constable of Prince William county, I received an attachment issued by a magistrate of said county, a copy of which, marked A, is hereunto annexed as a part of this answer; under which, on the date of said warrant, I went upon the premises leased by Bullitt to Musgrave, and seized the property mentioned in my return thereon, but did not remove it; it was suffered to remain in the care of Musgrave's manager, and three days afterwards was surrendered, upon Musgrave suing out a writ of replevin. I heard Bullitt say he was afraid Musgrave would remove the property before the rent became due, but any declaration as to his intentions against Musgrave, further than to make his rent, I did not hear. I have been on the premises, assisted by a gentleman, Mr. Henry Chapman, measured the plank claimed by the plaintiff, and find, by calculation, to amount to about fifteen thousand feet, and do think it worth, at the expiration of the lease, not more than fifty cents per hundred feet; that it is now in rapid state of decay.  [**14]  At the request of the defendant, I have been over the land embraced in the lease, to ascertain as near by judgment, the quantity of wood cut from the land; I judge about one thousand cords; was worth at the time to defendant one dollar per cord, standing, it being near the river banks. I think the wood was worth, at that time, one thousand dollars; the fence made by Musgrave, was of poles. I think that a large portion of wood carried away would have made rails; could have been applied to farming purposes. I further state, that at the time I levied warrants of distraint and attachment, the said plaintiff acknowledged that he was indebted to Bullitt after crediting some orders drawn on the plaintiff, which said Bullitt directed to allow if he paid the remainder of the rent. At the time of the compromise, the only item in dispute was the suit for the trespass on terms of the lease, and damages for breach of covenant. I think the fishing shore occupied by Musgrave, when rented, if it had been put up to the highest bidder, would have rented for $ 1000 or $ 1200.

And also the following leases:

Memorandum of an agreement made and entered into this 16th August 1836, between Thomas [**15]  J. Bullitt of the one part, and Andrew Musgrave of the other part. The said B. agrees to let and demise, and doth hereby let and demise, unto the said M., the fishing shore of the said B., on the Potomac river, commonly called the Possum Nose fishery, for the term of four years, to commence on the 1st day of January 1838. In consideration whereof, the said Musgrave doth hereby agree with, and bind himself to the said B., to pay him, the said B., the annual rent of $ 500, at the following periods, that is to say, on the 1st day of July in each year during the said term. This fishery is to extend down the river to the four acres of land devised by the father of the said B. to his sisters, and laid off by the said B. for his sisters and their heirs, and no further, and is to extend up the river so far as not, in any manner, to obstruct or interfere with the Timber Branch fishery, and no further, it being the intention that the Timber Branch fishery shall be and remain free and clear from any obstruction or interruption whatever. The said M. has the privilege of getting timber out of the woods of the said B., for the purpose of erecting buildings for the accommodation of the said Possum [**16]  Nose fishery, which, when erected, are to be the entire property of said B., so far as his timber is used, and to be carefully preserved for the time. The said B. is to be at no other expense whatever.

"The said M. is at liberty to remove such materials as he may supply towards the buildings, other than those from the woods of the said B., so far as it can be done without exposure of, or injury to, the materials towards the said buildings attained out of the woods of the said B. The said Musgrave is to deliver up the said demised premises at the end of the said term to the said Bullitt, his heirs or assigns, peaceably and promptly.

In witness whereof, the said parties have hereto set their hands and seals.

THOS. J. BULLITT, (Seal.)

ANDREW MUSGRAVE, (Seal.)

Memorandum of an agreement made and entered into, on this 8th day of September 1836, between Thomas James Bullitt, and Andrew Musgrave and John H. Williams, of Prince William county, in the State of Virginia, of the other part. The said Bullitt agrees to let and demise unto the said Musgrave and the said Williams, for and during the term of five years, to commence on the 1st day of January next, a parcel [**17]  of land, belonging to the said Bullitt, lying and being in Prince William county, in the State of Virginia, in a neck between the river Potomac and Quantico creek, that is to say, the arable and woodland only, contained within the following limits, with the exceptions hereinafter mentioned: Beginning, &c. All fisheries, and all land necessary for the full enjoyment and accommodation thereof, excepted, and the free passage of the tenants and agents of the said Bullitt, to and from the fisheries also excepted; it being the intention of these presents, that the said Musgrave and Williams are not, in any manner, to molest or interrupt the fisheries, the land needful for the enjoyment and accommodation thereof, or the free passage of the tenants and agents of the said Bullitt, to and from the same as heretofore. In consideration whereof, the said Musgrave and Williams do hereby agree with, and bind themselves to the said Bullitt, for the annual rent or sum of money following: that is to say, the sum of $ 100, current money of the United States, on the last day of December, in the year of our Lord, 1837, and the rent or sum of $ 200, like money, on the last day of December in each and every [**18]  year thereafter, during the said term. The said Musgrave and Williams are at liberty to cut down, for the use of the demised premises; that is, for buildings, fences, fuel, and other purposes, all the second growth of wood and lumber, on the river adjoining the field now in the occupation of Bell and others, and being within the lines aforesaid, and to sell and dispose of, for their own benefit, the lapse of the timber cut down for rails and other wood that cannot be carefully applied to the purposes aforesaid, and otherwise would go to decay and be lost; but the original growth of wood and timber next to the creek, is to be preserved for the support of the demised premises, save only what may be necessary for the use of the farm, after the reasonable and discreet consumption of what is before permitted to be cut down. In case of failure of rail timber, within the lines aforesaid, during the said term, after the discreet consumption thereof, the said Musgrave and Williams are at liberty to procure rail timber for the use of the said farm out of the other woods of the said Bullitt. Signed," &c.

The defendant also proved, that M., between 1838 and the spring of 1841, cut and sold [**19]  wood off of said land, to a value amounting from $ 2000 to $ 2750; the plaintiff proved that such cutting was known to the agent of T. J. B., in his, B's life time, and to the defendant, after said Thomas' death.

The plaintiff then offered in evidence the following depositions, taken under a commission, viz:

The deposition of John W. Tyler stated, that he knew of several suits between the parties, to wit: Two attachments and four other suits. Two of the latter suits were brought against A. Musgrave and Jno. W. Williams, one by Alex. C. Bullitt, in his own right, and the other as representative of Thos. J. Bullitt; the third was an action to recover $ 100, claimed to be due the estate of Thos. J. Bullitt, from A. Musgrave, and the fourth was brought by Alex. C. Bullitt, to recover a rent of $ 500. That he was the attorney of A. Musgrave, in the suits alluded to in his previous answer, and the defence made to one of the attachments was, that the attachment was defective, which was sustained by the court, and the attachment was quashed. The defence to the other was, that the amount claimed had been paid, and there was in the progress of the cause a judgment in Musgrave's favor [**20]  for costs. Deponent says, that he does not recollect particularly the courts at which the attachments were ended. The other suits spoken of were in the circuit superior court of law and chancery for Prince William, and were settled, as deponent believes, at the May term 1842, of said court, under the following circumstances: During the court, there were some general propositions for compromise, and having been informed by A. Musgrave that the suits for damages for cutting and carrying away wood, &c., was vexatious and frivolous, and that he had a receipt for the $ 100 claimed in another suit, and that he owed the rent, subject to some offsets; there was a proposition made to take judgment given for the rent, if the plaintiff would dismiss the other suits. This proposition was not acceded to, and there seemed to be no probability of a compromise. When the cases were called in their order on the docket, the judge of the court refused to set in the cases, on the score of his being a relative of the plaintiff, and directed them to be sent to another judicial circuit. After it was ascertained that no judgment could be had for the rent during that term of the court, and that increased trouble [**21]  and expense would be incurred by the removal of the causes, the proposition for compromise was renewed, and it was finally agreed that judgment was to be given for the rent claimed, subject to offsets agreed on by the parties, amounting to a small sum, and that the other three cases were to be dismissed; agreed, which was accordingly done. The deponent cannot tell the motives or inducements to the settlement, further than his answer may disclose. The deponent says, that he knows of no agreement, contract or promise, on the part of said Musgrave, to abandon any action or cause of action in Baltimore, or elsewhere, that he had against said Bullitt, in consideration of Bullitt's dismissing the suits aforesaid, in Virginia. The deponent says that he was the attorney of said Musgrave, and certainly never heard of any terms or conditions as mentioned in the foregoing interrogatories, and thinks that a client would usually mention such matters to his counsel if they existed.

The deponent says, that the copies from the order book of the court, marked A and B, and hereto annexed and certified by the clerk, shews the terms of the settlement as deponent understood it. The judgment for $  [**22]  152.13, with interest from 1st May 1842, being the balance of rent of $ 500, after paying down the sum of $ 300 in money, or thereabouts, and allowing the offsets. The deponent says, that A. Musgrave conferred with him both before and after the compromise, as to bringing suits for damages against A. C. Bullitt, and also as to the expediency of suing him in Maryland or in Virginia, and finally concluded, as a matter of convenience to himself, to bring the suits in Baltimore, Md., and further this deponent saith not.

A--VIRGINIA. At a circuit superior court of law and chancery, of Prince William county, held on the 19th day of May 1842.

Alexander C. Bullitt, plaintiff, against Andrew Musgrave, defendant. In covenant. This day came the plaintiff, by his attorney, and the defendant, by John W. Tyler, Esq., his attorney, acknowledges the plaintiff's action, and agreed that the plaintiff has sustained damages in this case to the sum of $ 152.13, with legal interest thereon from the 1st day of May 1842, till payment. Therefore it is considered by the court, that the plaintiff recover against the defendant, his damages acknowledged as aforesaid, and his costs, by him about his suit,  [**23]  in this behalf expended; and the said defendant in mercy, &c.

B.--A. C. Bullitt, plaintiff, against A. Musgrave, defendant. T. J. Bullitt's adm'r, pl'ff, against same def't. In covenant. Same plaintiff against same defendant. In case.

These causes are dismissed, being agreed between the parties.

The foregoing are true transcripts from the records of the circuit superior court of law and chancery, of Prince William county, in the State of Virginia. In testimony whereof, I have hereto set my hand, this 8th day of August 1843.

P. D. LIPSCOMB, Cl'k.

Daniel Ratcliffe deposed, that he concurred in the statements of John W. Tyler; and that he was present at a conversation between A. C. B. and A. M., in the town of Dumfries, touching their differences in Virginia, and endeavored to effect a settlement of the same, but failed. The difficulty seemed to arise out of matters of account, and I heard nothing said about damages for trespass committed by Musgrave. I have lived for the last six or eight years within four miles of the farm and fishery rented by Mr. Musgrave of Mr. Bullitt, and have had frequent opportunities of observing the manner in which the same was managed,  [**24]  and hesitate not to say that I was surprised when I heard that Mr. Bullitt had instituted proceedings against Mr. Musgrave for damages on account of trespass committed by him. When Mr. Musgrave took the property alluded to, it was of little value comparatively, and when he left, it possessed as much character as any of a similar description in this whole section of country, and in my estimation, this change is ascribable in a great measure, to Mr. Musgrave's judicious and prudent management. The conversation above alluded to, took place prior to the middle of May 1842, and subsequent to the valuation of Musgrave's property on Bullitt's fishery by Richard Anniss, Z. A. Kanky and William Cockrill, Esq.

James Lee also proved, that Musgrave improved the rented farm; knew of trespass, and seizure under distress by rent. Other proof was offered of the improvement of the rented premises.

Papers referred to in the foregoing depositions.

C.--A writ of replevin, Musgrave vs. Bullitt, issued 8th May 1841.

D.--Affidavit for an attachment by B. against M., for rent due B's father, 6th May 1841. Return attached, and quashed.

The plaintiff offered to read the depositions,  [**25]  but the defendant objected to all such parts thereof as went to shew, that Musgrave, by his farming of said land, benefitted it for the defendant or his father. The court, (PURVIANCE, A. J.,) permitted all of said depositions to be read to the jury. The defendant excepted.

2ND EXCEPTION. The plaintiff and defendant having given in evidence the testimony stated in the foregoing exception, which it is agreed shall form part of this exception, the plaintiff offered the following prayer.

"That if the jury believe the evidence of the plaintiff's witness, George Moore, in relation to the agreement of reference, executed by the plaintiff and George Moore & Co., dated 29th November 1841, and the report and award made under said reference, also dated 29th November 1841; and if they believe that said reference, and report and award was made, as stated by said witness Moore, that then the plaintiff is entitled to recover the amount of such award, unless the jury shall also find from the evidence in the case, that afterwards it was agreed by and between the plaintiff and defendant, that the amount so due to the plaintiff, in virtue of said reference and award, should be considered as [**26]  compromised and released by the arrangement made in Virginia, in May 1842, mentioned in the evidence of the witness John W. Tyler, and the other witnesses testifying in regard to said arrangement, under the commission to Virginia."

Which the court gave, and to which direction and opinion of the court, the defendant excepted.

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

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

B authorized G to purchase certain personal property of M, put up by him on a fishery of B's; in case they could not agree, to call in a third person, as to the price; and whatever they agreed, he, B, would pay, but said, "recollect that when my claim for damages and rent is settled, whatever remains I will pay it." This was communicated to M, who said, "I am perfectly satisfied to leave it to men, but I have done B no damage; I owe him some rent, which I have been always ready to pay him." Arbitrators were selected, who awarded, that M should "receive the sum of $ 1000 for the following property, to wit: The houses, sheds, with all the apparatus thereto affixed with nails; also all loose plank over, &c.," and repairs on Stony Point Shore, with repairs on wagon house. On this award G and M endorsed, "we do agree to abide by the within appraisement."

In an action to recover the amount of the award, B offered evidence that the claim thereon was compromised, and released by an arrangement in relation to certain actions theretofore pending in Virginia, by B against M; and for the purpose of inducing the jury to believe such arrangement, proved that M had cut upon the premises devised to him by B's father, wood to the value of $ 2000. Such proof being offered without objection, M, to rebate it, proposed to prove that the rented property was greatly improved by him by his course of farming. HELD: that this testimony was not admissible as an answer to the alleged trespass.

Whether the land had been well tilled or not, or had been cultivated so as to benefit the defendant, were not questions in issue before the jury.

A lessee cannot set up any claim for voluntarily farming land in a more beneficial manner than the lease required.

When a tenant has been guilty of a trespass in committing waste upon the demised premises, evidence of better than ordinary cultivation of the same cannot have any tendency to diminish or mitigate a claim for damages for such waste.

When a party offered to read a commission to take testimony and the proceedings under it, to the jury, and his opponent objected to all such parts of it as went to establish a particular fact; and the county court permitted all of the depositions to be read, to which the defendant excepted, this court will not consider that tribunal as deciding any other question than the specific one raised.

It was the duty of the county court, as no other objection was taken than the one above adverted to, to permit the residue of the evidence to be read to the jury.

It is not the duty of the court to point out objections to the admissibility of proof.

Since the act of 1825, ch. 117, no point can be insisted upon, by the appellant, which was not raised by the court below; and this court cannot act on a question which shall not appear to have been presented to the county court.

It is a fatal objection to a prayer, that facts are assumed in it which should be submitted to the jury.

Where the nature of an enquiry before arbitrators, was such as to render notice of their intended action necessary, a prayer founded upon the supposed sufficiency of their award, in an action upon it, which is silent upon the question of notice, and claims that the plaintiff is entitled to recover upon the award, irrespective of notice, though there was evidence of it, ought not to be granted.

Where, from the nature of a submission, the judgment of arbitrators may be influenced or enlightened by the adduction of evidence, the parties are entitled to notice of the time and place of their proceeding to investigate the matters submitted to them.

Where, by an agreement to rent a fishery, the tenant had the privilege of getting timber out of the lands of his landlord for the purpose of erecting buildings which, when erected, were to be the property of the landlord, so far as his timber was used, and the tenant was to be at liberty to remove the materials he might supply, so far as it could be done without injury to the landlord's interest; an agreement was subsequently made to purchase M's materials, and refer the value of them to arbitrators, who, without notice to the parties, proceeded to make an award. HELD: that under such circumstances it was an open question of fact, whether matters had not been awarded upon, which had not been submitted.

Where matters not submitted are included in an award, which cannot be separated from the matters referred, the award is void, unless what had been done by the arbitrators has been subsequently ratified by the parties to be affected by their act.

An agent appointed to submit a claim to arbitration is not thereby authorized to ratify and confirm the award when made.

When the design of one party was to purchase, and the other to sell, materials, which, by the terms of a lease, the latter had a right to remove at the end of his term, and an agreement in relation to such purchase was submitted to arbitrators, if purchase money is to be paid, it should appear what were the articles appraised, so that the vendee might obtain title; and where some of the articles were particularized, and some were not, but were included under an et cetera, the award is uncertain and void.

All questions necessarily raised by a prayer in the county court, we must presume were brought to the attention of that tribunal.  

COUNSEL:
By MCMAHON and GLENN for the appellants, and

By REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*46]  ARCHER, C. J., delivered the opinion of this court.
The exceptions in this case are on the part of the defendant. The first has reference to the admissibility of evidence.
The plaintiff offered to read in evidence a commission returned on the 22nd of August 1843; but the defendant objected to all such parts of it as went to show that Musgrave, by his farming of the land leased by the defendant's father to him, benefitted it for the defendant, or his father. By the depositions of several witnesses taken under this commission,  [**27]  it was proved, that the farming of the land had been so conducted as to benefit the defendant. This constituted the portion of the evidence sought to be excluded.

 [*47]  The action was in assumpsit, and was brought to recover the amount of an award, signed by arbitrators on the 29th of November 1841: the defence to this action consisted of evidence offered on the part of the defendant, to show that the claim on the award was compromised and released by an agreement, entered into between the parties in Virginia, in May 1842. And the defendant, for the purpose of inducing the jury to believe that such arrangement as was insisted upon by him had been made, offered proof, without objection, that the plaintiff had cut upon the demised premises between 1838 and the spring of 1841, and sold off the premises wood to the value of from $ 2000 to $ 2750. The defendant deemed the proof of a claim to damages for trespass, in cutting the wood to so great an amount as $ 2000 or $ 2700, as important to show that it was improbable claims to such an extent, over and beyond his claims for rent, would be compromised for so inconsiderable a sum as that for which judgment had been entered.  [**28]  Whether this evidence was admissible or not, we are not called upon to determine; but the evidence objected to is wholly inadmissible, unless upon some ground it could be considered as an answer to the alleged trespass in cutting the wood: for whether the land had been well tilled or not, or had been cultivated so as to benefit the defendant, were not questions in issue before the jury. No claim could be set up by the lessee for voluntarily farming the land in a more beneficial manner than the lease required. Nor could the evidence, upon any view of it, be considered as furnishing any answer to the alleged trespass. It could not have any tendency to diminish, or mitigate the damages. We, therefore, think the testimony objected to was wholly inadmissible, and that it should, consequently have been rejected by the court.
It has been urged by the appellant, that the court below not only decided the evidence objected to by him, to be admissible, but that all the evidence taken under the commission was admissible, and proceeding on this assumption, various objections have been urged to different portions of the evidence. But we have not considered the court below as deciding any other [**29]  question than the specific question raised, and which we have 

 [*48]  examined. The court, it is true, did permit the whole of the evidence to be read to the jury, after disposing of the particular objection raised, and this it was their duty to do, as no other objection was taken than that which has been adverted to. It was not the duty of the court to point out objections to the admissibility of other portions of the evidence taken under the commission, but they might well await the action of the complainant in relation thereto, and if no other objection was urged, the court only performed their duty, in allowing the commission, and the evidence taken under it, to have been read to the jury. Since the act of 1825, ch. 117, no point can be insisted upon by the appellant which was not raised in the court below, and we cannot act on a question which shall not appear to have been presented to the county court. Believing the only point decided by the county court, to have been the question raised on the particular evidence objected to, we cannot entertain the appeal in relation to the objections urged to other portions of the evidence, taken under the commission.
The plaintiff, in [**30]  the second bill of exceptions, prayed the court's opinion to the jury, that if the jury believe the evidence of the plaintiff's witness, George Moore, in relation to the agreement of reference, also given in evidence, and executed by the plaintiff, and George Moore & Co., dated 29th Nov. 1841; and the report and award made under said reference, also dated 29th Nov. 1841; and if they believe the said reference and report, and award was made, as stated by the said witness, Moore, that then the plaintiff is entitled to recover the amount of such award, unless the jury shall also find from the evidence in the case, that afterwards it was agreed by, and between the plaintiff and defendant, that the amount so due to the plaintiffs, in virtue of said reference and award, should be considered as compromised, and released by the arrangement made in Virginia in May 1842, mentioned in the evidence of the witness, Jno. W. Tyler, and the other witnesses, testifying in regard to said arrangement, under the commission to Virginia.
There are fatal objections to the instruction prayed. Facts are assumed which should have been submitted to the jury. Thus, the question of notice, [**31]  was a fact to be found by the 

 [*49]  jury. There was abundant evidence to show notice; but the prayer is not put on the hypothesis of notice, and no matter what the jury might believe on the subject of notice, they would have been bound by the instruction granted, to have found for the plaintiff, if they believed the evidence of Moore, in relation to the reference, report, and award, provided they further believed that no compromise had been made, as mentioned in the instruction.
The nature of the enquiry by the arbitrators, was such as to render notice necessary. By the agreement between the parties, of the 16th of August 1836, Musgrave had liberty to remove such materials as he might supply towards the buildings, other than those from the woods of Bullitt, so far as it could be done without exposure of, or injury to the materials towards the said buildings, obtained out of the woods of the said Bullitt. It was the purchase of these materials by the one, and the sale by the other, which was the object of the reference. Had notice been given, it is fair to presume, that evidence might have been adduced, to show that injury might arise from the removal of some of [**32]  the materials furnished, within the meaning and terms of the contract. At all events, the judgment of the arbitrators might have been influenced or enlightened, by the adduction of evidence on the part of the defendant.
It was, moreover, a question of fact to be determined by the jury, whether matters had not been awarded upon, which had not been submitted by the parties, for, if such matters had been included in the award, which could not be separated from the matters referred, the award would be inoperative and void, unless indeed what had been done by the arbitrators, had afterwards been ratified by the party, to be affected by such award.
There was evidence that buildings had been erected on Stony Point by Musgrave, and the award finds for repairs on the Stony Point shore.
The reference agreed upon was to value the property on the Opossum Nose Fishery only; and if repairs were valued, which had been put up on Stony Point Fishery, such repairs were not within the submission. It is true this enquiry would be 

 [*50]  immaterial, if, after the appraisement had been made, the defendant had ratified the same. But the instruction does not require the jury to [**33]  enquire into the fact, whether there had been a subsequent ratification of the award, in case of any excess; but the jury are instructed to find the amount of the award, if they believe the evidence of Moore in relation to the reference and award, and if they believe the reference, report, and award were made, as stated by Moore. Now this instruction is silent as to any evidence in relation to the endorsement on the award signed by Musgrave and Moore & Co.; and if that had been put to the jury, on their belief of the evidence of Moore on that subject, still it would not follow, that the jury must find the amount of the award for the plaintiff, for Moore does not prove any communication with Bullitt in relation to such ratification, or that any power was imparted to him otherwise than by the original power. He does not directly prove his authority, but only states that, what he did, he considered he was doing, as agent of Bullitt, the defendant. It was but his opinion, which to be sure, had been admitted as evidence to the jury, without objection; and if the jury had believed he had truly stated his belief, it still was not imperative upon them as to [**34]  the fact, whether authority had been imparted to him by Bullitt to ratify the award.
But in addition to the above objections to the instruction given by the court below, there is another which, to our minds, is conclusive. The award is wholly uncertain, and therefore void; and if all other objections were waived, it could not furnish the basis of the instruction granted. The design of Bullitt was to purchase, and Musgrave, to sell the materials, which, by the terms of the lease, the latter had the right to remove. If the sum awarded, the purchase money, is to be paid, it should sufficiently appear what were the articles appraised, so that the vendee might obtain a title. In this respect, we consider the award uncertain; certain articles are particularized, but some are not, but are included under an et cetera. These terms must mean something, but what, can only be left to conjecture. The parties ought not to be left to speculation; and we could not sanction an award so indefinite.

 [*51]  We consider these questions as all necessarily raised by the prayer offered, and must presume they were brought to the attention of the court below.
JUDGMENT REVERSED AND PROCEDENDO [**35]  AWARDED.  

33 of 42 DOCUMENTS 

JACOB BREWER AND THOMAS DRAPER, vs. MICHAEL P. SMITH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 299; 1845 Md. LEXIS 30 

December, 1845, Decided 

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

This was an action of debt, brought on the 13th January 1844, by the appellee against the appellants, on the bond of Rudolph Herr, Jr., Jacob Brewer, Thomas Draper, and Rudolph Herr, Sr., dated the -- October 1841, reciting:--

"Whereas the above bound Rudolph Herr, Jr., thinks himself aggrieved by a judgment rendered against him on the 24th day of May last, by Daniel Hauer, Esq., one of the justices of the peace for the said county, at the suit of Michael P. Smith, for the sum of $ 79.72, debt, and 83 1/3 cents, costs, with interest from the 24th day of May 1841; from which judgment the said Rudolph Herr, Jr., is about to appeal to the next county court for Washington county, before the judges thereof.

"Now, the above obligation is such, that if the said Rudolph Herr, shall not prosecute his appeal at the county court of Washington 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 the acts of Assembly therein mentioned;"--and also pay and satisfy the said Michael P. Smith, his executors, administrators [**2]  and assigns, in case the said judgment shall be affirmed, as well as the debt, damage, and cost, adjudged by the said D. Hauer, Esq., as also all costs and damage that shall be awarded by Washington 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 no effect."

To the declaration, assigning a breach of the condition of the said bond, the defendants pleaded:--

1st. That the said Rudolph Herr, Jr., in the said declaration mentioned, did prosecute, with effect, the said appeal, in the condition of the said writing obligatory mentioned, at the county court of Washington county, to wit, at November term 1842 of said court, as by the record and proceedings thereof still remaining in said court, at, &c., more fully and at large appears, and this the said defendants are ready to verify, by the said record. Wherefore, &c.

2nd. That although they, the said defendants, did sign and seal the said pretended writing obligatory, in the declaration mentioned, yet the same was so executed more than sixty days after the date of the judgment therein recited, and from which said appeal [**3]  was taken. Wherefore, the said defendants say, that the said pretended writing obligatory, is void in law, and this the defendants are ready to verify. Wherefore, &c.

