1 of 23 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. WILLIAM LEFFERMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 425; 1846 Md. LEXIS 51 

December, 1846, Decided 

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

This was an action of assumpsit, brought to May term 1844, by the appellee against the appellant; to recover a sum paid, laid out and expended by him, to and for the defendant, &c. The defendants pleaded non assumpsit, and the verdict was for the plaintiff.

At the trial of the cause, the plaintiff offered in evidence the following account, to wit:--

________________________________________________________________________________
For	laying 176 perch, 18 ft., a 62 1/2 per perch,	$ 110.45	
"	Measuring,	2.50	
"	126 1/4 perch, a 75 per perch,	94.68	
"	222 perch, 19 ft., a 62 1/2 per perch,	139.23	
"	Measuring,	3.25	
"	Propping,	2.00	
"	525 perches, and 18 1/2 ft. of stone, at $ 1.50	
	  per perch	788.62	
	
		$ 1140.73	
________________________________________________________________________________

Which was admitted to be correct by the defendants, as an account of money paid for the construction of a wall on Jones Falls, as mentioned in said account, and paid by said plaintiff.

The plaintiff further offered in evidence the act of 1821, chap. 252, and several ordinances of the city of Baltimore: to be read, by consent, from the city ordinances.

The plaintiff further offered in evidence the following notices of the board of city commissioners,  [**2]  to wit:--

"Extract of an ordinance, for the improvement of Jones Falls; approved the 1st August 1837.

"SECTION 3RD. And be it enacted and ordained, that the city commissioners be, and they are hereby authorized and directed, by and with the approbation of the mayor, to notify the owners of property binding on Jones Falls, to have the same walled, agreeably to the lines established, as aforesaid; with a good and sufficient wall of stone, to the height of thirteen feet, from the Water Company's canal to Gay street; diminishing in height to ten feet, six inches, at Baltimore street; and to nine feet, at Pratt street: the said height to be measured from a point nine feet below mean-tide, at these parts of the Falls, to which the tide flows; and from the bed of the stream, at those parts which are above tide-water; and to have the same backed up, or filled with earth, so as to secure the banks of the Falls from being broken by the pressure of the water: and if any person, or body politic, shall refuse or neglect to have the same done within three months after receiving notice from the said board of commissioners, it shall then be lawful for the said commissioners to contract,  [**3]  in the usual manner, with such persons as may be willing to contract to build the said wall, whenever it has not been built by the proprietors on the Falls, and to make out their warrants for the collection of the expenses thereof, from the owner or owners of the said property, in the usual way; and deliver such warrants to the city collector, who shall collect the proportions of the same from the several persons chargeable therewith, in the same manner as paving taxes are now collected."

"CITY COMMISSIONERS' OFFICE.

"Baltimore, 14th May, 1838.

"You are hereby notified, to erect a good and sufficient stone wall on the line of Jones Falls, in the rear of your property; and to have the same backed up, or filled in with earth, agreeably to the provisions of the above mentioned ordinance.

"By order, R. B. VARDEN, Clerk.

"To Mr. William Lefferman."

"CITY COMMISSIONER'S OFFICE.

"Baltimore, June 19th, 1839.

You are hereby notified, to have erected on your property, along the line thereof, binding on the east side of Jones Falls, between Centre and Bath streets, a good and sufficient wall of stone, to the height of thirteen feet from the bed of the Falls;  [**4]  and have the same backed up, or filled with earth, so as to secure the banks of the Falls from being broken by the pressure of the water; and to have the said wall commenced, on or before the 19th July 1839, agreeably to the provisions of the several ordinances of the Mayor and City Council of Baltimore, relating to the improvement of Jones Falls, now in force; otherwise, the city commissioners will have the same done, and charged to your account, as directed by one of said ordinances.

"By order of the board of city commissioners,

"JAMES G. BARNES, Clerk.

"To William Lefferman."

Whereupon the plaintiff prayed the court to instruct the jury, as follows:--

1ST. That the first section of the act, passed at December session, 1821, chap. 252, conferred no authority upon the defendants, to compel any persons owning property binding on Jones Falls, to wall up such property, so far as the said property may bind on the said Falls: because said section proposes to carry out an improvement, for the general benefit of the city of Baltimore; and is, therefore, unconstitutional.

2ND. That if they shall find from the evidence, that the plaintiff, being an owner of property [**5]  binding on Jones Falls, expended any money in walling up said property, in consequence of the notices given in evidence, and in obedience to the ordinances under which such notices were given, and under the compulsion of such ordinances, that then the plaintiff is entitled to recover from the defendants, the amount of money so expended by him.

Whereupon the defendants pray the court to instruct the jury, as follows:--

1st. That the act of Assembly, 1821, chap. 252, conferred on the city of Baltimore, the power to compel the walling of property, situate as that of the plaintiff's, on Jones Falls; and whatever expenses were incurred by the plaintiff in erecting, or causing to be erected, the said wall, under the ordinances of the city of Baltimore, passed in pursuance of the authority conferred by said act on the corporation, cannot be recovered by the plaintiff in this action.

2nd. That if the jury shall believe from the evidence, that the plaintiff did contract with certain persons to build said wall on Jones Falls, and did pay the amount of the bill offered in evidence, by said plaintiff, as the expense thereof; nevertheless the payment was, under the circumstances,  [**6]  a voluntary payment, and the money cannot be recovered from the defendant, in this action. The court, (PURVIANCE, A. J.,) granted both of the prayers of the plaintiff, and refused the prayers of the defendants; the defendants excepted.

The judgment being against the city of Baltimore, she prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

By the act of 1821, chap. 252, for the more perfect security of the basin and harbor of Baltimore, the corporation of that city were empowered, whenever it might deem the same necessary, to compel individuals, companies, or bodies politic, owning property binding on Jones Falls, within the limits of the city, to wall up the same, on the refusal or neglect of any proprietor thereof to make such wall, after three months' notice from the commissioners of the city, which they were authorized to give: HELD, by the county court, and affirmed by a division of this court, that the act, in question, was unconstitutional and void.

The corporation of the city of Baltimore, under the act of 1821, chap 252, and its ordinances, passed to carry said act into execution, notified the plaintiff to build a wall adjoining his property on Jones Falls; and that upon his failure to commence the same before a given day, they would erect the same at his cost. The plaintiff built the wall at his own cost, and then brought his action of assumpsit against the city, to recover the amount of his expenditure. Held: that although the act of 1821 was void, still, the payments made by the plaintiff were voluntary; made with a full knowledge of all the facts and circumstances of the case; in ignorance, only, of his legal rights; without fraud, imposition, or any undue advantage taken of the plaintiff: and therefore, the amount paid could not be recovered back.

Where money is voluntarily and fairly paid, with a full knowledge of the facts and circumstances under which it is demanded, it cannot be recovered back, upon the ground that the payment was made under a misapprehension of the legal rights and obligations of the party.

A payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual and existing duress imposed upon it, by the party to whom the money is paid.

A payment made under an apprehension, or even menace, of an impending distress warrant, would not render it compulsory. 

COUNSEL:
By PRESSTMAN and NELSON, for the appellants; and

By DAVID STEWART, for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*429]  MARTIN, J., delivered the opinion of this court.
It appears from the record in this case, that the legislature of Maryland, by the first section of an act passed on the 23rd of February 1822, provided:
"That for the more perfect security of the basin and harbor of the city of Baltimore, the corporation thereof shall have power, whenever it may deem the same necessary, to compel individuals, companies, or bodies politic, owning property binding on Jones Falls, within the limits of the city, to wall up such property, so far as the said property may bind on the falls, in such manner as the corporation may by ordinance direct."
The mayor and city [**7]  council of Baltimore, in pursuance of the power granted by this act, by an ordinance of the 25th of July 1837, directed the city commissioners to notify the owners of property binding on Jones Falls, to have the same walled, as specified in the ordinance, which provides:--
"That if any person or body corporate, who shall refuse or neglect to have the same done within three months after receiving notice from the board of commissioners, it shall then be lawful for the said commissioners to contract, in the usual manner, with such persons as may be willing to contract to build the said wall, wherever it has not been built by the proprietors on the Falls; and to make out their warrants for the collection of the expenses thereof from the owner or owners of the said property, in the usual way, and to deliver such warrants to the city collector, who shall collect the proportions of the same from the several persons chargeable therewith, in the same manner as paving taxes are now collected."
On the 14th of May 1838, the appellee was notified to erect a stone wall on the line of Jones Falls, in the rear of his property, agreeably to the provisions of this ordinance. And on [**8]  the 19th of June 1839, a notice was again served upon him, by which he was required to erect a stone wall upon his property, and to have the wall commenced on or before the 

 [*430]  19th of November 1839, agreeably to the provisions of the several ordinances of the mayor and city council, relating to the improvement of Jones Falls, otherwise the city commissioners would have the same done, and charged to his account, as directed by one of the said ordinances.
It appears from the evidence in the cause, that the appellee, in compliance with these notices, erected upon his property, binding on Jones Falls, a stone wall, as required by the ordinance to which we have referred; and at the May term 1844, of Baltimore county court, instituted an action of assumpsit against the appellants, for the purpose of recovering from them the money thus expended.
In this condition of the case, the plaintiff below asked from the court the following instructions:
First. That the first section of the act passed at December session 1821, chap. 252, conferred no authority upon the defendants to compel any person owning property binding on Jones Falls, to wall up such property,  [**9]  so far as the said property may bind on the Falls, because said section proposes to carry out an improvement for the general benefit of the city, and is therefore unconstitutional. And
Secondly. That if the jury shall find from the evidence, that the plaintiff being an owner of property binding on Jones Falls, expended any money in walling up the said property, in consequence of the notices given in evidence, and in obedience to the ordinance under which such notices were given, and under the compulsion of such ordinance, that then the plaintiff is entitled to recover from the defendants the amount of money so expended by him.
Upon the question raised by the plaintiff's first prayer, that which respects the validity of the first section of the act of Assembly of 1821, chap. 252, this court is equally divided in opinion. The opinion of the county court pronouncing this statute to be unconstitutional and void, stands affirmed; and the requisition imposed upon the appellee, to construct a wall on his property binding on the Falls, by the ordinance to which we have adverted, must be regarded as unauthorized and illegal.

 [*431]  This presents for our examination,  [**10]  the proposition embodied in the plaintiff's second prayer:--That assuming that the expenditure in question, was made by the plaintiff in consequence of the notices exhibited in evidence, and in obedience to the ordinance under which such notices were given,--an ordinance passed in the exercise of a power, not lawfully delegated to the defendants;--that an expenditure made under such circumstances, is to be considered as compulsory in its character, and entitled the appellee to reclaim from the appellants, the money expended for their use and benefit.
It is now established, by an unbroken series of adjudications in the English and American courts, that where money is voluntarily and fairly paid, with a full knowledge of the facts and circumstances under which it is demanded, it cannot be recovered back in a court of law, upon the ground, that the payment was made under a misapprehension of the legal rights and obligations of the party.
In the case of Brisbane against Dacres, 5 Taunt. 151, Gibbs, justice, when examining this subject, says:--
"We must take this payment to have been made under a demand of right, and I think, that where a man demands [**11]  money of another, as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he can never recover back the sum he has so voluntarily paid. It may be, that upon a further view he may form a different opinion of the law, and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, many inconveniences may arise; there are many doubtful question of law: when they arise, the party has an option, either to litigate the question, or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money, gives it to the person to whom he says it, and makes it his, and closes the transaction between them."
The opinion and reasoning of Gibbs, justice, in this case, is cited, with approbation, in Elliott against Swartwout, 10 Peters 137, as containing a correct exposition of the law on this question; and the Supreme Court held:--

 [*432]  "That in case of a voluntary payment, by mere mistake of law, no action will lie to recover back the money. The construction of law is open to both parties, and each is presumed to know it." The same [**12]  doctrine is announced in Clarke against Dutcher, 9 Cow. 674, and Mowatt vs. Wright, 1 Wend. 355, and is too firmly settled to be questioned or disputed.
As it is evident, that the expenditure was made in this case by the plaintiff, with a full knowledge of all the facts accompanying the transaction, and in obedience to a demand, fairly, although illegally made, by the defendants; the mere circumstance, that he was at the time ignorant of his legal rights, does not authorize a reclamation of the money expended; and the counsel for the plaintiff has placed his right to recover, on the ground, that from the circumstances of the case, the jury were warranted in finding, that he had expended the money, not voluntarily, but under the compulsion of the defendants, in their exercise of an unauthorized power.
It is not pretended, that the defendants are justly chargeable with having procured this expenditure, through the instrumentality of fraud or imposition.
Or that the defendants took an undue advantage of the situation of the plaintiff, for the purpose of extorting from him the performance of this work.
As in Pigot's case, cited by Lord Kenyon [**13]  , in Cartwright vs. Rowley, 2 Esp. 723, where an action was brought to recover back money paid to a steward of a manor, for producing at a trial some deeds and court rolls, and for which he had charged extravagantly. And the objection being taken, that the money had been voluntarily paid, it was held, that the money being paid through necessity, and the urgency of the case, was recoverable.
But the right to maintain this action, so far as this branch of the case is concerned, turns on the question, whether, assuming the facts asserted in the prayer to be true, the circumstances under which the expenditure was made, impressed upon it the character of a compulsory payment of money, as that term is legally understood and applied.

 [*433]  Upon this branch of the law, numerous cases are to be found, but it is proposed to refer only to a few of these, of unquestionable authority, and which are most analogous to the one under consideration.
In Knobbs against Hall, 1 Esp. 84, a case frequently recognized, and in 1840, by Lord Denman, in Skeate vs. Beale, 11 Ad. & El. 983, an action of assumpsit was instituted for the use and occupation [**14]  of certain rooms in the City Chambers. One article of the set-off, which the defendant proposed to give in evidence, was as follows:--
"The defendant being indebted to plaintiff, for other chambers, which he then occupied. The plaintiff demanded payment, at the rent of twenty-five guineas per year. The defendant insisted that he had taken them at twenty guineas per year, only, and offered to pay at that rate. The plaintiff refused to take it, and threatened to distrain if not paid at the rate of twenty-five guineas; and the defendant, in order to avoid the distress, paid at that rate; and having proved that the chambers were really let at twenty guineas, proposed to set off the overplus, as paid by compulsion: But Lord Kenyon held, that this could not be deemed a payment by compulsion, as the defendant might have, by a replevin, defended himself against the distress; and that after a voluntary payment, so made, he should not be allowed to dispute its legality."
In the case of Fullam against Down, 6 Esp. 26, note, Lord Kenyon, when considering this subject, announced:--
"That where a voluntary payment was made of an illegal demand, without [**15]  an immediate and urgent necessity, or to redeem your person or your goods, it is not the subject of an action for money had and received. The law, if so held, would subject all accounts and settlements between parties, to revision." The opinion appears to be qualified by the remark: "the party knowing the demand to be illegal." But the character of the payment never depends, as we have seen, on the knowledge of the party, and if voluntary, it is binding, although made under the impression, that the demand was legal.
The same position is maintained, in Shaw vs. Woodcock, 7 B. & C. 73, where it was adjudged: That a payment, 

 [*434]  made in order to obtain possession of goods or property to which a party is entitled, and of which he cannot otherwise obtain possession at the time, is a compulsory, and not a voluntary payment, and may be recovered back.
And Bayley, justice, in discriminating between a voluntary and compulsory payment, says:--
"If a party has in his possession, goods or property belonging to another, and refuses to deliver such property to that other, unless the latter pays him a sum of money, which he has no right to receive, and the latter,  [**16]  in order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion, and may be recovered back."
In Ashmole vs. Wainwright, 2 Ad. & El. N.S. 837, the money was paid for the purpose of delivering the goods of the plaintiff from the possession of the defendants, who detained them, as common carriers. The action to recover back the money paid for their deliverance, was sustained. Coleridge, justice, saying:--"That he never doubted, that an action for money had and received, might be maintained on a wrongful detainer of goods."
 Irving vs. Wilson, 4 Term. R. 486, was a case in which the property of the plaintiff was actually seized by a revenue officer, as forfeited, when in fact it was not liable to seizure, and money received from the owner to release it. It was a clear case of extortion and duress; and the payment made to obtain the goods, could not be considered as voluntary. Ashurst, justice, says:--"It was not a voluntary payment; for when the defendants had stopped the goods, the plaintiff was in their power."
In Clinton vs. Strong, 9 Johns. 370, the vessel of the plaintiff was seized [**17]  as having violated the non-intercourse law, but was subsequently withdrawn, as the vessel was found to be innocent. But the marshal refused to re-deliver the vessel, unless the costs were paid. The costs were paid by the plaintiff, as the only means of obtaining a restoration of his property. The court considered the property in duress; and held that the payment of the costs was not voluntary, as they were exacted by the officer as a condition of the re-delivery of the vessel.

 [*435]  In the case of Chase vs. Dwinal, 7 Greenl. 134, the money sought to be recovered back by the plaintiff, had been paid to liberate a raft of lumber, detained by the defendant, in order to exact an illegal toll; and it was determined, that money paid under such circumstances, was a payment under duress, and necessity, and therefore by compulsion. The court, alluding to the maxim, "volenti, non fit injuria," say:--
"But this rule applies where the party has a freedom in the exercise of his will; and is under no such duress or necessity, as may give his payments the character of having been made upon compulsion." And again,
"If money is voluntarily paid to close a transaction,  [**18]  without duress, either of the person or goods, the legal maxim, 'volenti non fit injuria' may be allowed to operate. But it would be a perversion of the maxim, to apply it for the benefit of a party, who had added extortion, to unjustifiable force and violence."
In the case of the Boston & Sandwich Glass Co. vs. The City of Boston, 4 Medcf. 181, the tax was levied on the personal property of the plaintiffs, by the collector, for the collection of taxes, alleged to be due from him. With this levy placed upon their property, the plaintiffs paid the taxes, under a protest, that they were illegal, and were paid under duress, and not voluntarily. The taxes were assessed without authority, and plaintiffs recovered the amount in an action of assumpsit.
In this case the tax was actually levied on the property, and if the assessment had remained unpaid, a sale would have followed. The court in stating the ground on which a payment of this description is regarded as compulsory, refer to Preston, vs. City of Boston, 12 Pick. 7, and say:--
"It arises from the power and authority placed in the hands of a collector of taxes, to levy directly upon the property or person [**19]  of every individual, whose name is borne on the tax list, in default of payment of the taxes. To use the language of the court, in the case just referred to, such warrant is in the nature of an execution running against the property and person of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability."

 [*436]  The court refer to the cases of Shaw vs. Woodcock, 7 Bar. and Cres., 73; Astley vs. Reynolds, 2 Strange 916; and Chase vs. Dwinal, 7 Greenl. 134, and it is evident from the whole tenor of the opinion, that they considered a payment compulsory, only when it was made for the purpose of liberating the person or property, from the duress of a party who has control of it.
We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory, unless made to emancipate the person or property, from an actual and existing duress, imposed upon it by the party, to whom the money is paid. And that a payment made under the apprehension, or even menace of an impending distress warrant, would not render it a payment by [**20]  compulsion. Knobbs vs. Hall, 1 Esp. 84. Colwell vs. Peden, 3 Watts 327.
Testing the case before us by this principle, it is manifest, that the expenditure made by the plaintiff has none of the characteristics, of a payment by compulsion: It is the clear case of an act performed by the plaintiff, in obedience to the demand of the defendants, conscientiously and honestly preferred; which the plaintiff regarded at the time as lawful and just, but in which, it appears from subsequent events, that he was mistaken. It is the plain case, of an expenditure voluntarily and freely made by the appellee, in the belief that he was performing his duty, but under a misapprehension of his legal responsibility.
It cannot be pretended, that any duress or force was applied to the property or person of the plaintiff, as a means of coercing the execution of this work, or that the money was expended to extricate his estate from the pressure of some process that could not be resisted.
The appellee was warned by the notice of the 19th of June 1839, that if the wall was not commenced within three months, the city commissioners would have it done, and charged to his account,  [**21]  as directed by one of the ordinances. That is, that the appellants would direct the wall to be constructed by others, and collect such expenses as might be incurred, by suit, or distress, in the manner in which paving taxes are 

 [*437]  collected. But this is no duress or coercion; and all that can be urged in vindication of the position assumed by the appellee is, that the expenditure was made by him, under the apprehension, that if the wall was not erected, the improvement would be executed by the appellants, and the cost charged to his account, and recovered by suit, or warrant. A payment made under said circumstances, is in law, not regarded, as compulsory in its character. If a distress warrant had been laid by the collector of the appellants, on the property of the appellee, and he had made the expenditure for the purpose of liberating his property from the predicament in which it was thus placed, the aspect of the question would have been changed, and such a payment might be treated, as by compulsion. But there is no such feature in this case, and the court, erred, we think, in granting the plaintiff's second prayer.
It follows from the views thus expressed, that this court [**22]  is divided in opinion, on the question raised by the defendant's first prayer: and that we think, the court below erred in rejecting their second prayer.
The judgment of the county court is therefore reversed without a procedendo.
JUDGMENT REVERSED.  

2 of 23 DOCUMENTS 

PETER AND SAMUEL DICKINSON vs. WILLIAM BARNES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 485; 1846 Md. LEXIS 3 

June, 1846, Decided 

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

On the 4th November 1843, the appellants, in order to procure an attachment against the appellee, filed in the said county court, the following affidavit:--

"STATE OF MARYLAND, City of Baltimore, to wit:

Be it remembered, that on the 4th November 1843, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore aforesaid, personally appeared Peter Dickinson, one of the firm of Dickinson & Brother: which firm is composed of Peter Dickinson and Samuel Dickinson, both residents of the United States, and made oath on the holy evangely of Almighty God, that a certain William Barnes, late of the city of Baltimore, is justly and bona fide indebted unto the said Peter Dickinson, jointly with Samuel Dickinson, partners doing business together, under the firm of Dickinson & Brother, in the just and full sum of $ 844.50, over and above all discounts. And at the same time, the said Peter Dickinson produced to me the promissory notes and open account, on and by which the said William Barnes is so indebted; which is hereto annexed. And the said Peter Dickinson did also make oath, that he is credibly [**2]  informed and verily believes, that the said William Barnes has actually run away and filed from justice; and removed from his place of abode with intent to injure and defraud his creditors.

JOHN W. PEALE,

Justice of the Peace of the State of Maryland, in and for the city of Baltimore."

It was accompanied with certain promissory notes of the said William Barnes, endorsed to the appellants, and an open account against him. To the affidavit was annexed the usual certificate of the clerk of Baltimore county court, as to the officer, J. W. Peale, the justice.

A warrant from a justice of the peace of Carroll county, directed to the clerk of that county court, was also annexed to the affidavit, notes and account, directing an attachment to be issued, &c. The process issued, and was returned, laid on the goods and chattels, rights and credits, &c., in the hands of Jacob Meyerly and others.

The garnishees not appearing at the return term, the appellants moved for a judgment of condemnation, which the county court refused to render.

At the next term, the defendant, Barnes, appeared, and moved the court to quash the attachment, for the following reasons:

1st.  [**3]  That the affidavit on which said attachment is issued, is not taken before a justice of the peace, as is required by the act of Assembly, in such case made and provided.

2nd. That the warrant to the clerk to issue said attachment, is not signed by the same justice of the peace before whom said affidavit was made.

3rd. That said attachment, and the proceedings therein, are, in many other respects, informal and insufficient.

The county court quashed the attachment, with costs; and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

It is no reason for quashing an attachment, that the affidavit of the creditor was made before a justice of the peace of one county, while the warrant to the clerk of the county court, to issue the attachment, was granted by a justice of his county.

The justice of the peace, who issues the warrant, must be of the county in which the attachment is to be issued.

Upon a motion in arrest of judgment, the appellant may assign other errors than those which are to be found in the record. So upon a motion to quash an attachment.

To procure an attachment against an absconding debtor, the affidavit of the creditor should allege, that the debtor was a citizen of this State.  

COUNSEL:
By J. H. B. LATROBE for the appellants.

This case presents a question of considerable interest, which is of almost daily occurrence in the State, and which it is important to have settled.

The plaintiffs residing in Baltimore, being creditors of the defendant, an absconding debtor, sent their account, with the affidavit required by the act of 1795, made before a justice of the peace of the city of Baltimore to Westminster, the late domicil of the defendant, where application was made to a justice of the peace of Carroll county, for an attachment against the goods, &c., of the defendant. The attachment was issued, and returned [**4]  levied as per schedule.

The defendant then, by his counsel, moved to quash the attachment on the following grounds:

1st. That the affidavit on which said attachment was issued is not taken before a justice of the peace, as is required in the act of Assembly in such cases made and provided.

2d. That the warrant to the clerk to issue said attachment, is not signed by the same justice of the peace, before whom said affidavit was made.

3d. That said attachment, and the proceedings therein, are in many other respects informal and insufficient.

The court having granted the motion to quash, the present appeal was taken.

The true question in the case is, whether the justice issuing the warrant, must be the justice before whom the affidavit is made?

Here the affidavit was made by the creditor residing in Baltimore, before a justice of that city, and the warrant was issued thereupon by a justice of Carroll county, that county being the late domicil of the defendant.

The appellants' counsel insist, that this was the proper course to be pursued, and rely on the language of the act of Assembly.

The appellee's counsel insists, on the other hand, that [**5]  the affidavit should have been made before the same person by whom the warrant was issued: and that this not having been done, the attachment was properly quashed; and the appellee's counsel also relies on the act of Assembly to sustain his view.

The whole question, then, arises on the proper construction of the act.