The defendants relinquished their first plea, and the plaintiff demurred generally to the second plea, on which the defendant joined. The county court sustained the demurrer, and the defendants appealed to this court, from the judgment rendered thereon for, &c.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

By the act of 1791, ch. 68, an appeal is given from the judgment of a magistrate to the next county court; but such appeal shall not operate as a stay of execution, or supersedeas of the judgment, unless an appeal bond be filed at the time of taking such appeal.

Under this act, the appeal might be taken at any time after the rendition of the judgment, provided it be taken to the county court next thereafter.

By the act of 1818, ch. 160, appeals not taken to the next county court, shall not be dismissed; unless the court shall be satisfied, that the appellant had notice of the judgment, at least ten days before the sitting of the county court.

The sole object of the act of 1825, ch. 68, was to provide a remedy, where executions on magistrate's judgments had been levied within fourteen days after their rendition; and in cases where an appeal had been taken, and appeal bond filed, within such fourteen days, it was to operate as a supersedeas of an execution levied.

The policy of the acts of 1818, and 1825, stated.

The act of 1829, ch. 236, prescribes the terms, conditions, and effect, of appeals from magistrate's judgments; and repeals, except in the city of Baltimore, the provisions, in relation to such appeals in the acts of 1818 and 1825, and is a substitute therefor. It was not designed to repeal any part of the act of 1791.

The 7th sec. of the act of 1831, ch. 290, is declaratory only, and does not change the construction of the act of 1829.

In an action upon an appeal bond, with condition to prosecute an appeal from a judgment of a justice of the peace, with effect, &c., it is no defence, since the act of 1829, ch. 236, that the bond was executed more than sixty day after the date of the judgment therein recited, and from which the appeal was taken.  

COUNSEL:
By WEISEL for the appellants, and

By SPENCE for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*301]  DORSEY, J., delivered the opinion of this court.
By the act of 1791, chap. 68, entitled, "an act for the speedy recovery of small debts out of court, and to repeal the acts of Assembly therein mentioned," an appeal is given from the judgment of a magistrate "to the next county court:" but such appeal, (it is provided,) shall not operate as a stay of execution or supersedeas of the judgment, unless an appeal bond were filed at the time of making the appeal. Under this act of Assembly, the appeal might be taken at any time after the rendition of the judgment,  [**4]  provided it be taken to the county court, next 

 [*302]  thereafter. Many persons having lost the benefit of appeal, on judgments given by magistrates but a short time before the succeeding court, the legislature, designing to remedy that evil, by the third section of the act of 1818, ch. 166, enacted, that, thereafter, "no appeal, from the judgment of a justice of the peace to the county court, shall be dismissed, because the same had not been prayed to the county court, next after the rendition of such judgment, unless the court shall be satisfied, that the appellant had notice of such judgment at least ten days before the sitting of said county court." The act of 1825, ch. 68, entitled, "an act regulating appeals from magistrates' judgments," has no influence upon the question now before us, which is, simply, whether an appeal will lie, from the judgment of a magistrate to the next county court, more than sixty days after the rendition of the judgment. The sole object of the act of 1825, was, as shewn by its first section, to provide a remedy, where executions on magistrates' judgments had been levied within fourteen days after the rendition of such judgments. This is most manifest [**5]  from the second section of that law, which enacts, "that nothing herein contained, shall be construed to affect, in any way, the time allowed for taking appeals from magistrates' judgments, or the legal operation of appeal bonds, otherwise than as in the first section of this act is expressed." The only design imputable to this act, was to provide, that where an appeal shall be taken, and an appeal bond filed within fourteen days after the judgment rendered, an execution already levied on such a judgment should be thereby superseded. The legislature having, by the act of 1818, chap. 166, prohibited the dismissal of an appeal from a magistrate's judgment, on account of its not being taken to the next county court, unless it were proved, that the appellant had knowledge of the judgment, at least ten days before the county court, next thereafter, it was found, that appellants, to whom such knowledge could not be brought home, might take their appeals, in many cases, nearly twelve months after the rendition of the judgments; if, indeed, under the act of 1818, there was, in such cases, any time limited for the taking of appeals. And it being deemed, or found by experience, that the fourteen [**6]  

 [*303]  days allowed, by the act of 1825, for an appeal to be taken, and an appeal bond filed, so as to operate a supersedeas of an execution levied under a magistrate's judgment, was too short a time to remedy both the enumerated defects in those acts of Assembly, the third section of the act of 1829, chap. 236, was passed. By which it is enacted, "that from and after the passage of this act, it shall and may be lawful for any person, who may think him or herself aggrieved by the judgment of any justice of the peace, to appeal from said judgment to the county court, at any time within sixty days from the date of the same; provided, that the person so appealing shall give bond, as now required by law, with the condition, that the appellant shall prosecute his or her appeal at the county court, next succeeding the date of the appeal bond; which appeal shall have the same effect and operation as a supersedeas to any execution on such judgment, as if the appeal bond had been filed within the time now prescribed, and the judges of the county court shall receive and hear such appeal, in as full and ample a manner as if the same had been prosecuted at the county court, next after the [**7]  rendition of the judgment, by the justice of the peace." This act, of 1829, chap. 236, was designed to repeal, (except in the city of Baltimore,) the aforementioned provisions of the acts of 1818, chap. 166, and 1825, chap. 68, and to become a substitute therefor. It was not intended to repeal any portion of the right of appeal conferred by the act of 1791, chap. 68; but was an extension of that right, in permitting, on the terms prescribed, a party to appeal from the judgment of a magistrate to the second county court, after its rendition; provided the appeal was taken within sixty days from the date of the judgment. The right to prosecute an appeal, to the next county court, after the rendition of the judgment, under the act of 1791, so far from being repealed, as has been contended, by the act of 1829, its continuing existence is distinctly recognized and referred to by the act of 1829; when, in reference to an appeal under it, it declares, that "the judges of the county court shall receive and hear such appeal in as full and ample a manner as if the same had been prosecuted at the county court, next after the rendition of the judgment, by the justice of the peace."

 [*304]   [**8]  The seventh section of the act of 1831, chap. 290, was a mere declaratory enactment, and gave no other construction or operation to the third section of the act of 1829, than it was entitled to without it. The county court, therefore, very properly ruled good, the appellee's demurrer to the second plea of the appellants.
JUDGMENT AFFIRMED.  

34 of 42 DOCUMENTS 

SARAH E. MITCHELL, vs. ELIZABETH A. MITCHELL, EXECUTRIX OF JAMES D. MITCHELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 230; 1844 Md. LEXIS 26 

December, 1844, Decided 

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

The bill, in this cause, was filed on the 16th February 1838, by the appellant, praying subpoena against Elizabeth Mitchell, claiming a discovery and account of the rents, and profits, and proceeds, of certain real and personal property, devised by Francis J. Mitchell, father of the complainant, and James D. Mitchell, testator of said Elizabeth A., to James D. Mitchell, in trust for Sarah E. Mitchell, and for an annuity under the will of James D. Mitchell. An amendment, made Henry S. Mitchell and his infant son, Joseph H. Mitchell, parties defendants.

The questions of law decided, arise under the following clauses of James D. Mitchell's will, dated 6th August 1837, viz:

"I give and bequeath to my dear sister, Sarah Elizabeth Mitchell, an annuity of $ 500, to be payable and paid to her by my executrix, hereinafter named, in even and equal semiannual installments, for and during the whole term of the natural life of my said sister, accounting from the time of my decease; and I charge the whole of my real estate with the payment of the said annuity, in manner aforesaid.

I give and devise to my said wife, Elizabeth Ann Mitchell, my [**2]  farm and real estate, situated in Charles county, called "Myrtle Grove," containing eighteen hundred acres, or thereabouts, be the same more or less. And likewise, my farm in Kent county, &c.; and all the slaves at "Myrtle Grove;" and the live stock, farming and plantation utensils, and implements of husbandry, on said farm, respectively being; and also my lot of land, situated, &c.; and generally, all the rest, residue, and remainder of my estate, real, personal, and mixed, not hereinbefore disposed of, wherever situated or being, inclusive of my library, books of accounts, &c. To hold said farms, lot of land, and real estate, and all said slaves, &c., unto my said wife, for and during the term of her natural life, without impeachment of waste.

It is, nevertheless, my will and desire, in case the debts owing to me and which may be collected, should fall short of an amount sufficient to discharge the just claims against me, that my said wife sell and dispose of, in her best discretion, so much of my personal property, other than that given and bequeathed to her in perpetuity, as may be necessary to make up that deficiency; but, if the moneys on hand at the time of my death, and [**3]  those owing to me, and which may be collected, should exceed the amount of the just claims against me, then I give the surplus or difference to my said wife, to be applied to her own use. Moreover, I authorize and empower my said wife, if she shall think proper so to do, to sell such of my slaves as may not be necessary, for cultivating and carrying on the "Myrtle Grove" farm, and domestic purposes thereon, and in the event of such sale, to apply the proceeds to her own use, or to dispose thereof, as to her may seem fit.

After the decease of my said wife, I give and devise my aforesaid farm, called "Myrtle Grove," and the slaves that may remain undisposed of; inclusive of the future issue and increase of the females; and also, the farming and plantation utensils and implements of husbandry, and live stock, that may be then remaining on that farm, unto the eldest male heir of the body of my brother, Henry S. Mitchell, and the heirs and assigns of such male heir forever, if he shall live to attain the age of twenty-one years, or leave lawful issue; and in case of the decease of such eldest male heir of the body of my said brother, in his minority, and without leaving lawful issue,  [**4]  then to the next eldest male heir, of the body of my said brother, and the heirs and assigns of such next eldest forever, if he shall live to attain the aforesaid age of twenty-one years, or leave lawful issue; and so on in succession, to the third, fourth, and other male heir, his heirs and assigns, if any such male heir there shall be, that may live to attain the aforesaid age of twenty-one years: and for want of such male heir of my said brother, then the same estate shall descend to, and devolve upon the right heirs of me, the said James Davidson Mitchell, in fee simple.

And as to my aforesaid farm, called "Hunting Fields," and the live stock, farming utensils, and implements of husbandry thereon; and also, my aforesaid lot of land, in the city of Baltimore, I give and devise the same, after the decease of my wife, to such one or more of the children of my aforesaid brother, Henry S. Mitchell, as my dear wife, by her last will and testament, or by any instrument of writing, in the nature of, or purporting to be, a last will and testament, executed in the presence of, and attested by two or more credible witnesses, shall name and appoint; to have and to be entitled thereto,  [**5]  and his, her, or their heirs and assigns forever; and in default of such nomination and appointment, then to all the children of my said brother, whether already or to be hereafter born, equally, their heirs and assigns forever. But if there be no such child, or descendant of a child, who shall live to attain the age of twenty-one years, then the said last described estate and property, shall descend to, and devolve upon the right heirs of me, the said James Davidson Mitchell, to be held by them, their heirs and assigns, forever. I authorize the leasing, for a long term, renewable for ever, any part or parts, or the whole of my aforesaid lot of land, in the city of Baltimore, for the best rents that can, at the time of making the lease or leases thereof, be obtained for the same; said lease or leases to be executed by my wife, at any time or times during her life; she may fix the rents, and reserve the same to her own use, for her life; and after her decease, to the use of the person or persons, who may, under this, my will, be entitled thereto. I wish it to be understood, that the person or persons, who may, according to the terms of this, my will, be entitled to the slaves, live [**6]  stock, and moveable chattels aforesaid, after the decease of my wife, is, or are to receive and take the same, in the condition in which the property may be found at the time of my wife's decease; it being my will and intention, that my said wife, if she shall deem it necessary, may dispose of by sale, in her life time, any part or parts of the moveable chattels aforesaid, except the slaves so as aforesaid, necessary for the "Myrtle Grove" farm, and the proceeds apply towards her comfortable maintenance and support."

The facts connected with the will of J. D. M., are stated in the opinion of this court.

After the filing of the bill, answers and proofs, the chancellor, (BLAND,) at March term 1843, decreed, that the bill should be dismissed, upon the grounds imputed to him in the opinion of the appellate court, and from which the complainant appealed.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

On the 6th August 1837, J, by his last will, devised his sister S. an annuity, to be paid by his executrix, and charged the same on the whole of his real estate. After a devise of a farm to his wife, for her life, he bequeathed the same "unto the eldest male heir of the body of his brother H., and the heirs and assigns of such male heir, if he shall live to attain the age of twenty- one years;" and for want of such male heir, then the same estate should descend to the right heirs of the testator. The testator died in 1837; left no children, but a widow, (the devisee for life,) who died in 1841, a sister S., of the whole blood, and his brother H., of the half blood, still alive, who has a son, his eldest male child, born in 1838. HELD: that upon the death of the tenant for life, in 1841, living H., the estate descended to the right heirs of the testator, his sister S., the complainant in the bill.

Where an estate, charged with the payment of a legacy, descends to the legatee, the lien becomes extinct, by the union of the title, and the charge, in the same person.

One may be heir apparent, or heir presumptive, but not very heir, living the ancestor; no one is recognized as heir, until the death of his ancestor.

One cannot take, as purchaser, under the description of heir, or heir male; unless, when the estate is to vest, he has, by the death of his ancestor, become very heir.

This is the general rule, subject only to this exception, that when the intention of the testator can be made clearly to appear from the will, that he did not mean the words, heir or heir male, to be used in their technical sense, then the popular sense shall prevail.

Prima facie, the word heir must be taken in its technical sense, as a word of limitation.

Every contingent remainder must vest eo instanti, that the particular estate determines.

There are certain principles to be kept in view, when a court is called upon to construe a will: one is, and the most material, that the leaning should be towards technical words in their technical sense; and only suffering themselves to adopt another meaning, when there can be no reasonable doubt, from the context, that in such sense the testator used them; and that he could not have used them in their known and legal sense.  

COUNSEL:
By ROBERT J. BRENT and REVERDY JOHNSON, for the appellants, who cited.

1 Saun. Uses, 363, Willis on Trus. 124. 3 Dessau. C. R. 346, 388. Ward on Leg. 190. 1 Ves. Jr. 557. Stallman on Elect. 231. 3 Bro. Parl. Cases, 155. 7 Gill & John. 217. 1 Sumner, 1. 1 Ves. Jr. 97. 10 G. & J. 174. 7 G. & J. 248.  [**7]  Fearne on Con. Rem. 210. 4 Kent. Com. 253. 2 Day, 28. 6 Cruise, Dig. 38. 9 Wheat. 325. 1 Mason, 224, 6 Harr. & John. 374. 1 Dyer, 99. 1 P. Wil 232. 22 Law Lib. 425. 21 Law Lib. 316. 2 Dessau. 94. 3 Wood Lec., 202. 1 W. Black, 1010.

WILLIAM SCHLEY, for appellee, cited.

24 Law Lib. 52. 23 Law Lib. 25. Llewin on Trusts, 102, 629, 630, note 639. Ward, on Leg. 143, 192. 3 Bro. C. R. 88. 1 Ves. J. 176. 3 Atk. 616. 1 Eden, 489. Ambler, 657, 7 G. & J. 220. 1 Peters. S. C. 236. 1 Swan. 359, note 381. 1 Fonb. 153. 15 Wendell, 290. 9 Clark & Fin. 583, 606.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*235]  ARCHER, J., delivered the opinion of this court.
The bill, as amended, seeks to enforce payment of a legacy left the complainant, by the last will and testament of Francis J. Mitchell, by the obtainment of a decree for the sale of Myrtle Grove, upon the ground, that the said legacy was, by the said last will and testament of Francis J. Mitchell, charged upon the said estate.
The bill, also, seeks an account of all the property left to James D. Mitchell, by the will of Francis J. Mitchell, in trust for the [**8]  complainant.
The chancellor dismissed the complainant's bill, first, because the estate charged with the alleged legacy, had descended to the complainant; and secondly, because it did not sufficiently appear, that the personal estate bequeathed to James D. Mitchell, in trust, for the complainant, ever was managed by, and applied to his own use, by the said James D. Mitchell, without the consent of the complainant.
The only estate alleged in the argument of complainant, to be charged with the legacy, by the will of Francis J. Mitchell, 

 [*236]  is the estate called Myrtle Grove. If that estate has, in fact, descended to the complainant, the charge, if one in point of law exists, has become extinct by the union of the title and the lien in the complainant.
We will, therefore, first proceed to enquire whether the estate called Myrtle Grove, has descended to the complainant.
This question grows out of the will of James D. Mitchell, bearing date on the 6th day of August 1837. James D. Mitchell died in the month of August 1837, and probate was had of his will, on the 23rd of August 1837. James D. Mitchell left no children, but a widow, Elizabeth A.  [**9]   Mitchell since deceased, and a brother, Henry S. Mitchell; a brother by the same father, but a different mother; and a sister, the complainant, of the whole blood. Henry S. Mitchell, has a son now living, named Joseph H. Mitchell, who is his oldest male child, and was born in March 1838. Henry S. Mitchell has also another son, an infant, now living. Elizabeth Ann Mitchell, the widow of James D. Mitchell, died in the month of August 1841.
The life estate devised by the will to Elizabeth Ann Mitchell, having terminated, the half brother of the complainant still living, the question is, whether the remainder to the eldest male heir of Henry, is vested in his oldest male child? or whether, in consequence of the life estates terminating before the death of Henry, the remainder to his oldest male heir is not void? in which event the estate would descend to his heirs: The complainant is the heir at law of the testator.
The terms used in the will, as descriptive of the remainder, are, "the first heir male of his brother Henry, and the heirs and assigns of such male heir forever, if he shall live to attain the age of 21, or leave lawful issue, &c.  [**10]  " The cases which have been cited establish the law to be, that no one is recognized as heir until the death of the ancestor. In the language of Mr. Justice Taunton, a man may be heir apparent, or heir presumptive, but he is not very heir living the ancestor. One cannot, therefore, take as a purchaser under the description of heir, or heir male, unless, where the estate is to vest, he has, by 

 [*237]  the death of his ancestor, become very heir. This appears to be a general rule, subject only to this exception, that when the intention of the testator can be made clearly to appear from the will, that he did not mean the word heir, or heir male, to be used in its technical sense, but in its popular sense, then the popular sense shall prevail. The intention should be by demonstration plain; and he who urges the exception, must demonstrate the intention, for prima facie, the words must be taken in their technical sense, as words of limitation. These principles will be found to be sustained by Hob. 33, 1 Vent. 334, 2 Vent. 311, 1 P. Wil. 229, 2 Wil. Black. 1010, 2 Leon. 70, 4 Mod. 153. And it is rightly said, by one of the judges, in delivering [**11]  the opinion of the court, in Winter vs. Perratt, 9 Cl. & Fin. 669, "that what amounts to a plain demonstration of intention, so as to withdraw the term heir from its technical interpretation, must, in each case depend on the language used, and the circumstances under which it is used; and is not a question to be determined by reference to reported cases; but by a careful consideration of that language, and those circumstances, in the particular case under discussion."
We perceive no room to doubt, that the term "heir" was designed to be used by the testator in its technical sense; wherever in the will the word heir is used, it is used in its technical sense, as where he says the first "heir male of Henry" and "his heirs and assigns." In the latter instance, the word heirs is used by the testator in its technical sense; and again, on the failure of heirs male of Henry, who were to take in succession, then he devises over, to his right heirs. Can we, by any just construction, impute to the testator a different meaning to the same words, when used in the same will, and in the same sentence of the will, without any thing to indicate a difference?  [**12]  But again, when the testator devises Hunting Field to his wife, and gives her a power of appointment, and in case of her failure to exercise that power of appointment, devises the estate to the children of Henry; is it not still more apparent, that he was aware of the difference in the terms, heir of Henry, and child of Henry?

 [*238]  The annuity to the heirs at law, which has been bequeathed, with a charge on his lands, by the testator, and his presumed knowledge, that his sister, his heir at law, had designs to connect herself with a monastery, we do not think furnish considerations showing a different intent from the technical sense. The charge is on all his lands, as well Hunting Field as Myrtle Grove; and yet, in such case, on the failure of the contingency, the devise over is to the heir at law.
The case of 9 Cla. & Fin. Ap. Ca. 606, has been cited as decisive of this. It is true, in that case, the terms used by the testator were considered as indicating an intention, in the use of words, different from their legal signification; but the judges who so decide, do so on the ground, that the term, heir male of the branch of R. C's family [**13]  , in connection with the circumstances of the case, and the fact that R. C's family was known to the testator, gave to the word heir male, a different signification from its technical meaning. Though even in this case, different as it is from the one before the court, much diversity of opinion prevailed among the judges; and it strikes us, from a review of their opinions, there would have been but little difference of opinion, had the mere technical terms been used, without the qualifications affixed to them.
In conclusion, on this branch of the case, we beg leave to refer to the following observations of Lord Brougham, in delivering his opinion in the case above adverted to, "that there are certain principles fit to be kept in view, when we are called upon to construe a will, which raises such doubts as the present has raised. One is, and the most material, that the leaning should be towards taking technical words in their technical sense; and only suffering ourselves to adopt another meaning, when there can be no reasonable doubt from the context, that, in such sense, the testator used them; and that, he could not have used them in their known or legal sense. This rule [**14]  is founded on the consideration of the risk we run, in allowing a scope for conjecture and fancy, of making a will for him, which neither he himself made, nor the law recognized; and if it be said that, by adhering to the technical sense, we shall 

 [*239]  sometimes run the risk of giving a construction which the testator did not intend, the answer is, that this risk is common to both courses, and we avoid that other, and perhaps greater evil, of introducing uncertainty into the foundation upon which titles rest:" In these views, we fully concur.
If the word, heir male, is to be construed in its technical sense, then the limitation over, after the death of the tenant for life, is gone; as there could be no heir of Henry Mitchell, during his life. The rule being, that every contingent remainder must vest, eo instanti, that the particular estate determines.
The remainder failing to take effect, the estate descended on the death of the tenant for life on the complainant, who was heir at law, and her lien was sunk in her title to the land.
The principal cases which determine, that if there be sufficient in the will to show that the word heir, is used in such a way that [**15]  the testator meant the word "heir," to mean, descendant, or heir apparent, it shall be so construed, are, 1 Ven. 334, 2 Vent. 311, 1 Pier. Wil. 229, 2 W. Bl. 1010. The first of these cases is Burchett vs. Durdant. There, a devise to the heirs of the body of A., now living, was held to be a vested remainder, and it was so determined, because the words "now living," were referred, not to A., but to the heirs of the body; and it was apparent, from other parts of the will, that the testator knew that A. was in esse also. It was, on this account, adjudged, that the heirs of A., took the remainder to the heirs of A., during his life. As there was an heir apparent of the body of A., then living, it was considered as a designatio personoe.
The case of Darbison vs. Beaumont, 1 P. Wms. 229, was a devise of lands to A. for life, remainder to his first son, in tail male, &c., and in default of such issue, remainder to the heirs male of the body of the testator's aunt, Elizabeth Long, lawfully begotten; and for default of such issue, remainder of all his lands, to his, the testator's right [**16]  heirs. He also gave a legacy to Elizabeth Long, and legacy to her three sons, A., B. and C., of £  500. The question was, whether the heir at law of the testator, or A., the eldest son of E. L., 

 [*240]  was entitled to the testator's real estate. Three reasons are assigned for the judgment, that the heir at law did not take the estate. 1st. That the testator noticed, that the sons of E. Long were living; and that she, E. L., was also living. 2nd. That the limitation of the right heirs of the testator was expressly, on failure of issue male of E. L.; so that the intent was plain, that the apparent heir of the body of E. L., should take before his heir general; and 3rd. That it was the same as Burchett v. Durdant, because, the words, then begotten, connected with the word, heirs male, were nearly similar. The words, then begotten, in this, were tantamount to "then living," in the former case.
It is very certain, that the case before us does not come within the reason of either of the above cases. There is no devise to an heir male of H. W., then living, as in Burchett vs. Durdant; for here at the death of the testator, [**17]  H. W. had no issue born. The will, here, does not leave over the estate to the heirs at law, upon the failure of issue, as in the case of Darbison vs. Beaumont; but the expression is, on failure of such heir male, to the heirs at law; nor are the words heirs of the body of H. M. begotten, found in this will; and if they had been, these words in the case before us, could not be understood to be tantamount to heirs then living, because, H. M. had no children then living. The case in 2 Will. Black. 1010, has been supposed to go further than either of the cases above adverted to. Here, the devise was to his son, Richard Brooking, and the heirs of his daughter, Margaret, jointly and equally, and for want of heirs male of Richard Brooking, at his decease, then to the heirs and assigns of Margaret, lawfully begotten of her body. The testator knew, that Margaret was living, and had at his death a son. In Darbison vs. Beaumont, the words, heirs male, of the body of the testator's aunt, Elizabeth Long, lawfully begotten, were considered tantamount to, heirs of the body then living, and as being the same in principle with the [**18]  case of Burchett vs. Durdant. The case, therefore, of 2 W. Bl. 1010, may be governed by one of the reasons, assigned for the judgment in Darbison vs. Beaumont.

 [*241]  We do not consider the case before us, as one, in which the testator has given plain indications of an intention, that the technical words he has used should be taken in their popular sense, and to mean descendants; and do not, therefore believe, that the cases above adverted to, can govern and control our construction of the will, now under consideration.
The above views render it unnecessary for us to enquire into the various questions, which in relation to this lien, were discussed, as growing out of the will of F. J. Mitchell.
In relation to the right of the complainant to an account, in reference to the property devised in trust to James D. Mitchell, for the use of the complainant under the will of Francis J. Mitchell, we concur with the chancellor in his views, as expressed in his decree in this case, and affirm his decree.
DECREE AFFIRMED.  

35 of 42 DOCUMENTS 

THE STATE OF MARYLAND, USE OF JOHN T. BOONE, vs. WILLIAM BRYAN, OF RICHARD, EX'R OF JOSEPH N. BURCH, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 388; 1845 Md. LEXIS 39 

December, 1845, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from Prince George's county court.

This was an action of debt, commenced on the 26th September 1842, by the appellant against the appellee, who declared upon the bond of S. Townshend, Joseph N. Burch, Jr., and others, of the 18th December 1830, conditioned, that S. T., and Maria Boone, should perform the office of administrator, and administratrix, of Levin Boone, deceased. After oyer, the defendant pleaded:--

1. That the said J. N. B., Jr., in his lifetime, from the time of the making of the said notes, to the time of his decease, performed everything in the condition aforesaid, mentioned, on the part of the said J. N. B., Jr., to be performed and kept, &c.

2. Plene administravit, of the assets of J. N. B., Jr., by the defendant, before the impetration of the writ original in this cause.

The plaintiff replied to the 1st plea, showing that John T. Boone, for whose use the writ was entered, was the residuary legatee, under the will of Levin Boone, and entitled to, &c., which the administrators were bound to pay, and had not paid, and traversed the 2nd plea.

The defendant, by his rejoinder, specially denied all the facts of the plaintiff's first replication;  [**2]  and tendered an issue to the country on the second replication, in which the plaintiff joined.

The defendant, then, also demurred generally to the replication of the plaintiff, in which demurrer the plaintiff joined, and, then, upon motion, had leave to withdraw his joinder in demurrer, which he did.

The plaintiff then moved the court to strike out the use of J. T. B., and to enter this cause, for the use of W. H. Tuck, a. d. b. n. of Levin Boone, with the will annexed; and for leave to amend his pleadings, for the purpose of filing an amended replication. The breach assigned in this latter plea, was, that in April 1837, S. T. and M. B., as administrators of Levin Boone, passed an account of the said administration, by which there remained due to the estate of L. B., the sum of $ 907.82, and that the said administrators died, without completing their administration, or proceeding further therein, leaving debts and legacies unpaid, to the amount of $ 1000, and still due and unpaid; that letters d. b. n., had been granted to the said W. H. Tuck, &c., on the estate of L. B. The said W. H. T., also tendered a replication to the plea of plene administravit, which he traversed.  [**3]  

The court overruled the motion, and the plaintiff appealed.

The defendant then prayed the court, that the plaintiff might join in his demurrer to the replication of the plaintiff, which the court directed, and "the plaintiff being solemnly required, comes not, neither is its writ of the State of Maryland further prosecuted, but makes default."

The county court then rendered judgment, that the plaintiff take nothing by its said writ, but that it be in mercy, &c., and for costs, from which judgment the plaintiff appealed to this court.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

Where an action was brought on the administration bond of L B's estate, for the use of J, and in the progress of the cause, the plaintiff asked leave to strike out the use, and enter the cause, for the use of the administrator de bonis non of L B, who proposed to claim an unadministered balance of money in the hands of the first administrators, and tendered a replication to that effect; the county court overruled the motion, from which the plaintiff entered an appeal on the record. After this, the plaintiff being called to join in demurrer with the defendant, made default, and a non suit was entered against him. HELD, that an appeal did not lie.  

COUNSEL:
By W. H. TUCK for appellant.

This suit was brought on the bond of Maria Boone and Singleton Townshend, as administrators of Levin Boone, by residuary legatee, under his will, to recover the balance appearing to be due the estate, by the settlements in the Orphans court, the appellee's testator, Joseph N. Burch, being one of the sureties on the bond. The defendant pleaded performance and plene administravit. The plaintiff replied, setting forth the death of Levin Boone; the claim of John Boone under his will; the amount of the property that had come to the hands of the administrators; the balance due the estate,  [**4]  &c.; and avering a sufficiency of assets in the hands of the defendant to pay the claim. The defendant rejoined, denying the averments of the replication, and also filed a demurrer, to which there was a joinder by plaintiff.

At this stage of the pleadings, the plaintiff asked leave to withdraw the joinder in demurrer, which was granted. The plaintiff then moved the court to strike out the use of John T. Boone, and to enter the cause, for the use of Wm. H. Tuck, administrator de bonis non cui testamento annexo, of said Levin Boone; and for leave to amend the pleadings, for the purpose of filing an amended replication. This replication sets out:--

1st. The death of Levin Boone; the appointment and qualification of his administrators; the amount of estate that came to their hands; the balance due the estate on their settlement with the court; their death, leaving this balance unadministered; the granting of letters de bonis non, to W. H. Tuck; and that said balance is payable to him, as unadministered assets of the deceased, &c.; and

2nd. That the defendant had assets of his testator to pay this claim.

The court overruled this motion, and non prossed the case, under [**5]  a rule upon plaintiff to join in the defendant's demurrer. The plaintiff appealed, and will contend:--

1st. That the administrator de bonis non, was entitled to sue the bond, and should have been substituted as cestui que use, in the place of John T. Boone.

2nd. That the amended replication, being offered in connection with the motion to change the use, and shewing the right of the administrator de bonis non to sue, the amendment should have been allowed.

The act of 1798, chap. 101, sub chap. 14, sec. 2, confined the administration de bonis non, to "assets not converted into money, and not distributed or delivered, or retained by the former administrator under the court's direction." The act of 1820, chap. 174, sec. 3, enlarges the powers and duties of administrators de bonis non, and extends them, in effect, to every other description of property belonging to the deceased's estate, at the death of the first administrator, whether it consist of bonds, notes, accounts, evidence of debt or money; and authorises the administrator de bonis non to sue the bond of his predecessor, for their recovery.

The replication filed, in connection with the motion to change the use,  [**6]  shews, that all the property of the deceased was sold by the first administrators, and that no final account was passed on his estate. Whether the proceeds remained in their hands, in bonds or notes, or in money, the amount was payable to the administrator de bonis non. It is obvious, under this act, that he is the proper person to receive and disburse these outstanding assets, whether they be payable ultimately to creditors or legatees, and that the bond may be sued for his use, all questions of fact, of course, being reserved for trial upon the pleadings.

The next enquiry is, whether there was error in the court's refusal to change the use? The general rule is, that a public bond may be sued by any person interested in the recovery. Kiersted et al., vs. State, use Sundry Persons, 1 Gill & John., 231, and the cases there cited. The same principle is recognised in the case of the State vs. Dorsey et al., 3 Gill & John., 75. In that case, a suit was commenced in the name of the State, for the use of the levy court of Baltimore county. Pending the action, that court became extinct, and another corporation was created in its stead. This fact was pleaded in bar of the action. The [**7]  court, in their opinion, assimilate the case to a suit on a private bond, entered for the use of a third person. They say, "we can perceive no reason why, in the case of a public bond, with the privilege secured to any person interested to bring suit upon it, there should be any difference. In either case, the suit must be in the name of the obligee." "There is no necessity, for the purposes of the suit, to enter the use, whether it is brought for the benefit of an individual or a corporation; nor, if entered, does it make any difference to the defendant how it may vary or change, as to the person asserting the same right. It does not affect his defence, nor can any change of the use become a fit subject of plea. The declaration or replication assigns the breach, and discloses the use, or for what the suit is brought, and the defendant being thus advised, makes his defence accordingly. The judgment is in the name of the State, and will be for the use of whoever is entitled to the beneficial interest."

The appellant contends, that this authority is conclusive. The cases, in principle, are the same, though the question is raised in a different form. In that case it was presented [**8]  by plea;--here it arises on motion. But with this the defendant has no concern. He must look to the State as the legal plaintiff. The cestui que use is not considered a party to the action, for any purpose, except as a security for costs. The defendant could not be taken by surprise. The court would not allow that. For if the motion had been granted, and the use entered, the court would have continued the cause, or granted time for the defence. It is not contended, that mere amendments of pleadings are proper subjects of appeal. But in this case, the replication was filed with the motion to strike out and change the use, for the purpose of shewing the court, that the administrator de bonis non had an interest in the bond, and might put it in suit; or avail himself of the pending action, as being "entitled to the beneficial interest;" and not being denied, or in any manner called in question in the court below, it must, itself, be considered as evidence of all it contains. It must be conceded, that the law of amendments in pleading, was administered with unusual vigor in this case. Mr. Evans, in his work on Practice, page 248, says: "Modern judges lean so universally in favor of amendments,  [**9]  that we scarce remember a question made, whether an amendment was proper, except in the case just mentioned; and none in modern times, in which the amendment was not permitted." The plaintiff first filed a replication, proposing to recover on the interest that John T. Boone was supposed to have in the estate of Levin Boone. On the argument of the demurrer to that replication, the court intimated, that John T. Boone had no title; but that the right to sue, was in the administrator de bonis non. The plaintiff having withdrawn the joinder in the demurrer, moved to substitute the administrator de bonis non, as the equitable plaintiff, and to be permitted to conduct the pleadings according to the interest of the administrator. This the court refused, because the suit was not brought in the name of the State, for the use of the administrator de bonis non. Now, if the motion had been granted, and the case had gone ultimately against the defendant, the propriety of changing the use, with all other questions on the record, might have been revised on his appeal. But, by refusing the motion, the court summarily decide the whole controversy, and adjudge, that the State cannot prosecute the case [**10]  for the use of any person, but the first cestui que use. If it is the entry of the use, and not the assignment of the breaches, that shews the right to sue; and if a person cannot recover as beneficial plaintiff, unless the use be entered when the writ issues, it follows, that if no use be entered at that time, no recovery can be had in that suit. This is certainly a conclusion against the opinion in State vs. Dorsey et al., 3 G. & J., 93, where it is said, the use need not be entered at all. Two suits for greater caution might have been instituted at the same time, one in the name of the State, for the use of Boone, as legatee, and the other for the use of the administrator de bonis non. But it is more convenient and less vexatious, to have one suit in which the pleadings may be so varied, as to allow a recovery in any aspect in which the State may shew a right to recover. And since the decision of the case of State vs. Dorsey et al., there can be no objection successfully made to this course, for there the writ issued for the use of one corporation, and judgment was rendered for the use of another. This is more than a question of amendment of the pleadings. The motion to change the [**11]  use, was the only mode in which the rights of the administrator de bonis non could be brought before the court. It involved the question of his right to sue the bond, and when decided for the defendant, the case was gone. Any judgment which finally disposes of the case, and settles the right of a party to recover, is the proper subject of appeal, whether the decision be for or against the recovery. When the motion was overruled, the case stood as if there had been no joinder in the demurrer. The State was laid under a rule joinder, and for not complying, judgment of non pross. was entered. If the plaintiff had joined again in the demurrer, it would have been, in the face of the intimation of the court, against the right of John T. Boone to sue the bond; so that the only remedy was an appeal from this judgment on a new suit on the bond, for the use of the administrator de bonis non. Relying on the case in 3 G. & J., 75, the appellant preferred the appeal to a second suit on the bond, then barred by limitations.

It is submitted, that the court will reverse the judgment of non pross., and the judgment rejecting the motion to change the use, &c., as made by the appellant, and send [**12]  the cause to the county court on a procedendo.

The record seems to shew, that the defendant rejoined and demurred to the replication at the same time. This is evidently a mistake in the record. The defendant must have withdrawn his rejoinder before he entered the demurrer. I have no distinct recollection of the fact, but such is my impression.

By T. S. ALEXANDER for the appellee.

The writ, in this case, was issued in the name of the State of Maryland, endorsed at the instance and for the use of John T. Boone, against the executor of a surety for Singleton Townshend and Maria Boone, on the bond given by them for the performance of their duties as administrators, with the will annexed, of Levin Boone, deceased. The replication to the plea of general performance states, that the testator bequeathed the residue of his estate to his wife, the said Maria Boone, for life; and after her death, to George Boone and Nicholas Boone, to be equally divided between them, and to the heirs lawfully begotten of their bodies; and for want of such heirs, to William Boone and John Boone, and their heirs and assigns, as tenants in common. That George Boone and Nicholas Boone, died in the [**13]  life time of Maria Boone, without heirs of their bodies; and that William Boone, also, died without issue; whereby the said residue devolved on the said John, at whose instance and for whose use this action is brought. That the goods and chattels of the testator in the hands of his administrators, after payment of all debts and particular legacies, amounted to the sum of $ 1000; which was distributable to the said Maria Boone; and that the said Maria has lately died. And the breach assigned, is the non-payment of that residue to the said John. The defendant demurred to this replication. And the breach assigned, is the non-payment of that residue to the said John. The defendant demurred to this replication. And thereupon the plaintiff moved the court, "to strike out the use of John T. Boone, and to enter this cause for the use of William H. Tuck, administrator de bonis non, with the will annexed, of the deceased Levin Boone," and for leave to amend "the replication, by stating in substance, that the original administrators had sold the personal estate of their testator, "and had passed an account of their administration; by which there remained due to the said estate, after allowing [**14]  certain disbursements, the sum of $ 907.02;" and that the said original administrators died, "without completing their administration, or proceeding further therein, after passing said account, and leaving unadministered the said balance; and leaving debts and legacies unpaid to the amount of $ 1000."

The court overruled the motion, and the plaintiff appealed from said decision.

Whereupon the defendant prays, the plaintiff may be required to join in demurrer with him. The rule was accordingly laid. But, "the said plaintiff being solemnly called, comes not, neither is its writ, aforesaid, against the said defendant further prosecuted; but makes default."

A judgment of non suit is therefore entered, and the plaintiff appeals from this judgment.

This case is therefore before this court, on appeals from two distinct judgments; the one interlocutory, overruling the motion to amend the writ and replication; and the other final, entering judgment of non suit. And the question is, whether in the rendering of those judgments, or either of them, there is error, which may be corrected on those appeals, or either of them?

On an appeal from a judgment of non suit, the appellant [**15]  cannot complain of error in the original record. He is required to shew mistake in entering up the judgment. 2 Bing. 326. Evans vs. Sweet, in 9 Engl. Com. Law Rep. 420. And in Kempland vs. Macauley, 4 T. R. 436, where a writ of error was brought on a judgment of non-suit, Buller, justice, remarked, "here it is apparent, that there can be no error, of which the plaintiff can avail himself: for if the record were manifestly erroneous, the plaintiff, who has made default by suffering a non suit, can never have a judgment afterwards in his favor." In this State, since the act of 1825, chap. 117, error in the judgment is to be shewn, only where it has been entered after demurrer, or motion in arrest of judgment. 5 G. & J., 102, Sasscer vs. Walker. No point or question relating to, or involved in the final judgment of non suit, is presented by the record, shewing the default of the plaintiff. Hence it may be affirmed with confidence, that in this State no appeal will lie from a judgment of non suit.

2. If an appeal will lie from a judgment of non suit, it is clear, upon the proceding authorities, that the appellant must shew error in the proceedings anterior to the judgment, and on [**16]  which the judgment was founded. He must show there was no legal default on the part of the plaintiff. For the existence of default is the only point concluded by the judgment.

Now in this case, the record states, that being solemnly called, the plaintiff came not; but made default. And therefore it was considered, that it take nothing by its writ. The record is conclusive, that the plaintiff was called, and did make default; and the judgment was entered, because of the failure of the plaintiff to answer when solemnly called. In this, as in every other stage of the cause before verdict, the plaintiff has the option of abandoning his suit. The plaintiff determined his option, by standing mute when regularly required to speak. The judgment, then, was the legal effect of his own voluntary act.

The argument filed on the part of the appellant, attempts to connect the judgment of non suit, with the anterior proceedings. And because he could not answer the law of the demurrer, and the court would not permit an amendment of the pleadings, it is supposed, the plaintiff had no other alternative but to non suit his action. This is not so; he might have joined in demurrer. If the judgment [**17]  had been against him, and if the refusal of the court below to permit an amendment, may be reviewed in this court, then, by an appeal from the judgment on demurrer, he might have corrected all errors, not only in the judgment itself, but in the refusal of the court to permit the proposed amendment; and likewise, in all other anterior proceedings. This ought to have been his course, if he intended to question the proceedings of the court below. I have already said, that he had the option of submitting to a non suit. If he had permitted a judgment to be entered against him on demurrer, he must, as an equivalent for his chance of reversing that judgment, have given to the defendant an equal chance of concluding further litigation by affirming the judgment. By submitting to a non suit, he retained his right to commence a new action. Thus it appears, that the non suit was the consequence of a proceeding on the part of the plaintiff, advisedly adopted:--adopted with the view of avoiding the evil of an unfavorable judgment against him on this record. He withdrew his cause from the court below, voluntarily, for the purpose, it may be, of renewing the litigation in another form. Is he at liberty [**18]  to retract his election? Or can he impose on this appellate jurisdiction, the duty of determining questions, on which no judgment was pronounced by the court below?

Let us again assume the judgment was entered, because of the failure of the plaintiff to join in demurrer, in compliance with the rule laid for that purpose. His default, in fact, will be established by the record. And the only subject for enquiry, will be, whether the rule was regularly laid? It was a regular sequence from the demurrer; unless the progress of the action was intercepted, by the entry of the appeal from the judgment, overruling the plaintiff's motion to amend. To that appeal, as a supersedeas, there are two conclusive objections: First, the judgment was interlocutory; and from an interlocutory judgment no appeal will lie. The appeal was, therefore, to say the least of it, premature. Second, no bond was given to prosecute that appeal; and a bond is necessary to stay execution, even of a final judgment. Either of those reasons would be sufficient to show, that the cause was to progress after the appeal, in the same manner, precisely, as if no appeal had been entered.

Again, let us associate the judgment [**19]  of non suit, with the refusal of the court to permit an amendment of the pleadings. Was there error in such refusal, which this court may correct?

I insist:--1st. That an appeal will not lie, in any case, from the refusal of the court below to allow an amendment. 2d. That in this particular case, the court acted rightly, in overruling the motion made for amendment.

1. The motion for amendment is addressed to the discretion of the court of original jurisdiction; and it is a general rule, that the discretion of the inferior court is not to be controlled on appeal. An appeal will not lie, from an order granting or refusing a new trial. 5 H. & G., 174, Anderson vs. the State. 2 H. & G., 79, Wall vs. Wall. Nor from the refusal of the court to strike out a judgment by default. 6 H. & J., 151, Hawkins vs. Jackson. Or grant a continuance. 6 Cranch, 206, Marine Ins. Co. vs. Hodgson. Nor the allowance or disallowance of an amendment. 11 Wheat., 280, Chirac vs. Reinecker. Other cases, illustrative of the general rule, may be found collected in 2 United States Digest, 160. It is conceded by the argument filed on the other side, that the refusal of the court to allow an amendment, is [**20]  not, ordinarily, a subject of appeal. But this case is supposed to be taken out of the operation of the general rule, by the circumstance, that the motion was accompanied by a replication, which showed another title in some other person, to commence another action on the same bond. The peculiar fitness of this argument, as the basis of an exception to the general rule, is not perceived. No injury was done to this other person by rejecting his application; since, by his own showing, he may put the bond in suit for his own benefit. In every instance, the amendment is to be allowed for advancement of justice. In every case, the court may require to be informed, of the particulars of the amendment, and of the probability of sustaining the amended case by evidence. And where such statement is not called for, it ought to be assumed, that the motion to amend involves a grave question of law. There is not, therefore, such peculiarity in the present case, as is suggested. In Anderson vs. The State, the motion for a new trial was founded on a supposed misdirection of the court to the jury. But the appeal was dismissed. A yet stronger case was brought up, some years ago, from Charles county.  [**21]  The defendant, I believe, excepted to an opinion, expressed by the court during the trial. The verdict being against him, he moved for a new trial, on some ground connected with the conduct of the jury. The court refused to entertain the motion, unless he would abandon his exception. He appealed. His counsel here, admitting, that an appeal would not ordinarily lie, from the refusal of the court below to grant a new trial, insisted, that the court was bound to receive and consider his motion; that the Constitution secured to him the benefit of a fair trial by an impartial jury; and that if he considered himself aggrieved by the ignorance or partiality of the jury, it was the bounden duty of the court to listen to a temperate statement of his grievance. The error assigned in this case, was not in the exercise of discretion by the court below, but in its refusal to exercise its discretion. And, I presume no one would hesitate to say, that the conduct, or rather, misconduct of the court, was flagrant and inexcusable. Yet this court held, it was incompetent to administer relief. The whole jurisdiction over the subject, was confided to the county court, and with the exercise, or refusal [**22]  to exercise its discretion, this court could not interfere. Now the case to which I refer, is infinitely stronger than the case before the court. In the former case it is clear, that a constitutional right of the suitor was violated; a constitutional duty of the court was disregarded. In the present case, there is nothing to show that the court below did not exercise a sound judicial discretion, in refusing the proposed amendment.

2. Let us assume, that the refusal of the court to suffer the amendment, is a proper subject for revision, and that the record discloses all the facts and circumstances, by which the correctness of the decision of the court below, is to be tested. Is there error in that decision upon the record?

In this country amendments are liberally allowed, more so than in England. But there must be some limits, beyond which, an amendment cannot be extended. In an action brought by A against B, there cannot be an amendment, which would warrant a judgment in favor of C against D. And in an action of ejectment, it would be against principle to admit the lessor of the plaintiff to recover damages for an assumpsit. The act of 1809, chap. 153, to which our practice [**23]  is to be traced, allows such amendments, as may bring the merits of the question between the parties fairly to trial. The parties are not to be changed; nor can the question be changed. Such modifications of the pleadings, and other proceedings are to be allowed, as will fairly present the original question, as between the original parties. The original writ cannot be amended. It is not a part of the pleadings, nor of those other proceedings, which may be amended under the provisions of the above act. To alter the writ would be to alter the question between the parties, 7 H. & J. 257, Stoddert vs. Newman; and therefore, where the party originally founded his cause of action on a testamentary bond, he was not permitted to amend, by relying on a guardian's bond. 4 Gill & Johns., 385, State vs. Green.

Assuming then, that the person at whose instance, and for whose use the action is brought, is the party plaintiff; and that the replication discloses the question to be tried, it would be against principle, and the provisions of the act of 1809, to admit the substitution of another cestui que use, claiming under another title. To avoid this conclusion, it is argued, that the State is [**24]  the party plaintiff, and that the writ discloses the question at issue between the parties. If this was so, then one recovery on the testamentary bond would bar any other action on the same bond; which is against experience. Again, we are told that there is a complete analogy between the case of an action on a private bond, brought in the name of the obligee, for the use of another, and of an action on a testamentary bond, brought in the name of the State, for the use of a legatee, or other party interested in the administration; and that as the use entered in the one case may be altered or amended, pending suit, without prejudice to the plaintiff's right of recovery, a like alteration may be made in the other case. These positions derive color from dicta, which are to be found in the opinion of the late chief judge, in 3 Gill & Johns. 75, State vs. Dorsey. It is the exclusive province of this court to determine, how far it is bound by opinions expressed by the judge, charged to deliver its judgment, where such opinions are not material to the judgment, or are used for illustration and argument merely. We have high authority for affirming, that "an opinion given in court, if not necessary [**25]  to the judgment given of record, but that it might have been as well given if no such, or a contrary opinion had been broached, is no judicial opinion." If I can show then that the dicta relied on, were not called for by the circumstances of the case, and were unnecessary to the determination of the points which were really before the court, I may, without the imputation of intentional disrespect to this court, venture to state the ground on which I would question the authority of those dicta. Vide, Ram on Legal Judgment, 36. What then was the question in the case of the State vs. Dorsey? An action had been brought on a collector's bond in the name of the State, at the instance and for the use of the levy court of Baltimore county, at that time the fiscal representative of the county; and the members of which were appointed by the executive. Pending the suit, an act was passed changing the name of the levy court, into that of commissioners of Baltimore county; and transferring the power of appointing commissioners from the executive to the people. The question was, whether the suit could be continued by the commissioners? And the affirmative of this question was to be sustained, by [**26]  showing, that the commissioners were, in law, identical with the levy court--succeeding to the same functions, rights, and liabilities; and enforcing the same legal title, for the benefit of the same constituency. They were the successors of the levy court, in being at the time the action was brought; bearing to the levy court a relation as intimate, at the least, as the heir to his ancestor, or the executor to his testator Here was the argument conclusive on the subject. All therefore, that ensues, in relation to the analogy between an action brought on a private bond, in the name of the obligee for the use of another, and an action brought on a testamentary bond for the use of one interested in the administration; and to the necessity for and the effect of an entry of the use, are mere prolata, not concluding to the judgment, or material to its correctness.

I shall now proceed to show, that whilst there may be points of agreement between the two cases, there are also points of difference; and that the learned judge in his opinion quoted by the other side, has not expressed himself with his accustomed caution and accuracy. In the first place, the learned judge is in error, in [**27]  supposing there is similarity in the nature of the interest to the cestui que uses in the two cases. An assignment of a private bond, conveys no legal interest to the assignee. It operates, simply as a power irrevocable, to the assignee to receive the money; and to sue in the name of the obligee for its recovery. There is no law requiring the use to be entered on the docket or record; and the entry is only made as notice to all parties of the beneficial interest of the assignee. It is, by motion, addressed to the equity of the court, that the rights of the assignee are enforced. On the other hand, the act of 1798, chap. 101, confers on the party, aggrieved by the conduct of the executor, a legal right to put his bond in suit. And the act of 1794, chap. 54, sec. 10, directs the clerk, before issuing the writ (in any suit on a testamentary bond,) to endorse thereon the name of the party, at whose instance, and for whose use the suit is instituted. The endorsement of the use is thus made a part of the writ. A writ issued by the clerk, without the endorsement, would be merely void, or at the least voidable, as irregularly issued. It is incorrect therefore to say, that "there is no necessity [**28]  for the purposes of the suit to enter the use." The duty is imperative.

Again, the learned judge is in error, in running parallels between the form and effect of the proceeding in the two cases. And first, as to form. In the case of a private bond assigned, the writ issues in the name of the obligee; the declaration counts on his title, and the pleas attempt to bar his title. The assignment is not noticed in any part of the record. Payment to the assignee must be pleaded as a payment to the obligee. A release by the assignee, could not be pleaded at all. In the case of a testamentary bond, the declaration or replication must show title in the person, at whose instance and for whose use the action is brought; and every plea or rejoinder affects to bar that title. In every state of the pleading, the title of the cestui que use, (improperly so called,) is affirmed or denied. The title of the State, is recognised as technical only. Then, again, as to the effect. To an action on a private bond by the obligee, for the use of A, the defendant may plead a recovery in an action, formerly brought by the obligee, simply, or for the use of B. A recovery, in one action, concludes the question [**29]  of title, and extinguishes the right of action in the bond. But a recovery on a testamentary bond, in the name of the State, at the instance and for the use of A, cannot be pleaded in bar of a second action on the same bond, in the name of the State, at the instance and for the use of B. Nay, a recovery by A, counting on his title as a creditor, would not bar a second action on the same bond, in which he would count on his title as legatee. A recovery on a testamentary bond, concludes only the person at whose instance, and for whose use, the action was brought, and in respect only of the title in question, by the pleadings in that action. With this brief explanation of the grounds of objection to the dicta, expressed by the learned judge, in 3 Gill & John., I conclude, that in an action on a testamentary bond, the endorsement is an essential part of the writ; that the person, at whose instance, and for whose use the action is brought, is the party plaintiff; that the title of that person, as disclosed by the pleadings, is the question at issue between the parties; and, consequently, that the act of 1809, neither authorises nor allows a substitution of one name for another in the endorsement [**30]  of the writ, nor an amendment of the pleadings, for the purpose of raising a new question on a title, in which the person, at whose instance, and for whose use the writ was issued, has no interest.