The act, section 1, declares, that "the creditor may make application to any judge of the general court, justice of the county court, or justice of the peace; and on oath or affirmation of such creditor made before any judge of the general court, justice of the county court, or justice of the peace of this State, or before any judge of any other of the United States," (of the facts enumerated in this part of the section,) the said judge of the general court, justice of the county court, or justice of the peace, may issue his warrant, &c.

Now the real question is, to what do the words of reference, "the said," refer? Do they refer to the judge, to whom the application was made, or the judge, &c., before whom the affidavit was made? The appellants contend that they refer to the former. This it is thought, can easily be made plain.

Suppose that an account,  [**6]  proved before a judge of Louisiana, was presented to a justice of Carroll county, and application made to him for a warrant for attachment thereon, could there be any question about his obligation to grant the warrant? Certainly not: because an affidavit before any judge of any other of the United States, is made sufficient by the express terms of the act. Applied to such a case, the act would be read, "the creditor may make application to a justice of the peace, and on oath or affirmation of such creditor, made before any judge of any other of the United States, the said justice of the peace may issue a warrant, &c." There can be no doubt about this.

We see then, that the act does not provide, in the case of a foreign creditor, that he shall come to Maryland, and make oath of his claim before the justice to whom he applies for a warrant on attachment. He may make his affidavit before a judge, in his own State, and send it to Maryland. Why then should a creditor residing in Baltimore county, not be permitted to make his affidavit before a justice in Baltimore county, and send it to the Carroll county justice, as the foundation for the warrant? Why should the foreign creditor have [**7]  more favor than the domestic? Why should the foreign judge have more authenticity than the domestic? Why should a creditor living in York, Pennsylvania, be authorized to send an affidavit across the line to a justice of Harford county, and obtain a warrant for attachment, while a creditor in Dorchester county must, in person, go to Harford county to make affidavit of the truth of his account before the Harford justice? No reason whatever can be given for these distinctions: and yet, if the appellee is right, they exist in the law. But they do not exist in terms. They are the result of a construction, which we contend is erroneous. The error consists in making the words of reference, "the said," already mentioned, refer to the justice before whom the affidavit is made, instead of the justice to whom the application is made. In the act there is nothing to shew, that these are the same persons. The usual words of reference are not to be found. The language used is not, "and on oath, &c., before the said or the same judge," &c., but, "and on oath, &c., before any judge," &c.

The section is made to appear involved, by the insertion of a description of the oath, which separates, longo [**8]  intervallo, the relative from the antecedent. A careful reading of it, however, will shew, that the construction contended for by the appellants is the only one that can be properly given to it: and that it is not at all necessary that the affidavit should be made before the same justice, who is applied to for the warrant for the attachment.

The third ground for the motion to quash, taken by the appellee in the court below, is too vague for consideration here. Only those questions made below, and inserted in the record, are proper for the consideration of this court.

In the argument of the appellee's counsel, an objection is taken to the proceedings below, and it is alleged, that they are defective, because the averment, that William Barnes, late of the city of Baltimore, is justly, &c., indebted, is not a sufficient averment that he is a citizen of Maryland, as required by the act of Assembly. Now, although this is a question not properly before the court, yet it may be stated, that the necessity of such averment was expressly done away with by the act of 1825, chap. 114, sect. 1.

For these reasons the counsels of the appellants insist, that the decision of the court [**9]  below should be reversed.

By W. P. MAULSBY for the appellee.

In this case, the affidavit of the creditors was made before a justice of the peace of the city of Baltimore, and transmitted to a justice in Carroll county, who issued his warrant to the clerk of Carroll county court, directing him to issue the attachment. The affidavit was made before one justice of the peace, and the warrant to the clerk, was issued by another. The act of 1795, chap. 56; sec. 1, provides, that on the oath or affirmation of a creditor, made before any judge of the general court, justice of the county court, or justice of the peace of this State, that the debtor is indebted, &c., the said justice of the general court, justice of the county court, or justice of the peace, shall be authorised to issue his warrant to the clerk of the general or county court, directing him to issue the attachment. The language of the act is imperative. The same justice before whom the affidavit is made, and no other, is authorised to issue his warrant. Whatever the practice may have been, or whatever inconvenience may result from the necessity of an observance of the terms of the act of Assembly, those terms are so [**10]  unequivocal; the language of the act is so clear and positive, that it cannot, I submit, be forced to yield, either to practice or convenience. The oath or affirmation may be made before any judge or justice of the peace, and the said judge or justice of the peace, is authorised to issue his warrant to the clerk. In this case, the affidavit was made before Mr. Peale, a justice of the peace of the city of Baltimore; and the warrant to the clerk of Carroll county court, was issued by Mr. Gore, a justice of the peace for Carroll county. The act of 1795, is of that class of statutes which are to be strictly construed.

The affidavit of the creditor in this case, made before a justice of the peace in the city of Baltimore, omits wholly the statement or allegation, that Barnes, the defendant, is a citizen of the State of Maryland; no such averment, that the defendant is a resident of the State, is made in any of the proceedings preparatory to issuing the attachment. The averment in the affidavit, that William Barnes, late of the city of Baltimore, is justly and bona fide indebted, &c., is not a sufficient averment, that the said Barnes is a citizen of the State of Maryland, to satisfy [**11]  the requirement of the act of Assembly. For this cause, the attachment was properly quashed by the county court.

The warrant issued by Mr. Gore, the justice of the peace for Carroll county, to the clerk, directing the issuing of the attachment, does not contain a sufficiently distinct recital of the oath on which he granted the warrant. Even if he had proceeded to issue the warrant to the clerk, on the oath of the plaintiff, made before a justice of the peace of the city of Baltimore, he must, in his warrant, have distinctly recited the oath so made, by whom, before whom, &c., and it is not sufficient to refer to that oath in the terms of, "the above oath;" such a reference is too uncertain.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*491]  MAGRUDER, J., delivered the opinion of this court.
It is no reason for quashing an attachment, issued under the act of 1795, chap. 56, that the oath to be made by the creditor, was made before one justice of the peace, (of a different county;) and that another issued his warrant to the clerk of the county court, requiring him to issue the attachment. The oath may [**12]  be made before "a judge of any other of the United States," and in the case of Smith against Greenleaf, 4 H. & McH. 291, was made before a judge of one of the courts in Massachusetts.
The act of Assembly is quite explicit. The creditor is to make application to "any judge of the general court, justice of the county court, or justice of the peace;" and when made to him, "the said judge of the general court, justice of the county court, or justice of the peace," is to issue his warrant. An affidavit is to be produced to him, with the cause of action;--that affidavit, however, the law does not require to be made, before the judge or justice who issues the warrant, but before "any judge of the general court, justice of the county court, or justice of the peace of this State;"--it is added: "or before any judge of any other of the United States,"--who, of course, is not to issue the warrant for an attachment. The justice of the peace who issues the warrant, must be of the county in which the attachment is to be issued; the oath may be made before any "justice of the peace of this State."
If, therefore, the court in deciding this case, were confined to the [**13]  reasons to be found in the record, this judgment would 

 [*492]  be reversed. It has been decided here, that in the case of a motion in arrest of judgment, the party appellant may, in this court, assign other grounds, than those which are to be found in the record; and for the same reason it seems proper, not to confine him, in cases of this description, to reasons filed with the motion to quash the proceedings. See, also, Boarman vs. Israel and Patterson, 1 Gill 372.
This court thinks, that there is in the record a fatal objection to the proceeding by attachment, inasmuch as it does not appear, as the law requires, that the debtor was a citizen of the State. It is certainly not to be sustained, as an attachment against a non-resident, and it does not appear that he was a citizen of the State.
JUDGMENT AFFIRMED.  

3 of 23 DOCUMENTS 

JAMES DOLAN AND PETER FOY, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 394; 1846 Md. LEXIS 49 

December, 1846, Decided 

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

The Reverend James Dolan and Peter Foy, on the 31st August 1846, filed their bill, alleging, that on the 23rd June 1783, William Fell conveyed in fee to Thomas Russell, John Kirwan, and Robert Walsh, as joint tenants, a square of ground in the city of Baltimore, in trust, to and for the use, behoof, benefit and advantage, of the Roman Catholics of Baltimore town, thereon to build, constitute and erect a church or chapel, and to lay out a burying ground, for the property and advantage of the said Roman Catholics of Baltimore town; that the said R. W. survived his co-trustees, and afterwards departed this life, leaving R. W., his eldest son and heir at law, who resides out of the State of Maryland; that W. F. hath also departed this life. The bill further alleged, that from the time of the execution and delivery of the deed hitherto, and with the knowledge, consent and approbation of the said William Fell, in his lifetime, and of the said trustees, during the lifetime of the said parties, respectively, the said lot of ground has been used as a burial ground, and only so used for the bodies of such persons, citizens of the said [**2]  town, as died members of the Catholic Church; that the lot continues to be so used from time to time as occasion may require, and is used for no other purpose, and since the erection of St. Patrick's Church, the use of said burial ground has been confined to the congregation of that church; that Peter Foy was a resident of Baltimore, and a member of the Catholic Church, before and at the time, of the date of the deed, and still is so; that James Dolan is a priest of the Catholic Church, residing in said city, and pastor of St. Patrick's Church aforesaid; that confiding in said deed and in the intentions of the parties thereto, the said Peter Foy hath buried various members of his family in said ground, and said James Dolan, as pastor aforesaid, hath authorized and permitted many members of the Catholic Church to be there buried by their surviving friends; that shortly after the execution and delivery of the said deed, the members of the Catholic Church, residing in the eastern part of the said city, determined to build a church in which to worship, according to the faith and discipline of their church, and with the knowledge, consent and approbation of the said R. W., survivor aforesaid,  [**3]  and with the knowledge, and without objection from the heirs of said Fell, who was then deceased, determined to erect and build the said church on a lot of ground at the north-east corner of Bank and Market streets, Fell's Point, and to retain and use the said lot so conveyed by the said Fell to the said R., K. and W., as and for a burial ground for the congregation of said church; which church was afterwards so erected, and is still used by the said congregation, and is known as St. Patrick's Church.

The bill further alleged, that in the year 1845, The M. & C. C. of Baltimore, in pursuance of the power and authority vested in said corporation, determined upon the paving, and actually did pave, Wolfe street, along and in front of said burial ground, and for a considerable distance north of Dulaney, now Baltimore, street, and south of Smith, now Lombard, street; that said corporation and their collector of taxes have made claim upon the said lot of ground for its proportion of the costs of paving, and have threatened to enforce such pretended claim by a sale of the said burial ground; that as a burial ground, it is, and ought to be, exempt from such tax and claim, and all manner [**4]  of taxation by said corporation. Prayer, to restrain the sale, for subpoena, and for injunction.

On the 31st August 1846, PURVIANCE, A. J., of Baltimore county court, ordered an injunction.

The appellees and their collector, answered the bill, and set forth the proceedings under which the paving was ordered to be done, and how this claim accrued; the non-payment of the paving tax, and the liability of the square therefor; that no distress remained upon the premises to pay the tax, and that the collector was about to sell for reimbursement, when the injunction was served upon him, &c. The answer admitted the deed of trust; that no church or chapel had been built thereon, and the use of the lot as a place of burial, by the Roman Catholics of Baltimore; that the heirs of Fell had permitted the use of the lot, as alleged; that there is now no person or corporation, who, as legally entitled to the said lot, could be sued at law.

The deed referred to, of June 1783, after conveying the legal estate, and describing the property as commencing at the northeast corner of Wolf and Dulany streets, as stated in the bill, declared it to be in trust--

"For the use, behoof, benefit,  [**5]  &c., of the Roman Catholics of Baltimore town, thereon to build, construct, and erect a church or chapel; and to lay out a burying ground for the property and advantage of the said Roman Catholics of Baltimore, and for no other use whatever; and that if the trustees, &c., do not build, erect, and complete the said church or chapel, on the land aforesaid, and appropriate the residue of the same in the laying out a burying ground for the intent and purpose of the R. C. of B. town, then and in such case, this indenture, and every part thereof, shall be void, as if the same had never been made and executed, and the reversion and remainder of the land and premises hereby bargained and sold, to be and remain to the said William Fell, his heirs," &c.

The printed ordinances of the City of Baltimore were to be read at the hearing, by consent.

Upon a motion to dissolve the injunction, Baltimore county court, (LE GRAND, A. J.,) delivered the following opinion:--

The question presented to the court for its decision, is embraced within very narrow limits. It is, whether grave yards are liable to the costs of paving streets on which they bind?

It is supposed they are exempted [**6]  from charges of every description, imposed by the law of the State, and the ordinances of the city.

An examination of the various statutes of this State, discovers a uniform policy to exempt them from all public taxes; and the question is, whether this exemption operates as against the impositions of Ordinance, No. 47, entitled, "An ordinance to appoint city commissioners and port wardens, and to prescribe their duties?"

The 18th section of this ordinance provides, that "Whenever it shall be determined to pave any unpaved street, lane or alley, or part thereof, in the city of Baltimore, according to the acts of Assembly and the ordinances of the city, a tax shall be, and hereby is imposed, upon the owner or owners of property fronting or binding upon such street, lane or alley, on the part thereof to be paved, equal in amount to the whole expense of regulating, paving and collecting the same, except cross-streets; and it shall be the duty of the city commissioners, to assess and lay the said tax upon the owner or owners of property upon each side of such street, lane or alley, or the part thereof to be paved, at a rate of not less than six cents per square foot, including [**7]  curbstones and gutters, of one-half of so much of such street, lane or alley, as may be in front of such property, except the part of such street, lane or alley, reserved by ordinance for footways. And the said tax shall be assessed and levied upon, and collected from, the owner or owners of said property; and the said tax shall be a lien on such property. And in no case whatever, shall the city be made responsible for the paving done in compliance with the provisions of this section, and a clause to that effect shall be inserted in the contract to pave." Revised Ordinances, 1838, p. 120.

It has been admitted in argument, that the proprietors of a majority of the ground binding and fronting on the street, consented to its being paved, as required by the act of 1817, ch. 148.

The Court of Appeals, in the case of The Mayor, &c., vs. Moore and Johnson, 6 Harr. and Johns., 375, and in the case of The Mayor &c., vs.  Howard, 6 H. & J., 383, have held, that it is competent for the mayor and city council of Baltimore, to pass an ordinance like the one previously quoted. This being so, it is clear, the grave yard sought to be held liable for the paving tax, would be so [**8]  liable, unless there be something in the legislation of the State, to exempt it.

By the act of 1841, ch. 23, sec. 2, it is provided, that nothing therein contained "shall be construed, to authorize the assessment of, or levy of any tax upon, the property belonging to the United States, to this State, or to any county or city in this State; or to any incorporated literary, or charitable institution, county schools, houses of public worship, burying grounds," &c. If this act exempts burying grounds from the payment of a paving tax, it also exempts all the other property included in the exemption: such a construction cannot be maintained. The exemption extends only to the public tax, and not to a release of all liability for benefits conferred: such as in the opening or paving of streets. The State, nor the city, never designed by their legislation to impose on the latter, the payment of the costs of paving streets in front of literary institutions, &c., but merely to exempt them from contributing to the public revenue. The effect of such legislation was considered by the supreme court of New York, in the case of The Mayor, &c., of New York, &c., 11 Johns., 80. In that [**9]  case it was sought to be maintained, that certain churches were exempt from all liability to contribute towards the payment of the expense of opening certain streets; and the exemption was claimed under a law, which provided, "That no real estate belonging to any church, or place of public worship, &c., shall be taxed by any law of the State;" but the court unanimously held, that the words "taxes," meant burdens, charges, or impositions, put or set upon persons or property, for public uses; and that to pay for the opening of a street, in a ratio to the benefit or advantage derived from it, is no burden, "if as," said the court, "no talliage or tax, within the meaning of the exemption." So in the case now under consideration, the expense of paving the street is no tax, within the meaning of the exemption in the act of 1841, but a benefit for which the ground is liable. This view is in no wise in conflict with a recent decision of the city court, exempting certain churches from contributing to the expense of opening Fayette street. In that case, they were exempted by the express language of the act of Assembly, and the ordinance of the city providing for the opening of the street. It [**10]  is no part of the duty of this court, to quarrel with the legislature of the State; or to inquire, whether the city ought to pay the expense of paving streets on which burying grounds bind? Its duty is, simply to ascertain what the State has done, and to give it due effect. If the legislation of the State and city is not in consonance with the feelings of the community, the General Assembly, and the City Council, must be appealed to, for the desired modification.

The motion to dissolve the injunction, must be sustained, and with costs.

The complainants appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

In June 1783, the owner in fee of a square of ground in the city of Baltimore, conveyed it to trustees to erect a R. C. church, and lay out a place of burial on the same, for the use of the R. C. of the said city. The deed declared, that if the trustees did not build, erect and complete the said church, and appropriate the residue of the square in laying out a burial ground for the use of the said persons, then it should be void, and the reversion in the grantors. No church was erected on the lot; but a church was erected by the same society of christians, upon a lot in the neighborhood, and the square conveyed, was used exclusively as a place of sepulture. The corporation of Baltimore paved the streets adjacent to the square; claimed the cost thereof as a paving tax, and to sell the square, in consequence of its non payment for their reimbursement or that of the persons who had paved the streets. Upon a bill filed by the pastor of the church actually built, and by one of its congregation, who, with others of that church, and its persuasion, had used the square as a place of burial from 1783, hitherto, for an injunction to restrain the proposed sale for taxes. HELD, that neither of the complainants had any interest, legal or equitable, for the protection of which they could claim the interposition of a court of equity.

If the conditions of the deed have not been performed, the whole estate, legal and equitable, will have reverted to the heirs of the grantor, unless the heirs of the surviving trustee can allege and prove, in a court of equity, such positive agreement on the part of the grantor, or his heirs, or such specific acts of the parties, with distinct knowledge of the grantor, or his heirs, amounting to evidence of such an agreement as would entitle the claimants, by a bill for specific execution of such agreement, to a deed of conveyance, discharged of the condition so violated.

Trustees have no power to alter the nature and object of the deed appointing them, and under which they derived their powers, nor to dispense with the exact performance of the conditions imposed upon them: neither has a court of chancery such a power.

If a grantor is competent to make a conveyance, to the uses expressed in a deed, he is equally competent to provide for the restoration of the property to himself and his heirs, on the failure of the grantees to apply it to the purposes of the grant.  

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

By G. M. GILL and PRESSTMAN, for the appellees.  

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

OPINIONBY:
DORSEY; CHAMBERS 

OPINION:

 [*400]  DORSEY, J., delivered his opinion as follows:--
Having assented to the affirmance of the order of the court below, dissolving the injunction issued in this case, for different reasons than those expressed in the opinion of this court, it is due to those from whom I differ, as well as to myself, that I should briefly state my views upon this subject. The general [**11]  

 [*401]  power of the corporation of Baltimore, to charge the ordinary tax for the paving of streets on the adjoining lots, in front whereof the pavement has been made, was conceded in the argument of both parties; as well it might be, after the principle has been so fully settled by the decisions of this court. But it is insisted, that the lot in question is exempt from such a charge, because it has been appropriated as a site for a church and grave yard, for the Roman Catholics of the city of Baltimore. And to establish such an exemption, numerous acts of Assembly, imposing taxes, or burdens, have been referred to, in which the exemption of such property has been specifically provided for. So far from such acts of Assembly shewing a general exemption from such burdens, independently of legislative enactment, they form the strongest ground for the opposite conclusion; and assume the liability of such property, but for the special statutory exemption. I think, therefore, that the injunction issued in this case, ought to have been dissolved, because the lot of ground in question, was legally chargeable with the burden attempted to be imposed upon it.
But suppose such [**12]  legal liability be not so clear; and that it is a doubtful question of law, or that the legal exemption is clearly sustainable. What is the proper tribunal for the determination of such a question? Not a court of equity; but a court of law. There is no sufficient ground for the interposition of a court of equity, by way of injunction. By permitting the appellee to proceed in doing that, against which he has been enjoined, no irreparable injury or injustice is done to the appellant. If the property were liable to the charge, it was against law, equity, and conscience, for a court of equity to interfere to prevent its enforcement. If it were not liable, then no such injury would have been, by the acts enjoined, inflicted upon the appellants, or any body else, as would have warranted the interposition of a court of equity, by way of injunction. The contemplated sale for the payment of the paving tax, would have divested the owners of the lot of no right, legal or equitable. The purchaser at the sale must have sued in ejectment, to recover possession; and in that action he must have been defeated, if the paving tax were not legally 

 [*402]  charged upon the property. As an authority [**13]  for this, if indeed an authority could be requisite to establish so plain a proposition, see The Trustees of Louisville vs. Gwatheney and Gretsinger, 1 A.K. Marsh. 554. Upon this ground, therefore, the order dissolving the injunction ought to be affirmed.
But I cannot assent to the affirmance of the order appealed from, upon the ground that the appellants have no standing in a court of equity, and for that reason, only, not entitled to the relief they seek. Such a proposition assumes, that Robert Walsh, Jr., the heir at law of the surviving trustee, would be entitled to such an injunction as was issued in this case; that he had no interest in the lot of ground, but for the protection of the rights and interests of the cestui que trusts, the Roman Catholics of the city of Baltimore, is apparent upon the face of the conveyance. If then such a trustee refuse to exert the powers necessary for the protection of his cestui que trusts; or be in a situation, as here, where he has not the means of doing so; should a court of equity deny all relief to an application of the cestui que trusts; on the ground that they cannot be heard in their own behalf,  [**14]  that they have no standing in a court of chancery? Nay, is it not a fundamental distinction between courts of law and courts of equity, that in the former, cestui que trusts cannot be parties, their rights not being recognized at law; but in the latter, they not only may, but must be parties, in all cases where their rights or interests are to be adjudicated? The appellants are Roman Catholics of the city of Baltimore. As such they are cestui que trusts, intended to be benefitted by the deed from Fell. If they have no standing in a court of equity, when seeking the protection of their rights, nobody else can have any. In respect to himself, the rights of the trustee are purely legal; and having no personal interest in the trust fund, he would have no pretence for claiming the interposition of a court of equity, but for the protection of the interests of his cestui que trusts. If for them he could seek it, they can seek it for themselves.
In the case before us, no question can arise as to the forfeiture of the estate conveyed, by a breach of the condition annexed to it. The heirs of Fell, only, and not strangers to 

 [*403]  the deed, can take advantage,  [**15]  and claim the benefit of such a forfeiture.
CHAMBERS, J., delivered the opinion of this court.
The questions which relate to the merits of this case, involve considerations of the deepest interest to the feelings of the parties affected by the proceedings set forth in the bill.
The prospect of being called to witness the exposure to public sale of the moldering remains of those who gave to us our being, or received theirs from us, is quite sufficient to call into exercise the warmest passions indulged by a community, of refined sensibilities. Reverence for the dead, must be the sentiment of all who can respect the living. And although the view taken by the court, will prevent them from expressing an opinion of the law, as applicable to the merits of the case, they will not consider it out of place to say, that they are fully convinced of the political and moral obligation of the constituted authorities, to protect the community over which they exercise jurisdiction, from the infliction of such injuries. They owe it to their citizens, as well upon the principle of "protection," against an act more calculated to destroy their happiness, than are many of the petty offences against [**16]  which their enactments are properly directed, as also upon the principle of cultivating a sound state of social, moral, and religious character, which cannot be successfully attained by the precepts of schools and colleges, while their instructions are counteracted by the exhibition of spectacles which must shock, and ultimately weaken, the moral sense.
They owe it to the ashes of the dead. Instinct teaches the propriety of reverence for the dead, and the practice of all ages and people has conformed to its teaching.
The court however in the present case, have no other purpose in alluding to such considerations, than to invite the notice of the proper authorities to the subject, that they may exempt from sale, as well the temples set apart for the worship and service of that Almighty Being, whose we are, ourselves, and whose, is all we have, as also the ground consecrated to the undisturbed repose of the dead.

 [*404]  We propose to decide the case before us on its peculiar circumstances. The deed from Fell, is for the use "of the Roman Catholics of Baltimore town, thereon to build, constitute and erect, a church or chapel, and to lay out a burying ground for the property [**17]  and advantage of the said Roman Catholics of Baltimore town, and for no other use," &c. And it is declared to be the true intent of the parties, "that if the said trustees, the survivor or survivors of them, or their assigns, do not build the said church or chapel on the land aforesaid, and appropriate the residue for a burial ground for the Roman Catholics of Baltimore town," then the deed is to be void, and "the reversion, and remainder, &c., to be and remain to the said William Fell, his heirs," &c. It cannot be doubted, that if it was competent to the grantor to make the conveyance to the uses expressed in the deed, it was equally competent to provide for a restoration of the property to himself or his heirs, on the failure of the grantees to apply it to the purposes of the grant. If the grantees could decline the execution of the trust, in one particular, they had equal authority to neglect it in another; if they could fail to build the church, they had the same power to decline using the "residue of the land, as a burial place."
The bill, in fact, does allege an entire alteration in the use of the burial ground, as defined, in the deed, when it says, that since the [**18]  erection of St. Patrick's Church--which is not on the granted premises,--"the use of said burial ground hath been confined to the congregation of that church."
As the foundation of title, the bill alleges, that the lot was used as a burial ground during the life of Fell, and with his knowledge, consent, and approbation, and with the knowledge and assent of the trustees, and that after the execution of the deed, "the members of the Catholic Church in the eastern part of the city," with the knowledge and consent of the surviving trustee, and with the knowledge of, and without objection from, "the heirs of Fell, did erect St. Patrick's Church on another lot," retaining the use of the lot so conveyed by Fell, as a burial ground, for the congregation of said church.

 [*405]  We cannot agree with the appellant's counsel, that any or all of these facts can give to the complainant, Dolan, as a priest of the Catholic Church in said city, and pastor of St. Patrick's Church, "or to the other complainant, Peter Foy, who claims as a resident of the city, and a member of the Catholic Church, before and at the time of the date of said deed, and ever [**19]  since," and as having "buried in the said ground, members of his family, who were members of the Catholic Church, at the time of death," any interest, legal or equitable, to entitle them to claim the interposition of this court.
Objection was taken to the bill, for the systematic and uniform departure from the language of the deed, in describing the persons for whose use the property was intended. In every instance they are called in the deed "Roman Catholics;" in every instance they are called in the bill, "Catholics," a designation which, if not common to every branch of the Christian Church, is certainly not exclusively applicable to the particular branch whose members claim under this deed.
We however waive this point, which might be the occasion of an amendment, and we waive also another, not alluded to in the argument, to wit, the sufficiency and certainty in the intended objects of the trust.
We do not think the appellants, or either of them, have any standing in a court of equity, which can entitle them to the interposition of its process. If the conditions of the deed have not been performed, the whole estate, legal and equitable, will have reverted to the [**20]  heirs of the grantor, unless the heirs of the surviving trustee can allege, and prove in a court of equity, such positive agreement on the part of Fell, or his heirs; or such specific acts of the parties, with the distinct knowledge of the grantor, or his heirs, amounting to evidence of such an agreement, as would entitle the claimants, by a bill for specific execution of such agreement, to a deed of conveyance, discharged of the conditions so violated. There is no such agreement, there are no such facts alleged in this bill.--The trustees had no power to alter or change the nature 

 [*406]  and object of the trust, or dispense with the exact performance of the condition; a court of chancery has no such power. The owner of the property had the exclusive right to prescribe the terms of his grant, and in case of non-compliance with them, the grantees must suffer the just and inevitable consequences of their failure. We do not mean to say, that title could be derived from Fell, or his heirs, in no other mode but by a formal deed, duly executed and recorded, to enable a court of equity to enforce rights acquired by their assent, but there is nothing set forth in the proceedings,  [**21]  which can be regarded as at all sufficient for that purpose. The pastor of St. Patrick's Church, as such, has no right to, or control over, the property, by the terms of the deed; or by any appointment of the grantor, or his heirs, or even of the trustees. Nor is the interest of the other appellant, in any view we can take of the subject, such as will entitle him to the proceeding which has been resorted to.
We are compelled therefore to affirm the decree of Baltimore county court, dissolving the injunction.
DECREE AFFIRMED.  

4 of 23 DOCUMENTS 

WILLIAM E. MAYHEW AND OTHERS, vs. WILLIAM GRAHAM, AND WILLIAM S. PAWSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 339; 1846 Md. LEXIS 46 

December, 1846, Decided 

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

This was an action of assumpsit, brought to May term 1842, of said county court, by the appellees against W. E. Mayhew & Co., the firm consisting of William E. Mayhew, William D. Miller, Alexander Fisher, and Gorham Brooks. Errors of pleading and misjoinders of parties were mutually waived. The defendants pleaded non assumpsit, and the verdict was for the plaintiffs.

1ST EXCEPTION. At the trial, the plaintiffs gave in evidence by Henry Hinkley, that between the 15th and 20th November 1841, Hugh Boyle called at the store of the plaintiffs and had some conversations with one of the plaintiffs, and requested him to go and examine the ground tackling of the brig Harriet, to see if they would do for a voyage to the coast of Africa. That afterwards B. called several times, and had conversations with said W. Graham, and though he, the witness, did not hear all that passed between said B. and G., he knows that the claims charged in the account now produced and shown to witness, to wit:--

"BALTIMORE, 10th December 1841.

________________________________________________________________________________

Mr. Hugh Boyle bought of William Graham,	
 90 fath. 1 inch chain, wg. 5570 lbs., a 7 1/2 cts.,	$ 417 75	
 60  "   7/8  do.   "   "  2760  "   a 7 3/4  "  	213 90	
	
	$ 631 65"	
________________________________________________________________________________

 [**2]  

Were certainly sold by the plaintiffs to said B., for the said brig Harriet, at the prices stated in the account. That said chains were ordered about the 20th November, and delivered to the drayman of said B., on or about the 10th December, and that on the same day they were charged to the said B., in the books of the plaintiffs. That a day or two afterwards, or perhaps the same day, the witness as clerk of the plaintiffs, made out said account of said chains against said B., and carried and delivered the same to said B. That he, the witness, understood the said chains were sold on a credit of six months, and that B. was to give his note for them accordingly.

Upon cross-examination the witness stated, that a short time after the plaintiffs heard that B. had become insolvent, he, the witness, heard Graham say, that he, G., had advised W. E. Mayhew, to procure from Boyle, an assignment of the charter party for said brig Harriet, that had been made by Boyle to James Hall.

Upon further examination-in-chief, the said witness testified, that B. failed in a few days, perhaps a week or less, after the delivery of said chains. That since this suit was brought, he has heard said [**3]  Graham say, that said Mayhew had stated to him, that he, M., did not consider himself personally responsible for the said chains, but that he thought that the brig was liable. That after the sale and delivery of the said chains, he often heard said G. say, that he supposed that said B. was the owner of said brig, at the time when the sale of said chains was made to him.

The plaintiffs then read in evidence the bill of sale conveying the entire interest of the brig Harriet from Boyle to William E. Mayhew, Alexander Fisher, and William D. Miller, bearing date the 6th October 1841; it being admitted to have been executed by Boyle, and delivered to the grantees therein named.

The plaintiffs further gave in evidence by Ring, that he was a clerk in the custom house in the city of Baltimore, in the year 1841; and that on the 8th day of October of that year, W. E. M., A. F., and W. D. M., appeared in said custom house, and in pursuance of the laws of The United States, took out a register for said brig, and made the oath therein contained, in which register it was recited, they "In pursuance of an act of the Congress," &c., W. E. M., A. F., and W. D. M., of Baltimore, &c., "having [**4]  sworn that they are the only owners of the ship or vessel called the Harriet of Baltimore, whereof Alexander Fisher is at present master, &c.; and also proved the oath of ownership subscribed by the said defendants, dated 8th October 1841, and on which said register was granted.

The witness, Ring, further testified, that Fisher was named and sworn as master of said brig, at the time when said registry was made.

Upon cross-examination the said witness testified, that said Fisher was a merchant, of the firm of W. E. M. & Co.; and that he never did, to the knowledge of this deponent, go on board of said brig. That it is necessary when a registry of a vessel is made, that some one should be named as master; and that if there be no acting master, it is the custom to name some one as master.

The plaintiff then offered to read in evidence to the jury, the original offer in writing, made in the name of W. E. M. & Co., to the Neptune Insurance Co., for insurance upon the said brig Harriet and her freight, dated 19th January 1842, payable to them in case of loss, which paper, it was admitted, was signed by W. E. M., one of the defendants, in the name and on behalf of the firm [**5]  of W. E. M. & Co., which was composed of all the defendants named in the record of this case, and the policy of insurance effected in their name on such offer for insurance, accepted by said company.

To the reading of which offer and policies, the defendants objected, as inadmissible evidence; the purpose for which they were offered being stated to be, to show a continuing title to said brig in the grantees, named in said bill of sale of 6th October 1841; although it was admitted that there was an agreement in this cause, between the counsel, that no objection should be taken on account of the misjoinder, as defendant, of Gorham Brooks, and that the suit should be prosecuted as if instituted against the other three defendants only. The county court, (LE GRAND, A. J.,) overruled the objection, and declared the order and policy to be admissible.

2ND. EXCEPTION. The plaintiffs having given in evidence the matters stated in the defendants first bill of exceptions, further gave in evidence the admitted fact, that said brig was cleared at the said custom house for her voyage to Africa, on the 20th December 1841. And further offered in evidence to the jury, a bill of sale of said [**6]  brig, from W. E. M., A. F., and W. D. M., of 2nd November 1842, to Greenbury B. Wilson, which was admitted to have been executed.

The defendants then, to support the issue on their part, read in evidence to the jury the charter party for said brig Harriet, dated 15th November 1841, made from said Hugh Boyle, as owner, to James Hall, for a trading voyage from Baltimore to the coast of Africa, at the rate of $ 300 per month; its execution being admitted. The charter party stipulated, that the said owner agrees to put the said brig in good and approved repair, so as to fit her for the accomplishment of the said voyage. And further gave in evidence by the testimony of James Hall, that he is the person named in said charter party, as freighter, and that he and said Boyle executed the same on the day of its date, and that immediately after the execution of said charter party, he, the witness, as freighter, in pursuance of said charter party, took possession of said brig, and appointed William Champion master of said brig, who immediately went on board. That he, said Hall, had the entire and exclusive possession and control of said brig, during the voyage mentioned in the charter party;  [**7]  and that said Champion continued to act as her master for the whole of said voyage, which terminated in July or August 1842. That none of the defendants, to his knowledge, had any possession or control of said vessel, before she sailed from the port of Baltimore on said voyage. That immediately after she had sailed, he received a notice from William E. Mayhew & Co., to pay the freight to them; and he knows of no other act of any of the defendants in regard to said vessel, until after her return from Africa.

Upon cross-examination, the counsel for the plaintiffs then propounded to the said witness, Hall, the following question, viz., "When you appointed said Champion master of the brig Harriet, did you authorize him, Champion, to act as agent of Mr. Boyle, in procuring the supplies under the charter party?" To which question, and the answer that might be given thereto by the witness, the defendants by their counsel objected, as irrelevant to the issue in this cause, and inadmissible and improper testimony; but the court, (LE GRAND, A. J.,) overruled the said objection, and adjudged the said question proper, and the answer thereto, admissible testimony. And thereupon the said witness,  [**8]  Hall, in answer thereto, stated to the jury, that when he, the witness, closed the charter party with Mr. Boyle, he made a verbal agreement with him, Boyle, that captain Champion should act as his, Boyle's, agent, in procuring supplies in fitting the vessel for the voyage, agreeably to Mr. Boyle's stipulations in the charter party. That said Champion was not then present. That afterwards he introduced said Champion to said Boyle, and told him to obey the instructions of Mr. Boyle, in procuring the articles requisite for the vessel, under the charter party. Whereupon the defendants excepted to the opinion of the court, in declaring said testimony of said Hall, (so as aforesaid objected to,) admissible.

3RD EXCEPTION. The plaintiffs and defendants having given in evidence, respectively, the matters stated and set forth in the defendants' first and second bills of exception, and which are to be considered as a part of this, their third bill of exception; the defendants, then, to support the issue on their part, gave in evidence to the jury, by said witness Hall, that he, Hall, never gave said Champion any order or authority to buy said chains; and that he, the witness, does not know [**9]  who did, in fact, buy said chains.

The defendants, further to support the issue on their part, then gave in evidence to the jury by Charles L. Oudesluys, that he acted as the clerk of said Hugh Boyle, during the year 1841, and until after July 1842. That the bill or account of the plaintiffs, for said chains, now shewn to him, the witness, (being the same account and paper spoken of in the testimony of the witness, Henry Hinkley,) was presented to said Boyle, in December 1841, and was by said Oudesluys, as his clerk, entered in the books of said Boyle, to the credit of said William Graham, on the eleventh day of that month. That said Boyle was in good credit at that time. That he first let a note lie over about the 25th of said month of December 1841. That he, said Oudesluys, subscribed his name as a witness for said charter party, and saw it executed by the parties thereto. That he knows that said Boyle had the possession and control of said brig Harriet, during the months of October and November 1841, at the time of the execution of the said charter party, from the fact that he continued to exercise acts of ownership, as he had always done. That prior to the execution of said [**10]  charter party, said brig was lying some time at Ramsay's wharf, on Fells Point; that said Boyle employed one captain Cunningham to look after her there, and paid some small expenses on her, and was chargeable with wharfage for her, and gave directions from time to time how she should be managed, and acted as owner, as he had always done. That he had owned said vessel for some years, and was desirous of procuring a freight for her before said charter party was made. That none of the defendants, to the knowledge of the witness, had any possession of said vessel until after her return from Africa, in July or August 1842. The defendants, then, further to support the issue on their part, and for the purpose of shewing that the said W. E. M., A. F., and W. D. M., held the title to said brig under said bill of sale, in trust as security, to pay the note hereinafter mentioned and inserted, made by said Boyle, in favor of W. E. M. & Co., and to shew that said Boyle made said charter party on his own account, and for his own benefit, with the assent of the said W. E. M., A. F., and W. D. M., and that they and their partner, Gorham Brooks, took an assignment from said Boyle of said charter party,  [**11]  and the freight thereby to become payable; also, as security for the payment of said note, offered to give in evidence by said witness, Oudesluys, that he, the said witness, at the request of said Boyle, and the said William E. Mayhew, one of the defendants wrote upon the sheet of paper containing said charter party, an assignment of said charter party from said Boyle to the said W. E. M., G. B., A. F., and W. D. M., in form following:

"I hereby assign and transfer the foregoing charter party, and all my interest therein, to W. E. M., G. B., A. F., and W. D. M., of the firm of W. E. M. & Co., as security to them for the payment of my note, four months from 7th October 1841, for $ 2628.17, held by them; and discounted by them for my use, the brig Harriet, mentioned therein, having been by me transferred to them before the foregoing charter party was made. Baltimore, 21st Jan'y 1842.     HU. BOYLE.

Witness, Charles L. Oudesluys."

And that he, said Oudesluys, saw the said Boyle subscribe his name to said assignment, and that he, said Oudesluys, signed his own name as witness thereto, and saw the said charter party, and the said assignment thereon, then delivered to said [**12]  Mayhew. And the defendants further offered to prove by said witness, Oudesluys, that said Boyle made and delivered to the said William E. Mayhew & Co., on the day of its date, the following promissory note:

"$ 2628.17.     BALTIMORE, October 7th, 1841.

Four months after date, I promise to pay to the order of Messrs. Wm. E. Mayhew & Co., twenty-six hundred and twenty-eight dollars, and seventeen cents, for value received.

HU. BOYLE."

And offered to prove by said witness, that the said note was the note mentioned in said assignment, and that it was never paid by said Boyle. And then the said defendants offered to read in evidence, the said assignment of said charter party, and of said note. And further offered to give in evidence by said witness, that the said note, and the premiums of insurance paid by the said W. E. M. & Co., for said policies of insurance on the brig Harriet, and her freight, were credited in the books of said B., (produced in court on the trial of this cause,) to the said W. E. M. & Co. And further offered to give in evidence by one Grafflin, that he was a clerk in the store of the said W. E. M. & Co., in the years 1841, and 1842, and 1843,  [**13]  and that the freight of said brig, on the day it was received, viz., the 29th day of August 1842, and before this suit was instituted, was credited on the books of said W. E. M. & Co., to said B., in part payment of said note of said B., then due and unpaid, and which was charged by said firm to him; and furthermore, that the proceeds of said vessel, after she was sold by said M., F. and M., to Greenbury B. Wilson, in November 1842, were likewise credited to said B. by said W. E. M. & Co. But the plaintiff objected to the admissibility in evidence of said assignment of said charter party, and of said note of said B., in favor of W. E. M. & Co., for the purpose for which the same were offered, and of all and every of said entries, charges and credits, contained either in the books of said B., or of the said W. E. M. & Co., so offered, to be given in evidence on the part of the defendants by the said witnesses, Oudesluys and Grafflin, respectively. And the court, (LE GRAND, A. J.,) sustained the objection to the whole of said evidence, and every part, and the same wholly excluded from the jury. The defendants excepted to the opinion of the court, in rejecting said evidence, and every [**14]  part and parcel thereof.

4TH EXCEPTION. And the plaintiffs further to support the issue on their part, gave in evidence by John Henderson, that the firm of which he is a member, furnished supplies for the brig Harriet in November 1841, for her voyage to the coast of Africa, but that he did not know who was the reputed owner of said brig at that time. That he and his partner thought captain Hall was the owner when they furnished supplies for her.

Upon the whole evidence given to the jury, upon the trial of this cause, the defendants, by their counsel, prayed the opinion and the several instructions from the court to the jury, as follows:

1st. That there is no evidence in this cause from which the jury may infer, that Hugh Boyle acted as agent of the defendants, in purchasing the iron chain of the plaintiffs, the price of which they seek to recover in this action, or that he had any authority or directions, express or implied, from the defendants to make said purchase on their account.

2nd. That although the jury find from the evidence, that the iron chains, charged in the plaintiff's account to Hugh Boyle, were delivered for the use of the brig Harriet; yet, if they [**15]  find that said chains were sold to Hugh Boyle, on his credit, and not upon the credit of the defendants, that then the plaintiffs are not entitled to recover in this action.

3rd. That if the jury find from the evidence, that the plaintiffs sold and furnished for the brig Harriet the iron chain aforesaid, upon the special personal request of Hugh Boyle, upon a credit of six months, and delivered the same to his drayman, and sent the account therefor to said Boyle, that then the plaintiffs are not entitled to recover, although the jury may find, that the said chains were, or some of them were, applied to the use of the legal, general owners, by virtue of the bill of sale from Hugh Boyle, and the registry of said brig in the custom house, as given in evidence.

4th. That if the jury believe, that Boyle had the possession and control of the said brig Harriet, after the date of the said bill of sale, and exercised acts of ownership over her, by employing Cunningham to look after her, and by paying bills and expenses, and directing how she should be managed, and that he continued to have such possession and control, and to perform such acts of ownership, up to the time of the execution [**16]  of the charter party given in evidence, and that he made the charter party to Hall, and that Hall, immediately thereafter, took possession of said vessel, under the charter party; and also appointed William Champion the master of said vessel; and that the defendants never had any possession or control of said vessel, from the time of the execution of the said charter party, until the completion of the voyage, in July or August 1842, and in no way interfered with said vessel or the said charter party, except to order or request Hall, the freighter, to pay the freight to Wm. E. Mayhew & Co., that then Boyle was owner, so far as to be competent to execute the charter party, as owner for the voyage, and that his stipulations by the charter party, to furnish the supplies to fit the brig for the voyage, did not raise any obligation or assumpsit on the part of the defendants to pay for those supplies.

5th. That the defendants are not responsible to pay for the chains furnished in the month of December 1841, to the brig Harriet, upon the request of Boyle, after the execution of said charter party, in fulfilment of his, Boyle's, agreement in the charter party, although the jury may find,  [**17]  that the defendants were the legal, general owners of said brig, and took possession of her, and sold her after the said voyage was completed, in November 1842, provided they find, that the defendants assented to the making of said charter party, or made no objection to it after it was made.

6th. That if the jury find, that at the time when the charter party was executed, Boyle, by the permission of the defendants, had the possession and control of said vessel, and had for some time previously had such possession and control, and had acted as owner, that then it was competent for Boyle to execute said charter party as owner, and to recover the freight thereon for his own use, and he was responsible to pay for the chains furnished by plaintiffs, upon Boyle's request, and the defendants were not responsible as general legal owners of said brig, to pay for said chains so furnished, whether the plaintiffs knew that the defendants were such owners or not, provided the jury find, that the said chains were sold by the plaintiffs to Boyle, upon his special request, and were charged to him; and if the jury believe, that Graham, one of the plaintiffs, advised the defendants to procure an [**18]  assignment of said charter party to themselves.

7th. If the jury find from the evidence, that the legal title was in W. E. M., A. F., and W. D. M.; yet, if they believe that they held such title for the use of the defendants, constituting the firm of William E. Mayhew & Co., and that this firm procured insurance on said brig and freight, and ordered or requested Hall to pay the freight to said company, by reason of the beneficial interest they had, and not as general owners, that the fact of their obtaining such insurance, is not evidence of such ownership as to charge them, the defendants, as owners.

8th. That if the jury find, that Boyle never did deliver the actual possession of said brig to the defendants, or any of them, in pursuance of the bill of sale of October 1841, and the defendants never took possession of her until her return from Africa, in July or August 1842, that then the title of the defendants was never perfected, so as to render them responsible for any supplies furnished to said brig, upon the request of Boyle, after the execution of the charter party, by him made or executed, while he held possession, and had the control as owner of said brig.

9th.  [**19]  That if the jury find from the evidence, that the iron chain charged in the plaintiff's account, and furnished or delivered for the use of the brig Harriet, was sold to Hugh Boyle, upon his credit, and not upon the credit of the defendants, that then the plaintiffs are not entitled to recover in this action, unless the jury find from the evidence, that Boyle was agent of the defendants in purchasing the said chains from the plaintiffs.

But the court, (LE GRAND, A. J.,) refused to grant each and every one of said several prayers. The defendants excepted to the opinion and decision of the court, in refusing to grant each of said prayers, and appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action at law to recover the value of materials furnished to a vessel, it appeared that the plaintiff had sold and delivered them, upon the request of B, to whom they were charged on the books of the plaintiff; that a month before, B had executed a bill of sale of the vessel to the defendants, who immediately after took the oaths of ownership under the acts of Congress, and had a register executed in their own names, one of them being therein described as master. The vessel sailed on her voyage. The plaintiffs offered in evidence the application of the defendants for insurance on her hull and freight, and the policies issued thereon, dated about a month after the supplies were furnished. The plaintiffs stated, that the object of offering the order for insurance, and the policies in evidence, was to show a continuing title in the defendants to the vessel, from the execution of the bill of sale to the date of the order. HELD, that the evidence was admissible.

Prior to the 6th October, B was the owner of a vessel. On the 15th November, as owner, he chartered her to H for a voyage, to be paid freight a sum certain by the month, and agreed to put her in good repair to prosecute the contemplated voyage. On the 10th December, the plaintiffs, at the request of B, sold and delivered him supplies for the vessel, on six months' credit. The master of the vessel was appointed by H. She performed her voyage, and returned to her port of departure in about eight months. It also appeared, that on the 6th October, B executed a bill of sale of the vessel to the defendants, who thereupon subscribed the usual oaths at the custom house, and took out a register in their own names. After the vessel sailed on her voyage, they effected insurance upon her hull and freight, payable to themselves in case of loss. During the months of October and November, she was in the possession of B, and after the charter, in the possession of H. The defendants had no possession, and exercised no control over the vessel, until after her return, when they sold her. Immediately after the vessel sailed, the defendants gave H notice to pay the freight to them. In an action by the material men, the defendants, for the purpose of showing that they held the title to the said vessel, under the bill of sale, in trust, as a security to pay B's note, dated 7th October, payable at four months, proposed to prove, that B was their debtor upon that note; that they, on the 21st January, took an assignment of the charter party from B, expressed "to secure such note," the vessel "mentioned therein having been transferred to them before the charter was made," and to prove such note and assignment; that B gave the defendants credit for the premium of insurance paid by them; that the freight received by defendants, was credited to B by defendants on account of said note, and the proceeds of her sale were likewise credited by them to B. HELD, by the county court, that the note, assignment of the charter party, entries of charges and credits on the books of either B or the defendants, were inadmissible for the purpose for which they were offered. Affirmed upon appeal by a division of this court.

Upon the whole evidence, the county court refused to instruct the jury:

1st. That there was no evidence from which the jury might infer, that B acted as the agent of the defendants, in purchasing said supplies, or that he had any authority or directions, express or implied, from defendants to purchase the same on their account.

2nd. That although the supplies were delivered for the use of the vessel, yet, if they were sold to B, on his own credit, and not upon the credit of the defendants, the plaintiffs cannot recover.

3rd. That if sold to B, upon his special personal request, the plaintiffs cannot recover, although applied to the use of the legal, general owners, under the bill of sale and register.

4th. That if the jury believe, that B had the possession and control of the vessel after the date of the bill of sale, and exercised acts of ownership over her, and directed how she should be managed, that he continued to have such possession and control--made the charter party--that H appointed the master, and that the defendants never had any possession or control from the time of the execution of the charter, until the completion of the voyage, and in no way interfered with said vessel or charter, except to request H to pay them the freight; that then B was owner, so far as to be competent to execute the charter, and his stipulations in the charter did not raise any assumpsit on the part of the defendants, to pay for the supplies in question.

5th. That although the jury may find, the defendants were the legal, general owners of the vessel--took possession of, and sold her after the voyage was completed--assented to the making of the charter, or made no objection to it after it was made, still, if the supplies were furnished, upon request of B, in fulfilment of the charter, the plaintiffs cannot recover.

6th. That if the jury find that, at the time when the charter was executed, B, by the permission of the defendants, had the possession and control of the vessel--had had previous possession and acted as owner, then it was competent for him to make said charter as owner, and to recover the freight thereon for his own use, and was responsible for said supplies, and the defendants were not responsible as general owners, whether the plaintiffs knew that the defendants were such owners or not, provided the supplies were sold to B, upon his special request, were charged to him; and the jury believe, that G, one of the plaintiffs, advised the defendants to procure the assignment of the charter.

7th. That if the jury find, that the legal title to the vessel was in the defendants, M, F, and M; yet, if they believe, they held such title for the use of the firm, W E M & Co., which included another partner, that the firm procured insurance, and requested H to pay the freight to said firm, by reason of the beneficial interest they had, and not as general owners, then the fact of obtaining such insurance, is not evidence of such ownership as to charge them, the defendants, as owners.

8th. That if the jury find, that B never did deliver the actual possession of said vessel to the defendants, or any of them, in pursuance of the bill of sale, and the defendants never took possession of her until her return--then the title of the defendants was never perfected, so as to render them responsible for any supplies furnished, upon the request of B, after the execution of the charter party, while he held possession and had control as owner of said vessel.