I have thus attempted to show, that the court had no authority to allow the amendment asked for. I will next endeavor to prove, that the authority, if it existed, ought not to have been exercised. Every suit brought, should have a definite object. The plaintiff should state his cause of action with such certainty, as to enable the defendant to decide, whether he would admit or contest it. It would be wrong to permit the plaintiff to bring his neighbor to answer one charge, which is groundless, and then recover against him for a cause, which perhaps, he would not have denied. Whatever may be our practice in this respect, there must, in principle, be some limit to this right of amendment. If it can be shown, that the action was really brought to recover a bond for $ 500, given in 1840, would it be right to permit the plaintiff to recover on a bond for $ 1000, given in 1842? After the defendant has successfully defended himself against Boone, at whose instance, and for whose use the suit [**31]  was brought, would it be right to subject him to further litigation in this same suit, at the instigation of Tuck, who claims a distinct right in a different character? Boone, as residuary legatee, claims the clear balance remaining, after a complete administration. Tuck, as administrator, claims the proceeds of the estate, as in the hands of the original administrators, unadministered. It is not even shown, that Boone has any beneficial interest in the result of Tuck's action. On the contrary it is averred, that the debts and particular legacies outstanding, will absorb the entire estate. A suit brought by Boone, in his own right, and for his own benefit, is, therefore, to be continued by Tuck, for the benefit of other persons. Is there equity in this demand, in respect either of Boone or the defendant? Will the court say, that our right to recover the costs incurred by us, in resisting Boone's claim, shall abide the event of the new litigation in which we are to be engaged with Tuck? Or, in the event of our ultimate recovery, will the court restrain us from levying our entire costs from Boone?

If this court is to revise the discretion of the county court, it will notice every [**32]  circumstance which may have influenced the judgment of the court below. It will notice that Mr. Tuck, the present administrator de bonis non, was the attorney who sued out the original writ, for the benefit of Boone. We have the guarantee of his established character, that the writ was advisedly issued, and after evidence, satisfactory to him, that the estate had been duly administered. Is it possible that he, being the administrator de bonis non at the time, would have yielded the right to Boone, without due examination? If the force of this inquiry is sought to be evaded by the suggestion, that his letters were granted after the commencement of this suit, I reply, that the title which is to continue this action, must have existed at the time the action was commenced. My own suspicion is, that the letters were granted after commencement of this suit, and after the court had decided, that the residue vested in interest and possession of the residuary legatee for life; and that the remedy of the legatee in remainder, was to be asserted by action against her representative. An administration de bonis non was then resorted to, in the hope that the defendant might be unable to prove a [**33]  technical administration, which would exclude the technical title of the present administrator. There is no affidavit of merits. There is no pretext of merits set out in the record. Having defeated one title, another rises up, as it were out of the ruins of the first. If we defeat this other, what security have we that a third claimant will not present himself in the person of a creditor? and a fourth in the person of a particular legatee? Interest reipublicoe ut sit finis litium. Let this false clamor cease. Give us the costs of the defence we have already made. If any other should feel disposed to renew the contest, we shall then be the better prepared to meet him.  

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

OPINION:

 [*406]  BY THE COURT--
APPEAL DISMISSED.  

36 of 42 DOCUMENTS 

CHARLES RICHARDSON, A. D. B. N. OF ROBERT R. RICHARDSON, vs. THE STATE OF MARYLAND, USE OF THOMAS RAWLINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 439; 1845 Md. LEXIS 2 

June, 1845, Decided 

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

This was an action of debt, brought of May term 1842, by the appellee. The declaration assigned a breach of the condition of a bond of Robert R. Richardson, dated 22nd January 1821, given as a trustee of the Court of Chancery, under a decree to sell certain real estate. The defendant pleaded nil debet.

The plaintiffs, to support the issue on their part, offered in evidence the record of the proceedings of the Court of Chancery, in the cause in which the bond declared on was given, and then closed their case. These proceedings are sufficiently set forth in the opinion of this court.

This record contained an audit of the account between the estate of Thomas Richardson, deceased, Dr., with Robert R. Richardson, trustee, Cr., dated 10th February 1821, in which Thomas Rawlings was allowed $ 214.79, ratified on the 10th May 1821.

The defendant, for the purpose of proving a payment on account of the amount appearing to be due to the cestui que use of the plaintiffs on the above record, offered in evidence the following paper:

________________________________________________________________________________
1821--May 10.	To Thomas Rawlings, as pr. au-	
	 ditor's acc't.	$ 214 79	
	Interest to 10th May 1836, 15 yrs.	193 50	
	
		408 29	
1836--May 10.	By cash paid,	200 00	
	
		208 29	
	To in't. to Jan'ry 15th 1841, 4	
	 yrs., 8 ms. and 5 ds.,	58 41	
	
		$ 266 70	
________________________________________________________________________________

 [**2]  

Which it was admitted was an account made on behalf of the cestui que use, and furnished to the defendant's testator, and here closed their testimony.

1st. The defendant prayed the court to instruct the jury, that the plaintiff's cestui que use was not entitled to the legacy mentioned in the will in the said record, until he arrived at the age of twenty-one years, and that he is not entitled to interest on said legacy prior to his majority, unless the jury shall believe that the defendant used the money for his own benefit in the interim, of which there is no evidence in the case.

2nd. That the cestui que use aforesaid, is not entitled to interest on the said legacy until there is a demand therefor, and that there is no evidence of demand prior to 10th June 1836, and that the charge of interest in the said account offered by the defendant to prove the payment of the sum of $ 200, does not entitle the plaintiff to the interest there charged, unless the jury shall believe, that prior to such demand, the defendant used the said legacy for his own benefit, of which there is no testimony in the cause.

The court, (PURVIANCE, A. J.,) refused to give these instructions,  [**3]  and the defendant excepted.

The defendant below prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action on a bond given by a trustee, appointed under a decree in equity, "well and truly to execute the trust reposed in him by the said decree, or which shall be reposed in him by any future decree or order in the premises," brought for the use of a party, to whom a portion of the proceeds of the property sold by such trustee had been ordered to be paid, to recover the same, it is not competent for such trustee to question the correctness of the original decree for a sale; or the order relative to the distribution of the purchase money.

If there was any error in the proceedings in Chancery, of which the trustee had any right to complain, he might have appealed therefrom.

It is the duty of a trustee, acting under a decree for a sale, as soon as an order has passed distributing the proceeds thereof, and he has received the same, either to pay over the fund to the party directed to be paid, or carry the same into court.

For money detained against such duty, the jury may give interest, by way of damages.  

COUNSEL:
By LATROBE for the appellants, and

By DAVID STEWART for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*441]  MAGRUDER, J., delivered the opinion of this court.
The intestate of the plaintiff in error was appointed, by the Chancellor, trustee to sell certain property, and upon his bond, the condition of which, required him to execute the trust reposed in him by the decree, or which shall be reposed in him by any future decree or order in the premises, this suit was instituted. The plaintiff below, in his declaration, set forth the cause of action. After reciting the decree, the execution of the bond, the sale of the premises, report of the trustee, and confirmation of the sale, it states, that the auditor of the court, by order of the Chancellor, did state an account, and on the 10th May 1821, reported, that of the proceeds of sale, the person, for whose use this suit is brought, was entitled to $ 214.79. The report was confirmed by the Chancellor, who ordered, that the proceeds of sale, so as aforesaid [**4]  made, be applied accordingly, with interest, as it had been, or might be received. It is, then, alleged, that on the 6th day of March 1828, the trustee received and collected, of the purchaser of the premises, the principal, and a further sum for interest then due, which, by the terms of the decree, he, the trustee, ought to have brought into court to be applied, and the portion to 

 [*442]  which Rawlings, the cestui que use, was entitled, to be paid to him. For the non-payment of the sum ascertained, by the Chancellor's order, to be due to this cestui que use, with the interest thereon, this suit was brought.
A verdict being obtained by the plaintiff, the defendant below appealed. The bill of exceptions taken in the case, discloses to us every thing, which we can know to have taken place in the course of the trial.
Whether the proof entitled the plaintiff below to a verdict at all, and if it did, for what sum? Whether the jury gave too much, or too little for damages? are not the questions which we are to decide.
From the decree of the Chancellor, or from any order which the Chancellor passed in the case, no appeal was ever prayed.
Ought the court to have given [**5]  the instructions which the defendant below asked, or either of them? The first prayer is, that the plaintiff is not entitled to the legacy mentioned in the will in the said record, until he arrived to the age of twenty-one years, and that he is not entitled to interest on said legacy, prior to his majority, unless the jury shall believe, that the defendant used the money for his own benefit, in the interim.
We can discover no error in the refusal, by the court below, to give this instruction, whether the original decree was correct, or whether the Chancellor erred in the order which he passed, relative to the distribution of the purchase money, were questions not before the court below, and which certainly could not be raised by him, who took upon himself the burden of executing the decree, and who was bound, by the terms of the condition of his bond, to execute the trust reposed in him by the decree; or which might be reposed in him by any future decree or order in the premises. If there was any error in the proceedings, of which the trustee had a right to complain, he might have appealed therefrom; no such appeal having been taken, it is no defence in this action upon the bond,  [**6]  for not performing the order of the Chancellor, that the Chancellor's order is not correct. The matter which this prayer brought before the court, was without the issue.

 [*443]  Nor does there appear to have been committed by the court below, any error in rejecting the second prayer. The order of the Chancellor was passed the 10th May 1821; and the suit was instituted in 1842. The trustee's duty, as soon as the order was passed, and the money was received by him, was to pay it over to the parties, or to carry it into the Court of Chancery. Surely the jury might give interest, by way of damages, for the detention of the money; and in ascertaining the sum yet due, were not bound to refuse to allow interest until the time mentioned in the prayer. Indeed, the proof furnished by the defendant shows, that he could not ask to be released from the payment of interest until the 10th June 1836, mentioned in his prayer.
It is not for this court to judge, whether the evidence warranted a verdict for the plaintiff; no exception taken in the case, brings such a question before us; possibly the jury were governed entirely by the defendant's own testimony. This court can see nothing in the refusal [**7]  by the court below to give the instructions which were asked, which will authorize them to send the case back for a second trial.
Something was said, in the course of the argument, about a claim of the defendant's intestate for supporting the children. It is possible, that the Chancellor might have allowed such a claim, and directed it to be deducted from the interest, which, from time to time, the defendant's intestate received. But even if the defendant's intestate had a just claim, yet as he did not exhibit it at the right time, and in the proper court, this court is not at liberty, for that reason, to reverse the judgment of the court below.
JUDGMENT AFFIRMED.  

37 of 42 DOCUMENTS 

EDMUND B. ADDISON vs. ANDREW HACK 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 221; 1844 Md. LEXIS 25 

December, 1844, Decided 

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

This was an action upon the case brought to the April term, 1841, of said court, by the appellee, against the appellant, to recover damages for diverting a rivulet out of its ancient channel, through the land of the plaintiff, whereby the plaintiff was deprived of the use, &c. The defendant pleaded non cul., on which issue was joined.

1ST. EXCEPTION. At the trial of this cause, the plaintiff, to support the issue on his part, read in evidence to the jury, subject to exceptions, a patent dated 10th May 1754, for a tract of land called "Soldiers Delight," and also a patent for another tract of land called "Timber Grove;" in both of which patents, the lands therein mentioned are described by metes and bounds; and then, for the purpose of showing that the tract of land mentioned in the declaration, was part of the land mentioned in said two patents, read to the jury, (subject to all exceptions to the competency or admissibility of said proof, for the purpose aforesaid,) a deed from     to Ellis Jones, dated 16th June, 1811; a deed from     to Charles Willerson to     Hill, dated 10th March 1821; and a deed from said Hill and wife [**2]  to     Pennington, dated 1st August 1834. The will of said Pennington, admitted to probate 18th March 1837, authorizing Andrew Hack, (his executor,) to sell and convey the land therein mentioned, upon a deficiency of the testator's personal estate, to pay his debts; and lastly, the deed of the said Andrew Hack, (executor,) to the plaintiff, dated 5th March 1840; all of which deeds and said last will, it is admitted, purport and profess to convey or devise, by certain boundaries therein mentioned, "Part of Soldiers Delight," and the whole of "Timber Grove," And the plaintiff further proved, that he and those under whom he claims, have been in possession of the lands mentioned in the declaration, for twenty-five years, last past, claiming to hold the same under said patents and deeds aforesaid; and that the land from which the stream of water was diverted by defendant, as alleged in the declaration, has been for twenty-five years reputed and known as "Soldiers Delight." And the plaintiff gave evidence to show the diversion of the water by defendant, previous to this suit, so as to prevent it from flowing on said land in its accustomed channel, as it had done before such diversion,  [**3]  and rested his case. Whereupon, the counsel for the defendant, then moved the court to exclude from the consideration of the jury, the patent, deeds and will aforesaid, on the ground, that the land in controversy, is not shown to be the same as that mentioned in said patent, deeds and will. And the defendants counsel accompanied said motion with an admission, that previous to the trial of this cause, and when the plaintiff was about to obtain a warrant of survey for the purpose of locating his pretensions, the defendant agreed that the plaintiff should, on the trial of this cause, introduce evidence for the purpose of locating his title papers and the boundaries thereof, the same as if he had sued out, and proceeded to have a warrant of survey executed in due form of law. But the court, (ARCHER, C. J.,) refused to sustain said motion, and instructed the jury, that said patents, deeds, will, and possession, were competent evidence in this cause, for the purpose of showing title in the plaintiff to the lands in the declaration mentioned. To which refusal and instruction of the court, the defendant excepted.

2ND. EXCEPTION. After the evidence contained in the foregoing bill of exceptions [**4]  (made part thereof,) had been given, the defendant, to support the issue on his part, gave evidence tending to show, that there was water at all times before this suit, flowing on the land claimed by plaintiff, in its accustomed channel, sufficient for plaintiffs use; and the diversion of said stream of water by defendant, was partial, and in no way injured the plaintiff, but benefitted his lands, by preventing the accumulation of water in the low grounds, through which the said stream flowed; and that said diversion took place at a point above plaintiffs lands; and further proved, that such was the situation of that part of plaintiffs lands through which said stream flowed; that the said stream could not be used for the purpose of working machinery on said land, as it had no fall on said land. The defendant then offered to prove, by parol evidence, that long previous to this suit, and before the diversion of the water, as aforesaid, it was agreed, verbally, between plaintiff and defendant, that the defendant might divert the said stream in the manner now complained of, for the purpose of working a mill about to be erected by defendant on his lands, if he, the defendant, would allow [**5]  plaintiff the use of a certain way or road leading from plaintiffs lands over and through defendants. And that in pursuance of said agreement, the plaintiff was allowed the use of said way or road, and did use the same; and the defendant went on, at great expense (upwards of $ 4000,) and labor, with the knowledge of the plaintiff, and without any objection on his part, but was encouraged by him, to erect and complete his mill as before agreed; and while the same was in operation to supply the same with the stream aforesaid, as agreed, without which the mill could not be used; and that no objection was made by plaintiff to defendant's diverting said stream as aforesaid, until after the completion of said mill, and shortly before bringing this suit; and further offered evidence to show, that in case said stream is withdrawn from defendants mill, and wholly restored to its ancient channel, the defendants mill would be rendered useless and of no value; and that before this suit, and soon after the completion of said mill, the plaintiff demanded a large pecuniary compensation from defendant, for the further use of said stream as aforesaid, or, that said dam should be abated. That the foregoing [**6]  facts were offered, to show, that said parol agreement or license, was made by the plaintiff, with a view to entrap the defendant into the erection of the said mill and dam, upon the faith of the said contract and license, and with a design, when the same should be completed, fraudulently to use them as a means of extorting from the defendant, by threatening to deprive him of the use of the water for his mill, unless he would pay what he, the plaintiff, should demand from him. But, upon the objection of the plaintiff's counsel, the court, (ARCHER, C. J.,) refused to permit the above facts to go to the jury for the purpose aforesaid. The defendant excepted, &c.

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

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

HEADNOTES:

In an action relating to lands, if the defendant does not take defence or warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy, between the parties.

In such case, without plots, he may read his title papers in evidence; prove his possessions under them; and show by oral, and other testimony, the injury he complains of, and for which he seeks indemnity.

In an action for damages, for diverting the course of a stream from its natural channel, on the plaintiff's land, the defendant may show, that the diversion was made on his lands above those of the plaintiff, and that it was rather a benefit, than an injury to the plaintiff; or that it was made in virtue of a verbal agreement between plaintiff and defendant, that the latter might make the diversion, for the purpose of working a mill to be erected by the defendant on his own land, if the defendant would allow the plaintiff the use of a road through the defendant's land, and the execution of such agreement, or that the plaintiff entered into such a contract with the defendant, conferring the privilege, with a fraudulent design, and for the purpose, of extorting money from him.

Such evidence is admissible in mitigation of damages; and for the purpose of showing that the defendant was not a trespasser, ab initio, for continuing the diversion after a countermand of his authority by the plaintiff; or that he could not be made responsible in damages for acts done upon his own land, with the verbal permission and authority of the plaintiff.

The maxim, "volenti non fit injuria," illustrated.

Where one party authorizes another to divert the channel of a stream, flowing through the lands of both, by means of a license which is countermandable in its nature, and the authority is exercised as granted, the party who has the power of countermand, can only be restored to his rights, by doing justice to the other, and tendering him the expense which he has incurred under the license.

Where the plaintiff verbally agreed to abandon the use of a stream of water in the manner in which it had been accustomed to flow on his land, and the abandonment was consummated by the execution of his license, from that moment, his right to the use of the water, as it formerly flowed in its natural channel, became extinct; and it was no longer appurtenant to his land.

Such license conveys no estate, interest, or use in the land; is not within our registry acts; nor calculated to mislead purchasers.

A prominent object of our enrolment laws is the protection of purchasers.

A grant, not acknowledged, nor recorded, of a power to divert the course of a stream, which flowed through the grantor's land, but which power had not been executed, would not be a bar to a subsequent bona fide purchaser, for a valuable consideration, without notice, claiming the water right naturally incident to the lands he had purchased. To interpose such a bar, in such a case, the same conformity to the registry laws is necessary, as if land were the subject of the grant.  

COUNSEL:
By ADDISON for the appellant, and

By RICHARDSON, dep. att. gen., for the appellee.  

JUDGES:
The cause was argued before DORSEY, CHAMBERS, and SPENCE, J. CHAMBERS, J., concurring in part and dissenting in part.  

OPINIONBY:
DORSEY 

OPINION:

 [*225]  DORSEY, J., delivered the opinion of this court.
The only question, discussed by the appellant's counsel, and on which the opinion of this court was called [**7]  for, on the first bill of exceptions was, whether, as the plaintiff had not located the patents and title papers of his land upon plots returned to the court, under a warrant of re-survey issued for that purpose, he could give such patents and title papers in evidence to the jury, and prove, that the grievance complained of, was perpetrated by the defendant in respect of those lands.
In an action relating to lands, if the defendant does not see fit to take defence on warrant, the plaintiff is under no obligation to ask for a warrant to locate his land, or any of the matters in controversy between the parties. Without such plots he may read his title papers in evidence to the jury; prove his 

 [*226]  possessions under them, and show by oral or other testimony the injury he complains of; and for which he seeks indemnity.
The case of Medley vs. Williams, et al., Lessee, the only case relied on by the appellant as sustaining his position, bears no resemblance to the case now before us. There, defence was taken on warrant, and locations made, and this court held that a title paper, of which there was no location, could not properly be offered in evidence; on the well established [**8]  principle of correspondence between the pleadings and the proof. But here, no warrant of survey being required by either plaintiff or defendant, no plots or locations could be made in the cause. The county court, therefore, are exempt from the error complained of in the first bill of exceptions.
But the county court, we think, erred in rejecting the testimony offered by the appellant in his second bill of exceptions. The plaintiff having offered the testimony stated in the first bill of exceptions, showing the diversion of the stream from its natural channel, on his land, where it was accustomed to flow; the defendant offered evidence to show, that the diversion of the water complained of, was made on the lands of the defendant, above the lands of the plaintiff, and, that it was rather a benefit than an injury to his lands; and that it was made in virtue of a verbal agreement, entered into by the plaintiff and defendant; by which, it was agreed, that the defendant might make the diversion, as now complained of, for the purpose of working a mill, to be erected by the defendant on his own land; if he, the defendant, would allow the plaintiff the use of a wagon road, from the lands of [**9]  the plaintiff, over the lands of the defendant. That, in pursuance of the agreement, the plaintiff used the said road; and the defendant, at an expense of upwards of $ 4000, (encouraged so to do by the plaintiff,) erected the said mill; which mill was of no value, without the said privilege of diverting the water, as aforesaid. That the plaintiff made no objection to the diverting of the stream of water, till shortly after the completion of the mill; when the plaintiff demanded of the defendant a large pecuniary compensation for the use of the water; and that the dam, erected on 

 [*227]  the defendant's land for the diversion of the same, should be abated; and, that the aforesaid conduct of the plaintiff was fraudulently designed, for the purpose of extorting money from the defendant. Upon the objection of the plaintiff's counsel, the court refused to permit the foregoing facts to go to the jury: and in so doing, we think, the county court were clearly in error. If admissible for any purpose, the court was not authorized in rejecting the testimony. In mitigation of damages it was surely admissible; but it was admissible as evidence, upon other grounds, and for other purposes. For [**10]  even conceding, what we by no means admit to be true, that the aforementioned agreement did not confer on the defendant a privilege or license, to divert and use the water which the plaintiff could not, at pleasure, countermand; yet, as the defendant had done no act towards diverting the water from its accustomed flow, over the lands of the plaintiff, since the countermand, he could not, by such countermand, be rendered a wrong doer, ab initio; or be made responsible in damages for acts done upon his own land, and with the express permission and authority of the plaintiff himself. If ever the maxim, "volenti non fit injuria," was applicable to any case, it must be conclusive on this.
But, regarding this license as countermandable, upon what terms is the plaintiff to be restored to his former rights? Can he require of the defendant to be at the expense, and endure the labor, of removing structures lawfully erected, and by the express authority of the plaintiff? The manifest injustice of such a requisition, is an answer to the question. How, then, is the plaintiff to be restored to rights which he is authorized to demand? By doing justice to the defendants: by tendering to him [**11]  the expense which he has incurred, under the license. This principle was announced in the case of Winter vs. Brockwell, 8 East 308. Where an action being brought for a private nuisance, by the erection of a sky-light over the defendant's open area; at the trial, the defence set up was, that the area, which belonged to the defendant's house, had been enclosed and covered by a sky-light, in the manner stated, with 

 [*228]  the express consent and approbation of the plaintiff, obtained before the enclosure was made; who, also, gave leave to have part of the frame work nailed against his wall. But, sometime after it was finished, the plaintiff objected to it; and gave notice to have it removed. But Lord Ellenborough "was of opinion, that the license given by the plaintiff to erect the skylight, having been acted upon by the defendant, and the expense incurred, could not be recalled, and the defendant made a wrong-doer: at least, not without putting him in the same situation as before, by offering to pay all the expense which had been incurred in consequence of it; and, under this direction, the defendant obtained a verdict." In this case in East, there was no consideration [**12]  given for the license; and the nuisance, by which the plaintiff suffered from the acts done under it, was a serious one; and yet, Lord Ellenborough subsequently, on a motion for a new trial, after stating that he had looked into the books on the point, reiterates the doctrine that he had before laid down, except as to tender of expense to be made to the defendant; and states, that in one of the cases to which he refers, "Haughton J. lays down the rule, that a license executed is not countermandable; but only when it is executory."
The testimony offered by the appellant in the case before us, is not only admissible, but is, if believed by the jury, a conclusive bar to the right of action of the appellee. Such was the decision in the case, (almost identical with the present,) of Liggins vs. Inge, 7 Bing. (n.s.) 682, reported in 20 E.C.L. 290; and to that effect are the cases above referred to by Lord Ellenborough. And Rerick vs. Kern, 14 Serg. & Rawle 267. The opinion now given, is not, as was urged in the argument for the appellee, in conflict with the decision of this court, in the case of Hays vs. Richardson, 1 G. & J. 366. [**13]  There the right, claimed under an instrument of writing, not acknowledged and recorded, agreeably to the registry laws of the State, was a right of way over the lands of the person intending to grant it, and was an use, thereof, to the extent of the right asserted; and came within the very terms of the act of Assembly for the enrolling of conveyances, viz: that "no 

 [*229]  manors, lands, tenements, or hereditaments whatever, within this province, shall pass, alter, or change from one to another, whereby the estate of inheritance or freehold, or any estate for above seven years, shall be made or take effect in any person or persons, or any use thereof to be made, &c.," unless the conveyance be executed, acknowledged, and recorded, in the manner therein prescribed. But, in the case before us, the appellee passed to the appellant no estate or interest in his land, or any use thereof. He simply agreed to abandon the use of the water, in the manner in which it had been accustomed to flow on his land. And the moment the abandonment was consummated by the execution of the license, the right of the appellee to the use of the water, as it formerly flowed in its natural channel, became [**14]  extinct; it was no longer appurtenant to his land; and he, thenceforth, held it as if no such privilege or appurtenance had ever belonged to it. And this view of the subject, in no wise, contravenes the prominent object of our enrolment laws, the protection of purchasers. When a purchaser views the land he desires to acquire, he sees it divested of its water right, and contracts for it accordingly: so that no injustice is done him.
We are not to be understood in what we have said, as countenancing the idea, that a written grant, unacknowledged and unenrolled, of a power similar to that conferred by the license in this case, but which power had not been executed, would be operative and effectual to bar a subsequent bona fide purchaser, for a valuable consideration without notice, claiming the water right naturally incident to the lands he had purchased. To interpose such a bar, in such a case, we think the same conformity to the provisions of our registry laws is necessary, that would be required if land were the subject of the conveyance.
The doctrine, insisted on in the argument of the counsel for the appellant, that an oral contract, of no validity under the statute of [**15]  frauds, would obtain such validity, and would enable a party to maintain an action upon it at law, if he could prove that the opposite party perpetrated, or designed to perpetrate, 

 [*230]  a fraud, when he entered into the contract. A replication, charging such fraud to the defendant, in an action at law, instituted on such a contract, would be no answer to the defendant's plea of the statute of frauds. If a party on whom such a fraud has been committed, has relief any where, it must be sought in a court of equity; at law it cannot be obtained.
Assenting to the opinion of the court, on the first bill of exceptions, but, dissenting from its refusal to admit, in evidence, the testimony offered by the appellant in the second bill of exceptions, we reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO ORDERED.  