9th. That if the jury find from the evidence, that the supplies furnished or delivered for the use of the vessel, were sold to B, upon his credit, and not upon the credit of the defendants, then the plaintiffs are not entitled to recover, unless the jury find from the evidence, that B was the agent of the defendants in purchasing the same from the plaintiffs.

All which refusals were affirmed, upon appeal, by a division of this court.  

COUNSEL:
By HINCKLEY for the appellants, and

By TEACKLE and J. N. STEELE for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*352]  MAGRUDER, J., delivered his opinion as follows:
It has already been decided by this court, in the case of Henderson and Mayhew, and others, 2 Gill 393, that the owner of a vessel may be made answerable for supplies and articles procured by his agent, as in that case, although those articles [**20]  had been charged to the agent, provided the vendor was ignorant at the time that such agent was not the owner.
This action was brought by the defendant in error, in order to recover the price of the various articles furnished for the brig Harriet, and the plaintiff could only recover, by proving to the satisfaction of the jury, that the defendants in the court below were, at the time, the owners of this vessel. In order to prove them to be the owners, a bill of sale, previously executed by Hugh Boyle to the defendants in the court below, was offered in evidence. Thereupon the defendants offered to prove by parol testimony, that this deed, though on its face a bill of sale, was understood, and intended by the parties to it, to be a mortgage. Was such testimony, for such a purpose, admissible?
In the case of Wesley and Thomas, decided, (see 6 H. & J. 24,) in 1823, the court said, "by the rule of the common law, independent of the statute of frauds and perjuries, parol proof is inadmissible to contradict, add to, or vary the terms of the original agreement. This principle is founded in the wisest policy; it guards the chastity of written contracts against  [**21]  all interpolations, by considering the agreement as furnishing the best evidence of the intention of the parties." This case, it has always been supposed, decided questions like that now 

 [*353]  before the court. It states the general rule, the reason of the rule, to guard the chastity of written contracts; and it afterwards sets forth the exceptions to the rule, within none of which was an attempt made to bring the case, now under consideration.
Starkie, in his work on evidence, is equally explicit: "Where written instruments are appointed, either by the immediate authority of law, or by the compact of parties, to be the permanent depositories and testimony of truth, it is a matter both of principle and policy, to exclude any inferior evidence from being used, either as a substitute for such instruments, or to contradict or alter them. Of principle, because such instruments are, in their own nature and origin, entitled to a much higher degree of credit, than that which appertains to parol evidence; of policy, because it would be attended with great mischief and inconvenience, if those instruments, upon which men's rights depended, were liable to be impeached [**22]  and contradicted by loose collateral evidence." 3 Stark. 995. 1st Am. Edit. Oral evidence, he adds, shall in no case be received "to contradict, alter or vary a written instrument, either appointed by law, or by the compact of private parties, to be the appropriate and authentic memorial of the particular facts which it recites; for, by doing so, oral evidence would be admitted in usurpation of a species of evidence, decidedly superior in degree," p. 996. Hence the observation of Lord Tenterden, (in Vincent and Cole, 1 M. & M. 258:) "I have always acted most strictly on the rule, that what is in writing, shall only be proved by the writing itself." "The writing, says Domat, preserves unchanged the matters entrusted to it, and expresses the intention of the parties by their own testimony. The truth of written acts is established by the acts themselves, that is by the inspection of the originals." See cases cited, Broom's Legal Maxims, p. 266.
Such, it would really seem, always has been deemed to be the law, and the reason of that law, in England, and from England, Maryland borrowed its law on this subject. This, it may be, is not in every [**23]  respect the law in every one of our sister States, as will appear by the authorities collected in the 

 [*354]  notes to 3rd Starkie, 1009, and in Norris' Peake, 168. Other States, however, must be permitted to adopt such rules as they choose. It is the business of our courts to take care, that our law is not changed by different laws, and decisions, elsewhere.
It is thought, however, that advantage can be taken of this rule, only when the parties to the deed are the parties litigant, which is not the case here. But does this vary the law, as it was laid down in Wesley and Thomas? To say this, is to reverse that decision,--to say that the language used by the court on that occasion, did not express its meaning. To be sure, that was a case between the parties to the deed, out of which the controversy grew. But the court did not say that parol evidence could not be admitted in that suit, because in that suit, the parties were parties to the deed, but because of a general rule; a rule that, in any case, parol evidence could not be received to contradict the deed;--to give it a meaning which its own words, without any interpolation, will not give to it, or to take [**24]  from it, any portion of the meaning to be found in its words, unless the deed was impeached, and it was designed to prove, that there was something like fraud or mistake in or about it; and here was a deed to be construed, and no fraud, mistake, or surprise, was alleged.
The argument is, that the rule laid down in Wesley and Thomas, is a rule of which advantage can be taken only by one of the parties to it, in a controversy to which the parties to the deed are the parties. No such notion, I feel warranted in saying, can be found any where in the Maryland Reports. If we find it at all, it must be found elsewhere.
There is perhaps not a little danger, that in the prevailing fashion here, of referring to the decisions of courts elsewhere, although we may not, in strictness, make laws ourselves, for the good people of the State, yet we may make the courts and legislatures of other States, legislate for this State. This is an evil which "has increased, is increasing, and ought to be diminished." There is, however, it is believed, no great danger of being thus misled in this case, if we will take the trouble to examine and correctly understand the cases. It perhaps may 

 [*355]   [**25]  be safely affirmed, that there are repeated decisions of the courts of New York, which, so far from sanctioning this notion, would teach us, that the law is quite otherwise. In the cases, Dey and Dunham, 2 Johns. Ch. 182, and Dunham vs. Dey, 15 Johns. 555. Strong and Stewart, 4 Johns. Ch. 167. James vs. Johnson, 6 Johns. Ch. 417. Henry vs. Davis, 7 Johns. Ch. 40; and Marks vs. Pell, 1 Johns. Ch. 594, it seems to be decided, that in the controversy between parties to the deed, parol evidence may be admitted to vary the terms of it; to prove that a bill of sale, absolute on the face of it, is in truth but a mortgage, and this in a suit between the party making the deed, and the person to whom it was made, the former alleging, that though a bill of sale, it was made to secure a debt, and asking leave to redeem property conveyed by a deed absolute on the face of it, and the defeasance resting in parol. In such a case, indeed, some such reasoning as this might seem to be admissible. The transaction is one between a creditor and his debtor, not between a vendor and vendee. The object [**26]  of the parties was not the satisfaction of the debt, but merely to secure the eventual payment of it. To use that deed after it is obtained, not for the purpose for which the creditor professed to ask it, and for which, if the parol proof is received, it will show, that it was unquestionably designed, is an act of downright fraud in a mortgagee; in fraud of the agreement, and also in fraudem legis, which is peremptory, that no mortgagee shall, by any contrivance, deprive the mortgagor of his equity of redemption; "a fraud on the part of the defendant, a mortgagee, in attempting to convert a mortgage into an absolute sale." 4 Johns. Ch. 167. In this last case, Chancellor Kent said, that the authorities cited by him, "are sufficient to show, that parol evidence is admissible in such cases, to prove that a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale." Thus is made out a case of fraud, against which chancery will relieve. Same in Va. See 1st Wash. R., 14. 1st Hen. and Munf., 101.
In England it would seem, that such reasoning would not be entirely satisfactory to the court.  [**27]  See the cases in Coote, pp. 23, 24, &c., to show what is meant there by writers and 

 [*356]  chancellors, when they say that "equity will admit even parol evidence," to show that an absolute conveyance was intended by way of security only. Indeed Chancellor Talbot, (Talbot's Cases in Eq., p. 69,) condemned the practice which then prevailed in some parts of England, of taking an absolute deed, with a defeasance separate from it, saying, "to me, it will always appear with a face of fraud, for the defeasance may be lost, and then an absolute conveyance set up."
Here it may be proper to remark, that the unfortunate case of Wesley and Thomas, is, in another respect, most strangely misapprehended. The court is supposed to have decided, that as the case was one between parties to the deed, and simply for that reason, either party was estopped, and could not, by parol testimony, prove, that although it was intended to be a bill of sale in form, the design was merely to secure the payment of a debt. That question, it is believed, the court did not choose, perhaps was not prepared, to decide. The decision was, that in that, and such like cases, "it is essential,"  [**28]  that the bill should charge fraud, mistake or surprise, to let in any parol proof. "It is essential on every principle of correct pleading, that that which gives jurisdiction to the court, should be distinctly and substantially alleged." The bill in that case made no such charge, and for that reason, the court was not authorized to look at the parol proof, and, of course, could not have relieved, although there had been the most satisfactory evidence, that the mortgagor agreed to execute a mortgage; that the mortgagee wrote it, undertook to read it to the other, and in doing so, contrived so to misread it, as to make it a mortgage in express terms. That there was a defect in the bill, which was then, and in that court, incurable by the proof, though that proof had been all sufficient to establish a fraud. It would not appear, from the New York and English Reports, that the courts there deem such a charge in the bill to be so essential, as it was declared to be in the above named case, though in this we may be misled by their reporters.
We are now urged to make the court say, what certainly it did not say: to declare that to the general rule upon which reliance is placed,  [**29]  there are four exceptions; when the court said 

 [*357]  there were but three; to add to the words which were used, some such words as these, "And unless the parties to the deed were not parties to the suit," this would not be to "guard the chastity of the written" opinion, and for such violation of its chastity, we cannot find an apology in any evidence, parol, hearsay, or other, before us. And what would be the consequences of such an unauthorized interpolation? The rule would be entirely changed, and in place of the rule of common law, spoken of in Wesley's case, what is there stated to be the general rule, is made to be an exception to it. Correctly written, it would be made to read thus:--Parol evidence is admissible to contradict or vary the terms of any written instrument, in all cases; except only when the parties to the deed are parties to the suit; and in those cases too, provided there be fraud, accident, or mistake|
It is not questioned here that the deed was admissible to prove the fact for which it was produced, to wit, that the absolute title to the vessel was in the defendants. It was offered simply to prove, and, if there be no interpolation made,  [**30]  it was proof conclusive, that on the day of its date the defendants became the absolute owners of the vessel, and that fact being established, the liability of the defendants was made out; unless indeed they could have proved, that afterwards, and before the purchase of the articles, the price of which is claimed in this suit, the defendants had disposed of the vessel. No attempt was made by the defendants below, to prove any such sale; but they insist, (and it is their only answer to the claim,) that this deed, although absolute in its terms, did not give them an absolute title; and they wished to be allowed to prove by parol evidence, an agreement or understanding between the parties to it; and which certainly is to be found no where in the bill of sale. This would be to violate the principle which is laid down in Wesley and Thomas, and which, we are told, is founded "on the wisest policy; it guards the chastity of written contracts against all interpolations."
Indeed, to state the doctrine, is a refutation of it. It cannot be that the same individual, founding his title in each case upon the same written instrument, can insist, when a claim 

 [*358]  against him is established [**31]  by the deed, that the deed is not what it purports to be, and by parol evidence of this, defeat the claim; and yet, in a controversy between him and the person who executed the deed, at the same time, and although the testimony adduced in the other case, is now ready to be produced against him, may insist that the same deed, which he was allowed in the former suit to prove, was only a mortgage, is in this suit no mortgage at all, and thus defraud his creditors or his debtors. Yet such would be the inevitable consequence, confining the rule laid down in Wesley's case to controversies, between the parties to the deed.
This however, it is contended, is the law, and that it is to be found in the law of estoppel. It has not been discovered, that the law of estoppel has any thing to do with the case under consideration. This is an attempt by the party grantee, to impeach a deed executed to himself, and which he has accepted. He offers oral testimony, which he says will give the lie to his deed, and will prove the real truth in regard to his title, which his own, and only evidence of title, conceals, and misrepresents. Upon what ground is the introduction of this parol testimony,  [**32]  for such a purpose, resisted? Did the plaintiff rely on the law of estoppel? no such thing. It was insisted, that "only, the best evidence attainable, was admissible. "It is a fundamental rule of our common law, that oral evidence shall not be given, to add to, subtract from, or in any manner alter or vary, any description of written contracts. Quoties in verbis, nulla est ambiguitas, nulla expositio contra verba fienda est. This general rule or principle has been established, on the ground, that the writing stands higher, in the scale of evidence, than the oral testimony; and that the stronger evidence ought not, therefore, to be controlled or altered by the weaker." Addison on Contracts, 158. Such is the rule, except when testimony is offered to invalidate the instrument in a contract which cannot be impeached, as in this case, is made and reduced to writing by the parties; the writing must speak for itself, and not be interpreted by witnesses, who may at the time have misunderstood the parties to the contract, or if they correctly understood their meaning at the time, may since have forgotten 

 [*359]  it. Verba volant, scripta manent. This is the law, and would [**33]  have been the law of this case, although no law in regard to estoppel, had ever been heard of.
The case of Carroll vs. Norwood, 5 H. & J. 155, was a controversy between two persons, one of them claiming indeed under the parties to a contract or grant, but the other, an entire stranger to it, and yet parol testimony to prove the intent of the parties, and the meaning of the written deed, was inadmissible.
It may sometimes be the case, that a deed is evidence for one party, and not admissible when offered in testimony by his adversary. "They alone," (the parties to the instrument,) "are to blame, if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons." 1st Greenl. on Evid., sect. 279. See also 4th chap., of same author.
In the trial of this cause, a deed executed by another person, to the defendants, was offered in evidence. The first enquiry was, for what purpose was that deed offered? If admissible, and admitted for that purpose, it is to speak for itself; and if its meaning be doubtful, who is to say what is its import? What interest in the thing thereby transferred, passed to the [**34]  vendee? The court, and in construing it, "the court are to regard, and be governed by the intention of the parties, to be collected from the deed, if not incompatible with some rule or principle of law."--"And nothing extrinsic or de hors the deed, is to be recurred to, in ascertaining such intention." Carroll & Norwood, 5 H. & J. 155. Except in the single case of a latent ambiguity, or unless the deed be impeached in a proper way, and by the proper person, for fraud, mistake, or surprise. Now, it cannot be pretended, that these defendants attempted to impeach this deed upon either of these grounds, or that there is in it any ambiguity, latent, or otherwise. "In such cases," we are told, in 1st Greenleaf on Evidence, sect. 277, "the duty of the court is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used."

 [*360]  I adopt then, in reference to the question here, the language of Ch. J. Tindel, in Attorney General vs. Shore, 11 Sim. 592:--"In such cases, evidence, de hors the instrument, for the purpose of explaining [**35]  it according to the surmised, or alleged intention of the parties to the instrument, is utterly inadmissible. If it were otherwise, no lawyer would be safe upon the construction of a written instrument, nor any party in taking under it; for the ablest advice might be controlled, and the clearest title undermined, if at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or the objects he meant to take benefit under, it might be set up to contradict, or vary the plain language of the instrument itself."
It is due to the question, which of itself is of importance to the community, and which derives additional importance from the circumstance, that an equal division of the court seems to leave this a doubtful question, after it had been decided in the case of Henderson and Mayhew, that some notice should be taken of it, in connection with the case of Crawford's Adm's, vs. Brooke, ante, 113.
This latter suit was brought upon an account alleged to be due from the deceased to Hodges & Brooke, and by them assigned to John B. Brooke, the plaintiff in the court below. The assignee [**36]  brought the suit as assignee, and grounded his right to be the legal plaintiff in the suit, upon the act of 1829, chap. 51. In order to recover, it was necessary that the jury should be satisfied, that the deceased owed to the assignors the sum claimed, and that the claim was not barred by the statute of limitation; also, as the assignment of it. To prove the claim and a promise by the deceased, within three years before the institution of the suit, to pay it, he examined as a witness, Brooke, (one of the assignors and original creditors,) and by him proved the services, and the promise to pay, within the three years; and also proved the assignment. Supposing this to be all the proof required on his part, in order to show that he was, bona fide, entitled to his debt; and supposing that a bona fide assignment could mean in the case, nothing more 

 [*361]  than an actual transfer, in the form used, of the debt, and not a contrivance by the aid of his own testimony, to recover money, which, when recovered, would go into his own pocket, the plaintiff, upon this proof, rested his case. Thereupon, the defendant below enquired of the witness, quo animo, he executed the assignment;  [**37]  and expected to prove by the answer, that it was executed and the debt transferred, for the purpose of enabling the witness to testify in the case, as before stated; and this proof the defendant said was offered, in order to show that the assignment was not according to the act of 1829. It appearing that the witness had no interest, whatever, in the event of the suit; and as the motives of the assignor could not affect the title of the assignee, to the money, (7 Wheat. 566,) the court refused to direct the question to be answered, the answer having no tendency to prove what it was offered to prove, that the plaintiff was not bona fide entitled to the money for which the suit was brought. The case, then, was like a case of frequent occurrence in our courts, when a witness who has been examined, and has established the claim, is discovered to be interested as legatee, distributee, &c., and who for the declared purpose of being a witness, and proving the claim, releases, assigns, or transfers all his interest, and thereby makes himself a competent witness. The decision of the court then was, that as the witness had divested himself of all possible interest in the event [**38]  of the suit, the question was inadmissible for the purpose for which it was put, but not that it was inadmissible for other purposes, such as to affect his credibility.
The exception then distinctly presents the question, whether this proof, if admitted, might not have shown, that by this assignment, which is required by the act of Assembly to be in writing, the plaintiff was, bona fide, entitled to the chose in action. This court reversed the judgment, but expressly upon the ground, that the answer, "which it must be assumed would have been given to the question, was material to destroy his competency, indeed, to avoid his assignment. The objection, it is added, was made by one who was injuriously affected by the assignment, upon the ground, that it was founded in fraud." In another part of the court's opinion, it is said, "it 

 [*362]  was offered to prove, that the witness was influenced by considerations which would invalidate the instrument. Now if this court correctly understood that case, there can be no doubt that any person injuriously affected by the assignment, whether he be a party or a stranger to it, could offer proof to invalidate it. It is equally certain, that [**39]  no two cases could be more unlike, than that case, and the one under consideration.
The counsel however, it seems, in support of the judgment of the court below, relied upon the principle, that parol testimony was inadmissible to contradict the written instrument. This, the court correctly observed, had no application to this case; in which the attempt was made, not to explain or contradict, but to invalidate the assignment. What is added, that the rule relied on by the counsel, is confined to the parties to the instrument, and does not extend to third persons, is inapplicable to the case before us; because in this case, the benefit of the rule is claimed by a third person, and it is a party to the deed, who denies that he ought to be affected by it.
It cannot be alleged, that in a case which is now to be noticed, the question under consideration was not expressly decided.
The case alluded to, will be found reported in 2 Gill 393, and was against the same defendants, claiming of them a sum of money for articles furnished for the selfsame vessel as in this case, and on the selfsame ground, to wit, that these defendants were the owners of this vessel, Harriet. The [**40]  proof of that ownership was the selfsame bill of sale, which is introduced into this case for the selfsame purpose; and the selfsame effort which is made in this, was made in that case, to defeat the claim by the introduction of parol evidence, to prove the bill of sale to be a mortgage. This parol proof was rejected in the court below, (by Archer, C. J., and Purviance, A. J.,) and this court upon an appeal decided that case, precisely as the court below decided this case,--that parol testimony for such a purpose was inadmissible,--though that case, like the present, was brought against one of the parties to the deed, by a person who was not a party to it, nor the representative of any party to it, or claiming under it. In expressing the opinion of the court in that 

 [*363]  case, the following language was used:--"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. 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 [**41]  from offering the evidence on which they rely, in order to defeat the action against them."
Surely we cannot in this case, quarrel with the decision of the court below, and pronounce that there was manifest error in it, when that court learned this law from a decision of this court, in a case which differs in no respect from this, but in the name of the plaintiff, and the sum claimed.
Entertaining the opinion, that the plaintiffs in error claiming under this bill of sale, must upon this appeal be considered the absolute owners, and that they cannot in the manner proposed, shift from themselves any responsibility which the law says shall be the consequence of such ownership, I think this judgment ought to be affirmed; and now--
MAGRUDER, J., delivered the opinion of this court.
It has already been decided by this court, in the case of Henderson and others, and Mayhew and others, December term 1844, (and see also Wyman against Gray, 7 H. & J. 409,) that in the case of goods sold to an agent, if the principal be not known at the time of the sale, when he is discovered, he or the agent may be sued at the election of the vendor. In such a case, of course, the [**42]  proof must establish, to the satisfaction of the jury, that the defendants were the owners of the vessel, and the plaintiffs were ignorant of it at the time of the sale. The several opinions of the court below, to this effect, are affirmed.
The plaintiff in the court below having offered in evidence a bill of sale, executed by H. Boyle to the defendants, conveying to them the vessel, for the repair of which, articles were furnished by the plaintiffs, efforts were made by the defendants below, to prove that the bill of sale was only intended as a mortgage. In these they were unsuccessful, and exceptions 

 [*364]  were taken to the opinion of the court. This court being equally divided in opinion upon these exceptions, the opinions of the court below are affirmed.
JUDGMENT AFFIRMED.  

5 of 23 DOCUMENTS 

BENJAMIN A. BUCK vs. MICHAEL DOYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 478; 1846 Md. LEXIS 55 

December, 1846, Decided 

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

This was an action of assumpsit, brought to September term 1844, by consent of parties, by the appellant against the appellee. The cause was heard upon the general issue. The jury found a verdict for the plaintiff, under the instructions of the county court, for $ 208.26.

Upon the trial of this cause, the plaintiff offered in evidence, by Upton Buck, that he was a clerk in the exchange and broker's office of the plaintiff during 1844; that on the 24th May 1844, at about half-past eight o'clock, A. M., a youth, who was then a clerk in the office of the defendant, who was at that time, and still is, an exchange broker, and which said clerk was known to the plaintiff at that time to be a clerk in the office of the defendant, called at the office of the plaintiff with five notes, purporting to be notes of the Planter's Bank of Tennessee, each of the denomination of one hundred dollars, and asked the plaintiff, at what rate he would discount said notes? that said plaintiff informed said clerk of the defendant, that he would discount them at three per cent.; upon which the said clerk of the defendant remarked, that Mr. Harris, another broker,  [**2]  had offered to discount said notes at two and-a-half per cent., and give his check for the amount less said discount, but that offer was declined, because Mr. Doyle, the defendant, wanted the money for a person about to leave town in the nine o'clock cars, and that a check would not answer, as Mr. Doyle, the defendant, wanted the money; that the plaintiff, upon receiving this information, agreed to discount said notes at two and-a-half per cent., and paid to said clerk of the defendant, in Baltimore bank notes, the amount of said notes, less the discount aforesaid. That the plaintiff did not particularly examine said notes, for the purpose of ascertaining whether they were counterfeit or not, because he was informed by the clerk of the defendant, that they came from the office of the defendant, who was known to the plaintiff to be a regular broker, and that it is not usual among brokers, to inspect notes which they receive from each other, as closely as if they were received from a stranger, because they all suppose each other to be equally good judges of notes; and take it for granted, that if spurious notes are even received by one from another, that the mistake will be corrected,  [**3]  and that such is the usage among brokers in the city of Baltimore; but, that if the plaintiff had examined said notes closely, with a view to determine whether they were genuine, he might and probably would, have discovered, that said notes were counterfeit.

The plaintiff further proved by said witness, that the said five notes were placed in the money-tray of the plaintiff, and there remained for a short time, when they were all passed by the plaintiff to a certain Joseph E. Husbands, under a special agreement; and further proved by said witness, that the five notes now shewn to him, purporting to be notes of the Planter's Bank of Tennessee, each of the denomination of one hundred dollars, are all counterfeit.

The plaintiff further offered in evidence, by Joseph E. Husbands, a competent witness, that he is by profession an exchange broker; that in the latter part of May 1844, he purchased from the plaintiff five notes, purporting to be notes of the Planter's Bank of Tennessee, each, &c.; that he obtained the said notes from the plaintiff, upon a special agreement, which was, that said witness should pay said plaintiff the amount, less one per cent. discount, of so much of [**4]  said five notes, as said witness would be able to dispose of in the western country, whither he was going to buy produce; and that so much of said five notes as remained undisposed of by said witness, the plaintiff was to receive from him, upon his return to Baltimore, at one and-a-half per cent. discount; the account between witness and the plaintiff, to be settled upon the return of witness to Baltimore. That the witness went to the city of Pittsburg, and there sold three of said notes so received from the plaintiff, to a certain William Larimer, a broker in said last mentioned city; and not being able to dispose of the other two of said five notes, returned them to the plaintiff, in pursuance of their contract aforesaid; that at the time he received said notes of said plaintiff, and also at the time he returned the two, aforesaid, to the plaintiff, the said witness, nor the plaintiff, as the said witness believes, had no suspicion that any of said notes were counterfeit; that he did not examine them with any attention when he received them, or he would have discovered the forgery; and that the only notes the said witness had in his possession of, or purporting to be notes of, &c.  [**5]  , upon his said trip to P., were the said five notes which he received of the plaintiff, as aforesaid. That shortly after the return of said witness from P., he was informed by the plaintiff, that he was fearful there was something wrong about said two notes; that a man had been arrested for passing counterfeit notes upon the Planter's Bank of Tennessee; and that said witness and the plaintiff having discovered the two notes, then in the possession of the plaintiff, to be counterfeit, went before Mr. Miltenberger, a justice of the peace of Baltimore, and made the affidavits annexed to the two notes marked A and B, &c.

That witness is not able to identify said two notes as the same which he returned to the plaintiff, upon his return from Pittsburg, as aforesaid, because he put no mark upon said two notes; and the plaintiff further gave in evidence, by the last mentioned witness, that the first information he had, and, to the best of his belief, that the plaintiff had, that the three of said notes which witness passed off in P., were counterfeit, was on or about the 3d August 1844, when he met, at the cars, Mr. Larimer, to whom he had passed them, and who then, for the first time,  [**6]  told him said three notes were counterfeit; that upon receiving this information, said witness referred said Larimer to the plaintiff, as the person from whom said witness had received said notes, and that on that day, the plaintiff paid said Larimer the amount which he had paid for said three notes, and took said three notes.

The plaintiff further offered in evidence, by Upton Buck, that the plaintiff never had in his possession any notes of the Planter's Bank of Tennessee, of, &c., nor any notes purporting to be notes of that bank, of, &c., except the five notes which he passed to said Husbands, as aforesaid; and that the two notes, marked A and B, hereinbefore inserted, are the two notes which said Husbands returned to said plaintiff, upon his return from P., as aforesaid, and the same notes with reference to which the affidavits thereto annexed were made.

And the plaintiff further offered in evidence the deposition of William T. Sprigg, who proved the notes counterfeit, and Doyle's admission, that if they were the same notes he sold plaintiff, and counterfeit, he would have to pay them.

The plaintiff further offered in evidence a commission, and testimony taken under [**7]  it in Pittsburg, for the purpose of identifying the notes in controversy, which the proof tended to do.

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

1st. That in order to find for the plaintiff in this case, they must believe from the evidence in the cause, that the money paid by the plaintiff on the purchase of said notes, was received by the defendant, or some person for him, in that behalf duly authorized.

2d. That if they shall find, that the plaintiff is an exchange broker of established character, as such as a person of experience and skill in said business, and a competent judge of bank notes, as to their genuineness; and shall also find in the cause, that a competent judge of bank notes, by the exercise of ordinary care in the examination and inspection of said notes, at the time they were offered for sale to the plaintiff, could and would have detected them as counterfeits, and that the plaintiff himself, or his said clerk, Upton Buck, by the exercise of ordinary care and prudence in the examination and inspection of said notes, at the time they were so offered to the plaintiff, could and would, have detected them as counterfeit; and shall [**8]  further find, that said notes were so received by the plaintiff at the time they were so offered, without the exercise of ordinary care, in the examination and inspection of said notes, on the part of the person receiving the same, and without the application of the actual skill and experience of the said plaintiff, or of his said clerk, in the examination and inspection of the same; and shall further find, that the plaintiff and his said clerk had full opportunity to examine and inspect the same, before said notes were handed to the witness, Mr. Husbands, and that they neglected to make such inspection and examination as aforesaid; and shall also find from the evidence in the cause, that the person who offered said notes for sale, and also that the defendant, acted bona fide, without knowledge or suspicion, and without any grounds to believe or suspect, that said notes were otherwise than genuine, then the plaintiff is not entitled to recover.

3d. That if they shall find the several facts set forth in the defendant's second prayer, as the hypothesis of that prayer; and shall also find, that the plaintiff's business principally consists in buying and selling bank notes, of the [**9]  issues of foreign banks; and shall also find from the evidence in the cause, that the said notes offered in evidence, were offered for sale to the plaintiff, in the usual course of business, at his counter; and shall further find from the evidence in the cause, that the omission to detect said notes as counterfeit, at the time they were received, and afterwards, whilst they remained in the possession of the plaintiff, before their delivery to the witness, Mr. Husbands, and at the time of their delivery to Mr. H., was the result of negligence on the part of the said plaintiff and of his said clerk, then the plaintiff is not entitled to recover in this case.

4th. That even if they shall find from the evidence in the cause, that the person who presented said notes at the counter of the plaintiff, was a lad at that time, in the service of the defendant, as a clerk in his business; and shall also find from the evidence, that they were presented by said lad, at about half-past eight o'clock in the morning, with a statement, that Mr. Doyle, the defendant, desired them to be discounted for a person who was about to leave in the 9 o'clock cars of that day; but shall also find, that the [**10]  business of the defendant is that of a vendor of lottery tickets, in conjunction with the business of an exchange broker, and that his office and place of business is in Pratt street, then the acts and declarations of said clerk of the defendant, are not sufficient, per se, to shew that he was authorized by the defendant, quo ad, the sale of said notes, to act on his behalf, and that unless the jury shall find from the evidence in the cause, proof of antecedent authority, or subsequent ratification on the part of the defendant, it is not to be presumed merely from the relation subsisting between his said clerk and the defendant, that the said clerk had authority in this particular transaction to act on behalf of the defendant in the sale of the said notes, or in the receipt from the plaintiff of the price thereof.

5th. If the jury shall find the facts set forth in the preceding prayers, as the hypotheses respectively of said prayers; and shall also find from the evidence in the cause, that said notes, after they had been so received by said plaintiff, were by him retained for several days in his possession, and then delivered to the witness, Mr. Husbands, under the terms and provisions [**11]  of the special agreement, proved by said Husbands in his evidence; and shall further find from the evidence in the cause, that the said notes were received by said Husbands, without the exercise of ordinary care on his part in the examination and inspection of said notes, from his confidence in the judgment, experience, circumspection and care of the said plaintiff in business; and shall further find, that said Husbands then was a person of skill and judgment in the knowledge of the character of bank notes, and that by the exercise of this actual skill and knowledge which he possessed, he could and would, with ordinary care and circumspection, have detected these notes as counterfeit; and shall further find from the evidence in the cause, that said Husbands carried said notes with him to Pittsburg, and there disposed of three of said notes to a clerk of a certain W. Larimer, in Pittsburg, on the 28th day of May 1844, without the exercise of ordinary care at the time they were so passed away, either by said Husbands, or said clerk of said Larimer, in the examination and inspection of said three notes; and shall further find from the evidence, that said Larimer kept an exchange office [**12]  in Pittsburg, and that his said clerk there was a good judge of the genuineness of the notes of the particular bank of which said three notes purported to be the issue, and that said notes were so passed by said Husbands, in the usual course of business, and that said clerk received the same, without the exercise of ordinary care in the examination and inspection of the same, from his confidence, in his opinion, of the skill and care of Mr. Husbands, from whom he received them; and shall further find from the evidence, that the said Husbands, and said clerk of said Larimer, by the exercise of ordinary care and circumspection, at the time said notes were passed to said clerk by said Husbands, or by the exercise of the actual skill and care of either, could and would, have detected said notes as counterfeit; and shall further find from the evidence in the cause, that said three notes were not returned by said Larimer, or his said clerk, or by said Husbands, to the said plaintiff, until the 3d day of August 1844, and were not tendered to the said defendant to be returned to him, until after the same were so returned to the plaintiff; and shall further find from the evidence in the cause,  [**13]  that the said Husbands had returned from Pittsburg to Baltimore, as early as the 3d day of June 1844, and that said plaintiff and said Husbands then knew or believed, or had reasonable grounds to suspect and believe, that said notes were counterfeit; and shall further find from the evidence in the cause, that no communication was made by the said plaintiff, or said Husbands, to said Larimer, or his said clerk, or by said Larimer, or his said clerk, to said plaintiff, or said Husbands, in relation to said three notes, until the latter end of the month of July 1844, then the plaintiff is not entitled to recover in this case, in respect of said three notes so passed by said Husbands to said clerk of said Larimer.

The court, (PURVIANCE and LE GRAND, A. J.,) rejected the 2nd and 3rd, and granted the 1st, 4th, and 5th prayers of the defendant; to the granting of the 5th prayer of the defendant, the plaintiff excepted.

The plaintiff having recovered less than his demand under the directions of the court, as given to the jury, prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

The doctrine of caveat emptor, does not apply to brokers dealing in bank notes of the other States. Both parties being equally innocent in such a transaction, having equal means of knowledge, and the usage being, that the purchaser may rely upon the skill of the vendor in detecting counterfeits, the former may recover from the latter the sum paid him for such paper, it proving to be forged.

The purchaser may lose his right of recovery by laches.

But where the purchaser has parted with such paper, bona fide, and for value, and knows nothing of the forgery, he is not guilty of laches, if, on claim being made of him, he refunds his vendee, and thereupon tenders the forged paper to his vendor, and requires him to refund. 

COUNSEL:
By TEACKLE for the appellant, and

By WILLIAM SCHLEY for the appellee.  [**14]  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*485]  MAGRUDER, J., delivered the opinion of this court.
This action was brought in Baltimore county court, by the appellant, to recover back from the defendant money paid by him for bank notes, which proved to be counterfeits. These notes, it is to be taken for granted, were counterfeit, and were received by the plaintiff of the defendant, in exchange for other money which was good.
The notes were received by the plaintiff on the 24th May 1844, and a few days afterwards, were passed away to one Husbands, who went to Pittsburg, and there sold three of said notes to one Larimer. Husbands, upon his return, brought with him, and delivered to the plaintiff, the other two. Whether, upon the latter, a recovery can be had, is not a question before us. The amount of them was recovered, and it is only to be enquired now, whether the plaintiff is entitled to recover of the defendant the money which he paid for the other three. These were offered to defendant on the 3rd of August.

 [*486]  On the part of the defendant it is insisted, that the maxim, caveat emptor, applies [**15]  to this case, and that the plaintiff cannot recover, because, by the exercise of due diligence, he might have discovered that the notes were counterfeit. The court is not of this opinion. The defendant, as well as the plaintiff, was a broker, equally skilled in the business of detecting counterfeit notes, and cannot rely on such a defence. It would appear, that the plaintiff might have relied, and the usage among brokers authorized him to rely, upon the skill which the defendant possessed in detecting counterfeits. The parties must be considered as equally innocent; their knowledge and their means of knowledge were the same. If, then, it had been discovered, that these notes were counterfeit, and had been returned immediately after they were received, the plaintiff's right to recover in this suit the amount paid for them, could not be questioned.
The enquiry then is, whether, by reason of any laches on his part, the plaintiff has lost his right to recover in this case? We are not informed, what became of these notes after they were passed away by Husbands to Larimer, and until the return of them to the plaintiff, something more than two months after Husbands parted with [**16]  the possession of them. There is no ground for a presumption, that they were within the reach of the plaintiff, before the return of them to him. It cannot, therefore, be said, that he was guilty of any laches, which would furnish the defendant with a valid defence. The latter undertook to furnish the plaintiff with notes of the Planter's Bank of Tennessee, and received therefor a valuable consideration. The paper which he furnished, was not what he undertook it to be, and was of no value. Surely, then, upon every principle of equity, he is bound to refund, unless he can show, (and in this he has failed,) laches on the part of the plaintiff. If the case was res nova, we could not assent to the opinion of the court below.
The case of Key vs. Knott and wife, 9 G. & J. 342, and that of Jones and others, vs. Ryde and another, and some of the decisions, to which a reference is given in the report of those cases, seem to be at war with the decision of the court below.

 [*487]  There is in the case proof, that with respect to the two bank notes, returned by Husbands, and after the return of them to the plaintiff, he expressed apprehension in regard to [**17]  them, and demanded the money for them of the defendant. This proof, as set forth in the record, it is thought, weakens the claim of the plaintiff to recover the sum which he claims for the three notes, which are now the subject of controversy. But this, it would seem, is requiring too much of the plaintiff, and is too favorable to the defendant. He was, according to the proof, quite as able as the plaintiff, to judge whether the notes were genuine or otherwise. He put them into circulation, received full value for them, and was quite as likely as the plaintiff, to know from whom he obtained them, and if the three notes were not received by him, at the same time, and from the same person, that the other two were. There is no proof, that the plaintiff withheld from him any information, which he himself possessed, and whatever might have been the law of the case, if the defendant had possessed less skill than the plaintiff, in detecting counterfeit paper, yet, in this case, between brokers, the defendant cannot complain, that the plaintiff is the person who ought to suffer, unless, indeed, other proof can be offered.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

6 of 23 DOCUMENTS 

WILLIAM E. BURTON, C. S. T. BURKE AND WIFE, vs. E. A. MARSHALL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 487; 1846 Md. LEXIS 56 

December, 1846, Decided 

PRIOR HISTORY:
 [**1]   THIS was an appeal from the equity side of Baltimore county court.

The bill, in this case, was filed by Ethelbert A. Marshall, on the 8th October 1846, and founded upon the following contract, made by a certain C. S. T. Burke, for himself and wife, by which it was alleged she was bound:-

"PHILADELPHIA, 1st May 1846.

"Charles Burke, and his wife Margaret, now of Philadelphia Museum, are engaged to perform under the direction of E. A. Marshall, or his agent, at either The Holliday Street Theatre, Baltimore, or The Walnut Street Theatre, Philadelphia, at a salary of twenty dollars each, for a period of ten weeks, and a joint benefit at either of the cities, they receiving jointly, one-third of the receipts. At the expiration of the said period of ten weeks, (the commencement of which shall be on or about the 9th June, next ensuing,) Mrs. Burke is further engaged for the full period of The Walnut Street Theatre season, at a salary of $ 22 per week: (same in the months of January and February, when the salary shall be $ 20 per week, only.) Mrs. Burke to have, in the course of The Walnut Street Theatre season, (which shall be understood to extend to the 4th July 1847,) two [**2]  benefits, and to receive one-third of the gross receipts of each; and said continuation of the latter engagement, after the before named period of ten weeks, shall also be understood to be either for Baltimore or Philadelphia, as aforesaid, for Mrs. Burke only.     C. S. T. BURKE."

The bill alleged, that Burke had refused to permit his wife to perform; had withdrawn her from M's company of performers, and engaged her services to a rival company, in violation of his contract; that William E. Burton, manager of the Front Street Theatre, Baltimore, with a full knowledge of the contract aforesaid, had engaged the said Margaret B. from her husband; and that she is now in the service of the said Burton; that the complainant has brought his action at law against the said Charles for violation of the contract aforesaid, which he fears will not avail him, from the inability of the said Charles to pay any damages, nor could he recover at law adequate damages; that he has requested the said M. to return to his service, which she refuses, and her husband refuses to require her to return. Prayer, for an injunction against W. E. Burton, prohibiting him from suffering the said M. B., during [**3]  the term of her engagement aforesaid, to perform as an actress in any theatrical corps under the management of the said Burton; also against C. B., prohibiting him from removing without the jurisdiction of this court, his said wife, until, &c.; and also against M. B. from performing as an actress in any other theatrical corps, during the continuance of the said contract, &c.; and for subpoena.

Upon this bill, Baltimore county court, (LE GRAND, A. J.,) ordered an injunction, which was issued, on filing bond in the penalty of $ 500.

The defendants all appeared in the cause, and Burke and wife filed their joint answer to the bill, which was also answered by Burton.

The defendants then appealed, under the act of 1835, from the order granting the injunction, to this court; having first given bond to prosecute their appeal with effect.  

DISPOSITION:
INJUNCTION DISSOLVED AND BILL DISMISSED, WITH COSTS.  

HEADNOTES:

Upon a contract made by a husband for himself and his wife, that his wife should perform at the theatre of the manager named therein, during a certain period, for a certain salary, a court of equity will not enjoin the wife from performing at any other theatre, during the same period; nor the husband from permitting her to change her residence; nor another manager from giving her employment, within the term, as an actress; neither can specific execution of such a contract, as against the husband or wife, be decreed.

Upon a contract, affirmative in all its provisions, the executions of which could not be enforced in equity, a court of equity cannot be asked to engraft upon it a negative stipulation, and restrain its breach by injunction.

A court of chancery never lends its aid in furtherance of injustice and oppression.

While a complainant is prosecuting a suit at law, to recover damages for the violation of a contract, it is both unjust and oppressive, at the same time and for the same injury to seek to visit the defendant, in a court of equity, with the pains and penalties of injunction, by which he might be stripped of all means of subsistence, or violating the injunction, be imprisoned for contempt.

Equity will not listen to a complainant who thus presents himself for relief, until he makes his election in which court he desires to proceed in pursuit of his rights, and has dismissed, or agreed to dismiss, his proceedings in the other.

A party is entitled to recover but one compensation for an injury received.

All the covenants and agreements of a feme covert, (except in regard to separate property,) are null and void at law and in equity. She cannot be compelled to perform them, whether entered into by herself, or, on her behalf, by her husband, with or without her consent.

To restrain a married woman by injunction upon the footing of her contract, as if she were single, would, by indirect means, be an abuse of the process of the court.  

COUNSEL:
By F. P. LOVEGROVE for the appellants; and

By REVERDY JOHNSON for the appellees.  

JUDGES:
The appeal was argued before DORSEY, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*490]  DORSEY, J., delivered the opinion of this court.
In considering the propriety of the injunction [**4]  before us, it may not perhaps be out of place to refer to some of the familiar and well established rules which should be observed in reference to the issue of such writs. In 2 Story's Eq., sec. 959a, it is stated, "that the granting, or refusing of injunctions, is a matter resting in the sound discretion of a court of equity, and, consequently, no injunction will be granted, wherever it will operate oppressively;" "or where it is not the fit and appropriate mode of redress, under all the circumstances of the case; or where it will or may work an immediate mischief." And in sec. 959b, of the same book, the learned commentator says, "it ought, therefore, to be guarded with extreme caution, and applied only in clear cases; otherwise, instead of becoming an instrument to promote the public, as well as private, welfare, it may become a means of extortion, and, perhaps, irreparable injustice."
The appeal in this case, has been taken to the order of the 4th of October 1846, granting the injunction prayed for in the bill of complaint. The bill does not seek a specific performance of the contract, of which it charges the violation, and, therefore, does not ask for the injunction, as ancillary [**5]  to such a proceeding, or as restraining the violation of the alleged agreement, until a decree for such performance can be obtained. On the contrary it is conceded, as it well might be, both on reason and authority, that such is the nature of the engagement, or contract of Mrs. Burke, (if contract it can be called,) that its enforcement in a court of equity, by way of a decree for its specific execution, cannot be obtained. What are the means, then, by which the complainant seeks, through the medium of a court of equity, to coerce Mrs. Burke to the observance of her engagement? Why, by the imposition of 

 [*491]  certain prohibitions, restrictions, pains and penalties, by which she is offered the mild alternative of returning to the service of the complainant; or, (if dependent on her professional labors for a support,) she must either beg her bread, or be incarcerated within the walls of a public prison, and this, too, is to be her condition, without having first given her an opportunity of shewing, (should such be the fact,) that neither legally, equitably or morally, is she under the slightest obligation to return to the service of the complainant. For the granting of [**6]  such relief in such a case, it is believed, no sufficient authority can be produced.
To sustain the injunction before us, two cases have been referred to by the complainant's solicitor. The first, that of Martin vs. Nutkin, 2 P. Wms. 266, "where certain persons owning a house in the neighborhood of a church, entered into an engagement to erect a cupola and clock, in consideration that the bell should not be rung at five o'clock in the morning, to their annoyance. The agreement being violated, an injunction was afterwards granted, to prevent the bell being rung at that hour." The second case was, that of Morris vs. Colman, 18 Ves. 437, "where, upon the same ground a celebrated play-writer, who had covenanted not to write any dramatic performance for another theatre, was, by injunction restrained from violating the covenant." By so doing, in these two cases, the parties' defendants were required to perform that which, by the express stipulations of their contracts, they were bound to do. The granting the injunctions there, was in effect and substance, if not in form, the decreeing the specific execution of the agreement of the parties, according to [**7]  the express and unequivocal terms of their compacts. But was such the character of the injunction issued in this case? Did the engagement or contract of Mrs. Burke, contain any negative stipulation, that she would not do that which the injunction, issued, prohibited her from doing? Unquestionably not. Her only agreement was to render the services, in the company of the complainant, which were specified in her contract. The injunction, then, did not command the performance of that which was stipulated in the agreement, but prohibited the 

 [*492]  doing of acts, in relation to which she had made no stipulation. The cases cited, therefore, are not precedents for, and give no countenance to, the injunction issued in this case.
In Kemble vs. Kean, reported in 6 Sim. 333, and to be found in 9 Condensed Cha. Rep. 296, after a full examination of all the cases upon the subject, the vice-chancellor decided, that where the proprietor of Covent Garden Theatre agreed with an actor, that he should act for twenty-four nights, during a certain period of time, at their theatre, and that, in the meantime, he should not act at any other place in London, that the [**8]  court cannot enforce the positive part of the contract, and, therefore, it will not restrain, by injunction, a breach of the negative part. And in Kimberley vs. Jennings, 6 Sim. 340, and also reported in 9 Cond. Ch. Rep. 300, it was in like manner determined, that where a party agreed not to do a particular act, and there are other terms in the agreement, which are so vague, that the court cannot enforce them, it will not grant an injunction to restrain the breach of the negative term. If these cases are to be regarded as of any authority, upon what principle could the complainant, under a contract affirmative in all its provisions, and the execution of which could not be specifically enforced, ask a court of equity, in effect, to engraft upon it a negative stipulation, the breach whereof was to be restrained by injunction, as if it had formed a part of the written agreement of the parties?
But, conceding for the moment, that if primarily applied to, a court of equity could have granted the relief which has been extended to the complainant, under the circumstances in which it has been sought, it ought not to have been granted. A court of chancery never lends its [**9]  aid in furtherance of injustice or oppression. Is it not unjust and oppressive in the complainant, whilst prosecuting at law a suit, by which he is to be indemnified for all damage he has sustained by the refusal of Mrs. Burke to perform her engagement, that at the same time, and for the same injury, he should seek to visit upon her in a court of equity pains and penalties, by which she may be stripped of all means of subsistence, or be consigned to loathsome imprisonment in jail? Equity will not listen to a complainant 

 [*493]  who thus presents himself for relief, until he makes his election, in which court he desires to proceed in pursuit of his rights, and has dismissed, or agreed to dismiss, his proceedings in the other. The complainant is entitled to recover but one compensation for the injury he has sustained. That, the law presumes, he will obtain in his action at law; and to that, and nothing more, is he, in any aspect of his case, entitled, either in the contemplation of a court of law or of equity. To him, it is a full and adequate indemnity. In mitigation of the damages to be recovered at law, no losses or sufferings, inflicted upon Mr. or Mrs. Burke, by [**10]  the proceedings in equity, can be given in evidence. To them, in such a case, neither law or equity affords any adequate redress. It follows, as a necessary consequence, that the proceedings in both courts, at the same time, should not be tolerated.
In the views thus far expressed, we have treated Mrs. Burke as a person sui juris, and bound to the performance of the engagement entered into on her behalf, in the same manner that she would have been, had she been a feme sole. But such was not her condition. Being a feme covert, except in regard to her separate property, all her covenants, contracts, promises and agreements, as well in courts of law, as of equity, are absolutely null and void, and she is under no obligation, and cannot be compelled, to perform them, whether entered into by herself, or on her behalf by her husband, with or without her consent. From this exemption, it results as a corollary, that all proceedings emanating from a court of justice against her, which disclose her coverture, and seek the enforcement of any such contract, are fruitless and illegal. If the issuing of the injunction against Mrs. Burke, could, in this case, be sustained, her [**11]  violation of it, would cause to be visited upon her all the consequences incident to an attachment for a contempt of court; and thus, by indirect means, and the abuse of the process of a court of equity, she would be as amenable for her contracts entered into during coverture, as those made by her dum sola.
This court will sign a decree reversing the order of the 4th of October 1846, and dissolving the injunction issued thereunder, 

 [*494]  and dismissing the complainant's bill, with costs, in this court and the court below.
INJUNCTION DISSOLVED AND BILL DISMISSED, WITH COSTS.  

7 of 23 DOCUMENTS 

EPHRAIM HAMILTON, ET AL., vs. HUGH ELY, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 34; 1846 Md. LEXIS 10 

June, 1846, Decided 

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

The bill in this cause was filed on the 31st July 1845, by Hugh Ely, Joseph J. Speed, John Johnson and J. N. Steele, and alleged, that they are seized in their demesne, as of fee, as tenants in common of a certain tract of land lying and being partly in Howard district, and partly in Baltimore county, called "Ely's Chance," which was patented to the said Hugh Ely, by patent bearing date the 6th day of July 1830; that David Lemmon, Ephraim Hamilton, and Elias Hamilton, co-operating and confederating together, and acting jointly, have entered upon said tract, cut down large quantities of wood, and quarried large quantities of limestone, and that they are continuing to cut wood, and quarry stone as aforesaid; and that, as your orators believe, they design to remove said wood and limestone, already cut and quarried as aforesaid; your orators further show, that they have instituted actions of trespass q. c. f., against Ephraim and Elias Hamilton in Baltimore county court, and against David Lemmon in the court of Howard district for the trespasses committed, which said actions are now depending. Prayer, that the said E. H., Elias H., and D. L., may [**2]  answer the premises, and that your orators may have such relief as their case may require; for injunction to the said E., Elias and D., directed, prohibiting and enjoining them from cutting down and felling the trees in said tract, and from removing the said wood, so as aforesaid cut down and now lying on the premises, and from removing the stone already quarried, or from burning the same; and from quarrying any more stone, and from committing any waste or trespass on said land and premises, and any part thereof, until the further order of this court; and for subpoena.

On this bill the chancellor, (BLAND,) on the 31st July 1845, ordered subpoena and injunction to issue, as prayed.