CONCURBY:
CHAMBERS 

DISSENTBY:
CHAMBERS (In Part) 

DISSENT:

CHAMBERS, J., dissented in part.
I concur in the opinion expressed by my Brother Dorsey, so far as that opinion relates to the case, now for the judgment of this court. To so much of it as relates to the idea, "that a written grant, unacknowledged and unenrolled, of a power similar to that conferred by the license, in this case,  [**16]  &c." I beg leave to be considered as expressing, neither concurrence or dissent. That question is not involved in the cause now before us, has not been at all argued by counsel, certainly has not been investigated by me; and, whatever be the law applicable to it, this case will, in no respects, be affected by it.
Considering it quite sufficient to examine and decide questions which are brought before us, I am unwilling to prejudge others; not because of any supposed difficulty in the particular case, but on account of the principle.  

38 of 42 DOCUMENTS 

N. H. ELLICOTT, ADM'R OF SAMUEL ELLICOTT, vs. B. H. ELLICOTT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 439; 1845 Md. LEXIS 43 

December, 1845, Decided 

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

On the 28th February 1845, Benjamin H. Ellicott filed his petition, alleging, that in March 1839, William E. George died, leaving a last will, devising his estate to all his children; but directed, that if his son, Philip T. George, desired to carry on the business in which the testator was engaged, he should have his whole real and personal property for that purpose, being accountable to his brothers and sisters for their shares; and constituted Eliza George, P. T. George, and said Benjamin H. Ellicott, his executors; that the two latter only qualified, and gave as securities, Samuel, Andrew, and J. H. Ellicott; that P. T. G., elected to take the real and personal estate, in accordance with the power of the will; that Samuel Ellicott, one of the sureties, aforesaid, died on the 13th December 1842, intestate, leaving a valuable real and personal estate, and seven children, of whom the petitioner is one; that Nathaniel H. Ellicott, one of his brothers, administered upon his father's estate. Prayer, that N. H. E. may distribute that estate.

The answer of Nathaniel H. Ellicott, alleged, that he did not insist, that the estate [**2]  of his intestate must be held as security, for the faithful performance, by the executors, of W. E. G., for their duties as such, but that such view of the responsibility of the estate of his intestate is taken by others; that he has been informed that able counsel are of that opinion; that a distribution of his intestate estate has not been made, is to be attributed, exclusively, to the circumstances stated in the petition, and this answer.

A second petition was filed by John D. Early and wife, legatees and distributees of William E. George, alleging, that they had not been paid, and that a large balance was due them; that they have sued the executors of W. E. G., and their securities, for the money due them; that their action was then pending; that the estate of Samuel Ellicott was still liable to them. Prayer, that the distribution of his estate may be restrained, till the further order of the court, and for general relief, &c.

The will of W. E. George, amongst others, contained the following clauses:--

"I devise all my real and personal estate, wheresoever situated, to my children, Eliza, Philip T., Ann, Jonathan E., Robert, Sarah H., Francis E., Mary Ann, and William [**3]  E. George, their, and each of their heirs and assigns, share and share alike."

"It is further my will and desire, that my real estate, and personal estate, shall not be sold, but that the value of the personal property and estate, and debts, shall be ascertained in the usual manner, and by appraisement, and the value of my real estate by my executors."

"It is further my will, that if my son, P. T. G., desires to carry on the business in which I am now engaged, he shall have the whole of my real and personal estate, for that purpose, being accountable to his brothers and sisters for their shares of my estate, in the following manner; that is to say, he shall pay to my daughters, Eliza and Ann, immediately after my decease, and to my other children, as he or she shall arrive, if males, at the age of twenty-one, and if females, at the age of eighteen years, such sum as shall be equal to one-ninth part of my whole estate, the value thereof estimated as aforesaid, excluding, however, from participating in such valuation, my son, P. T. G., whom I intend making one of my executors."

"It is further my will, that if my son Philip shall elect to carry on my business, as aforesaid,  [**4]  and pay to his brothers and sisters as above particularly provided for, then he shall have to himself, his heirs and assigns, the whole of my said estate, real and personal, to dispose of as he pleases."

The election of P. T. G., to carry on his father's business, and take the estate at the appraisement under the will, dated 8th August 1839, was filed in the Orphans court.

It was admitted, that the debts due from W. E. George, were paid by his executor, P. T. G.; that the debts due from Samuel Ellicott were paid.

The Orphans court, (KEMP, C. J., and READEL, A. J.,) decreed, that the said P. T. G., having made his election under his father's will to take his estate, the testamentary bond on that estate was not responsible to his children; that no part of the estate of Samuel Ellicott, ought to be retained to meet liability on that bond, and that N. H. Ellicott, administrator, proceed to distribute and deliver up the personal estate of his intestate, Samuel, &c.

From this decree, N. H. Ellicott, administrator, appealed to this court.  

DISPOSITION:
DECREE AFFIRMED WITH COSTS.  

HEADNOTES:

Where a testator devised his estate to his children, share and share alike, but declared, that if his son should elect to carry on the business in which the father was then engaged, he should have for that object his entire estate, and in that event, pay his brothers and sisters, at a valuation which the will directed to be made; and the son so elected, and took the estate, all the debts being paid, the testamentary bond of the executor is discharged.  

COUNSEL:
By R. JOHNSON for the appellants, and

By G. L. DULANY for the appellee.  

JUDGES:
The cause was argued [**5]  before ARCHER, C. J., DORSEY, MAGRUDER and MARTIN, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*442]  MAGRUDER, J. delivered the opinion of this court.
This was an application by the defendant, one of the representatives of Samuel Ellicott, to order the administrator of the latter, to make a distribution of his estate. The administrator appeared, and in his answer objects to the distribution, upon the ground, that his intestate was security in the bond given by the executors of one William E. George, and as such, may be answerable to a large amount.
Upon the same ground, the distribution of the estate of Samuel Ellicott, is resisted by one of the children, and a legatee of the said George. Upon no other ground is the distribution opposed. Indeed, it is admitted, that all other claims against S. Ellicott, except to a very inconsiderable amount, have been discharged.
The will of George is introduced into the record, which also furnishes evidence, that Philip T. George, the executor, has accepted of the estate, upon the terms mentioned in that will. This court is of opinion, that the children of William E. George, have no claim on the bond given by his executor, and,  [**6]  therefore, the matters stated in the answer, furnish the executor with no reason for delaying to distribute the estate of the said Samuel Ellicott.
DECREE AFFIRMED WITH COSTS.  

39 of 42 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.  

40 of 42 DOCUMENTS 

JEREMIAH BENNINGTON, vs. SAMUEL DINSMORE, ADMINISTRATOR OF SAMUEL DINSMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 348; 1844 Md. LEXIS 32 

December, 1844, Decided 

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

This was an action of debt, brought on the 8th February 1839, by Jane Dinsmore and Thomas H. Gillispie, administrators of Samuel Dinsmore, late of Harford county, deceased, against Jeremiah Bennington, in a plea that he render unto them the sum of $ 66.42, which he unjustly detains from them, &c.

Another writ, like the first, was sued out same term, and both were returnable to the 3d Monday of May 1839. These writs were returned "non est," and were then ordered to be consolidated, and another writ for both the debts mentioned in the first writs, was sued out on the 17th June 1839, returnable the 3d Monday of November of that year. This was also returned "non est."

The record then recited that, whereas, since the issuing of the writ aforesaid, the letters of administration of the said Jane Dinsmore and Thomas H. Gillispie have, by the Orphans court of Harford county, been revoked, and letters of administration of all and singular, the goods and chattels, rights and credits which were of the said Samuel Dinsmore, late of Harford county, deceased, by the said Orphans court, were granted and committed to Samuel Dinsmore, as by the suggestion [**2]  of the said Samuel Dinsmore has been stated. Therefore, you are hereby commanded to take the said Jeremiah Bennington, late of Harford county, yeoman, if, &c., and him, &c., so that you have his body before, &c., on the 3d Monday of May next, to answer unto Samuel Dinsmore, administrator of, &c., of Samuel Dinsmore, late of Harford county, deceased, in a plea that he render unto him the sum of, &c. Issued the 16th January 1840.

This writ was renewed on the 28th May 1840, again on the 2nd December 1840; again, on the 18th October 1841; and again, on the 14th May 1842, and all returned non est.

At May term 1842, the plaintiff filed a short note, showing his cause of action, a copy of which was made out and delivered to the sheriff of Harford county, aforesaid, thereon endorsed, to wit, "to be left at the house where the said Jeremiah did last reside." The sheriff to whom the said short note was, in form aforesaid delivered, returned the same: "The short note, of which this is a true copy, was left at the residence of Jeremiah Bennington on the 27th day of September 1842."

And thereupon the said plaintiff, to make proof of his action aforesaid, files in court here the copies [**3]  of the writings obligatory, with an affidavit thereunto annexed, and which are as follows, to wit:

Harford county, Md. We, or either of us, do promise to pay to the heirs, administrators or assigns, of the estate of Samuel Dinsmore, deceased, the just and full sum of $ 66.42, lawful money, for value received. Witness our hands and seals, this twentieth day of July 1827.

$ 66.44.     JEREMIAH BENNINGTON, (Seal.)

MARY BENNINGTON, (Seal.)

Test,--William C. Kirkwood, John A. Kirkwood.

Ture copy--test,     HENRY DORSEY, Cl'k.

Harford county, Md. We, or either of us, do promise to pay to the heirs, administrators, or assigns of the estate of Samuel Dinsmore, deceased, the just and full sum of $ 66.42, lawful money, for value received. Witness our hands and seals, this twentieth day of July 1827.

$ 66.42.     JEREMIAH BENNINGTON, (Seal.)

MARY BENNINGTON,     (Seal.)

Test,--William C. Kirkwood, John A. Kirkwood.

True copy--test,     HENRY DORSEY, Cl'k.

Samuel Dinsmore, adm'r of Samuel Dinsmore, deceased, vs. Jeremiah Bennington. In Harford county court, May term, 1842. 8th non. est.

City of Baltimore, to wit: Be it [**4]  remembered, that on this 5th day of October, in the year 1842, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city aforesaid, personally appeared Samuel Dinsmore, administrator of Samuel Dinsmore, deceased, and plaintiff in the above action, and made oath on the Holy Evangely of Almighty God, that Jeremiah Bennington, the above named defendant, is justly and bona fide indebted to him, the said Samuel, as administrator of said Samuel Dinsmore, deceased, in the sum of $ 132.84, with legal interest thereon from the 20th day of July 1827, over and above all discounts. And the said Samuel, administrator as aforesaid, at the same time produced the office copies of the two bills obligatory, (the originals whereof, are filed in the said county court, in the case of the judgments heretofore rendered in said court, in favor of the administrators of said Dinsmore, deceased, against Mary Bennington, the co-obligor in said bills obligatory,) on and by which the said Jeremiah is so indebted, which said copies of the bills obligatory, are hereto annexed. In testimony whereof, I do hereto subscribe my name the day and year first above written.     JOHN [**5]  W. PEALE.

On this proof, the county court, on the 8th October 1842, awarded an attachment against the said Jeremiah Bennington, which, at November term 1842, was returned: "laid as per schedule in defendant's possession, and defendant summoned;" which schedule, mentioned in said return of said sheriff, is as follows, to wit, &c.

The defendant then appeared, gave special bail, and the court dissolved the attachment, and the plaintiff filed his declaration, setting forth the said single bills, according to their tenor, and then alleged, that the said defendant then and there delivered the said two writings obligatory to a certain Jane Dinsmore and Thomas H. Gillispie, they then and there being the administrators of the said Samuel Dinsmore, deceased, by the Orphans court of Harford county, before that time duly constituted and appointed. The said plaintiff further avers, that after the making of the said two writings obligatory, to wit, on the day of     in the year eighteen hundred and     the Orphans court aforesaid, did revoke the letters of administration, so previously granted to the said Jane Dinsmore and Thomas H. Gillispie, on the estate of the said Samuel, deceased.  [**6]  And thereupon, letters of administration upon the estate of the said Samuel, deceased, were, by the Orphans court aforesaid, in due form of law committed to the said plaintiff, who thereupon became entitled to demand and receive from the said defendant the said several sums of money mentioned in the said two writings obligatory. Nevertheless, the said defendant, although often requested, hath not yet paid the said two sums of money, or either of them, or any part of either of them, either to the said former administrators of the said Samuel, deceased, or to the said plaintiff, administrator as aforesaid, nor has he paid the same or any part thereof, to any or either of the heirs or assigns of the said Samuel, deceased, but to pay the same or any part thereof, to either of the said parties above mentioned, the said defendant has hitherto wholly refused and still refuses, to pay the same to the said plaintiff, as administrator as aforesaid. Whereupon, &c.

The parties then agreed to submit the cause aforesaid to the court here, upon the following statement of facts, to wit:

Stated case. It is admitted, that in the year 1826, Samuel Dinsmore, the elder, died, and that Jane Dinsmore [**7]  and Thomas H. Gillispie were appointed his administrators. That while they were administrators, the defendant, on the 20th day of July, 1827, executed and delivered to the said Jane and Thomas the two bills obligatory, mentioned in the declaration. That on the 8th day of February 1839, the said Jane and Thomas, as administrators of said Dinsmore, sued out a writ against said defendant on said bills obligatory, which was not served, but returned "non est," and was renewed to the succeeding term, and again returned non est. That after the issuing of said writ, to wit, on the     day of     the letters of administration of the said Jane and Thomas H. were revoked, and administration of the estate of the said Samuel, deceased, granted to the plaintiff, who sued out a writ against defendant on the 16th of January, 1840, to the term immediately succeeding that to which the last mentioned writ had been so returned, which writ was regularly renewed. That the writs referred to are in the case, and make part of this statement. That the said Samuel, deceased, had no children, and was born an alien. That said plaintiff is a naturalized alien.

It is agreed that limitations are considered [**8]  as if pleaded. And if, upon the foregoing statement, the court shall be of opinion that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff; but, if the court should be of opinion that plaintiff is not entitled to recover, then judgment to be entered for defendant. Either party to have the right of appeal, and all errors in the pleadings waived.

The county court rendered judgment for the plaintiff, for his debts &c., and the defendant prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED, WITH COSTS.  

HEADNOTES:

Upon the single bill of B., dated 20th July 1827, promising to pay the "heirs, administrators or assigns, of the estate of D., deceased," an action was commenced by the administrators of D., on the 8th February 1839. The writ was regularly renewed from term to term, until November term, 1839, when it was suggested, that the said letters of administration had been revoked and granted anew to S., who sued out another writ, in his own name, to the next succeeding term; which being returned non est, and regularly renewed for several terms, he then procured an attachment. This was levied and returned. The defendant, now, gave special bail and appeared, and the last administrator declared against him on the single bill, specially stating the revocation of the first letters. HELD: That it was uncertain, upon the face of these instruments, to whom they were to be delivered, or in whose name a suit must be brought; that no action could be brought on them; and, that limitations were a bar to the action.

Where there are more writs than one, it must appear, that they are regular continuances of each other, to except the case from the act of limitations.

Writs issued in the name of S., administrator of D., cannot be regular continuances of writs issued by G., administrator of D.; though the authority of the latter had been revoked. 

COUNSEL:
BY REVERDY JOHNSON for the appellant, and

BY OTHO SCOTT for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*353]  MAGRUDER, J., delivered the opinion of this court.
This cause was submitted to Harford county court, upon a case stated. By this it appears, that Samuel Dinsmore, the intestate, died in 1826, and that the plaintiff in error, with another, on the 29th July 1827, executed two several instruments of writing, and thereby promised to pay "to the heirs, administrators or assigns," of the estate of Samuel Dinsmore, deceased, the sums of money expressed in them. Upon those instruments,  [**9]  suits were brought, first, in the name of Jane Dinsmore and Thomas H. Gillispie, administrators of Samuel Dinsmore, and upon a revocation of their letters, and the grant of others to the present appellee, before the arrest of the appellant, the last administrator issued a writ in his name, as administrator.
It is contended, that no judgment could have been rendered in favor of the plaintiff below, although the suits had been continued, as well as brought in the names of the first, who administered upon the estate, because of the uncertainty by whom the money may be demanded. And indeed, it is difficult to determine, who can be said to be the obligee? One would suppose not the administrators, to the exclusion of the heirs, nor the latter, rather than the former.
We are told, in Bacon's Abridgment, (Title, "Obligations,") that an obligation of £  200, to two, solvendum, the £  100 to the one, and the other, to the other, is a void solvendum, and this because, although there may be several obligees, yet a person cannot be bound to several persons, severally. But in this case, 

 [*354]  it appears that the obligor is not to be bound to both, but to one or to [**10]  the other, and to which more than to the other, the instruments themselves, do not instruct us. How is it to be ascertained, to which of them the obligations are to be delivered? or is a delivery to each necessary, in order to the validity of the instruments?
It may be, as was suggested in the argument, that those instruments furnish evidence of an indebtedness either in the life time of the intestate, or for property, a part of his estate sold since his death. If so, the administrators have still their right of action, but that right of action must not be an instrument of writing, which the debtor is at liberty to discharge by paying the money to the heirs, persons who have no right to receive or to release debts due to the estate.
It must be admitted, that separate suits cannot be brought upon each of these instruments of writing; the one in the name of the heirs, and the other in the name of the administrators, and a judgment be obtained by each, for the same money. Yet, if one be authorized to bring suit, surely an action of debt may be brought by the other, and the pendency of the action by one, could not be pleaded in bar, to the action by the other. There is no "certainty [**11]  to a certain intent in general," in this case, and if "the creditors of Henry M. Chew" could not maintain an action upon the order of the court, set forth in the case of Boteler & Belt vs. State, use of Chew, &c., in 8 G. & J. 359, it would seem to follow, that the objection arising from the uncertainty in this case, to whom the instruments of writing are to be delivered, and in whose name a suit must be brought, must prove equally fatal in this case.
But if a suit could be instituted in the name of the administrators of the intestate, still the plea of non accrevit infra &c., of which it is agreed, that the defendant shall have the benefit, would defeat the action. "Where there are more writs than one, it must appear that they are regular continuances of each other, Norris' Peake, 425, and the writs issued in the name of Samuel Dinsmore, administrator of Samuel Dinsmore, 

 [*355]  are not regular continuances of those sued out in the name of the original administrators.
JUDGMENT REVERSED, WITH COSTS.  

41 of 42 DOCUMENTS 

ELIZABETH TYSON vs. ROBERT MICKLE, AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

2 Gill 376; 1844 Md. LEXIS 37 

December, 1844, Decided 

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

On the 25th March 1841, the appellant, by her next friend, Thomas Tyson, with others, filed their bill in Chancery against the appellees, praying a sale of certain real estate. After answers filed, on the 18th May 1841, the Chancellor decreed a sale of the property for such part of the purchase money in cash and on credit, as the trustees appointed by the decree should decide upon.

On the 18th March 1842, the trustees reported, that owing to the extreme depression of the property, they had not yet been able to sell, nor did they think that any future effort to make sale thereof, at the present time, would be prudent. That there is a large quantity of iron attached to the building upon the said property, and lying about the premises, and used in the construction of the machinery thereto, which is daily becoming of less value, and which, it is represented to your petitioners, it would be to the interest of all parties to dispose of at once, by a separate sale from the rest of the real estate; wherefore, your petitioners pray that they may be empowered by order of court, with the consent of the parties interested, to dispose of the said iron [**2]  and machinery at once, and by a sale separate from the rest of the property. This petition the Chancellor dismissed.

On the 19th December 1843, the trustees, Robert Mickle and G. L. Dulany, reported to the Chancellor, that after giving bond with security, &c., they did, in pursuance of notice, attend on the premises, at Ellicotts Mills, on the 21st June 1841, at twelve o'clock, and then and there proceeded to offer the said real estate for sale, when not obtaining a bid, the property was withdrawn, and offered at private sale; but not being able, in this way, to dispose of it, it was again offered at public auction; upon the terms and at the place aforesaid, on the 12th October 1842, after a longer notice than required by the decree had been given, &c., when the highest bid made for said property was $ 12,150. That the trustees, in conformity with the understanding existing between them and the other parties interested, including Thomas Tyson, the father and guardian of the infant, Elizabeth Tyson, that said property should be limited to $ 15,000, refused the said bid and again offered (advertised,) it at private sale, and made unusual exertions to obtain a purchaser on favorable [**3]  terms, without success; when it was thought advisable by the trustees and parties interested, to sell the said property for $ 10,000, if so much could be obtained for it; that the assent of the said Thomas Tyson, father of the said infant, Elizabeth, is contained in a letter filed with the report marked A, and dated the 4th April 1843, and that said Tyson, between two and three months since, called upon one of the trustees, Robert Mickle, and expressed his desire that the property should be sold for the above sum. That the trustees, although they made every effort to dispose of the said property, could not obtain an offer for it even to the amount of $ 10,000, until they were offered that sum on the 4th of December 1843, by W. P. Jenks, which they accepted, and sold the said property to said Jenks for the sum of $ 10,000 in cash, on the final ratification of the sale, as will appear by the written contract of sale herewith filed. That said sale is approved of and desired by all parties interested, except the said Tyson, as will appear by their prayer, contained in paper B.; that since said sale has come to the knowledge of said Tyson, and notwithstanding his previous assent that $  [**4]  10,000 should be taken for said property, he objects thereto, and says it ought to have brought a larger sum, and has requested the trustees to report his objection to your honor, &c.

Exhibit A, filed with report.

"Montgomery county, 4th month 8, 1843, R. Mickle and G. L. Dulany, trustees.

"R. Mickle's letter of the 3rd inst. reached me yesterday, informing me of an offer you have had of $ 10,000 for the rolling mill property;--certainly a great sacrifice, but all things considered, am willing to let it go for that price, if you cannot possibly get more; of course you will have one cash payment,

Respectfully your friend,     THOMAS TYSON.

In case the purchaser does not intend it for an iron establishment, perhaps you can reserve the old iron and machinery,

T. T."

Exhibit B.--"I hereby offer Grafton L. Dulany and Robert Mickle, trustees for the rolling mill property at Ellicotts Mills, consisting of three tracts of land, say about 94 acres in all, with the buildings and appurtenances thereunto belonging, $ 10,000 in cash, on the ratification of this sale by the Chancellor of Maryland, and on delivery of a good and sufficient deed of conveyance of [**5]  the same to me in fee.

December 4th, 1843.     W. P. JENKS.

Executed in duplicate."

"The above offer we hereby accept, subject to the ratification of the Chancellor.

G. L. DULANY,

R. MICKLE."

"The undersigned hereby approve of the above, and pray his honor, the Chancellor, to confirm the sale forthwith.

R. MICKLE, trustee of Jona. Ellicott and Sons,

J. M. GORDON, pres. of the Union Bank of Md.,

E. T. ELLICOTT, & CO.,

A. and J. ELLICOTT, & CO.,

ELIAS ELLICOTT."

This report was accompanied with usual affidavit of the trustees, and was confirmed nisi, the 19th January 1844.

After proof of publication of this order, the appellant, on the 9th February 1844, filed her petition, alleging that she was the owner of one third of the property sold, and that the decree does not authorize the trustees to sell said property at private sale, yet the said trustees have undertaken to sell the same at private sale. It is true, that the said Thomas Tyson did, in April or March 1843, sign a consent that the said property should be sold, at that time, at private sale, but this had reference to a particular and special purchaser or purchasers,  [**6]  confined to that alone, and to that time, not intended to extend to any other or subsequent offer, and certainly did not extend to the offer of Wm. P. Jenks, and the sale to him now sought to be ratified; in accepting the said first mentioned offer, it was expressly understood by the said Thomas Tyson, that the very valuable rolling mill machinery, and iron belonging to the establishment, worth $ 1000, should be reserved; said sale was not made, and there was an end to the consent of the said Thomas, if, indeed, he had any right to consent. Your petitioner alleges, in confirmation of what she has here stated, that afterwards, to wit, in the month of June or July 1843, an agreement was entered into between the said Thomas and others, the parties interested in said property, that the same should be sold at private sale, but said sale was expressly limited to the sum of $ 12,400, and no other agreement to sell at private sale was afterwards made; said agreement is now in possession of the said trustees, or one of them, and your petitioner begs leave that they may be required to produce it, and in case they do not, that she may be allowed to give parol evidence of its contents. Your petitioner [**7]  expressly alleges, that her consent, or that of her guardian and next friend, or of any others, having a right to act for her, was not obtained to the said sale for $ 10,000 to the said Jenks. Your petitioner further alleges, that by the will of her grand-father filed in this cause, to wit, the will of George Ellicott, no sale is allowed to be valid without the consent of Elizabeth Ellicott, the widow of said George; and your petitioner avers, that although the said petitioner has consented that a decree should be passed for the sale of said property, yet she has, in no case, and in no wise, consented to any particular sale. Your petitioner further alleges, that the sum of $ 10,000 for the said rolling mill property, with all the mill machinery, and iron belonging thereto, is far below its value, and would be a great sacrifice thereof, and that much more could have been, and can now be obtained for the same. Your petitioner believes that $ 15,000 would be a small price for such valuable property: consisting of water power sufficient for any operation, mill dam, rolling mill, a large number of valuable tenements, and eighty or ninety acres of land, in and near the thriving village of [**8]  Ellicotts Mills, and on the Patapsco river. Your petitioner offers the above, as reasons why the said sale should not be ratified, and prays that the same may be set aside.