The answer of the defendants alleged, that one Charles D. Warfield, of Howard district, is seized and possessed of a tract or parcel of land called, "I can do it well;" which lies partly in said District and partly in Baltimore county; and that they have been, and at the time of the service of the injunction in this case, were employed by him in quarrying limestone, of which large deposits are to be found on said land; and for the purpose of converting the same into lime, have cut, as the servants [**3]  of said Warfield, quantities of wood growing on said land; but in so doing, they deny they have wasted or lessened the value of said land. They aver that said land is chiefly valuable because of lime deposits, and can be made a source of profit only by the quarrying thereof. These defendants also admit, that some years ago the complainant, Ely, obtained out of the land office a patent for a parcel of land, called Ely's Chance, which includes within its location a part of the aforesaid tract, called "I can do it well." But as the last named tract is older than Ely's Chance, these defendants are advised, and do deny, that the said Ely, by color of his patent, obtained title to any part of the land included within the limits of "I can do it well," and so they deny that they have trespassed, or that they design to trespass, on any part of the land whereof the said Ely has, or at any time had, under color of his aforesaid patent, the seisin or possession. These defendants know nothing of any seisin or possession of said premises by the other complainants, other than that these defendants understand and believe they claim title thereto under the complainant Ely. And these defendants say,  [**4]  that in the month of April in the year 1842, the said Hugh Ely filed his bill of complaint in this honorable court against the said Charles D. Warfield, asserting the title, which is now pretended by the complainants in this suit, and praying for an injunction to prevent the said Warfield, his agents and servants, from trespassing on the lands which is pretended in the present bill to belong to the complainants. Upon which said bill an injunction was granted, as prayed; that the said Warfield, having filed his answer to said bill, and having appealed from said order, such proceedings were had, that at June term, in the year 1842, the said order was reversed, and the injunction, issued as aforesaid, dissolved; and by the aforesaid bill, answer, and other proceedings, now in this court will appear; and these defendants pray leave to refer thereto, for the purpose of showing, that the title put in issue in said cause is identical with the title at issue in this cause, and that the changes introduced in regard to the parties, complainants and defendants, are mere devices to escape the effect and consequences of the decision made in the former cause; and these defendants are therefore advised,  [**5]  that if the said complainants had truly disclosed all the proceedings which have taken place in said former cause, and had also confessed, as your defendants are informed and verily believe to be true, that the said other complainants acquired the title, which they pretend from the said Ely, subsequent to, and with notice of said former proceedings, your honor would not have granted an injunction in this cause; admitting, therefore, that actions of trespass have been brought against them, as charged by the complainants, and are yet depending, these defendants insist, the injunction issued in this cause was irregularly obtained, and pray the same may be dissolved, &c.

The various proceedings referred to in the defendant's answer, were filed therewith; but a particular notice of any of them is unnecessary.

On the 30th March 1846, a motion to dissolve the injunction came on for hearing, when the chancellor, (BLAND,) ordered it to be continued until final hearing, or further order.

The defendant appealed from that order, under the act of 1835.  

DISPOSITION:
ORDER REVERSED AND CAUSE REMANDED.  

HEADNOTES:

Upon the allegation of tenants in fee, that the defendants, confederating together, entered upon their land, cut down large quantities of wood, quarried large quantities of limestone, are continuing to cut down wood and quarry stone, and design to remove the same; that they have instituted actions of t. q. c. f., for the said trespasses, which are now depending, an injunction will not be granted to restrain further acts of trespass or waste.

In such a case, to authorize an injunction, the allegation, that the trespass was to the destruction of the inheritance; or, the mischief irreparable, is essential; and the facts must be stated, to show that the apprehension of further acts of trespass was well founded, to satisfy the conscience of the court.

Where the bill charges a mere trespass, where the injury is not irreparable and destructive to the complainant's estate, but is susceptible of perfect pecuniary compensation, for which the party may obtain adequate satisfaction at law, and no charge of insolvency in the defendants, an injunction ought not to be granted.

Under what circumstances will the quarrying of stone be considered an irreparable injury to the inheritance. qr. 

COUNSEL:
By ALEXANDER for the appellants, and

By J. JOHNSON for the appellees.  

JUDGES:
The cause [**6]  was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*37]  SPENCE, J., delivered the opinion of this court.
The bill in this case charges, that the complainants were seized in their demesne, as of fee, as tenants in common of a certain tract of land containing thirty-one and one-quarter acres, more or less, lying and being partly in Howard district, and partly in Baltimore county, called Ely's Chance. That the respondents, "co-operating and confederating together, and acting jointly, have entered upon said tract of land and cut down large quantities of wood, and quarried large quantities of limestone, and that they are continuing to cut down wood and quarry stone; and as the complainants believe, design to remove said wood and limestone, already cut and quarried."
The complainants further charge, that they have instituted actions of trespass quare clausum fregit, against the respondents for the trespasses committed, which actions are pending. The bill prays, that an injunction may issue enjoining the respondents from cutting down the trees on said tract of land, and from removing the wood so cut, and the stone quarried, [**7]  from said land, and from burning the same, and from committing any waste or trespass on said land. On which bill, the chancellor passed the following order: "Let writs of subpoena and injunction issue, as prayed by the foregoing bill."
The bill in this case, neither alleges the trespass as going to the destruction of the inheritance, nor the mischief as irreparable. If the bill did contain such allegations, that would not be sufficient, the facts must be stated to shew the apprehension of 

 [*38]  further acts of trespass, well founded, to satisfy the conscience of the court; "without such a statement of facts, no injunction should have issued; and this defect in the bill, even if such a remedy were applicable to such a case, is not cured by the testimony taken in the cause." Amelung and others, vs. Seekamp, 9 G. & J. 468.
It is not the established chancery doctrine in Maryland, to restrain the repetition of a mere trespass, pending proceedings at law to try the right. The learned judge, in the case of Amelung and others, vs. Seekamp, says, "it has never received the sanction of the appellate tribunal of this State, and will not be sustained by this [**8]  court."
The bill, in this case, charges a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate; but is susceptible of perfect pecuniary compensation, for which the party may obtain adequate satisfaction at law.
We do not mean to say, that under certain circumstances, the quarrying of stone might not be an injury to the inheritance; but that, in this case, no such circumstances are averred, as shew that the quarrying of stone would be irreparably injurious to the inheritance.
There is no charge of insolvency of the respondents.
This case falls within that class of cases, in which chancery will not restrain by injunction. Vide Amelung and others, vs. Seekamp, 9 G. & J. 468.
This court will sign a decree, reversing the chancellor's order continuing the injunction, and remand the cause.
ORDER REVERSED AND CAUSE REMANDED.  

8 of 23 DOCUMENTS 

TUNIS VAN BRUNT vs. HENRY PIKE, AND E. v. AND GEORGE W. WARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 270; 1846 Md. LEXIS 36 

December, 1846, Decided 

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

This was an attachment, to compel the appearance of Gideon Freeborn, Mentor Perdue, and William E. Craft, trading under the firm of Gideon Freeborn & Co., at the suit of H. Pike and Ward, issued out of Frederick county court, on the 21st November 1842, and to recover the sum of $ 995.55, due from G. F. & Co. to the appellees. The attachment was laid upon eighty-three tons of pig iron, on the same day, as the property of the debtors. Henry Jameison appeared, by counsel, as the garnishee of G. F. & Co., having given counsel authority so to appear, but he now moved the county court to strike out his appearance, as he had not been summoned to appear to, nor notified of the attachment, by the sheriff.

The appellant now moved the court, upon the ground, that he was in the actual possession of the iron attached, by his agent the said H. J., at the time of, &c., for permission to appear as claimant thereof, and was accordingly permitted to appear and defend the same from condemnation. He pleaded in bar, property in himself, and not in G. F. & Co., upon which issue was joined.

At the next term, upon suggestion of the appellant, the record [**2]  was transmitted to Washington county court for trial.

It is admitted in this case, that the iron that was attached, was, at the time it was attached, lying on the banks of the Chesapeake and Ohio Canal, at a place called the Point of Rocks, where the same had been brought from the furnace of William E. Craft, by Henry Jameison, who was employed by said Craft, one of the defendants in this case, to transport the same for him to his agents in Georgetown. That the said iron had been attached previous to the 25th of October 1842, by sundry creditors of Gideon Freeborn & Co., which said attachments were, on said last day, dissolved by the filing of bonds, under the provisions of the act of Assembly of 1834, ch. 79. It is further admitted, that Reuben Rowley, as the agent of said Craft, who was one of the defendants in said cases, did, on the said 25th day of October 1842, sell and dispose of the iron in question to Tunis Van Brunt, the party claimant in this case, the said iron then still being at the Point of Rocks, and did then deliver to him the account and receipt thereon, which is in the following words and figures:

"BALTIMORE, Oct'r 25th, 1842.

________________________________________________________________________________
Tunis Van Brunt, to William E. Craft,	DR.	
To eighty-three tons of pig iron, lying at the Point Rocks	
 in Frederick county, at $ 24.00 pr. ton,	$ 1992.00.	
________________________________________________________________________________

 [**3]  

Received payment,    WILLIAM E. CRAFT, by

$ 1992.00.     R. Rowley, his attorney."

That the said Van Brunt, on said 25th of October 1842, immediately after he had so purchased said iron, sent to said Jameison, by Rowley, the following order and directions in relation to said iron:

"MR. H. JAMEISON,

Sir:--You will please to forward the eighty-three tons of pig iron lying at the Point of Rocks, which I have purchased of William E. Craft, to Georgetown, to the care of F. and A. H. Dodge, with directions to them to ship the same to my order in the city of New York. Baltimore, October 25th, 1842.     TUNIS VAN BRUNT.

VAN BRUNT & ADAMS, Baltimore."

And the said Rowley also, at the same time, executed and delivered to said Van Brunt the following order:

"FREDERICK, Oct'r 29th, 1842.

Gent:--The eighty-three tons of iron which Mr. Tunis Van Brunt has directed Mr. Henry Jameison to take down from the Point of Rocks, to your care, to be forwarded to his order in the city of New York, you will please ship as early as possible, and write to me in the city of New York, if you please, when you so ship it. You will please to pay Mr. Jameison $ 1.62 [**4]  1/2 per ton, for freighting it down, and draw for it with your commission, &c., on forwarding the iron to New York, when it will be paid by Van Brunt.

Your ob't, &c.,

R. ROWLEY, 49 Nassau street, New York.

To F. & A. H. DODGE, Georgetown, D. C."

Which two said orders the said Rowley delivered to said Jameison, on last said day, who received the same and agreed to attend to them. It is further admitted, that said iron was not taken away from the Point of Rocks, as directed, but remained there until the attachment in this case was levied on the same, which was on the 21st November 1842. That Gideon Freeborn, Mentor Perdue, and William E. Craft, the defendants in this attachment, at the time of issuing the same, resided, and still reside, out of this State. And that said Van Brunt also resided, at the time of said sale to him, and still resides, out of this State, but was in this State at the time he made said purchase. It is further admitted, that the said sale, and account and receipt, were never recorded in the county of Frederick, or elsewhere, in pursuance of the act of Assembly of 1834, ch. 79. Upon the foregoing statement of facts it is agreed, that if the court [**5]  shall be of opinion, that the said Tunis Van Brunt did not acquire title to said iron, as against said attaching creditors in this case, then a judgment of condemnation to be entered in favor of the plaintiffs; but if the court shall be of opinion, that the said Van Brunt did acquire title to said iron, as against said attaching creditors, then the said attachment to be quashed, either party to be at liberty to take this case to the Court of Appeals, by appeal, or writ of error.

The county court rendered judgment of condemnation upon the said statement of facts, and Tunis Van Brunt, claimant of the iron, prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Where an appeal comes up on a case stated, it must be decided by the facts agreed on. Legal presumptions may be made, and necessary conclusions drawn, but inferences from facts, which may, or may not, be true, cannot be made by the court.

A party in possession of personal property, exercising acts of ownership over it, must be treated as the owner until the contrary appears.

A quantity of pig iron on the bank of a canal in Frederick county, under the care of one agent of the owner, was sold by another of his agents in Baltimore, who gave his receipt to the purchaser for the purchase money. The purchaser wrote to the agent in Frederick, to ship the iron to his agent at another place. HELD, that these facts constituted a constructive delivery of the iron to the purchaser.

In relation to a ponderous article of merchandise, incapable in the ordinary course of business of actual delivery, as pig iron, all the law requires to change the possession after a sale, is constructive delivery.

Where a party is in possession of an article intended to be affected by an attachment, he should be returned by the sheriff, as the garnishee.

Where there had been a valid sale and delivery of personal property, the act of 1834, ch. 79, which required the transfer of a non-resident to be recorded, does not apply.  

COUNSEL:
By F. A. SCHLEY for the appellants, and

By PALMER and W. PRICE for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*274]  ARCHER, C. J., delivered the opinion of this court.
In the case of Wells, Miller, and Cooper, vs. Biscoe, Mss. decision of this, court at Dec'r T. 1844, it was decided, that where there was a bona fide sale of iron in the warehouse of the Ellicotts, and an order for the delivery thereof, which was accepted by them in favor [**6]  of the vendee, the title of the vendee should prevail against a creditor of the vendor, who issued his attachment to affect such property, notwithstanding the act of 1834, ch. 79, this court being of opinion, that such a case was not embraced by the act of Assembly adverted to, and that, therefore, it was not necessary to record such transfer.
It will be only necessary for us, therefore, to enquire, whether it appears from the case stated, there has been a sale and delivery of the goods attached in the case now before the court, before the attachment issued by the plaintiff?
The case comes up on a case stated, and must be decided by the facts agreed upon. Legal presumptions may be made, and necessary conclusions may be drawn, but we cannot make inferences from the facts which may or may not be true. These doctrines appear to be deducible from the cases in 2 H. & G. 320. 3 G. & J. 158, and 6 G. & J. 266. That the property attached had been the property of Craft, is apparent from the statement.
The iron attached was in the hands of Jameison, the agent of Craft, who had brought it from the furnace of Craft, and who was employed [**7]  by Craft to transport the same for him to his agent in Georgetown. He was thus in possession of the iron, exercising acts of ownership over it, and being thus with the indicia of property, must be treated as the owner, until the contrary appears.
Being thus the owner, it is equally clear, that it was sold to the claimant. This is admitted in express terms. It is admitted, that Rowley, as the agent of Craft, on the 25th of October 1842, sold and disposed of the iron to Tunis Van Brunt, and that he delivered to him a bill of parcels for the iron, with a receipt thereon, for the purchase money. If, to perfect the sale, the payment of the purchase were considered necessary, that fact is evidenced by the receipt on the bill of parcels, and 

 [*275]  is to be taken by us as payment, in the absence of evidence to the contrary, and so far as the question and this statement is concerned, is just as efficacious as would be the admission, that the money was paid.
The next and only enquiry is, was the iron delivered in pursuance of the contract?
It certainly would not be necessary to prove a manual or actual delivery of the property. It consisted of eighty-three tons [**8]  of pig iron, lying on the banks of the Chesapeake & Ohio Canal. It was a ponderous article, incapable in the ordinary course of business of actual delivery. In such a case, all that the law requires is constructive delivery, and the enquiry is, was there a constructive delivery in this case?
On the 29th of October 1842, an order from the vendee to H. Jameison, directing him to forward it to F. and A. H. Dodge, at Georgetown, with directions to ship to the vendee in New York; and also an order from the agent of the vendor, giving further directions in relation to the shipment, and the payment to Jameison of the freight for transportation, directed to the shipper at Georgetown, are presented on the 29th of the same month to Henry Jameison, who agreed to attend to them.
We thus perceive, that Jameison is notified of the sale by the vendee and the agent of the vendor; that the vendee exercises an act of ownership over the property, by appointing Jameison as his agent, to forward the property; that all this is done with the consent of the agent of the vendor, by his letter to F. and A. Dodge; that these facts are made known to Jameison [**9]  , and that he undertakes the agency.
Now, if Jameison were in the possession of the property on the 29th of October, when these orders were delivered to him, and when he assumed this agency for the vendee, then within the principle of the case of Wells, Miller and Cooper, vs. Biscoe, above adverted to, the cases cited, there was a delivery to the vendee, and the sale was complete.
The enquiry then is, was Jameison in possession of the property on the 29th of October 1842? It is a fact admitted, that he was put originally in possession by the owner, Craft, of this iron for transportation to Georgetown, but before it reached 

 [*276]  the place of destination, it was attached by sundry creditors of Freeborn, Perdue & Co., at what time does not appear; but it is admitted, that these attachments were dissolved on the 25th of October 1842. In the levy of the attachments, anterior to the 25th of October 1842, we cannot presume the sheriff disturbed the possession of H. Jameison, who, as agent, was entrusted therewith for transportation, because, being in possession of the iron, it was the duty of the sheriff to return him as garnishee. Upon the dissolution [**10]  of the attachments, this continued possession was unaffected by the lien of the attachments. He is admitted to have been in possession anterior to the attachments, and is not shown by any evidence to have been out of possession, either voluntarily or by coercion, anterior to the day when he assented to execute the orders delivered to him, by which a change of property was effected.
According to these views, there has been a valid sale and delivery of the iron in controversy, and the transfer not requiring to be recorded, according to the decision of this court in the case of Wells, Miller and Cooper, vs. Biscoe, above adverted to, the judgment of the county court must be reversed, and judgment entered in this court on the case stated, that the attachment be quashed according to said statement.
JUDGMENT REVERSED.  

9 of 23 DOCUMENTS 

LOVERING RICKETTS vs. VIOLETT RICKETTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 105; 1846 Md. LEXIS 18 

June, 1846, Decided 

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

The bill in this cause, was filed by the appellee against the appellant, on the 28th October 1843, for a divorce a mensa et thoro, and alimony. It alleged their marriage in 1812, the faithful conduct of the complainant; that her husband "hath for many years treated her with the grossest unkindness, insulting her with the falsest and most opprobious allegations and epithets, defaming her to others, and sometimes proceeding to assaults and blows upon her person; that he indulges in periodical excesses of intemperance, during which his conduct towards her is marked by the most outrageous and intolerable violence and abuse; and has also charged her with adultery, which she denies."

The defendant, the appellant, being summoned, and not appearing, an interlocutory decree was passed against him, and a commission ordered to take the complainant's proof. Under the commission a great variety of testimony was taken.

On the 30th April 1845, Baltimore county court, (LE GRAND, A. J.,) decreed, that the divorce a mensa et thoro, be granted as prayed, and that the defendant, L. R., pay unto the plaintiff, V. R., or to her order,  [**2]  during their natural lives, so long as they shall live separate and apart from each other, the annual sum of $ 300, payable half yearly; that is to say, $ 150 on the first day of May, and the like sum on the first day of November, in every year, the first payment to be made on the first day of November next, the same being deemed a suitable alimony, having regard to the circumstances of the parties respectively, for her support and maintenance; and in case it should not be punctually paid, when demanded, the plaintiff may apply to this court to have the payment enforced. And it is further ordered, that each party be at liberty to apply, upon any future change of circumstances of the parties, or either of them, for such variation or modification of this decree as those future circumstances may indicate to be just. And it is further ordered, that the injunction heretofore issued in this cause, inhibiting the said L. R. from aliening the property therein referred to be continued, until the said L. R. shall, under the direction of this court, convey unto James B. George, as trustee for the said V. R., such property as shall be deemed by this court sufficient to yield to the said V. R.  [**3]  , at the county of Baltimore, the above named annual sum, free and clear from all charges and abatements for the collection and payment of the same. And it is further decreed, that the said L. R. do, and shall forthwith, pay unto the said V. R., the sum of $ 200, the same being considered, together with the sum of $ 100, heretofore paid to her by order of this court, as a suitable allowance for her support and maintenance, since the said Lovering Ricketts withdrew from her his countenance and conjugal protection; and the further sum of $ 300, which is deemed a suitable allowance to her for the retaining of counsel, to defend her honor and maintain her interests in the present suit, and the suit instituted against her by her said husband, and which has been specially referred to in these proceedings; and it is further ordered, that the defendant pay all costs, &c.

The county court, although the defendant had never answered the bill of complaint, nor appeared to the suit, yet the court consented to hear his counsel in his behalf, at the argument of the cause.

The judge said, from the evidence taken under the commission, but one opinion could be formed of the conduct of the defendant [**4]  to his wife, the complainant, and that is, that it was of the most cruel and unmanly character. His counsel, however, has stated to the court, in way of excuse for his treatment of his wife, that on the subject of their conjugal relations, he is undoubtedly laboring under sad delusions. Taking this to be the fact, as though it had been regularly proven in the cause, it is nevertheless manifest, that such a disposition on the part of the husband, renders it unsafe for his wife longer to live with him, and it is clear beyond all doubt, that the wife has done nothing which renders her unworthy of his confidence and protection, and as it is his duty to furnish her the means of subsistence suitable to his condition in life, the court have thought, looking to his fortune, that the allowance of the sum of $ 300 per annum, would not be an improper provision for her, and have accordingly so decreed. As the duty of the husband to protect the honor and reputation of his wife, is even more urgent upon him, than that of providing her a decent support, and as he has assailed her honor and reputation, justice demands that the expenses to which she has been put in their defence should be paid by him,  [**5]  it has been so decreed. Allowance has also been made for her expenses during the separation. It has not been deemed necessary to cite any authorities in justification of the decree, inasmuch as there cannot be any doubt of the jurisdiction of the court, nor of the sufficiency of the estate of the husband to gratify, without unreasonable inconvenience to him, its requisitions.

From this decree, L. R. appealed to this court.  

DISPOSITION:
DECREE REVERSED IN PART, AND CAUSE REMANDED.  

HEADNOTES:

Under the act of 1841, chap. 262, divorces a mensa et thoro, may be decreed in equity for cruelty of treatment--or excessively vicious conduct, abandonment, and desertion.

In a case of great cruelty, harsh usage, for a series of years, practised by the husband towards his wife, such a divorce will be decreed.

Where the income of the husband may be fairly estimated at nine hundred dollars per annum, alimony out of that income of one-third of its amount, for the maintenance of an aged wife, who has been compelled to abandon her home by his cruelty, is not unreasonable.

The amount of alimony must depend on the circumstances of each case.

The court has power to compel the husband to pay a proper fee for retaining counsel, to aid the wife in the prosecution of the bill against him, for divorce and alimony.

Upon a bill filed for divorce and alimony, the defendant, the husband, having been summoned, and not appearing in the cause, proof being taken of his title to various items of leasehold property, upon petition of the wife, alleging, she was advised by her counsel, that it was in the power of her husband to alien the same, and the proceeds to secrete pending her bill, and so make null and void, to all practical purposes, any order for her maintenance, the court awarded an injunction, prohibiting him from alienating any part of the landed property or chattels in this State, of which she had given evidence.

Where the county court, by an interlocutory order, pendente lite, ordered the husband to pay a sum for her maintenance during the progress of the cause, it is error at the passage of the final decree to increase that allowance, by ordering a further sum in gross to be paid.  

COUNSEL:
By MCLEAN for the appellant, and

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

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

OPINIONBY:
MARTIN 

OPINION:

 [*108]  MARTIN, J., delivered the opinion of this court.
In this case, a bill was instituted by the appellee, under the act of Assembly of 1841, chap. 262, for a divorce a mensa et thoro from her husband, the appellant, and for alimony; on the ground, that she was cruelly treated by her husband.

 [*109]  The third section of the act of Assembly, conferring upon the chancellor and the county courts, as courts of equity, jurisdiction over divorces, declares: "That upon such petitions as aforesaid, divorces, [**6]  a mensa et thoro, may be decreed, for the following causes: first, cruelty of treatment; secondly, excessively vicious conduct, abandonment, and desertion." And we are satisfied, that the testimony taken under the commission, has established a case of great cruelty and harsh usage, practiced by the husband for a series of years. It is clear, therefore, that the decree for the separation of these parties, a mensa et thoro, is correct.
It appears that the court, in pronouncing their decree for a divorce, allotted the sum of three hundred dollars a year, as permanent alimony; and it has been contended by the counsel for the appellant, that the decree in this respect was erroneous, as the allowance was excessive.
The income of the appellant may be fairly estimated as amounting, at least, to the sum of nine hundred dollars, and the allotment out of that income of three hundred dollars per annum, for the maintenance of an aged wife, who has been compelled to abandon her home by the cruelty of the husband, cannot be justly regarded as unreasonable.
The amount of alimony to be allotted to a wife, who has proved herself entitled to a separate maintenance, must depend [**7]  on the circumstances of each case. The law has laid down no exact proportion. It sometimes gives a third, sometimes a moiety. The object to which the attention of the court is directed, and at which it aims, is to secure to a wife, by a suitable provision, a certain and comfortable maintenance. This must be accomplished, no matter to what privations or inconveniences it may subject the guilty husband. Therefore it was said in the case of Taylor against Taylor, referred to in Cooke against Cooke, 2 Phil. 40, "that the court always gives a larger proportion, where the income is small."
The sum of three hundred dollars a year, cannot be considered as more than sufficient, to provide for the appellee a suitable maintenance. It will be found, that the principles 

 [*110]  announced in the case of Cooke against Cooke, already adverted to, sustain the correctness of the decree.
It has also been insisted that the decree is erroneous, in allowing the sum of three hundred dollars as a proper fee for retaining counsel in the defence and prosecution of the suits mentioned in the proceedings; not upon the ground, as we understood the counsel for the appellant, that the allowance [**8]  was too large, but because the court had no right to allow to the appellee, any other than taxed costs.
We cannot admit the correctness of the rule as stated by the counsel. If true, it is apparent, that it would in many instances deprive the injured wife of the means of vindicating her rights. In Denton against Denton, 1 Johns Ch. 364, the chancellor held: "That pending a bill for a divorce, by a wife against her husband, and before answer, the court will allow a monthly sum to the wife as alimony, and also a sum, to be paid to her by her husband, towards defraying the expenses of the suit." The same doctrine is advanced in the case of Mix against Mix, 1 Johns. Ch. 108, and establishes the propriety this allowance.
It follows from the views thus expressed, that we concur with the court below, in so much of the decree as relates to the divorce; to the allowance of three hundred dollars a year, as alimony; and to the allowance of three hundred dollars for counsel fees. But we think that the court erred in allotting the sum of two hundred dollars, in addition to the one hundred dollars, which the decree states was allowed by an antecedent order, as [**9]  alimony, pendente lite.
The decree, therefore, is affirmed with costs, in all respects, except as to the two hundred dollars. In reference to this sum it is reversed, and the cause is remanded to Baltimore county, as a court of equity, for such further proceedings as the nature of the case may require.
DECREE REVERSED IN PART, AND CAUSE REMANDED.  