On the 9th February 1844, the Chancellor (BLAND,) ordered, that the matter of the foregoing petition stand for hearing on the 19th instant, under the order of 19th December last, allowing cause to be shewn against the ratification of the said proposed sale. On the 19th day of February 1844, the trustees filed their answer to the said petition, and alleged, that the assent of the said Thomas Tyson to a private sale of said property, at the sum of $ 10,000, was given, to enable and authorize these respondents to sell the same to any person disposed to purchase it at that price, and was not confined to time or persons; nor was there any understanding or any proposition to reserve the rolling mill machinery, or iron belonging to the establishment, out of said sale; and these respondents further state, that the said Thomas Tyson, subsequently to the date of said letter, and always afterwards, when he conversed with these respondents about the sale of said property, expressed his willingness to take $ 10,000 for [**9]  the same, and lamented that they had not accepted that sum when it had been formerly offered. They further state, that some time in June 1840, John S. Tyson, the brother of the said Thomas Tyson, and his present solicitor, suggested to these respondents, as they could not get a price for the property here, that an advantageous sale might be effected in some of the eastern cities, and offered to make the effort if he were properly compensated therefor; and these respondents agreed with said John Tyson to allow him a handsome and graduated commission for selling the same, which was subsequently approved of by the said Thomas Tyson, representing the complainant and the other parties interested therein; which agreement they have ready to be produced to this court, if the same be that to which the complainant refers, the portion of said agreement which is cancelled and partly obliterated, was struck out by these respondents. These respondents were greatly surprised to find any opposition made to said sale by the said Thomas Tyson, especially for the reasons assigned in said petition. They believed, and now believe, that the price of $ 10,000 was as good as could have been obtained for that [**10]  property when it was sold. It had been in the market at that price for some months, and it was generally known, as these respondents believe, that it would have been sold for that sum; whether or not more could be obtained for it, since it was agreed to be sold, these respondents cannot say, but they believe property, generally, has advanced since then. These respondents are only anxious to discharge their official duties to the satisfaction of this court, and await its further order and direction in the premises.

The agreement referred to in the within answer, was as follows:

"I propose to undertake the sale, of the rolling mill property, out of the State of Maryland, on the following terms, viz:

If they should be sold by me for the sum of

________________________________________________________________________________
$ 20,000, I am to receive, as a commis.,	$ 2,000	
From	20,000 to 19,000	"	"	1,800	
"	19,000 to 18,000	"	"	1,600	
"	18,000 to 17,000	"	"	1,400	
"	17,000 to 16,000	"	"	1,300	
"	16,000 to 15,000	"	"	1,000	
"	15,000 to 14,000	"	"	800	
"	14,000 to 13,000	"	"	600	
"	13,000 to 12,000	"	"	400	
________________________________________________________________________________

If I should be the means of procuring a purchaser in the State of Maryland, I [**11]  shall expect half-commission at the above rates, the trustees to have the privilege of selling, at any time, without my agency; should the trustees, without my agency, procure a purchaser out of the State, I shall expect my expenses and charges to be defrayed, to an amount not exceeding one hundred and fifty dollars. This agreement to last sixty days from the date hereof.

June 16th, 1843.     JOHN S. TYSON."

"Baltimore, 16th June 1843.--We agree to the within terms.

Andrew Ellicott, for E. T. Ellicott & Co., and A. & J. Ellicott & Co.

J. M. Gordon, for Union Bank of Md.

R. Mickle trustee of Jona. Ellicott & Sons.

Thomas Tyson, guardian."

On this petition, answer, and exhibit, on the 19th February 1844. The Chancellor (BLAND,) finally ratified the sale, and the said Elizabeth Tyson appealed to this court.  

DISPOSITION:
ORDER AFFIRMED, WITH COSTS.  

HEADNOTES:

The trustees appointed by decree to sell real property, on the 21st June 1841, and 12th October 1842, offered it at public sale without success. A minimum price was then agreed on by the parties, and the property offered at private sale, without avail. The trustees and parties concerned, then agreed to sell, at private sale, for a fixed sum, if that could be obtained, and after unusual efforts, a purchaser was procured at that sum. Under such circumstances, as the Chancellor would have authorized the sale in the absence of all proof to impeach it, he properly ratified it, though one of the parties to the cause objected to it, as a sacrifice of his interest.

When a trustee exercise a power, which, if previously applied for, would have been granted, as it were, as a matter of course, a court of equity, in the absence of proof showing the inexpediency and injustice of so doing, will ratify the act done in the same manner as if the requisite authority had been applied for, and granted.

The report of a sale made by trustees of the court, and their answers to a petition impeaching their sale, must be credited, until over-ruled by proof.

Where a will devising real property authorized its sale upon the consent of the testator's widow, her consent, to a decree for the sale, is a sufficient compliance with the requisition of the will.

Improvement in price, arising from a general enhancement in value since the sale, is no ground for setting aside a sale made under a decree.

The ratification or rejection of a sale must depend on the state of circumstances existing at its date, not on subsequent contingencies; depreciation of property is at the risk of the purchaser, and he must reap the fruits of appreciation. 

COUNSEL:
By GLENN and J. JOHNSON for the appellants, and

By ALEXANDER and DULANY for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*383]  DORSEY, J., delivered the opinion of this court.
The trustees report shews, that "on the 21st of June 1841,  [**12]  the property was offered at sale, pursuant to the decree; but being unable to obtain any bid for it, it was withdrawn and offered at private sale. And not being able to dispose of it in this way, it was again advertised and offered for sale, as directed by the decree, on the 12th of October 1842; and being unable then to sell it at the price agreed on, as its minimum value, by the trustees and all the parties interested, the trustees again advertised it at private sale, and made unusual exertions to obtain a purchaser on favorable terms, without success; when it was thought advisable by the trustees and the parties interested, to sell the said property for ten thousand dollars, if so much could be obtained for it." "That the said trustees, although they made every effort to dispose of said property, could not obtain an offer for it, even of the amount of ten thousand dollars, until they were offered that sum, on the 4th of December 1843, by William P. Jenks."
Had the trustees, instead of accepting the offer and making the sale, as they did, have reported the foregoing facts to the Chancellor, and asked his permission to sell the property on the terms proposed, at private, instead [**13]  of public sale, as directed 

 [*384]  by the decree, can it be doubted that he would have granted the authority they solicited? We think not. If then the trustees have exercised a power, which, if previously applied for, would have been granted, as it were, as a matter of course, a court of equity will, in the absence of proof shewing the inexpediency and injustice of so doing, ratify the act done, in the same manner, as if, the requisite authority had been antecedently applied for and granted.
Were there sufficient grounds before the Chancellor to have warranted his refusal to ratify the sale in question, is then, the enquiry before us? No testimony has been taken to sustain the allegations, urged for that purpose, in the petition seeking to vacate the sale; although almost all of them that are material, have been denied on oath, in the answers of the trustees; which answers and the reports of the sale, made by the officers of the court, (who are presumed to have no interest in the subject matter,) must be credited, until over-ruled by proof.
The assent of the grand-mother of Elizabeth Tyson, to the Chancellor's decree, is a sufficient compliance with the requisition of the [**14]  will of her grand-father, George Ellicott. The assent of Thomas Tyson, the father and next friend of Elizabeth Tyson, to the sale which has been made of the property, by the trustees, we think fully established by their report and answers.
The allegation that, at the time of the sale made, a much larger sum of money could have been obtained for the property, being wholly unsustained by proof, and explicitly denied by the answers, can be of no avail to the appellant. Nor can it redound to her benefit, that the property, from a general enhancement in value, since the sale, would now sell for more money. The ratification or rejection of the sale must depend on the state of circumstances existing at its date; not on subsequent contingencies. Suppose, instead of appreciating, the property had greatly depreciated since the sale, who would have borne the loss? The purchaser, unquestionably. Upon the plainest principles of justice, then, he must reap the fruits of its appreciation.

 [*385]  The order of the Chancery Court, of the 12th of February 1844, ratifying and confirming the sale, made and reported in this case, is affirmed with costs.
ORDER AFFIRMED, WITH COSTS.  

42 of 42 DOCUMENTS 

ARTEMISA BUDD vs. WALTER T. BROOKE, ET AL. LESSEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 198; 1845 Md. LEXIS 20 

December, 1845, Decided 

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

This was an action of Ejectment brought on the 15th May 1838, by the appellees against the appellant. The plaintiffs declared for nineteen undivided twentieth parts of a tract of land called "Nonesuch," beginning at a bounded hickory standing on the south side of Chickamuxan creek, the original boundary of Nonesuch, and running thence with the lines of the tract of land called "Nonesuch," corrected from the original grant of Nonesuch to the year 1800; south sixty-four degrees forty-two minutes west, forty perches; then north fifty-one degrees forty-eight minutes west, eight perches to Chickamuxan creek; then down and with said creek to Potomac river; then down and with said river to a free stone, the upper corner of Fletcher's Addition; then leaving the river and running with the lines of Nonesuch, south forty-seven degrees forty-eight minutes east, one hundred and twenty-five perches; then north seventy-five degrees fifty-seven minutes east, one hundred and thirty-six perches; then with the dividing line between the said tract and part of the said tract retained by Richard Brooke, north eight degrees east, one hundred and thirty-four perches;  [**2]  then with a straight line to the beginning, containing, &c.

To this declaration a certain William Budd appeared, &c., pleaded not guilty, and took defence upon warrant of resurvey, which was accordingly issued. His death being afterwards suggested, his devisee, the present appellant, appeared to defend the action, &c. The jury found a verdict for the plaintiff.

1ST EXCEPTION. At the trial of this cause, the plaintiff, to support the issue on his part, read in evidence the patent of Allanson's Folly, Wicksall, and Aspinal's Hope, the plats and explanations of plaintiff's locations filed in this cause, viz:

"Grant to Thomas Allanson for 400 acres in Piscataway river. Allanson's Folly. Coecilius, &c:--Know ye, that we do hereby grant unto the said Thomas Allanson a parcel of land called "Allanson's Folly," lying on the east side of Piscataway river, on the south side of a creek in the said river called "Chincomuxen creek," beginning at a marked white oak, standing on the west side of a little creek called "St. Katharine's creek," and running east-north-east up Chincomuxen for breadth the length of two hundred perches to a marked oak, standing by a marsh side against a hammock [**3]  of trees that standeth in the marsh, bounded on the east with a line drawn south-east from the said oak, into the woods for the length of three hundred and twenty perches to a marked oak; on the south with a line drawn south-west from the end of the former line until it intersect a parallel line drawn from the first marked oak at Saint Katharine's creek; on the west with the said parallel; on the north with Chincomuxen, containing, &c. Given at St. Mary's, under our great seal of our said province of Maryland, this 23rd day of June, in the 32nd year of our dominion over our said province of Maryland, Anno Domini 1663. Witness, &c."

"John Hichinson--patent--200 acres. Wicksall. Coecilius, &c. To all persons to whom, &c:--Know ye, that we do hereby grant unto him, the said John Hichinson, a parcel of land called "Wicksall," lying in Charles county, on the south side of St. Michael's creek, formerly called "Chickamuxon" Beginning at a marked oak, by the creek side, being the bounded tree of the land formerly laid out for the said Allanson, called "Allanson's Folly," and running south-west down the creek, for breadth the length of one hundred perches, to a marked oak standing upon [**4]  a point at the mouth of the said creek, bounding on the south by a line drawn south east, into the woods, the length of three hundred and twenty perches to a bounded oak; on the east by a line drawn north-east from the end of the former line, the length of one hundred perches to a bounded hickory that intersects a parallel line drawn north-west, to the first marked oak on the north, with the said parallel on the west with the said creek, containing and now laid out for two hundred acres, more or less, benefits thereunto belonging, Royal Mines excepted. To have and to hold the same unto him, the said John Hitchinson, his heirs and assigns forever, to be holden of us and our heirs, as of our manor of Pangaya, in free and common soccage, by fealty only for all manner of services, yielding and paying therefor, yearly, unto us and our heirs, at our receipt at St. Mary's, at the two most usual feasts in the year, viz: at the feast of the Annunciation of the Blessed Virgin Mary, and the feast of St. Michael, the Arch-Angel, by even and equal portions, the rent of four shillings sterling, in silver or gold, and for a fine upon every alienation of the said land, or any part or parcel thereof,  [**5]  one whole year's rent in silver or gold, or the full value thereof in such commodities as we and our heirs, or such officer or officers appointed by us or our heirs from time to time, to collect and receive the same, shall accept in discharge thereof, at the choice of us and our heirs, or such officer or officers as aforesaid; provided, that if the said John Hichinson, his heirs or assigns, shall not pay unto us or our heirs, or such officer or officers as aforesaid, the said sum, for a fine before such alienation, and enter the said alienation upon record, either in the provincial court or in the county court, where the said parcel of land lieth, within, &c. Given at the five and twentieth day of November, in the six and thirtieth year of our dominion over our said province of Maryland, A. D. 1667. Witness, &c."

"Henry Aspinall--patent--150 acres. Aspinall's Hope. Charles, &c. To all persons:--Know ye, that we do hereby grant unto him, the said Henry Aspinall, all that tract or parcel of land called "Aspinall's Hope," lying in Charles county, and beginning at a bounded oak, bound tree of a parcel of land called "Wicksall," standing on the south side of Chickamuxon creek, on a [**6]  point at the mouth of the said creek; running thence south-southwest eighty perches; thence south by east forty perches to a bounded chestnut oak; thence binding upon Fletcher's Addition, south-east one hundred and twenty-five perches to a bounded red oak; thence east and by north one hundred and ten perches to an oak in the line of "Wicksall;" thence binding on "Wicksall, to the first bound tree, containing, &c. Given at our city of St. Mary's, &c., this 16th of March, in the seventh year of our dominion over our said province, &c., Anno Domini 1681, &c. Witness our self."

The plaintiff located a plat made out by Theophilus Hanson, in an ejectment where Walter Brooke's lessee, was plaintiff, and James Davis was defendant, which original plat is endorsed, "filed 23rd October 1789," and which is herewith returned; all the locations made on said original plat are copied on the present plat in this case.

The plaintiff locates Allansons Folly according to the patent thereof, beginning at A, &c.

The plaintiff locates Nonesuch by the patent thereof, beginning at C, a locust, &c.

The plaintiff locates for his pretensions, a deed from Walter T. Brooke and Richard Brooke [**7]  to Lott Mason, dated 2nd of October 1824, beginning at C, the beginning of Nonesuch, and running thence, &c.

The plaintiff then read in evidence the various plots, surveys and explanations of the surveyor, under the warrant in this cause, as made by directions of both parties, and which are sufficiently stated in the opinion of this court; and then, for the purpose of establishing the beginning of Allanson's Folly, at black A, marked on the plats in this cause, offered to give in evidence, by James Brawner, Esq., a competent witness, that in the survey made prior and preparatory to the execution of the deed of Richard Brooke, and Walter T. Brooke, to Lott Mason in 1824, for a part of that tract or parcel of land called Nonesuch, beginning at a bounded hickory, standing on the south side of Chickamuxon creek, the original beginning boundary of Nonesuch, and running thence with the lines of the tract of land called "Nonesuch," corrected from the original grant of Nonesuch to the year 1800; south sixty-four degrees forty-two minutes west, forty perches; then north fifty-one degrees forty-eight minutes west, eight perches to Chickamuxon creek; then down and with said creek to Potomac [**8]  river; then down and with said river to a free stone, the upper corner of Fletcher's Addition; then leaving the river and running with the lines of Nonesuch, south forty-seven degrees forty-eight minutes east, one hundred and twenty-five perches; then north seventy-five degrees fifty-seven minutes east, one hundred and thirty-six perches; then with the dividing line between the said tract and part of the said tract retained by Richard Brooke, north eight degrees east, one hundred and thirty-four perches; then with a straight line to the beginning, &c.

The first line of said deed, as then run in the presence of said Lott Mason and Richard Brooke, stopped at or near the point A, and the beginning of said deed was found at the point black C on the plats; that the said lines of said deed, as then run in 1824, do correspond with the lines of said deed, as surveyed and located by the plaintiff on the plats in this cause, and that on the survey made in this cause, the said first line of said deed to Lott Mason, did terminate at black A, as located on the plats of this cause, and was run with the usual allowance for variation, from the date of said survey, in 1824.

And the said plaintiff [**9]  accompanied said offered evidence with an offer of further evidence, to prove, that prior to the year 1824, the said Richard Brooke, who is yet alive and within this county, declared, that the said point marked black A, was the beginning of Allanson's Folly; and further offered to prove, by the deed to Lott Mason aforesaid, by the defendant's locations and explanations, numbered 8, made on amendment or plats 8th March 1824, and by the last will and testament of Lott Mason, and the last will and testament of William Budd,

8th explanation of the defendant is as follows, viz:

"8th. The defendant locates for her defence, in addition to Davis' Park above, the seizin and possession of Richard Brooke and Walter T. Brooke, of part of a tract of land called Nonesuch, according to the deed of said Walter T. Brooke and Richard Brooke, to Lott Mason. The possession and seizin of Lott Mason of the same land, and his dying seized and possessed. The will of Lott Mason, and the seizin and possession of the same land by William Budd, and his dying so seized and possessed. The will of said William Budd, and the seizin and possessions of the defendant; and she confines her defence to Davis'  [**10]  Park as above, and that part of Nonesuch as above; beginning that part of Nonesuch, as above, at C, and running thence, (according to the proof of the lines, boundaries and possessions of the parties above,) in the red drawn lines, dotted with black No. 10, 11, to Chickamuxon creek; then down and with said creek to Potomac river; then down and with Potomac river to B; then with the red drawn lines, dotted black, and No. 17 and 18 to A; then in the black drawn line No. 4 to K; then to the beginning, containing, &c.

The will of Lott Mason, dated 11th June 1828, contained the following devise:

"I give and devise to my nephew, William Budd, my plantation on the river called "Nonesuch," or commonly known by the name of "Brooke's Ferry," and my dwelling plantation, with the several tracts thereto belonging, which I now have a right or title to, to him and his heirs forever."

The will of William Budd devised to his wife, Artemisa Budd, "all my estate, both real and personal, during her life;" and that the said defendant claims title to the lands in dispute, through and under said Richard Brooke, and that the said point black A, is one of the corners of the land known and reputed [**11]  as "Nonesuch."

The defendant objected to all such evidence for the purpose offered, and prayed the court to reject the same; but the court, (STEPHEN, C. J., KEY and DORSEY, A. J.,) overruled said objection, and allowed the plaintiff to give the evidence above offered and objected to. The defendant excepted.

2ND EXCEPTION. At the trial of this cause, the plaintiff, in addition to the evidence stated in the preceding bill of exceptions, made a part thereof, gave evidence to prove, that the second boundary of Allanson's Folly, stood at the point marked G on the plats filed in this cause; and then moved the court to instruct the jury, that upon the true construction of the patent of Allanson's Folly, its first line must be run from the true beginning thereof, as found by the jury, so as to bind on Chickamuxon creek, to the place where the jury shall find the second boundary of Allanson's Folly stood; and if the jury shall find, that the said first and second boundaries of Allanson's Folly, or either of them, do not stand on Chickamuxon creek, then it is lawful to supply a course from the point of said creek, nearest to said boundaries, or either of them respectively. Which instruction [**12]  and opinion the court gave. The defendant excepted.

3RD EXCEPTION. The plaintiff, in the trial of this cause, in addition to the evidence in the preceding bills of exceptions, which are made a part of this, having read in evidence the patent of Wicksall, proceeded to show that it was truly located, by locating the termination of its first line, at the point marked and designated on the plats as Moss' Point, relying on the several explanations of his location of Wicksall, filed in this cause, as the place where the oak tree stood, and which is the point of intersection on the plats of red line marked 12, and black line marked 50; but the defendant, by his counsel, objected, upon the ground that the place where the second boundary of Wicksall, as described in the patent, (being a marked oak,) stood, was not sufficiently designated in the plots or explanations; but the court, (KEY and DORSEY, A. J.,) were of opinion, and so instructed the jury, that by the plots and explanations, the place where the second boundary of Wicksall, as described in the patent, stood, was sufficiently designated at the point aforesaid, being the termination of the first line aforesaid, 12 and 50, as mentioned [**13]  on the plots; to which instruction of the court, the defendants excepted.

4TH EXCEPTION. In addition to the evidence contained in the foregoing bills of exception, which are made parts of this, the plaintiff, in further support of the issues on their part joined, and to show that the marked oak, described in the patent of Wicksall, as the second boundary thereof, formerly stood at the point where the second line marked 50 on the plots, intersects Chickamuxon creek, marked Moss' Point, as claimed to be located in the third bill of exceptions, offered to prove by Francis Dunnington, a competent witness, sworn upon the survey, that he was present at the running of the line from small f, on the plots, to the termination thereof, at Moss' Point, marked on the plots; that said point is the outermost and most prominent point at the mouth of Chickamuxon creek; that there were two or three small points run, but none on the river; that at     the mouth of the creek, and that said Moss' Point is the first point reached, in running first line of Wicksall; that near said point, the bank terminated abruptly, and seemed as if a portion might have been worn away by the action of the waters,  [**14]  and the lapse of time; that at said point there was no tree, nor did he ever, at any time, hear that a tree had stood upon the said point; to the admissibility of all which evidence, to prove that the marked oak, mentioned in said patent of Wicksall, as the second boundary thereof, stood at the said point, as located in the plots, the defendants, by their counsel, objected; but the court, (KEY and DORSEY, A. J.,) overruled the objection, and permitted the evidence to go to the jury, for the purpose of showing where the marked oak, the second boundary of Wicksall, formerly stood. The defendant excepted.

5TH EXCEPTION. At the trial of this cause, in addition to the evidence contained in the preceding bills of exceptions, which are made a part thereof, the plaintiff read in evidence the patent of Aspinall's Hope, (previously inserted,) and proved its beginning at Moss' Point, where the line marked 50, strikes the water line of Chickamuxon creek, being the point distinguished on the plots by the words "Moss' Point." And the plaintiff then claimed, to run the first line of Aspinall's Hope according to its true course and distance, as given in said patent, with an allowance of thirty [**15]  degrees of variation to the westward of said patent course, drawn with the usual allowance for variation, from the date of said patent, so as to bind the said Potomac river; and for the purpose of claiming said allowance of variation in said line of Aspinall's Hope, the plaintiff offered to prove, by James Brawner, a competent surveyor, who made the plots and executed the surveys in this cause, that he can ascertain to a mathematical certainty, from the plats in this cause, and the locations thereon made by him, according to his several surveys, the variation required on the patent course of the first line of Wicksall, (from the date of said patent of Wicksall,) so as to bind said first line of Wicksall on Chickamuxon creek, and that the variation required for that purpose in said first line of Wicksall, over and above the variation usually allowed in similar cases, is thirty-eight degrees to the westward; to which evidence the defendant, by her counsel, objected, upon the ground that the first line of Wicksall is not located on the plots in this cause, by course and distance, and that admitting such variation to exist between the first line of Wicksall, according to the course and [**16]  distance in the patent, and the said first line as located on the plots in this cause, it is no evidence to authorize the jury to find similar variation, in order to bind the first line of Aspinall's Hope, on the Potomac river, because the said river is not called for by the patent of Aspinall's Hope; but the court, (STEPHEN, C. J., KEY and DORSEY, A. J.,) overruled the objection, and admitted the evidence to go to the jury, to which opinion and admission of said evidence by the court, the defendant excepted.

6TH EXCEPTION. At the trial of this cause, the plaintiff, in addition to the evidence contained in the preceding bills of exception, which are hereby incorporated into this, read in evidence the patent of Aspinall's Hope, previously inserted, and claimed to run its first line from its alleged beginning, at Moss' Point, as distinguished on the plots in this cause, as to which beginning, he offered evidence to the jury, according to its true course and distance, with an allowance of thirty degrees of variation to the westward, (over and above the usual allowance of variation,) so as to bind said first line on and with the Potomac river; and for the purpose of proving said variation [**17]  on said first line, the plaintiff offered to prove, by F. E. Dunnington, that he was present at the survey in this cause, when the surveyor ran the lines of Aspinall's Hope, from said Moss' Point around to the beginning; that at said survey, when he was present, the said surveyor ran the black dotted line from Moss' Point, which is the course and distance line of said Aspinall's Hope's first line, with the usual allowance for variation, but did not run said line binding on Potomac river, and that he has known the land included within said lines, so ran around to the beginning, for more than forty years, where William Milstead, now dead, resided on said land, and acknowledged himself the tenant of Commodore Walter Brooke, now deceased, the grandfather of some of plaintiff's lessors, and the father of other of them. And that the said land is part of the tract, which he always heard and understood was called and known as "Nonesuch."

And the plaintiff further offered to prove, that the persons living on said land, included in said lines as aforesaid, have for the last forty years, held, possessed, cultivated and used up to the edge of Potomac river; that he never heard or knew the [**18]  said land to be called Aspinall's Hope until the day of survey; to which evidence, for the purpose aforesaid, the defendant, by her counsel, objects; but the court were of opinion, that the evidence above offered, was admissible to go to the jury, for the purpose aforesaid, admitted the same; and to which opinion and admission the defendant excepted.

7TH EXCEPTION. At the trial in this cause, in addition to the evidence contained in the former bills of exception, which are herein incorporated, the plaintiff further to support the issue on his part joined, and for the purpose of establishing the true location of the line of the patent of Aspinall's Hope, calling to run, binding on Fletcher's Addition, from the place where the plaintiff alleges stood the chestnut oak, as called for in said patent of Aspinall's Hope, marked red B on the plats in this cause; and proved by F. E. Dunnington, to be the upper corner of Fletcher's Addition, offered to read in evidence a plot made out by Theophilus Hanson, surveyor in a cause in the general court of Maryland, wherein the lessee of Walter Brooke, was plaintiff, and James Davis defendant; and accompanied said offered evidence with a farther [**19]  offer to read the locations made on said plot by Commodore Walter Brooke, the lessor of the plaintiff in said cause, together with his explanations of his locations on said plot, (all of which said locations, explanations and plot, it is hereby agreed, may be read in the Court of Appeals, together with the record in said recited cause, from the original papers in said cause, filing among the records of said general court, to have the like effect as if the same were herein fully incorporated;) and further offered to prove, by James Brawner, a competent surveyor, who made the plots in this cause, that he did actually run in the survey in this cause, the second line of Fletcher's Addition, according to the patent course and distance thereof, reversing its course and distance from red B aforesaid, with the usual allowance for variation, from the date of said patent of Fletcher's Addition, which line is marked on the plots in this cause 52, and at the termination of which line, no red oak could be found or proved, as called for in said patent. To all which evidence, for the purpose aforesaid, the defendant, by her counsel, objected, under the plots and explanations in this case, but the [**20]  court overruled the objection, and permitted the said plot and explanations thereof, made by said Walter T. Brooke, to be read in evidence to the jury, so far as the said line from red B, above described, to its termination on the plots in this cause, to which permission of the court, the defendant excepted.