10 of 23 DOCUMENTS 

JACOB SMITH, JOHN MATTHIAS, JOHN GEORGE SCHLEICH, JOHN M. KEYSER, ABRAHAM SITLER, JOHN NEIBERGALL, SEN., JOHN SEPPEL, JOHN SCHMIDT, SEN., LEWIS WEIS AND FREDERICK AHLSLEGER, vs. JACOB ERB, DANIEL ZERWIG, JACOB SCHWARTZ, SAMUEL SOMMERS, ADAM DAUB, FREDERICK KRAFT, MICHAEL FREY, JACOB GRESSLE AND FREDERICK FAUTH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 437; 1846 Md. LEXIS 52 

December, 1846, Decided 

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

On the 9th October 1845, the appellants, as relators, filed their petition for a Mandamus against the appellees, alleging: that a congregation for religious worship, was incorporated, by the name of "The Elders, Trustees and Members, of the German Evangelical Reformed Church in the City of Baltimore," by act of the November session 1797, chap. 52; that by said act, persons are to be appointed elders and trustees of said congregation; four elders and four trustees to be elected at stated periods, and after nomination to be made by the elders and trustees in authority, a certain period before the election to be made; that by said act the said elders and trustees are combined, as a collective authority or vestry, of which the minister of said congregation, for the time being, is by said act constituted the president; that the said elders and trustees, and their president, are the managers and guardians of all the concerns of said corporation and congregation, in its temporal affairs and interests, as well as in reference to its good order and government; that the said corporation was governed, accordingly, by the said elders and trustees, as a [**2]  vestry, as aforesaid, and their president, until January 1842, when one Jacob Erb was elected the minister of said congregation, and the following persons were duly elected elders and trustees respectively thereof, to wit: Frederick Ahlsleger, &c., elders, and William Raine, &c., trustees; all which elders and trustees, and the said minister, accepted their respective appointments, and exercised their offices, which, in the cases of the elders and trustees, were to continue for one year, and until successors to them should be duly elected; that said corporation own, &c.; that said elders and trustees, went on superintending the temporal interests, and guarding the good order of the said congregation, and so would have con-continued to fulfil the requirements of their stations; but your petitioners state, that in this peaceable and useful course of duty, certain of said elders and trustees became obnoxious to the said minister, and to others, who instigated factious disturbance in the congregation, to involve, and thwart, and overthrow, the said elders and trustees. And your petitioners state, that pursuing this hostility to said obnoxious elders and trustees--who were the said William [**3]  Raine, and John Schmidt, Sen., and Lewis Weis, Frederick Ahlsleger and Geo. Kraft--the said minister, confederating with others of like vindictive temper, preferred, or procured to be preferred, against said elders and trustees, just named, various charges, in most instances frivolous, and had the parties illegally, and without regard to the forms and privileges of fair trial and deliberate discussion, arraigned before the congregation, or a small portion of it, constituting far less than a majority of the congregation, and irregularly assembled; and so, in the midst of excitement and tumult, and upon the assumed authority of that small body, (a large proportion even of them refusing to vote on the occasion,) the said elders and said trustees, were declared to be removed and expelled from their respective offices aforesaid, and from membership of said congregation; that this attempted deprivation and disfranchisement, was accomplished by successive procedures of the character and tenor just described, W. R. being first charged and deposed, and after him, J. S., Sen., being charged, and then said F. A., and L. W. and G. K., and finally, the said Schmidt, Sen., and Ahlsleger, and Weis [**4]  and Kraft, being, by one resolution, proscribed and dismissed as elders and members. That the said John Schmidt, Sen., who was a trustee, as they have represented, was alleged to have resigned his said office, at a period before the prosecutions, above mentioned, began; which proceedings began and ended between the months of June and September, each inclusive, in the year 1842; but your petitioners believe, and on that belief charge, that if any actual and valid resignation came from said Schmidt, Sen., it was urged by said minister, Erb, and enforced by his own influence, unduly exerted; or by other unfair agency, which he promoted or set in motion; that after that pretended resignation was submitted to the congregation, a certain Frederick Fauth was, without due notice of election, or a sufficient interval after his alleged nomination, chosen to the place of said S., Sen., as trustee; and so your petitioners show, that even if the seat of said S., Sen., was vacated, as trustee, by effectual resignation, it was not duly and validly filled; and your petitioners aver, therefore, that if said place were vacated in manner aforesaid, it continues vacant; and that said Fauth, who undertook,  [**5]  and intruded himself into the duties and authority of it, unlawfully exercised the said office. And your petitioners therefore allege, that said Fauth was irregularly and injuriously imposed upon the proper and constitutional elders and trustees of the congregation, and, as they verily believe, as one less offensive to the views, and more pliant to the plans of said minister, than said Schmidt, Sen. was, or was likely to be; that after the expulsion of said Raine, and of said A., S., Sen., W., and K., a pretended election, for others in their place, was held, without the form of a due nomination, or of a sufficient interval between nomination and election, as enjoined by the charter of said congregation; that under the pretence of such election, the following persons were declared elected to the places of said wronged officers, and were sought to be foisted into said offices, to wit: Michael Frey, as a trustee, and Adam Daub, Daniel Zerwig, Jacob Schwartz, and Samuel Somers, as elders; that said F. F., M. F., A. D., D. Z., and J. S., and S. S., intruded into said offices of trustees and elders, respectively, after said pretended elections, and under color and pretext thereof, assumed [**6]  to perform the duties, and exercise the authority of said offices in combination with said Jacob Gressle and Frederick Kraft, who connived at the usurpation; and to the denial and exclusion of said Raine, and Ahlsleger, and Weis, and George Kraft, and Schmidt, Sen. That at the juncture just mentioned, proceedings in equity in your honorable court, (the bill in which has been dismissed by this court,) were instituted to restrain the interference of said pretended and intruding elders and trustees, and so to bring into actual authority and control, the unduly ousted trustee and elders aforesaid. And your petitioners state, that soon after said proceedings were instituted, the church of said congregation, the stated place of their worship, was, by assent of the parties to the litigation, closed, to await the determination of the issues between the parties. And your petitioners state, that thus, and by the controversy aforesaid, the congregation separated into two divisions, one adhering to the minister Erb, and the intruding elders and trustees aforesaid, and said Gressle and Frederick Kraft, and the other presided over and kept in due and legal organization by said elders and trustee [**7]  who had been attempted to be deposed as aforesaid. That after proper nomination made, on due notice to said Gressle and Frederick Kraft, and to said minister Erb, and after the lapse of the chartered period from the nomination, the congregation whose organization was thus legitimately preserved, elected in January 1843, after the expiration of the official year of the said elders and trustee legally in authority, the following persons, being members of said congregation, as elders and trustees respectively, to wit: as elders, L. W., J. S., John S., Sen., and G. K., and as trustees, F. A., and W. R., J. H., and John Magnus Keyser. And your petitioners further show, that after notice, which they insist was competent, the said congregation, after a due nomination, elected a minister of the congregation incorporated as aforesaid, the Reverend Samuel Gutelius in January 1844. That said elders and trustees, and minister, just mentioned as elected as aforesaid, accepted their respective offices and exercised the same; that the persons composing the other and unlawful division aforesaid, of said congregation, have, by pretext and form of election, chosen persons as elders and trustees at two [**8]  periods, and have sought and pretended to continue in office as minister of the said incorporated congregation, the said Jacob Erb, who yet claims said office as minister, and affects to use the said office, and claim all the authority and control thereof. And your petitioners state, that since the unlawful ouster aforesaid, of said elders and trustee, the persons who have intruded into said offices, and have claimed, and some of whom still claim the functions, authority and privileges thereof, are Daniel Zerwig, Jacob Schwartz, Samuel Sommers, Adam Daub, pretending to the eldership, and Frederick Kraft, Michael Frey, Jacob Gressle, and Frederick Fauth, pretending to the trusteeship of said congregation; that the lawful authorities of said corporation and congregation, are thus interfered with and intruded upon in their respective offices and trusts; and they state that thereby, and in consequence of this conflict of pretension, and the encroachment, and threatened trespass of the said pretended elders and trustees, and minister, the said incorporated congregation are excluded from the use of their church building, and the worship there designed by the charter to be conducted, and [**9]  for the enjoyment of their other real and other property; and the lawful elders and trustees, and minister of the congregation, are debarred their exercise of their offices, and duties, and trusts, and the object of said incorporating enactment is jeoparded or suspended, and the trust of said elders and trustees made idle and nugatory for all the ends of said enactment. And your petitioners are, by said intrusion and usurpation, compelled to seek the aid of your honorable court, for restraining and prohibiting by your writ of Mandamus, the said Jacob Erb, Daniel Zerwig, Jacob Schwartz, Samuel Sommers, Adam Daub, Frederick Kraft, Michael Frey, Jacob Gressle, and Frederick Fauth, from, in any form, or by any act whatsoever, continuing their said intrusion and usurpation, and from in any wise claiming or interfering with the offices aforesaid, of minister, and elders, and trustees respectively, and from in any manner interrupting in the authority and exercise of said offices, the said Samuel Gutelius, as minister aforesaid, and of said Lewis Weis, Jacob Smith, John Schmidt, Sen., and George Kraft, as elders, and said Frederick Ahlsleger, William Raine, Jacob Heinmuller, and John Magnus [**10]  Keyser, as trustees; or if these last named persons should not be deemed by this honorable court, duly elected and in authority, then that in manner aforesaid may be protected in office as aforesaid, and restored to the full and undisturbed exercise thereof, the said Frederick Ahlsleger, and Lewis Weis, and George Kraft, and John Schmidt, Sen., as elders, and said William Raine, as trustee; and that in either case, the said Jacob Gressle and Frederick Kraft may, by said writ of Mandamus, be alike prohibited and restrained as aforesaid, from impeding the lawful officers aforesaid, in the exercise of their offices respectively, and from combining with said intruding and usurping persons as aforesaid, in excluding, or seeking, or attempting to exclude, said lawful officer from the possession and exercise of their respective officers; and that this court may, by any other terms and requirements, to be directed and contained in said writ of Mandamus, enforce and ensure the peaceable and effectual exercise of said offices by the lawful officers aforesaid, against the acts and pretensions of said intruders and usurpers. And they pray, if it should appear that the right of said officers, or [**11]  of any of them, to the relief now sought in their behalf, is so doubtful as to require such order of this court, that a new election, so far as any such doubt may make it needful, may, be said writ of Mandamus, be directed to be held in said congregation, in manner and at a time to be specified by this court, in respect of said ministry of the congregation, and of said eldership, and trusteeship, or of any of said parts of the government of said corporation. And your petitioners, now suing for this protection and vindication of religious and corporate rights and privileges, in behalf of themselves, and all other members of said congregation alike aggrieved and affected, aver, that at the period of the election aforesaid, of said Raine as trustee, and of said Ahlsleger, and Weis, and George Kraft and John Schmidt, Sen., as elders, and from a time long before your petitioners were, and have continued to be members, duly admitted and entitled of said congregation. That said Erb was, as aforesaid, elected in January 1842, as minister of said congregation, to serve from June 1842, until the meeting of the conference 1843, of the denomination of christians called the United Brethren in Christ;  [**12]  which meeting your petitioners believe took place in March, in the last mentioned year; and so your petitioners aver the said Erb, ceased in March, in the year eighteen hundred and forty-three, to be minister of the said congregation.

And your petitioners state, that it will appear to this court by reference to the constitution aforesaid, that a minister to said congregation can be elected only upon nomination of a candidate or candidates for the office, to the congregation, by the elders and trustees aforesaid. That no valid election of said Erb, as minister for any term succeeding his expiration of office in the month of March 1843, has ever taken place, and that by no competent body of elders and trustees, and in compliance with no requisite forms and procedure, was said Erb ever after the period aforesaid nominated or elected; and thus showing the utter nullity of any continuing pretensions of said Erb to the ministry aforesaid, here aver, in further specification of the irregularities and unwarranted assumptions of said Erb, that said Erb holds possession of, and inhabits, the parsonage of the congregation, and that he and his adherents aforesaid, among the intruding elders [**13]  and trustees aforesaid, claim, and as these petitioners believe, receive the rents of the stable of the parsonage establishment, and of the schoolhouse aforesaid, belonging to the congregation. That the dismission of said elders and said trustee, complained of herein, was especially irregular and invalid, because, the power of hearing and trying any charges against elders and trustees and of removing them from office, and of in like manner removing any from membership of the said congregation, is lodged in the vestry aforesaid of the church, and does not belong to the congregation. And in support of the allegations of this petition, connected with the government and authorities of said congregation and corporation, your petitioners pray reference, when they shall be produced by them, to the constitution and rules of said congregation, as well as to the charter already referred to; and pray that when produced they may be deemed a part of this petition: Whereupon now your petitioners do pray your writ of Mandamus to the ends aforesaid, and to be directed as stated, and, in addition to the requirements therefor suggested as aforesaid, enjoining and commanding the delivery to the lawful [**14]  elders, and trustees, and ministers, as aforesaid, and as insisted and shown by your petitioners, of the said parsonage, and school-house and stable, and of all other property of said corporation. And your petitioners pray accordingly all due and appropriate rules of this honorable court, for and toward the writ of Mandamus, and that the same, in terms as this court may order, be directed to said Jacob Erb, &c., all residing in the city of Baltimore.

This petition was verified by affidavit.

The county court, (PURVIANCE and LE GRAND, A. J.,) on 9th October 1845, ordered, that the said Jacob Erb, &c., show cause, on or before the 25th of October, inst., why a Mandamus should not issue, as prayed by the above application; provided, &c.

On the 18th December 1845, the county court also ordered, that an alternative Mandamus issue, according to the within application; no cause having been shown to the contrary thereof, although notice was given of said application, by service of a copy and of the order of this court of the 9th October last, agreeable to the exigency of said order. Said Mandamus to be made returnable on the first day of the next term of this court.

Accordingly,  [**15]  an alternative writ of Mandamus was issued, as directed. To this writ the defendants made a very elaborate return, upon which the petitioners framed a variety of issues.

The issues, and the opinion of this court, and verdict, sufficiently show, what facts were in controversy.

The relators objected to the return:--

1st. That the return, and the matters therein contained, are insufficient in law, to bar or preclude them from having a peremptory writ of Mandamus, in this behalf, for plea to the said return, they, by force of the act of Assembly, in such case made and provided, say that, &c.

The 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, objections of the relators to the return of the writ, related to the hearing, trial and defence of Raine, as to the alleged charge of his having two wives; the judgment of the elders and trustees thereupon; the direction to notify Raine of the intended trial; legality of the meeting of the congregation for that object; and that he was not guilty.

14th. They deny that said Raine made erasures in the church books, as in that behalf is alleged in said return.

15th. They deny that said Raine made false entries,  [**16]  or any false entry in the church books, as in that behalf is alleged in said return.

The issues, from the 15th to the 25th, inclusive, were lost.

25th. They deny that said Erb, in said return named, endeavored to have certain of the charges, in said return stated as having been alleged against him, investigated by the board of elders and trustees, as in that behalf is in said return alleged.

26th. They deny that any meeting or meetings of said board of elders and trustees was, or were ever called by the said Erb, for the investigation of said alleged charges, as in said return is in that behalf alleged.

27th. They deny that any notice was given to said Schmidt, Sen., said Ahlsleger, said Weis, and said George Kraft, of any of the alleged meetings of said board of elders and trustees, alleged to have been called for the purpose of investigating said alleged charges against said Erb, as in said return is in that behalf alleged.

28th. They deny that said Schmidt, Sen., said Ahlsleger, said Weis, and said George Kraft, neglected or refused to attend any alleged meetings of the board of elders and trustees, called by said Erb, for the investigation of alleged charges [**17]  against said Erb, as in said return alleged.

29th. Protesting that the board of elders and trustees had not lawful power, or competent authority, to refer to a meeting of the said congregation the matter of said alleged charges against said Erb, and the alleged matter of the conduct of said Schmidt, Sen., said Ahlsleger, said Weis, and said George Kraft, in their alleged refusal or neglect to attend the alleged board or vestry meetings, as stated in said return; and further protesting, that said Erb, Gressle, Frederick Kraft, Frederick Fauth, and Michael Frey, had not lawful power or competent authority in the premises, they deny that Erb, Gressle, Frederick Kraft, Frederick Fauth, and Michael Frey, at a meeting of the board of elders and trustees, held on the 5th day of September 1842, referred the said alleged matters to a meeting of the said congregation, to be held on Monday evening the 12th day of September, in the year 1842, and directed public notice to be given by said Erb, on the next succeeding Sabbath, of the said alleged meeting, and of the time, place and object for which it was called, as alleged in said return.

30th. They deny that said Erb gave notice, on [**18]  the 11th September 1842, as in the said return is alleged, that a meeting of said congregation would be held on the 12th September 1842, and that he stated the object for which said meeting was alleged to be called.

31st. They deny that a meeting of the said congregation, assembled, and was held on the 12th September 1842, as alleged in said return.

32nd. They deny that said Erb, at said alleged meeting of said congregation, on said 12th September 1842, preferred the charges against said Schmidt, Sen., as in said return alleged.

34th. They deny that said Schmidt, Sen., on retiring from said alleged meeting, on said 15th September 1842, stated, as alleged, that he would have nothing more to do with that congregation from that date, and thereupon immediately retired from said meeting, as in said return is alleged.

51st. They deny that said alleged meeting of legal voters on said 27th September 1842, fully heard and considered all the statements and proofs which the said Ahlsleger, Weis and Geo. Kraft, had made in relation to said alleged charges against them.

And all matters not herein specially traversed, they pray may be enquired of by a jury, according to [**19]  the act of Assembly in such case made and provided; and of, and in respect of all such matters and things traversed, and each of them, they put themselves upon the country, &c.

These issues were severally found for the defendants, except the 14th, which was found for the relators.

The parties submitted the case, each claiming judgment. The court decided the 12th and 13th issues for the defendants; and that Raine was guilty of adultery, as alleged in the return.

On the 1st December 1846, the county court, (LE GRAND, A. J.,) refused the application on the grounds following:--

The conclusion to which my mind has been brought, after as full and deliberate a consideration as I could give to the facts in this case, and to the arguments of the counsel who have so ably discussed it, dispenses with the necessity of deciding any, but one, of the many questions which are involved in it. But supposing the parties desirous of knowing the opinion of the court, in regard to some of the other questions, it will be briefly stated; without, however, undertaking to support it by argument.

The court is of opinion:--

1st. That there is resident in this corporation, to wit,  [**20]  in the body at large, a power to amove or disfranchise; that this inherent, or incidental power of amotion, is not, as was argued by counsel for relators, expressly confined to the vestry, either by the charter, constitution, or by-laws of the corporation. Rule No. 14, of those adopted in the year 1814, only gives to the consistory in certain cases, the power of excluding members from the congregation; it does not confine the power of amotion to the consistory, and not doing this, it resides in the corporation at large. Wilcock, sec. 3, p. 629.

2nd. That the congregation had, (looking to the charter, and object of the corporation,) jurisdiction of the matter charged against Raine, independently of his desiring the exercise of it, as has been found by the jury; the offence charged against him has a double aspect:--first, it was indictable by the laws of the land; and secondly, it was against his duty, as a member of a religious corporation. This being so, it was not necessary he should have been first convicted by a jury. 2 Binney, 448.

3rd. That, although the return does not show, in express terms, he was convicted of the charge, yet it does show there was but one matter [**21]  preferred against him, to wit: "the matter of his two wives;" that he was heard in his defence, and by the congregation, after such hearing, voted out. It showed the charge, defence, and judgment, and, therefore, it is what is termed in the law, a violent presumption that he was convicted.

4th. That John Schmidt, Jr., and Lewis Weis, resigned their respective offices, and their resignations were accepted.

5th. That George Kraft having joined the Methodist Episcopal Church, (although improperly removed,) has ceased to be a member of the German Evangelical Reformed Church, and is therefore incompetent, legally so, to hold an office of any character of this corporation.

6th. That John Schmidt, Sen., and Frederick Ahlsleger, were improperly amoved. Not because the congregation had no jurisdiction against the charges preferred against them, but because of the uncertainty of the proceeding against Schmidt, and because Ahlsleger was tried and condemned with others, who were charged with different offences. His case ought to have been separately heard and decided. It is not apparent from he return, on what ground Schmidt was removed, whether because of the charges made against [**22]  him, or because of his going away from the meeting, saying, he would have nothing more to do with them. If he was amoved for this declaration, he was improperly amoved, and it not being apparent on what ground he was removed, the court is of opinion his amotion was irregular and invalid.

7th. That in the case of the death, resignation, or disqualification of an elder or trustee, it is not necessary eight days should intervene between the nomination and the election of his successor. Without now deciding, whether the language of the 5th section of the act of incorporation be merely directory or not, the 11th section of the same act, in my judgment, contemplates an entirely different case from that referred to in the fifth section. It provides, "that in the case of death, resignation, or disqualification, of any elder, or trustee, the body corporate shall, without delay, proceed to the election of another person in his place, whereof due notice shall be given to the members of the corporation."

The fifth section provides for the annual elections, whilst the 11th section provides only for extraordinary elections; and it being doubtful, to say the least of it, whether in proceeding [**23]  under it, any nomination at all is required before the day of election. It provides, that "due notice" of the time of the election shall be given, but nothing in regard to nomination is said. The "body corporate," (that is the elders, trustees and members of the church,) shall, "without delay," proceed to the election. Looking to the language of the section, and the object it contemplates, I am of opinion, the legislature designed to confer on the body at large, both the right of nomination and of election, in the cases referred to in it.

By agreement of counsel for the respective parties, the 12th and 13th issues have been submitted to the court for its decision. It is clear beyond all doubt, from the testimony of the witnesses examined under the commission, that Raine admitted he had a wife living in Germany, and had one here also, by both of whom he had children; and also that before the time he was married to the one in this country, he had lived with her as his wife. This being so, and there being no evidence to show he had been divorced from his first wife, the only question is, whether such admission is sufficient to establish the fact of adultery, and the fact of bigamy?  [**24]  An examination of the authorities has fully satisfied me, that such admissions are sufficient, and I accordingly find for respondents on both issues. 2 Greenl. on Ev., 377, where it is said, on the trial of an indictment for polygamy or adultery, the declaration of the prisoner, that he was married to the alleged wife, is admissible, as sufficient evidence of the marriage, especially, if the marriage was in another country. There are some authorities opposed to this doctrine, to wit, 7. John 314 and 6 Conn., 446, but the great majority of them sustain the doctrine as laid down in the text of Greenleaf. See Regina vs. Upton, 1 C. & Kir. 165. Regina vs. Simmonsto, 1 C. & Kir., 164. 7 Greenl., 57. Truman's Case, 1 East., P. C., 470. 2 Wilson, 339. 4 Burrows, 2057.

With these opinions, in any possible event, a peremptory Mandamus could only go to restore Schmidt, Sen., and Ahlsleger. An examination, however, of the authorities, and a conference with my brother judges, has satisfied them as well as myself, that no writ can go in this case.

First, because the peremptory writ must follow the alternative writ, and the latter cannot [**25]  be amended; and secondly, because more than one person cannot have one writ of Mandamus. On the first point there are numerous cases, but the one of the King vs. the Mayor of Stafford, 4 D. & East., 689, places the matter beyond all question. See, also, 1 Hill, N. Y. Rep., 55, 14 L. Library, 213, 214. In regard to the other question, the authorities are equally numerous and explicit. Holt, C. J., in the case of Andover, 2 Salk., 433, said: "Five persons cannot have one writ of Mandamus to be restored, for though the end of the writ is to do justice, yet the foundation is the wrong in turning them out, and the turning out of one, is not the turning out of another; nor can several persons join in one action on the case for a false return." The same doctrine is distinctly and unqualifiedly recognized as indisputable law in 2 Salkeld, 436. 1 Wm. Blac. Rep., 60. 5 Mod., 11. 12 Petersdorf, 507. Selwynn, N. P., 1090, (last edition,) 12 Mod., 332. 15 Viner Abr. Mandamus, 210, (Q.) 8 Modern, 209. There is nothing in our act of 1828, chapter 78, which changes this doctrine, and, however absurd it may be considered, it is still the law of Maryland, until the legislature [**26]  alters it. There is nothing in the case of the Baptist church, decided by this court, in conflict with this doctrine. The question was not there raised, nor was there any peremptory Mandamus issued. As regards the order of this court to the clerk, to issue the alternative writ, nothing can be deduced from it. The order was in compliance with the prayer of the relators, who have the right to have the alternative writ issued, as they may desire it, they taking the risk of its being correct, which question is to be determined on the final hearing of the case. Entertaining these views, the motion of relators must be overruled, and judgment entered up in favor of respondents on the verdict of the jury, and that they go without day, &c.