8TH EXCEPTION. At the trial of this cause, in addition to the evidence contained in the preceding bills of exception, made a part hereof, the plaintiff, for the purpose of shewing that the patents of Aspinall's Hope, Wicksall, and part of the patent of Allanson's Folly, as located by him on the plots of this cause, have acquired by reputation the name of Nonesuch, then offered in evidence by F. E. Dunnington, a competent witness, that he was present and sworn on the survey in this cause of the patents of Wicksall, Aspinall's Hope, and Allanson's Folly, as located by the plaintiff on the plots; that he has known the lands included within the lines of said patents as above located, for more than forty years past, and that the same lands included within the lines of said patents of W., A. Hope, and part of A. F., as located by the plaintiff on the plots in this cause, he has [**21]  frequently heard called in the neighborhood, previous to the institution of this suit, by the name of "Nonesuch;" but the said Dunnington at the same time proved, on cross-examination by the defendant's counsel, that he never saw Nonesuch surveyed; but from the holdings he believes Nonesuch covers more land than is included within the lines of said patents of Wicksall, Aspinall's Hope and part of Allanson's Folly, as above located, but the lands so included in the patents of Wicksall, Aspinall's Hope, and part of the patent of Allanson's Folly, as above located, are covered by the land called "Nonesuch," as aforesaid. And the plaintiff then, farther to shew the extent and lines of the land called "Nonesuch," offered to read in evidence the location by the defendant on the plots in this cause of a tract of land called "Nonesuch," together with the defendant's explanations of her said location.

To all which offered evidence the defendant by her counsel objected, but the court overruled said objection, and allowed the plaintiff to give in evidence the testimony of said Dunnington, so offered by the plaintiff; and the court also decided to allow the defendant to give in evidence at [**22]  her option, the matters stated by the said Dunnington on his cross-examination as aforesaid; and the court farther allowed the plaintiff to read in evidence the defendant's location of the land called "Nonesuch," on the plots in this cause, together with the defendant's explanations of said location; to all which ruling and decision of the court, the defendant excepted.

9TH EXCEPTION. At the trial of this cause, the plaintiff, in addition to the evidence contained in the preceding bills of exceptions, made a part hereof, offered to read in evidence to the jury the enrolment of a deed from Humphrey Aspinall to Elizabeth Swinburne, her heirs and assigns, dated 1st March 1684, for all that parcel of land called, lying, situate and being in Charles county, being part of a parcel of land called "Allanson's Folly," lying, &c.; also a parcel of land called "Wicksall," lying on the south side of St. Michael creek, formerly called Chingomuxon creek; beginning at a bounded oak, &c.; also a parcel of land called "Aspinall's Hope," being, &c.; and beginning at a bounded oak, a bounded tree of a parcel of land called "Wicksall," standing on the south side of Chingomuxon creek, on a point at [**23]  the mouth of the said creek, &c.

"Recorded in liber L, folio 132, a book found among the records of Charles county court; also the deed or assignment of William Moss to George Mason, recorded in liber Z, folio 291; and the enrolment of a deed from Humphrey Aspinall to Elizabeth Swinburne, found in said last mentioned liber Z, at page 196, (the said liber Z being one of the land records of Charles county,) and which last mentioned deed, from said Aspinall to Swinburne, immediately precedes the enrolment in said record of said deed from Moss to Mason. "Capt. Robert Collson, in the behalf of Col. Geo. Mason, desires the two deeds following to be recorded, the said Col. Mason living in the colony of Virginia."

The first was the deed aforesaid of 1st March 1684, to which no certificate of acknowledgment was appended, though certified to be a copy by the clerk of Charles county court, &c.

The deed from William Moss to George Mason, dated 18th June 1705, was in confirmation of a conveyance to Elizabeth Swinburne, from Humphrey Aspinall, to which no acknowledgment was appended, nor did it appear when recorded.

And the plaintiff further offered to accompany said deeds, by [**24]  reading in evidence a duly certified copy or extract of the rent rolls of Maryland, shewing Wicksall and Aspinall's Hope to have been in the possession of Col. Mason, of Virginia.

"Acres, 200.--Yearly rent, " 4 "--'Wicksall,' surv'd 3rd Feb'ry 1667, for Thos. Allanson, assigned John Hitchinson, on the S. side St. Michael's creek, formerly called Chingomuxon.--Poss'r Coll. Mason, in Virginia.--This land is said to be escheat."

In testimony that the foregoing is a true copy from old rent roll, No. 1, for Saint Mary's and Charles counties, folio 353, one of the records belonging to, and remaining in the Western Shore Land Office of Maryland, I have hereunto set my hand and affixed my official seal, this 25th day of April 1842.

(Seal.)

GEORGE G. BREWER,

Reg'r Land Off., W. S., Md.

"Acres, 150.--Yearly rent, " 6 "--'Aspinall's Hope,' surv'd 12th Feb'y 1667, for Henry Aspinall, at a b'd oak, a b'd tree of a parcel of land called 'Wicksall,' on the S. side Chingomuxon creek.--Poss'r Col. Mason, in Virginia.--This land is said to be escheat, and is escheated into Nonesuch."

In testimony that the foregoing is a true copy from old rent roll, No. 1, for St.  [**25]  Mary's and Charles counties, folio 356, one of the records belonging to, and remaining in the Western Shore Land Office of Maryland, I have hereunto set my hand and affixed my official seal, this 25th day of April 1842.

(Seal.)

GEORGE G. BREWER,

Reg'r Land Off., W. S., Md.

Also, the will of George Mason, of Virginia, dated 29th January 1715, which contained the following devise:

"Item.--I give and bequeath unto my son, Thomas Mason, all the land which I bought of William Moss, in Maryland, and all the land that I bought of Michael Vanlandegham, in Stafford county, to him and his heirs forever."

This will was admitted to probate in Virginia, 14th Nov. 1716, and certified from the records of the court there, to be a true copy; and also certified, by the presiding judge, under the act of congress, as in due form, and by the proper officer.

And farther offered in evidence, that the said Geo. Mason, the testator, left at his death, as issue of his third wife, two infant sons, named Thomas and Francis, and their sole sister of the whole blood named Sarah--that said Thomas and Francis died while infants without issue, leaving their said sister Sarah as their [**26]  sole heir at law, which said Sarah Mason intermarried with Thomas Brooke, and was with her said husband in the possession of the lands in dispute, whom she survived, and died previous to the year 1786, leaving surviving her, Walter Brooke, her eldest son, and Richard Brooke, her grandson, by Richard Brooke her second son, which said Richard, son of said Sarah, died previously to said Sarah; and the plaintiff further offered in evidence, that the lands in dispute were possessed by said Sarah during her life, and by said Walter Brooke, after her death, and that after his death, in 1798, the same were possessed by Walter D. Brooke, the eldest son of said Walter, until his death, in 1811, and from that time by the widow of said Walter D. Brooke, in behalf of his children, until 1824, when the deed to Lott Mason was executed; and farther gave evidence to shew, that some of the lessors of the plaintiff are the heirs at law of said Walter Brooke, and that others of them are the heirs at law of said Walter D. Brooke.

To the whole of which evidence, as above offered, the defendant objects; but the court overruled said objection, and permitted the deeds, aforesaid, and will to be read in [**27]  evidence, so far as they purport to convey or devise the tracts of land called "Wicksall" and "Aspinall's Hope," as located, by the patents thereof, on the plots in this cause; and the court, (STEPHEN, C. J., KEY and DORSEY, A. J.,) allowed all the other evidence so offered to be given in evidence, and upon the said evidence so admitted, the court instructed the jury as follows: that if the jury find, from the evidence aforesaid, that the said Geo Mason, the above testator, and those claiming under him, were in the exclusive, uninterrupted and adverse possession of the said tracts of land called "Wicksall" and "Aspinall's Hope," from the date of said deed from Moss to said Mason, claiming under said deed, down to the year 1824, then the jury may and ought to presume regular conveyances from the original patentees of said tracts of land to the said Geo. Mason and his heirs; to the admission of which said evidence, and the giving of which said instructions, the defendant excepted.

10TH BILL OF EXCEPTION. At the trial of this cause, the plaintiff, further to support the issue joined on his part, in addition to the evidence contained in the foregoing bills of exceptions, made a part [**28]  hereof, gave in evidence the patent of Nonesuch:

"Sarah Brooke, Walter and Richard Brooke's patent--450 acres--'Nonesuch.' Frederick, &c:--Know ye, that whereas Sarah Brooke, (on behalf of herself, and Walter and Richard Brooke, infants, under the age of twenty-one years,) of Charles county, by her humble petition to our agents for management of land affairs within this province, did set forth, that Thomas Brooke, the petitioner's husband, late of Charles deceased, did heretofore, by his petition, set forth, that there was escheat to us the following tracts or parcels of land, lying and being in the county aforesaid, and contiguous to each other viz: one hundred acres, part of a tract or parcel of land called 'Allanson's Folly,' originally, on the 23rd June, A. D. 1663, granted unto a certain Thomas Allanson, for four hundred acres; 'Wicksall,' originally, on the 25th November, A. D. 1667, granted unto a certain John Hitchinson for two hundred acres, and 'Aspinalls Hope,' originally, on the 16th March 1681, granted unto a certain Henry Aspinall, for one hundred and fifty acres, all which tracts were the right of a certain Henry Aspinall, who died thereof possessed, intestate and [**29]  without heirs, or making any legal disposition thereof, by which means the same became escheat to us; and the petitioner, Thomas Brooke, being the first discoverer, humbly prayed to be admitted to its purchase, (be it escheat by the means aforesaid, or by any other ways or means whatsoever,) and a special warrant to resurvey the same, with liberty of adding any contiguous vacancy, and reduce the whole into one entire tract; and that on return of a certificate of such resurvey, he paying the purchase money, and complying with all other requisites usual in such cases, might have our grant of confirmation issue unto him thereon, which was granted him, and accordingly a warrant on the 18th January 1743, unto him for that purpose did issue; in pursuance of which warrant, a resurvey was made, and the certificate thereof returned into our land office, by which it appears the aforesaid tracts or parcels of escheat land contain the quantity of three hundred and ninety-six acres, and that there was the quantity of fifty-four acres of vacant land added, for which said escheat and vacancy, the said Thomas Brooke, in his lifetime, paid and satisfied unto Benjamin Tasker, Esq, our present agent [**30]  and receiver general, for our use, as well the sum of, &c., being the purchase money agreed upon for the said escheat, as the sum of, &c., caution for the said vacancy, as also the sum of, &c., for some improvements mentioned to be made on the said vacancy; but before the said Thomas Brooke obtained our grant of confirmation for the same, he died, and by his last will and testament, devised the aforesaid escheat land, with the vacancy added, in manner and form following, that is to say:

"Item.--I give and bequeath unto my dear and loving wife, Sarah Brooke, all that tract or parcel of land whereon I now dwell, near Chickamuxon, in Charles county, distinguished by name, according to the patent of escheat, now in the office, together with all the negroes, stock and other personal estate I am now possessed of, to be enjoyed by her during the term of her widowhood, afterwards to be equally divided between my two sons, Walter and Richard Brooke; but if either of my before mentioned sons die without issue, then I give and bequeath his part of the aforesaid tract of land and personal estate to the survivor of my two youngest sons, Walter and Richard; but if both of my said sons should [**31]  die without issue, then I will and bequeath, that the aforesaid tract of land and personal estate should be equally divided between my loving wife, Sarah, and my eldest son, Thomas Brooke, to them and their heirs forever, my wife having her first choice.

The petitioner, therefore, humbly prayed, that forasmuch as all requisites were complied with, our grant of confirmation might issue on the certificate now in the land office, agreeable to the bequest aforesaid, which we have thought fit to condescend unto, according to Charles, Lord Baron of Baltimore, &c. We do, therefore, in consideration thereof, and other the premises, give, grant and confirm unto them, the said Sarah Brooke, Walter Brooke and Richard Brooke, all of them, the aforesaid tracts or parcels of escheat land, now resurveyed, with the vacancy added, reduced into one entire tract, and called "Nonesuch," and bounded as follows: Beginning, &c. To have and to hold the same unto the said Sarah Brooke, Walter Brooke and Richard Brooke, their heirs and assigns forever, to be holden of us and our heirs, in free and common soccage by fealty only. Sealed 27th August 1753," &c.

And the plaintiff gave proof to shew, that [**32]  it was truly located by the plaintiff on the plots in this cause, the said plaintiff, at the same time, declaring, that he relied upon said patent for the purpose of claiming title to any vacancy granted by said patent, and to that part of Allanson's Folly included within the lines of said patent of Nonesuch.

And the plaintiff farther gave evidence to shew, that Walter Brooke survived Sarah Brooke and Richard Brooke, the other grantees in said patent; and farther offered in evidence the possession of Sarah Brooke, of said land, included within the lines of said patent; and after her death, previous to the year 1786, the possession of the same land by Walter Brooke, (the survivor of said Sarah Brooke and Richard Brooke, the other grantees in said patent;) and that Richard Brooke, son of the devisee, Richard Brooke, mentioned in said will of Thomas Brooke, was in possession, after his full age, of the part of the tract called "Nonesuch," lying east of the black line, on the plots marked from red A to black K, and that for more than twenty years before the said suit was brought, the said Richard, and those claiming under him, have been in the exclusive possession of said part of [**33]  Nonesuch; and the exclusive possession of the residue of said tract of land called "Nonesuch," according to the location on patent thereof, was, by Walter Brooke, and after the death of the said Walter, in 1798, the continued possession of the said residue of Nonesuch, by eldest son, Walter D. Brooke, until his death, in 1811, and after his death, the possession thereof by the widow of Walter D. Brooke, in behalf of her children, by said Walter D. Brooke until 1824, when the deed to Lott Mason, aforesaid, was executed.

And the defendant, thereupon, offered in evidence the escheat warrant granted to Thomas Brooke; his will as recited in the patent aforesaid; and the petition of the said Sarah Brooke.

Whereupon the plaintiff prayed the court to instruct the jury, that according to the true construction of the patent of Nonesuch, aforesaid, the said Sarah, Richard and Walter Brooke, the grantees therein, were joint tenants, in fee simple, of the land granted by said patent, and that if the jury find, that said Walter survived said Sarah and Richard, the other patentees, then the fee simple in said lands, so granted, devolved upon said Walter; which instruction the court granted.  [**34]  The defendant excepted.

11TH BILL OF EXCEPTION. Upon the evidence contained in the foregoing bills of exceptions, the defendant prayed the court to instruct the jury, that if they find, from the evidence in the cause, that Thomas Brooke obtained a certificate of survey of the land in controversy, in the year 1743, as escheat land; and that he complied with all the requisites necessary to obtain a patent; and that he devised the land in controversy; and that the land in controversy, and that the persons claiming under him--Walter Brooke and Richard Brooke, their descendants, through which Richard Brooke, the defendant, claims title, had possessed the land in severalty, the jury might presume, from the great length of time since the date of the certificate of survey, that a grant had issued to Thomas Brooke, or to his devisees, in pursuance of his will; which instruction the court refused to give. The defendant excepted.

12TH BILL OF EXCEPTION. Upon all the evidence incorporated in the bills of exceptions, the defendant prayed the court to instruct the jury, that the plaintiffs cannot claim title to the lands in controversy, and maintain an action of ejectment for the same,  [**35]  in virtue of the grant from the lord proprietary to Sarah Brooke, Walter Brooke, and Richard Brooke, because said grant is repugnant to, and in violation of the express terms of the will of Thomas Brooke, and is a fraud upon his devisees; provided the jury find, from the evidence in the cause, that Thomas Brooke obtained the escheat warrant for the land in controversy, and paid the composition money previous to his death; which instruction the court refused to give. The defendant excepted, and prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where an objection is made to the admissibility of evidence in mass, without specification, if any part of it is admissible for the purpose for which it was offered, it is not error in the court to overrule the objection.

Where an entire prayer is good in part, and bad in part, the court is not bound to perform the duty of counsel, analyze the subject matter of the prayer, admit a part, and reject the residue; but may content itself, in granting, or rejecting the same, according to its merits, as presented in its entirety.

A tract of land described in the patent, as lying on the south side of a creek called C creek, beginning at a marked white oak, standing on the west side of a little creek called St. K's creek, and running E. N. E. up C for breadth, the length of, &c., to a marked oak, would not by force of the terms, "running E. N. E. up the creek," bind on the creek, for they merely indicate the general direction of the line referred to, and the line must be run from boundary to boundary.

But where the patent further described the land, which was a tract of four sides, by stating how it was bounded on the E. S. and W., and that it was bounded on the N. (where its first line runs,) with C creek, this controls the location of the first line, and requires it also to bind on the creek.

It is of no moment in what part of a patent a binding expression is found, wherever found it must be applied according to its true meaning.

In giving construction to a patent, the court is bound, as far as possible, to reconcile all its parts, and gratify the full meaning and import of every word.

The course of a line is in no case held to interpose any obstacle to the gratification of a conflicting binding call.

Deeds are to be most strongly construed against the grantor, for the benefit of the grantee.

When a tract of land called to begin at a marked tree, thence running up and with a creek two hundred perches, to another marked tree, it should be located to run from the beginning tree, so as to bind on the creek, to the second boundary; but if that boundary cannot be found on the creek, a line may be supplied, from the end of the two hundred perches on and with the creek, to the second boundary. It would be against our practice to supply a line from such second boundary to the nearest point on the creek,

The patent for W described it as lying on the S. side of a creek, beginning at a marked oak by the creek side, and running S. W. down the creek for breadth, the length of one hundred perches to a marked oak, standing upon a point at the mouth of the said creek; bounding on the S. by a line, &c. drawn S. E. into the woods three hundred and twenty perches, to a bounded oak; on the E. by a line, &c. drawn N. E. from the end of the former line to a bounded hickory, that intersects a parallel line drawn N. W., to the first marked oak on the N., with the said parallel on the W. with the said creek. HELD:

The first line of W binds on the creek.

The second boundary of W being lost, and the spot where it stood being incapable of identification, if the creek had not been called for, the first line must be run from the beginning by its course and distance, the best means left of ascertaining its true location and terminus.

The description, "standing upon a point at the mouth of a creek," is too vague and indefinite to control the positive expressions of the patent as to course and distance; and is not of itself sufficient evidence of its locality.

Certainty is the controlling object in all locations.

A binding call for a creek, and also for a marked tree having relation to a line of a tract of land, changes the general rule, that the line calling for a lost boundary must be run by course and distance.

Where there are two imperative calls, both, if practicable, must be gratified.

Where there were two calls, one for a line to bind on a creek, and the other to terminate at a marked tree, if the latter cannot be found, nor its spot identified, the distance must be expended on the creek, and no interpolated line can be supplied.

Proof that a point shown on the plots was the outermost and most prominent point at the mouth of the creek, and the first point reached in running the first line of W, with a general description of such point, is not evidence tending to prove that the marked oak once stood there.

If for any reason, no matter whether it be for the reason assigned or not, the testimony objected to, be inadmissible for the purpose for which it is offered, it should be rejected by the court.

The variation of the compass has no application to a line which must be run according to the calls in the patent, which are to be gratified in the same manner, as if no course for the line were expressed in the patent.

Where defence is taken on warrant of resurvey, an ancient plot, to be given in evidence, must be correctly located under the warrant, upon the plots prepared for the trial of the cause. Where it is so unintelligibly represented upon such plots and the explanations, as that it was almost impossible for either the court or jury to say whether the locations on the plot offered in evidence, were truly located on the plots in the cause or not, such ancient plot cannot be used as proof.

In ejectment, the plaintiff declared for a tract of land called "Nonesuch," and professed to locate it according to its patent. There was no location of it as a parcel of land, made up of other tracts, which had acquired a name by reputation; under such circumstances the plaintiff would not be permitted to prove, that "Nonesuch" was known by its reputed name as comprising such other parcels, though these were located, for the defendant could not have had any opportunity to counter-locate it by its acquired or reputed character.

Whether lands may be declared for, or recovered by their reputed name, qr.

To render an exemplified copy of a deed admissible in evidence, to prove title to the land which the deed professed to convey, it must appear to have been executed with all the essential forms required to warrant its enrolment under the laws of this State.

In 1684, the law required that such a deed should be acknowledged before some of the judicial tribunals or public officers, enumerated in the acts of Assembly, and recorded within one year.

The recording of a deed not authorized by act of Assembly, gives it no additional validity, and the record thus made, or the exemplified copy therefrom, is no more evidence of the existence of the deed, than would be a copy of such deed certified by any private individual.

None of the various acts prescribing the mode in which conveyances of land are to be made, direct the certificate of the acknowledgment of a deed to be recorded, except that of the acknowledgment of a feme covert; yet it has been a uniform custom of all recording officers, to record such acknowledgments, and their authentications of such recording, have, in all the tribunals of the State, been received as sufficient evidence of such acknowledgements.

The acts of 1692, ch. 30; 1699, ch. 42; and 1715, ch. 39; only cured such defective conveyances as had been recorded within the year.

Where a deed professes to convey part of a parcel of land, called A, and in giving its description by course and distance, it has but two straight lines, which can embrace no deed nor any part of a tract, it is not evidence of title or location.

The time of recording a deed, is sometimes a matter to be determined by the court, sometimes a question to be submitted to the finding of a jury.

If it plainly appears from the endorsement, officially made upon a deed or its exemplification, that it has not been recorded within the time prescribed by law; and there is no admissible evidence in contravention of such endorsement, then the admissibility of the deed or its exemplification, in evidence, is determined by the court; but if there be such admissible contravening testimony legally sufficient, then the time of recording, with a hypothetical instruction from the court, will be submitted to the jury.

Where it did not appear by any endorsements on the exemplification of a deed, which had been recorded, whether it had been so recorded in or out of time, it is for the jury to determine whether it was recorded in time, and the court, without any proof upon the point, cannot conclude it was in time.

An exemplified copy of a will, made in another State, admitted to probate there, and certified from the records of such State, devising lands in Maryland, is not evidence of title in the devisee here.

Of wills of land in Maryland, our own courts only, are authorized to take probate.

The court will not direct the jury to presume conveyances to a party or his heirs, where the proof of possession, on which the presumption is founded, is not clear and sufficient, both as to the character of the possession, and its duration.

In construing a grant, it is the duty of the court, first, to ascertain what the parties intended should be effected by it.

That intention being collected from an inspection of the grant itself, it is the duty of the court to give it such an interpretation as will effectuate it, provided the terms and expressions used in the grant, will admit of such a construction.

Where a patent recited that S, on behalf of herself and W and R, infants, by her petition set forth, that T, her deceased husband, did therefore set forth, by his petition, that there was escheat, &c., and being the first discoverer, prayed to be admitted to its purchase, &c., and paid for the same; but, before the said T obtained a grant, he died, having devised the aforesaid escheat land to his wife, S, during widowhood, and afterwards, to be equally divided between W and R, and she prayed that a grant might issue, agreeably to the bequest of the said T, which was granted to S, W and R, to have and to hold unto the said S, W and R, their heirs and assigns forever. HELD: that the habendum in the patent, should not control its premises, which was to vest in the grantees the same estate which they respectively would have taken under the will of T.

The technical meaning of the word premises, in a deed of conveyance, is everything which precedes the habendum, and it is in the premises of a deed that the thing is really granted.

The limitation contained in the habendum of a deed, where it is in conflict with the estate given in the premises, must be rejected, and that in the premises prevail.

A grantor shall not be allowed to contradict or retract, by any subsequent part of a deed, the gift made in the premises.

The refusal of a prayer, which ought not to have been granted, though made upon erroneous constructions of the evidence, is not error in the county court.  

COUNSEL:
By ALEXANDER and MCMAHON for the appellants, and

By R. J. BRENT for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*220]  DORSEY, J., delivered the opinion of this court.
The court below was right in rejecting the appellant's prayer in the first bill of exceptions. Instead of its specifying the parts of the testimony, to which the objection was intended to apply, the court was called upon to reject it in mass. If any part of it, therefore, was admissible, for the purpose for which it was offered, the court, in overruling the prayer, committed no error. Where an [**36]  entire prayer, made to the court, is good in part, and bad in part, that is, which the court ought to grant in part, and in like manner refuse, had the subject matter been properly divided, and a distinct prayer made on each subdivision, the court is not bound to assume, what appropriately belongs to counsel, the duty of analyzing the subject matter of the prayer, and admitting that which ought to be granted, and rejecting that which ought not; but the court may content itself in granting or rejecting the prayer, according to its merits, as presented in its entirety. There is no error, therefore, in the court's opinion complained of in the first bill of exceptions; some of the evidence, objected to, being undeniably admissible. See Elliot et al. vs. Peirsol et al., 1 Peters 328, and Moore vs. The Bank of Metropolis, 13 Peters 302.

 [*221]  The appellees prayer, in the second bill of exceptions, which was granted by the court, was "to instruct the jury, that upon the true construction of the patent of Allansons Folly, its first line must run from the true beginning thereof, as found by the jury, so as to bind on Chickamuxon creek, to the [**37]  place where the jury shall find the second boundary of Allansons Folly stood; and if the jury shall find the said first and second boundaries of Allansons Folly, or either of them, do not stand on Chickamuxon creek, then it is lawful to supply a course from the point of said creek nearest to said boundaries, or either of them, respectively." If there are binding expressions in the patent of Allansons Folly, which bind its first line on Chickamuxon creek, the granting of that part of the prayer which relates to the first boundary, would follow as a matter of course, according to the settled principles of locations, in actions of ejectment in Maryland, as established by the decisions of its highest judicial tribunals. But not so as to the second boundary. Instead of the line, supplied to reach that boundary, being run from the point on the creek nearest to it, the line must be run from the point on the creek where the two hundred perches, (the distance expressed in the patent,) expended on the meanders of the creek, terminate. The line from that point to the second boundary, is the line to be supplied to connect that boundary with the binding call of the first [**38]  line of Allansons Folly, with the creek. In determining on the correctness of the remaining portion of the court's decision in this bill of exceptions, all we have to do is to ascertain, from an inspection of the patent of Allansons Folly, whether, from the true construction of the calls and expressions in the grant, its first line does imperatively bind on the creek. Allansons Folly is described in the patent as lying "on the south side of a creek called Chincomuxon creek, beginning at a marked white oak, standing on the west side of a little creek called St. Katharine's creek, and running east north east up Chincomuxon, for breadth the length of two hundred perches to a marked oak." Had no other more binding expression, in relation to this line, been used in the patent, the line must be run in a straight direction from boundary to boundary: the words, "running up a creek," 

 [*222]  not being a binding call, but merely indicating the general direction of the line referred to. This, however, is not the only binding expression in the patent, in relation to this line, as one of the bounds of the entire tract, which has four sides to it. The patent, after stating [**39]  how the tract of land is "bounded" on the east, how it is "bounded" on the south, and how it is "bounded" on the west, states, that it is bounded on the north, (where its first line runs,) with Chincomuxon. In arriving at the true construction of this patent, it is a matter of no moment that this binding expression is used after all the other lines and bounds of the tract of land had been given. Appearing where it does, it as much controls the location of the first line as if it had immediately preceded it in the patent. By adopting this construction, we reconcile all its parts, and gratify the full import and meaning of every word in the patent, except the course of the line, which in all cases is held to interpose no obstacle to the gratification of a conflicting, binding call; but disregard this binding call, and there are virtually expunged from the patent, the words, "on the north, with Chincomuxon," words so emphatically inserted to declare, and establish the northern bounds of the land granted. Thus reversing one of the most just and sound principles of the law, that deeds are to be construed most strongly against the grantor, for the benefit of the grantee. And this [**40]  reversal, will be made after this rule of construction has been adopted and proclaimed, in, perhaps every land trial in the State, where its influence could have been felt. Nothing but the error of the county court, in fixing the place of the beginning of the supplied line to reach the second boundary, prevents our giving to its granting the prayer of the appellees in this bill of exceptions, our entire concurrence.
Were the county court right in overruling, as it did, the appellants objection to the location of the first line of Wicksall, as terminating at the extremity of the point at the mouth of the creek, is the only question for our consideration under the third bill of exceptions?
The boundary being lost, and no evidence being adduced of the place where it stood, the appellees, disregarding the 

 [*223]  course and distance, located the line as above mentioned, upon the ground, as we presume, that although no proof was offered as to the actual locality of the tree itself, yet that the patent, by binding the line on the creek, so identified the spot where it stood, that the course and distance are to be disregarded; and that by proving to what point the call referred,  [**41]  the termination of the line was established as at the extremity of the point. The first line of Wicksall calls to run southwest, down the creek, for breadth the length of one hundred perches, to a marked oak standing upon a point at the mouth of the said creek, and this line is made to bind on the creek, by language almost identical with that, which we have said binds the first line of Allansons Folly on the creek. But, for this binding call, under the proofs in this cause, we think that the location of the first line of Wicksall, in disregard of its course and distance, would be manifestly erroneous. Where a bounded tree, called for as standing at the end of a line, cannot be found, nor the particular spot where it stood, be identified, to run the line by its course and distance, is the best means left of ascertaining its true location and terminus. The fact that the boundary called for is represented by the patent as standing upon a point at the mouth of a creek, is, in the event of its loss, too vague and indefinite to control the positive expressions of the grant, as to course and distance. By pursuing the course and distance, we have the fixed and specified means of [**42]  obtaining the identity of the spot where the line is to terminate. To reject the course and distance, is to determine, that the particular spot, on which the boundary stood, is ascertained with reasonable certainty. The statement in the patent, that it stood on a point at the mouth of a creek, is not, of itself, sufficient evidence of its identical locality. Such a point may be ten feet long, or it may be a mile long, and it may be subject to the same uncertainty as to its breadth. There is no semblance of analogy between such points and mathematical points. The expression, standing on a point at the mouth of a creek, identifies no particular spot as that whereon the tree called for stood. The expression in the grant is equally gratified, whether you locate the tree on the north end, or the south end, the east 

 [*224]  side, or the west side of the point. The call for a bounded tree, standing on a point at the mouth of a creek, where the tree, and spot where it stood, are lost, and are both incapable of ascertainment with a reasonable degree of certainty, ascertains with less certainty than the course and distance, the termination of the line, and therefore, cannot control them;  [**43]  certainty being the controlling object in all locations. But the peremptory, binding call for the creek, in the patent of Wicksall, changes, in this case, the general rule, that a line calling for a lost boundary must be run by its course and distance. If the tree had not been lost, there would have been two imperative calls, both of which, if practicable, must have been gratified. The line must have terminated at the tree, and it must have been made to bind on the creek, until its distance (that is number of perches,) was exhausted at some spot on the margin of that projection of land at the mouth of the creek, called the point. And if the tree called for had stood at some distance from that spot, a line, not called for in the patent, must be run from it to such boundary. See Dorsey's Ejectment, 69 and 70, and the diagram in the same book, 50. But if, as here, the bounded tree be lost, and the spot where it stood incapable of ascertainment with a reasonable degree of certainty, there can be no such interpolated line, and the line in question must terminate at the spot above mentioned. There is nothing in the calls in the patent of Wicksall, which terminates its first line [**44]  at the extreme verge of Moss' Point. In perfect consistence with those calls, it might have terminated at any other place upon the margin of that point. We, therefore, think the court below erred in assuming, as a matter of law, and so instructing the jury, that the termination of the first line of Wicksall was at the north western extremity of Moss' Point.
In overruling the appellant's objection to the testimony of the appellees in the fourth bill of exceptions, we think the county court erred, not only for the reasons we have stated, as to the second bill of exceptions, but upon another ground:--the testimony offered, had no tendency to prove where the marked oak stood, and, therefore, should have been rejected on account of its immateriality.

 [*225]  There is error in the court's opinion, overruling the appellant's objection to the testimony offered in the fifth bill of exceptions. If for any reason, no matter whether it be for the reason assigned or not, the testimony objected to, be inadmissible for the purpose for which it is offered, it should be rejected by the court. The appellees having proved the beginning of Aspinall's Hope to be "at the point distinguished [**45]  on the plots, by the words, Moss' Point," claimed to run the first line of Aspinall's Hope according to its courses and distances, as in the patent thereof, "with an allowance of thirty degrees of variation to the westward of said patent course, drawn with the usual allowance for variation, from the date of said patent," so as to bind on the Potomac river; and for the purpose of sustaining said allowance for variation in the first line of Aspinall's Hope, offered to prove, by James Brawner, a competent surveyor, who made the plats and executed the surveys in this case, that he could ascertain to mathematical certainty, from the plots in this cause, and the locations made by him, according to his several surveys, the variation required in the patent course of the first line of Wicksall, (from the date of said patent of Wicksall,) so as to bind said first line of Wicksall on Chickamuxon creek, and that the variation required for that purpose, in said first line of Wicksall, over and above the variation usually allowed in similar cases, is thirty-eight degrees to the westward. To this evidence the defendants objected; but the court overruled the [**46]  objection, and permitted the evidence to go to the jury. In so doing, we think the county court was clearly in error. The testimony offered, had no connection with, or bearing upon the question, as to what correction ought to be allowed for the variation of the magnetic needle, to ascertain the true original location of lands held by courses and distances. To open the door to such proof, under the circumstances in which it was offered, would unsettle the rights of all land-holders, whose estates are held by courses and distances, and introduce a multiplicity of litigation and confusion in land titles, of which the foresight of man can form no estimate. It would unsettle the whole theory of allowance for variation in the surveying of lands, as practised under and 

 [*226]  established in Maryland, and substitute in its place, a standard ever changing and utterly uncertain, and which had not the slightest relevancy to the allowance which ought to be made, according to the established principles and experience of ages, upon the subject. The first line of Wicksall, by the terms of its patent, binds on Chickamuxon creek, and in running it, therefore, its course is rejected,  [**47]  and the line run in conformity to the imperative call, in the same manner as if its course had not been expressed in the patent. In locating the first line of Wicksall, you do not run it the course expressed in the patent, corrected for variation by such a number of degrees, as will make it conform to the binding call imposed on it; but you reject altogether the course in the patent, and run the line the course which will gratify the call, in the same manner as if no course for the line were expressed in the patent. You gratify the call, and shape your course by the point of the needle, and the question of variation has nothing to do with such a proceeding. If a due south line, with a binding expression in the patent, which takes it due north, is to be located, the surveyor must run the line due north by the point of the needle, and in such a case, he never dreams that he is doing what, if the testimony objected to be admissible, we assume that he has done, viz: corrected the course in the patent one hundred and eighty degrees, as an allowance for variation. In changing the course to gratify a call, the line is run accordingly, either to the east or to the west, without regard [**48]  to the fact, whether, from the date of the original survey to the time of the location of the line, the variation of the needle has been to the east or to the west, and, consequently, no such fact could be deduced from it, as that for which such testimony has been offered in the case before us.
Of the opinion of the county court, in the sixth bill of exceptions, we think the appellant has equal cause to complain. The court ought to have rejected the testimony, for the purpose for which it was offered, as well for the reasons assigned in the preceding bill of exceptions, as on account of its immateriality and irrelevancy to the subject matter, which was designed to be deduced from it. It had not the slightest tendency to prove, 

 [*227]  that an allowance of thirty degrees, over and above the usual allowances, ought to be made, for the purpose of binding on the Potomac river, the first line of Aspinall's Hope. What was the testimony offered in this bill of exceptions, to establish this unnatural and irrational allowance for variation? First, the patent of Aspinall's Hope, which gave not the slightest countenance to such a deduction; and secondly, the oral proofs that [**49]  the tenants of Walter Brooke, and those claiming under him, had possessed the land lying between the first and second line of Aspinall's Hope and the Potomac river; but that the witness never knew or heard, that the land so possessed was called Aspinall's Hope; on the contrary, that he always heard and understood, that it was called and known as "Nonesuch," a tract of land located in this cause, as containing the land in question. How this proof had any tendency to establish this extraordinary allowance for variation, we are unable to discover.
The only ground for an objection to the testimony offered in the seventh bill of exceptions, which we can discover, is, that the locations made of the plot offered in evidence, have been so unintelligibly represented on the plots and explanations in this cause, that it was almost impossible for either the court or jury to say, whether the locations on the plot offered in evidence, were truly located on the plots filed in this cause. And upon no other principle, than its apparently correct location, could it be given in evidence, to support any of the locations made on the plots before us. It is true, that the surveyor has [**50]  certified, in his explanations returned with the plots, that "the plaintiff locates a plot made out by Theophilus Hanson, in an ejectment suit, wherein the lessee of Walter Brooke was plaintiff, and James Davis was defendant, which said plot is endorsed, 'filed 23rd of October 1789.'" "All the locations made on said plots, are transferred or copied on the plots returned in this cause, and are to be taken and considered, to all intents and purposes, the same as original locations in this cause, as well as evidence of the locations made by Walter Brooke, in said ejectment suit; and will also be relied on by the plaintiff, as explanatory of the grounds of said ejectment, the finding of the jury, and the possession delivered to said Walter Brooke, 

 [*228]  by judgment of the General Court of Maryland." But how the lines thus located, are distinguishable from the other locations on the plots; where they commence or terminate; with what calls, or by what courses and distances they are run, we are left to speculate on the wide ocean of conjecture and uncertainty, without chart or compass to guide us, on our hopeless voyage of discovery. If there be any case in which,  [**51]  on account of an almost infinitude of locations, and a failure of the surveyor to file with the plots returned, the explanations requisite to their comprehension by the court and jury, this court would be justified in reversing the judgment and remanding the case for a new trial,--the present is a fit case for the exercise of such a power.
Had the plots and explanations returned by the surveyor in this cause, identified, as they ought to have done, the lines to sustain the location, of which the plot offered in evidence was adduced, and it had appeared that they had been truly located, then, would the plot offered in evidence have been clearly admissible. But, in consequence of the defects of the plots and explanations of the surveyor, it not appearing affirmatively to the court, that the lines in question had been truly located, conformably to their location on the plot from which they were taken, on the objection raised to the plot offered in evidence, we think the court below ought to have rejected it.
In admitting, for the purpose for which it was offered, the testimony of the appellees, objected to by the appellant in her eighth bill of exception, we also impute error to the [**52]  court below. The plaintiffs below, had not located Wicksall, Aspinall's Hope, and part of Allanson's Folly, as a body of land, which had acquired the name of Nonesuch, by reputation. On the contrary, their location of Nonesuch, professed to have been made according to its patent; and the location of Nonesuch, as made by the appellant, and offered in evidence by the appellees, is also stated to have been made agreeably to the patent. There being, then, no location of Nonesuch, as a parcel of land which, by reputation, had acquired that name, there could have been no counter-location thereof, and consequently, the evidence offered to prove it, was out of the issues in the cause.

 [*229]  In what we have said on this bill of exceptions, we are not to be understood as intimating any opinion, that, under the circumstances of this case, (if, indeed, under any circumstances it could be done,) the appellees could recover the lands in controversy, under the name of Nonesuch, as a name acquired by reputation.
Had the county court, in the ninth bill of exceptions, as it did in the first, have contended itself with simply overruling the general objection raised [**53]  to all the testimony offered, and leaving it, as being no otherwise objected to, to go to the jury, for the reasons assigned by us in the examination of the first bill of exceptions, the course pursued by the county court would have been sustained by this court. But such was not the course pursued by the court below. It did not content itself with overruling the objection made, and permitting the testimony to pass to the jury as otherwise unobjected to, but it proceeded to analyze the proof, and to pronounce its opinion to the jury upon the admissibility of several portions of it, and asserted all the evidence offered, to be admissible, and gave thereon an instruction as to its legal effect and operation. In doing so, the court did not, as in the first bill of exceptions, assume a mere passive attitude by permitting testimony to go to the jury, to which no valid objection had been urged; but its action was positive; it decided, that not only were certain enumerated portions of the testimony competent to go to the jury, but that all of it was admissible before them. If then, any portion of the testimony offered in this bill of exceptions (material to the issues on the trial before the [**54]  jury,) was incompetent, the judgment of the county court must be reversed. The duty, therefore, to some extent, devolves upon us, of examining the several parts of the evidence submitted to the jury, to see how far each and every portion of it is admissible. The first part of the testimony, the admissibility of which is sanctioned by the county court, is the copy of the deed from Humphrey S. Aspinall to Elizabeth Swinburne, and the copy of the deed from William Moss to George Mason, and the copy of George Mason's will. To render an exemplified copy of a deed, admissible in evidence, to prove title to the land which the deed 

 [*230]  professes to convey, it must appear to have been executed with all the essential forms required to warrant its enrolment under the laws of this State. In 1684, (the date of the alleged deed from Humphrey S. Aspinall to Elizabeth Swinburne,) the act of Assembly required that such a deed should be acknowledged before some of the judicial tribunals or public officers, enumerated, and recorded within one year. From the copy before us, it does not appear that this deed had been acknowledged pursuant to the provisions of the act [**55]  of 1674, ch. 2. The recording of it, therefore, not being authorized by the act of Assembly, gave to it no additional validity, and the record thus made, or the exemplified copy therefrom, is no more evidence of the existence of the deed, than would be a copy of such deed certified by any private individual. This objection to the admissibility of the copy, has been attempted to be obviated by the assertion, that the act of 1674, ch. 2, did not require the recording of the certificate of the acknowledgment of a deed for lands. It is a sufficient answer to this assertion to state, that it is sustained by no judicial sanction in this State. That none of the various acts of Assembly prescribing the mode in which conveyances of land are to be made, direct the certificate of the acknowledgment of a deed to be recorded, except the certificate of the acknowledgment of a feme covert. Yet, from the passage of the act of 1674 to the present day, it has been the uniform custom of all recording officers to record such acknowledgments; and their authentications of such recording, have, in all the judicial tribunals of the State, been received as sufficient evidence of those acknowledgments.  [**56]  Such efficacy could not have been given by courts of justice to such authentications, unless they regarded such recording, as a compliance with the requisitions of our system of registration. The ruinous consequences to land holders resulting from this novel suggestion, are too obvious and alarming to permit its receiving, for a moment, the sanction of this court.
The deed from Aspinall to Swinburne, derives no validity from the confirmatory or curing provisions in the acts of 1692, ch. 30; 1699, ch. 42; and 1715, ch. 39; or either of them: those provisions only curing such defective conveyances, as 

 [*231]  had been recorded within the year. That deed bears date on the first day of March 1684, and by an indorsement upon it, properly recorded with it, it is apparent that it could not have been recorded prior to the 10th day of December 1705, and, therefore, can derive no aid from the confirmatory enactments of 1692, 1699, and 1715. It would have been otherwise, had the deed appeared to have been recorded within the year. That is, it would have been admissible to sustain any locations made according to its courses, distances, and calls, upon the plots in the cause. To that [**57]  extent it was admissible to shew title, or sustain the correct locations of Wicksall and Aspinall's Hope, but not to shew title to, or sustain the appellees locations of part of Allanson's Folly, because the deed professes to convey "part of a parcel of land called Allanson's Folly," and in giving its description by courses and distances, it has but two straight lines, which can embrace no deed, or any part of the tract of land called "Allanson's Folly."
But it is alleged, that the time of the recording of a deed is a matter of fact to be determined by the jury, and not a matter of law, resting in the decision of the court. To this, as an universal proposition, we cannot give our assent. The time of the recording of a deed is, sometimes, a matter to be determined by the court, and sometimes a question to be submitted to the finding of a jury. If it plainly appears, from indorsements officially made upon a deed, or its exemplification, that it has not been recorded within the time prescribed by law; and there is no admissible evidence in contravention of such indorsements, then the admissibility of the deed, or its exemplification in evidence, is determined by the [**58]  court without any reference on the subject, to the jury. But if there be such admissible contravening testimony, as to the time of the recording of the deed, legally sufficient to be left to the jury to warrant them in finding that the deed was recorded in due time, then is the question, as to the time of recording of the deed, to be submitted with an hypothetical instruction from the court to the jury. As to the exemplification before us, there is no such contravening testimony, and the objection taken to its admissibility ought to have been sustained by the court.

 [*232]  In regard to the exemplified copy of the deed from William Moss to George Mason, the facts upon which its admissibility depends, are somewhat variant from those connected with the deed from Humphrey S. Aspinall to Elizabeth Swinburne. As to the former deed, it does not appear by any endorsements upon it, whether it was recorded in time or out of time. If in time, though unacknowledged and not intended, by the curing influence of the act of 1715, ch. 47, it would have been admissible to prove title to Wicksall and Aspinall's Hope, or to sustain locations made in conformity to it. In 1705,  [**59]  the date of the conveyance from Moss to Mason, a deed to be effectual for the conveyance of land, must have been recorded in one year. He who asserts title under such a conveyance, must prove its enrolment within the period prescribed by law. The onus probandi, in that respect, rests on him. The deed, it is true, is proven to have been recorded; but as to the time of its enrolment, there is not a shadow of proof. Why such proof, so accessible to both parties, was not produced, it is difficult to imagine. Had it been adduced, its sufficiency, in point of fact, to establish the enrolment of the deed within the requisite period, was a matter for the determination of the jury, not of the court. The county court, therefore, we think was in error, in assuming the jurisdiction which appropriately belongs to the jury. And the error is apparent, when we advert to the circumstance, that the court drew its conclusion, that the deed was enrolled in time, without any proof sustaining such an inference.
As respects the copy of George Mason's will, offered in evidence by the appellees, we cannot entertain a momentary doubt of its inadmissibility. Of wills of land in Maryland [**60]  , our own courts, only, are authorized to take probate. If a title to lands in this State, is derived under Mason's will, its existence and validity must be proved by other testimony, than a mere exemplified copy of its probate, in a court in the State of Virginia.
From the instruction given by the court to the jury, in this bill of exceptions, we also dissent. This court having determined, that the copies of the deeds from Aspinall and Moss, and of the will of Mason, were inadmissible, as evidence under 

 [*233]  the circumstances in which they were offered; and the appellees having shewn by their own testimony, that Sarah Mason was not an heir at law of George Mason, and as such, entitled to the lands in controversy, her possession not being lawfully derived from him, cannot be so connected with his, that from the long continuance of the possession by the two, (till 1824,) regular conveyances, from the patentees of Wicksall and Aspinall's Hope, might be presumed to the said George Mason. The possession of Sarah Mason being out of the question, the only possession on which this presumption of "regular conveyances from the original patentees"  [**61]  of Wicksall and Aspinall's Hope, is founded, is that of George Mason. And what is the proof of possession of these two tracts of land, and of its continuance by George Mason? The only evidence of his possession, is an extract of an entry from old rent roll, No. 1, for St. Mary's and Charles counties, which states Col. Mason, of Virginia, to be the possessor. But when that entry was made, or for how many years it was continued; whether the possession lasted for one year or twenty years, the admissible evidence in the cause, furnishes us with no means of ascertaining. For aught that we can know, Col. Mason may have been an intruder, and possessor for one year only. To make the presumption required in support of such possession, as that proved to have been in Col. Mason, cannot meet the approval of this court. Nor can we readily perceive how the county court, after sustaining the validity of the deeds from Humphrey S. Aspinall to Elizabeth Swinburne, and from William Moss to George Mason, could, in opposition to those deeds, and to their utter exclusion, direct the jury to presume regular conveyances from the original patentees of [**62]  Wicksall and Aspinall's Hope, to George Mason. If the deeds of Humphrey S. Aspinall and William Moss were sanctioned by the court, they repelled the idea of conveyances from the original patentees to George Mason; and the only presumption of grants that could, consistently with its own decision, be raised by the county court, was from the patentees of Wicksall and Aspinall's Hope to Humphrey S. Aspinall.

 [*234]  Having, already, stated sufficient grounds for the reversal of the judgment of the county court upon the ninth bill of exceptions, we forbear to scrutinize other portions of the testimony therein detailed, to ascertain if they be not obnoxious to the objection taken to their admissibility.
The appellees, in the tenth bill of exceptions, "prayed the court to instruct the jury, that, according to the true construction of the patent of Nonesuch, aforesaid, the said Sarah, Richard and Walter Brooke, the grantees therein, were joint-tenants, in fee-simple, of the land granted by the patent; and that if the jury find, that said Walter survived said Sarah and Richard, the other patentees, then the fee-simple in said [**63]  lands so granted, devolved upon the said Walter." This instruction the court granted, and the correctness of their so doing, is the question we must decide, under the tenth bill of exceptions. In construing a grant, it is the duty of the court, first, to ascertain what the parties intended should be effected by it. And that intention being collected from an inspection of the grant itself, it is the duty of the court to give to it such an interpretation as will effectuate that intention, provided the terms and expressions used in the grant, will admit of such a construction. Looking to the premises only in this grant, we think that its design, and the intention of the parties to it, are too clearly and fully expressed, to admit of any reasonable doubt as to what they were. It states, in substance, that the grantees had applied for the grant to be issued to them, agreeably to the devise or "bequest" in the last will and testament of Thomas Brooke, and that the grantor had consented to make the grant accordingly. And it proceeds to state, that "therefore, in consideration thereof;" that is, in pursuance of such intent and agreement, the grantor did "give, grant and confirm unto [**64]  the grantees, the aforesaid tracts or parcels of escheat land, now re-surveyed, with the vacancy added, reduced into one entire tract, and called Nonesuch, and bounded as follows," &c. If this grant had issued without the "habendum," could a serious doubt have been urged, but that it would have fully effectuated the design and intention of both the grantor and grantees; and that the tract of land called "Nonesuch," would 

 [*235]  have vested in the grantees, agreeably to the recited clause in the last will and testament of Thomas Brooke? We think not. It matters not that it is given to the grantees, without any express words of inheritance. The terms used in the granting clause itself, sufficiently declare the intention of the grantor, to transfer to the grantees the same interests and estates in the lands granted, with which it was designed to invest them, by the last will and testament of Thomas Brooke; and whether such declared intent preceded or succeeded the words, give, grant, &c., our construction of this clause of the grant, would be in nowise changed thereby.
"The technical meaning of the word, premises, in a deed of conveyance, is every thing which [**65]  precedes the habendum;" "and it is in the premises of a deed, that the thing is really granted." The premises of the grant before us, passing, as we conceive, the lands granted in conformity to the last will and testament of Thomas Brooke, and the declared intent of both grantor and grantees, the next enquiry to be answered is, has the habendum such controlling influence over the grant as to defeat the estates created by the premises, and substitute, in their places, entirely different estates, contrary to the manifest intent of the parties to the grant. According to our construction of the grant, made by the premises, it is in direct conflict with that contained in the habendum. Both cannot prevail. One must overrule the other. Which takes precedence, is the question? In our opinion, the limitation contained in the habendum must be rejected, and the estates given in the premises must prevail. In 2 Lomax's Dig., 188, it is stated, that "where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand." And in page 215, of the same book, it is said, that "where the habendum is repugnant and contrary to [**66]  the premises, it is void, and the grantee shall take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; therefore he shall not be allowed to contradict or retract, by any subsequent part of the deed, the gift made in the premises."

 [*236]  It follows from the views we have expressed, that we think the county court erred in granting the appellees prayer in the tenth bill of exceptions.
It is, we think, apparent, that the prayer of the defendant below, in the eleventh bill of exceptions, has not been correctly transcribed in the record transmitted to this court, it being, in a great measure, unintelligible. We, however, have no alternative but to assume, that the county court acted upon it in the form in which it appears before us; and, therefore, on account of its unintelligibility, properly rejected it.
We, also, concur with the county court in its refusal to grant the defendants prayer in the twelfth bill of exceptions, but for very different reasons from those which influenced the action of that tribunal. Under the act of 1825, ch. 117, the only point, decided by the court below,  [**67]  was the insufficiency of the cause assigned, in bar of the appellees right to recover. The prayer was, "that the plaintiffs cannot claim title to the lands in controversy, and maintain an action of ejectment for the same, in virtue of the grant from the Lord Proprietary to Sarah Brooke, Walter Brooke, and Richard Brooke, because said grant is repugnant to, and in violation of the express terms of the will of Thomas Brooke, and is a fraud upon his devisees." In responding to this prayer, the county court was bound to give its true construction to this grant, so far as concerns the objection urged against it. That construction, this court have said, so far from being repugnant to, is in perfect consonance with the will of Thomas Brooke, and is, consequently, no fraud upon his devisees. In this view of the question we must say, that the court below committed no error in its refusal of the appellants prayer in her twelfth bill of exceptions.
We concur with the county court in its rejection of the appellants prayers in the first, eleventh and twelfth bills of exceptions; but dissenting from its instruction to the jury in the second and third bills of exceptions, and [**68]  from its overruling the appellants objections to the evidence offered in the fourth, fifth, sixth, seventh, eighth and ninth bills of exceptions, and from 

 [*237]  its granting the appellees prayer in the tenth bill of exceptions, we reverse its judgment.
JUDGMENT REVERSED.