From this judgment the relators appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The charter of a religious corporation required, that at all meetings of the elders and trustees, the minister, for the time being, should be president of the vestry; that the male members should meet on the 1st Monday of, &c., or within ten days thereafter, to elect elders and trustees, at their church, &c. Notice to be given by the president on the Sunday preceding the day of that meeting, to elect from members, by ballot, four elders for one year, and until another election should be made; and also to elect four other members, as trustees. When elders and trustees were to be appointed, those for the time being, should, at least eight days before the election, nominate double the number of those, so to be elected. The property of the corporation was vested in the elders and trustees. In 1842, a difference arising in the congregation, at January 1843, two sets of officers were elected: one set adhering to the minister and president, were elected with his nomination. The other, appointing afterwards, in 1843, another minister and president, had also kept up a succession ever since. The election in 1842 was admitted to be valid. HELD: that even if the election in 1843 be invalid, still, as those elections which occurred afterwards, from 1844 to 1847, were made upon the notice of the minister and president, duly given, the irregularity of 1843 could not be relied upon, to impeach their validity; nor could those elders and trustees, who were petitioners, and elected without the notice required by the charter, claim the interference of the court, by Mandamus.

To constitute a valid election, notice should be given by the president of the vestry, in conformity to the charter.

A Mandamus, is not a proper remedy to restore a rightful vestry, to the possession of church property, wrongfully withheld.

One writ of Mandamus cannot issue for the enforcement of separate claims.

Even if parties at one time were entitled to a writ of Mandamus, still, if by lapse of time, or subsequent circumstances, they are not entitled to it when it is claimed to be awarded, it will not be granted.

Where an election for officers of a corporation is had, and officers de facto are elected, and act, they are presumed to pursue the legal preparatory measures for an election for the next year; which when had, makes the successors, officers de jure.  

COUNSEL:
By SCHLEY, MAYER and R. JOHNSON for the appellants, who insisted:--

1st. None of the officers removed were removed by the proper authority, the congregation not having the power in this corporation either to amove or to disfranchise; that by the just construction of the charter, and of the constitution, and likewise, independently of these, by the common law applicable [**27]  to corporations thus organised, the vestry, (the minister, elders and trustees,) had exclusively the right to try and amove, or disfranchise, in the several cases now presented, and that consent of any of the parties charged could not confer jurisdiction.

2nd. As regards Raine, he does not duly appear to have been found guilty of any of the charges brought against him; and the necessary inference from the recitals of the return only, is, that the congregation decided only whether he should be expelled from office and membership.

3rd. As regards Smith, Sen., it is uncertain on what charge he was tried, and of what found guilty; and nothing pretended to have been charged against him, was a sufficient ground for his amotion or disfranchisement; nor did his declarations on leaving the meeting constitute a resignation, that could have been acted on as such. It was, however, not so recognised nor acted on.

4th. As to Ahlsleger, Weis and George Kraft, there were no sufficient charges to warrant amotion or disfranchisement; nor could the pretended trial of all together, avail in law as to either, their offences being of a several nature, if they are guilty of any.

5th.  [**28]  There was no effectual resignation of Weis. His proffered resignation was not accepted actually, nor by any necessary implication, and therefore did not operate. He was consequently out of office, if at all, by amotion and by judgment of the congregation.

6th. Notice to the accused in these corporation trials is necessary, and it must be personal, and no such notice appears, as to, at least, Weis, Ahlsleger and Kraft.

7th. If the members of the congregation were rightfully the judges on these impeachments, a special notice to all of them, of the meeting for the defined objects of the trials, was necessary; and that notice ought to have been personal to each, or by a mode equivalent to personal notice.

8th. The court must see that there has been a rightful and regular amotion or disfranchisement, and hence the order, if not the minute detail, of the proceeding, must be set out in the return, or cause shown, to the alternative Mandamus; no such fulness exists in the return. It does not, even in general terms, inform the court, that proof of the charges was given, and for aught that appears, (and as in case of Weis, Ahlsleger, Craft and Smith, Sen., is to be inferred,)  [**29]  the silence of the parties was made proof of guilt, contrary to the law which in such cases does not so interpret silence of the accused.

9th. There was no due notice of the election, in the cases of the supposed vacancies of Raine, and Smith, Jr's, offices, that is, no sufficient interval between the nomination and election.

10th. The present corporation is one of integral parts, and at least, there must be a representation of each division of the officers of the corporation always extant, or the corporation will be in suspense; and for any effectual nomination, a majority must be in existence, and must meet of each class of the officers. This applies to the condition of the government of the corporation when all the elders were expelled, (Smith Sen., G. Kraft, Weis and Ahlsleger,) and to the nominations following the resignation of Smith, Sen., and the amotion of Raine and that of the four elders.

11th. The proceedings of the Erb division of the congregation, after the schism and the closing of the church, called elections of minister, and elders and trustees, are of no effect; if the complaint of the relators is well founded for them, the authority they claim must [**30]  be recognised and restored; and one division cannot, any more than the antagonist to it, assert itself to be the church or congregation, de facto, or ostensibly legitimate.

12th. The alternative Mandamus is to be regarded as the act of the court, on the prima facie case made by the petition, and especially so where, as here, the relators submit themselves to the judgment of the court, for a choice, in their behalf in forms of relief. The court may then mould the peremptory writ, according to the facts of the case, as unfolded by the return and testimony. But at all events, they may so modify the latter writ, the case of such terms as are used in the present application, which, for the alternative remedies suggested in the application, refer necessarily to the results as they may appear in the sequel of the case. It is only necessary that the modification to be given to the peremptory Mandamus, in contradistinction to the alternative writ, be consistent with the allegations of the application, and within the issues naturally arising from them.

13th. This is not a proceeding for offices of personal profit, to be regained, but on its face pursuit, in behalf of the corporation [**31]  or congregation, of its rights connected with its temporal concerns; and to be represented only by its lawful officers. Hence the members of the congregation, joined here with the ousted officers, or rather the officers intruded upon, in claiming relief by a restoration of the proper government of the corporation. Each officer need not, therefore, have a separate proceeding for himself. The character of this particular proceeding, forbids such distinct action.

14th. The object of the Mandamus here, is but to restrain interference, or arrest intrusion; and it is not strictly a case of restoration sought against a body de facto, the corporation legitimately in being, and having an authority, to an effective extent, legitimate Hence, the prayer of the application is proper, and within the view of the act of Assembly; and hence no enquiry is allowed into any circumstances charged, as derogatory to the complainants, and subsequent to their amotion, or not entering into this cause of attempted amotion. On other grounds, besides, any such enquiry is foreign to this case.

15th. The verdict of the jury, upon the issue joined upon the fourteenth traverse of the relators, to the return [**32]  of the respondents, was in favor of the relators, with nominal damages. And the appellants will contend, that upon the true construction and effect of the act of 1828, chap. 78, the relators were entitled to a judgment, on said verdict for the damages so found, and their costs; and that on the basis of such verdict and judgment, a peremptory writ of Mandamus ought to have been granted, without delay, in the same manner as if said return had been adjudged insufficient.

16th. Even if the conjunction of the several persons who applied for the Mandamus in this case, be informal and irregular, yet, as the parties to whom it was proposed to be directed, had due notice of the application, by service of a copy of the petition, and the order of the court thereon passed, and did not shew cause against the issuing of said writ, as prayed by the said application, they must be considered as having waived this, and all other irregularities, if any, of a similar character.

17th. And further, in addition to the last mentioned point, the appellants will insist, that no matter of form not relied upon in the return to the alternative Mandamus, as cause against the issuing of a peremptory Mandamus,  [**33]  can avail the respondents as good cause against the issuing of a peremptory Mandamus; especially after the trial of the issue joined upon the traverses to said return.

18th. The appellants will further insist, that under the provisions of said act of 1828, chap. 78, and by the practice and common law of Maryland, a return to an alternative Mandamus, in order to avail as good cause against the issuing of a peremptory Mandamus, must be a true and complete, and perfect justification to all that it assumes to answer, and to which obedience is not yielded. In case of insufficiency of the return, as to any part of the mandate of the writ, where the return assumes to answer the writ in toto, a peremptory Mandamus will issue in the terms of the alternative Mandamus, notwithstanding the partial cause shown; and if not to this extent, at least to such extent as the return is insufficient to justify a refusal to comply with the exigency of said writ.

By MCMAHON, MEREDITH, and RICHARDSON, Atty. Gen. of Md., for the appellees, who controverted the appellant's points.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*456]  MAGRUDER, J., delivered [**34]  the opinion of this court.
The appellants, in this case, are a number of individuals who claim to be members of "The German Evangelical Reformed Church, in the city of Baltimore:" incorporated by the act of 1797, chap. 52. They charge, that the persons now in the offices of trustees and elders, were intruded into them; and they ask that others, who are supposed by the appellants to be the trustees and elders, be restored to the temporalities of the church; and for this purpose, that a Mandamus be issued. The petition was filed 9th October 1845.
By the act of incorporation, those who then were, and who afterwards might become, members of the congregation, are made on body politic, with the usual privileges conferred by our legislature upon religious corporations. The charter requires, that the male members, of the full age of twenty-one years, shall meet on the first Monday of January, then next, or within ten days thereafter; and on the first Monday of January, or within ten days thereafter; in every subsequent year, at their church: or such other place within the city of Baltimore, as may be appointed by the elders and trustees for the time being. Notice is to [**35]  be given by the president on the Sunday preceding the day of such meeting, to elect by ballot four of the members, to serve as elders for one year, and until another election is made, in virtue of this act; and also to elect four other members as trustees, to serve as aforesaid. In another section of this act it is provided, that when elders and trustees are to be 

 [*457]  appointed, the elders and trustees for the time being, shall, at least eight days before the day of election, nominate double the number of the elders, or trustees, so to be elected. The president for the time being, with the elders and trustees, are to meet to regulate the concerns of the body; to make by-laws, deemed necessary for the good conduct of the members, and management of their temporal concerns: such laws not being contrary to the constitution and laws of the State.
The charter provides, that at all meetings of the elders and trustees, the minister for the time being, shall be the president; and in the event of his death, absence or removal, the elders and trustees shall appoint one of their own body, who, during the absence, removal, or death of the minister, shall have all the authority and privileges [**36]  of the president. The title to property then held for the use of the congregation, is vested in the trustees and elders; and the last two clauses provide, that in case of the death, resignation, or disqualification of any elder or trustee, the body corporate "shall, without delay, proceed to the election of another person in his place; whereof due notice shall be given by the president to the members of the corporation; and that, at a reasonable time before each and every election, the president shall nominate and appoint three persons to be judges thereof.
The appellants are styled by their adversaries, the discontented portion of the congregation; and in speaking of themselves, they give us to understand that a controversy arose in the congregation, and in consequence they separated into two divisions, one adhering to the minister, Erb, and the intruding elders and trustees, aforesaid, and two of the officers, whose title is not questioned; and the other, to which the appellants belonged, was kept in due and legal organization, by those elders and trustees who had been deposed.
The appellants complain of divers irregularities in the proceedings of those, who acted with the [**37]  minister, in the trial and expulsion of members of the congregation, and also of officers. If those persons were here, complaining, in a proper form, of the treatment received by them, it would be difficult indeed to justify or excuse all the acts done by them, "for the good conduct 

 [*458]  and government of the members." But the question before us is not, with what abuses of power and acts of injustice either of these divisions can be charged? but, who, at the time of this application, and at this time, can claim in virtue of the charter, the powers which it is said have been abused?
On the part of the appellants it is insisted, that the persons for whom they have been accustomed to vote, since the division spoken of in the petition took place, were, and are rightfully the persons, to exercise all the powers conferred upon the pastor, elders and trustees of the congregation, and that those in office during this time, the officers de facto, were intruders.
The difficulties to be encountered, seem to have suggested themselves to the petitioners themselves; since they are unable to tell us in what precise form relief can be extended to them. Obviously it is not sufficient to [**38]  prove, that the election which took place in January 1843, was not holden in strict conformity to the charter, because it is to be presumed, as the charter directs it, that since the alleged irregularity, and in the years 1844, 1845, 1846 and 1847, elections of those officers, who are to be annually appointed, have taken place; and touching the validity of any of these subsequent elections, we are not now to enquire.
Surely those who were elected in January 1847, (if that election was in conformity to the charter,) are not to be dealt with by us as intruders, because it may appear, that the election in 1843 was not valid; and must have been so adjudged if its validity had been questioned, at a proper time, and in a proper way.
The question, perhaps, is one of life or death to this congregation, so far as its existence or prosperity depends upon the existence of the corporation. On both sides it is insisted, that each has attempted to keep up the succession; and each insists, that the other has been unsuccessful in its attempts; and if it be true, that for the alleged irregularities, the election by the petitioners, and their division, was void, it would be difficult to prove the [**39]  existence of a legal body which can sue or be sued; or in any way assert title to the property belonging to this corporation.

 [*459]  It is true, the appellants contend, not only that every thing which has been done by their adversaries is illegal, but that they have taken care to do, as it ought to be done, every thing which must be done, in order to a valid election. But this, a reference to the charter will show to be utterly untrue.
It is assumed by both parties, that the election in January 1842, was a valid election. And it is also admitted, that the vestry then chosen, in the course of the term for which they were chosen, elected the defendant Erb, as pastor of this congregation, and to continue such until March 1843. During this term, then, the congregation was supplied with a pastor, who was undoubtedly its pastor, and would have been such, although there had been, from the time of his election, not one trustee, or elder in office, under the charter granted by the legislature.
A new election, according to the provisions of the charter, of the trustees and elders, was to be made in January 1843, and it seems to be conceded, that two elections, de facto, took [**40]  place. The appellants say, that the election made by them, and those who acted with them, was valid. This, however, is impossible, because in order to an election in strict conformity to the charter, notice of that election must be given the Sunday previous, by the president of the vestry, who was then the Rev. Mr. Erb, himself, from whom the appellants had separated. By another clause, the same gentleman was the only person authorized to appoint the judges of the election; and the nomination of double the number of the trustees and elders, to be appointed in January 1843, was to be made by the president, elders and trustees, for the time being." This organization then, can claim nothing under this charter, in virtue of their organization. It seems to be taken for granted by the appellants, that the pastor, trustees and elders, are not in possession of the property of the corporation, or why this application? And if they are the vestry, de jure, a Mandamus, surely, is not the proper remedy. The object of a writ of Mandamus, we are told, "is not to supersede legal remedies, but only to supply the defect of them, by commanding the person to whom it is directed, to [**41]  do something, which it is supposed 

 [*460]  he is bound by his duty to do; which the party prosecuting the writ has a right to have done; and for which the applicant has no other specific legal remedy, or such other remedy has become obsolete." Step. Nisi Prius, 2291. Now, if the allegation be true, if by these petitioners, and others of the congregations, there was at the time of the application "lawful elders, trustees and ministers, as aforesaid,--of the said parsonage and school house, and stable; and of all other property of said corporation:"--surely the law gives them other and complete remedies against those who hold any of the property; and they need not the aid of a writ of Mandamus.
If any of their privileges as members of the corporation have been invaded, then, to be sure, the law ought to afford them an ample remedy; but the law, (see Step., 2323,) says, that "one writ of Mandamus cannot issue, for the enforcement of separate claims."
The difficulty of discovering in what way relief is to be afforded to these petitioners, seems to suggest itself to them. They claim the rights of members of this congregation, and it no where appears that any of their [**42]  rights, as members, have ever been questioned. If they be members, they may have been allowed to vote at the recent election of elders and trustees; and may have elected the very men, whom it is their desire to have for elders and trustees; or if they have not, the court cannot say that it is not owing to the circumstance, that although the election was in every respect regular, they were found to be in the minority. We cannot infer from the account, which they themselves give, and which is uncontroverted, they have not separated from the congregation, (which they had the power to do,) or that they would again be members, unless, in some way or other, they can be allowed to carry back with them, their own pastor, elders and trustees.
It is argued, that the acts of the vestry were not valid; and in order to be valid, they must be the acts of trustees and elders, de jure. But in Vernon Society against Hill, 6 Cow. 23, it is said, that the trustees of a religious society, though they are irregularly elected, are in colore officii; and 1st Hall N. Y. Rep., 191, we are told, that where the trustees of a religious society 

 [*461]  sue, colore officii [**43]  , the defendant cannot object to their right of recovery, upon the ground that they were not trustees, without showing, that proceedings have been instituted against them by government, and carried on to judgment. If it be alleged, that the present proceeding is the proceeding here alluded to; the obvious answer is, that it is too late now to question the legality of an election made several years ago, when the term for which the election was made, has long since expired. It cannot be pretended in this case, that the defendants are to be considered as trustees, virtute electionis, in 1843, when each party insists, that a valid election was made in 1844; and neither denies, that such an election took place in 1845, 1846, and 1847.
The good sense of the decisions before alluded to, must be obvious. A member elect of the legislature, is permitted to retain his seat, although it is disputed; and is permitted to vote, so long as he retains his seat; and by his single vote, measures of great importance may be carried or defeated. It may afterwards be decided, that although a member de facto, he was not de jure: that another candidate was duly elected, and was in truth the member [**44]  de jure. Yet all the acts and votes of the former, until he was legally ousted, are as valid as they would be if his seat could not be contested.
The law ought to be strictly obeyed; but it is possible that its directions may not be strictly, and in all respects, complied with; and yet a fair election may be had, and all persons who have a right to object, may be satisfied with the result.
It may be thought that there are reasons of state, which justify these decisions, in regard to the election of delegates and senators, and governors, but do not furnish precedents for our guidance, in deciding cases like the one before us. To this it may be answered, that if they be right in the cases alluded to, then it must be absurd, and moreover, it would be wicked, to depart from such rules, in such cases as the present. Is it to be deemed of no importance in this christian land, that houses of public worship are to be shut up, because of objections like these? or, that the real christian portion of a congregation are prevented by injunction and Mandamus, from assembling 

 [*462]  with their christian brethren, at their accustomed place of public devotion?
Corporate rights, and [**45]  the little offices which the incorporating act create, may be deemed of value by some, who rather than be defeated in their wishes in regard to them, will disturb the peace of a congregation; but there are other privileges to which others are entitled, and of which they ought not to be deprived by groundless objections. The law selects the persons whose duty it is to give the notices, and make the nominations, which it directs. It ought not to punish others for their omissions of duty, when it is not in proof, that, by reason of these omissions, any object of the law in requiring them, is frustrated. If the individuals heretofore holding offices in this corporation, were not, de jure, they were, de facto, trustees and elders, and their official acts in 1843, must not be questioned at this late period.
But even if there was in the election in 1843 some irregularity, still, we are bound in deciding this case, to conclude that the elections took place, and that the persons elected were, de facto, trustees and elders for that year; gave the legal notice, and made the nominations required the ensuing year; and that the same was done subsequently: and if so, then ever since [**46]  there have been trustees and elders de jure. If the law has been obeyed since the year 1843, and this we are not to question, an election of elders and trustees has been recently made:--and surely, the court can have no right to take from the persons in whom the law vests it, the property of this corporation; and give to others, who, perhaps, were the legal owners of it in the year 1842, even although they were wrongfully deprived of it then, but by a title which was determined the 1st of January 1843.
These views of the subject render it unnecessary to enquire, whether in the trial and condemnation of individual members and officers, in 1842, the pastor and his vestry acted according to law? Nor is it necessary to express an opinion upon many of the points decided by the court below. The judgment is affirmed, because, even if the parties were once entitled to it, it is too late now to order a peremptory Mandamus.
JUDGMENT AFFIRMED.  

11 of 23 DOCUMENTS 

DAVID T. MCKIM AND WILLIAM H. MARRIOTT, EXECUTORS OF JOHN MCKIM, JR., vs. J. M. DUNCAN, ET. AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 72; 1846 Md. LEXIS 16 

June, 1846, Decided 

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

On the 15th March 1845, the appellees filed their petition before the said court, alleging, that on the 8th December 1841, John McKim, Jr., made his last will; that he appointed his sons, D. T. and John S., and his son-in-law, W. H. M., executors thereof, and therein declared, that no one of his executors should be entitled to any commissions for settling his estate; that the testator died in the month of January 1842; that his son, John S., renounced his appointment, and on 3rd February 1842, letters testamentary were granted to the appellants; that the executors settled three accounts with the said court, and claimed, and were allowed, in their third account, commissions to amount of $ 9418.57. And in their fourth account, $ 81.33; that the allowance of commissions to the executors being without notice to the appellees, they agreed to open the same, vacate the decree therefor, and that the subject matter of their claim thereto, might be again considered by the court. The petition then proceeded to set forth the interest of the appellees under the will, and the diminution of their devises by the allowance of commissions to the [**2]  executors. The petition further alleged, that as to a sum of $ 99,025.88, the same never was received into possession by the executors; that the interest of the testator in a copper establishment, was one in property, credits, and effects, which the testator, at the date of his will, and at the time of his decease, held or was entitled to, in partnership with his two sons, David T. and John S.; that the same was charged to the executors in their first account, and in their second account the said charge was extinguished, by a credit for the whole amount.--And that the same, when charged in their third account, was in the same account credited in discharge; the only effect of the introduction of this item into the said third account, being, as respects your petitioners, to diminish the residue of the estate by an allowance of six per cent. commissions thereon; and that as respects the warehouse, charged and credited at $ 7000, in said third account, and also in respect of the two hundred and sixty-five shares, Phoenix Shot Tower stock, charged and credited in said third account, at $ 15,900;--the only effect of the introduction of these items into said account, was to increase the allowance [**3]  of commissions to said executors; that in respect of the sum of $ 6000, charged on the dwelling house and property in Holliday street, no commission, in any point of view, ought to be allowed. Prayer, for a settlement of a further account, &c.

The executors answered separately.

David T. McKim's answer claimed commissions, admitted that the question was still open, and among other matters alleged, that with regard to the capital of John McKim, Jr., & Sons, credited in the account of the executors, and on which commissions were charged, the same was the entire property of John McKim, Jr., for which he annually was credited with interest. He alleged he would not have taken out letters testamentary, but for the opinion of the judges of the court, expressed before he took them out, that he would be entitled to commissions.

The answer of W. H. Marriott, also claimed commissions;--that he believes it was understood by all the representatives, before he took out letters, that commissions were to be allowed the executors; that he refused to undertake it, unless he was to be paid. The passage of the administration accounts, and allowance for commissions were admitted. That as [**4]  to the item of $ 99,025.88, this respondent is advised, that the same is properly made liable to the commissions allowed by the said court, and stated in said accounts, because the same was a debt due to the estate of said testator, by said David T. McKim, and his brother, John S. McKim, the same having been loaned to them by the testator, who had no interest in the business in which the same was used, and for which it was loaned by him to his said sons not as a partner, but only as a friend and creditor.

With this answer was filed a letter from J. M. Duncan, one of the appellants, dated 11th May 1843, to said Mariott, which stated:

"I have not seen Mr. Handy, since the time I mentioned to you, that we met on the street; nor have I said to him anything on the subject of executor's fees, either pro or con. I had supposed that the commissions were to be charged by you, having expressed my opinion, that you were fairly entitled to a remuneration for your labor, and believed that a paper had been drawn up and signed by the members of the family, coinciding with that opinion. Have you not such a paper duly signed? My impression was, that you possessed this paper, and therefore [**5]  I feel surprised by your note, which seems to imply that you have it not."

And also a declaration in writing, signed by said W. H. M., filed in court, setting forth, "that in accepting and qualifying for the execution of said trust, he reserves to himself the right to demand and receive, such commissions as the orphans court of Baltimore county may, in its discretion, allow."

The appellees filed a general replication to the answers.

A commission was issued, and there was proof, that John McKim, Jr., was not interested in the copper works, from the year 1839; that he received nothing from that concern after that period, but interest on his capital engaged in it.

A deed of mortgage from D. T. McKim to his father J. McK., Jr., dated 1st May 1840, to secure the sum of $ 6900, was also filed in the cause.

A variety of accounts, taken from the books of the deceased, with his several children, were also proved.

By the last will and testament of the deceased, dated 8th December 1841, he bequeathed to his three sons, David T., John S., and Richard, to be equally divided between them, "the whole of my capital used in the copper business, that may be standing to [**6]  my credit, after the payment of all debts and claims upon, or growing out of that business;" and also the warehouse, in which that business was carried on.

The testator bequeathed to his son David, his dwelling house, "which, however, I charge with the payment of the sum of $ 6000, to constitute a part of the residuum of his estate:" his son to pay interest thereon.

He also bequeathed to his said son, two hundred and sixty-five shares of Phoenix Shot Tower stock, "heretofore transferred to me as collateral security, by him."

After various other devises to his children, and in trust for his grand-children, he devised a residuum of his estate, created from various specified sources, to amount of $ 60,608, in trust, for his three daughters, for life, with remainders over; and all the residue of his estate to his six children, share and share alike.

The testator then declared, that neither of his said executors should be entitled to any commissions for settling his said estate, but all necessary expenses relative to such settlement, should be charged to his estate.

By a codicil, dated 10th December 1841, the testator revoked the devise of that portion of his estate,  [**7]  which he had bequeathed to his son David; and again devised the same to him in trust, for the sole use of his wife, &c., with power to sell, mortgage, &c., with remainder in trust for such of the child or children of the said David, or their descendants, as the said David may direct by, &c.

The Shot Tower stock was included, and valued in the inventory of the estate, at $ 60 per share; as were also all the stocks which the testator devised in trust for his grand-children.

The schedule of sperate and desperate debts, amounted to $ 123,117.74; of which D. T. McK, was alleged to be chargeable with $ 6000. The capital in the copper company, $ 99,025.85.

In the first account of the executors, they charged themselves--

With an inventory of the personal estate of the deceased, $ 44,959.51. This included the Shot Tower stock.

With a debt of D. T. McKim, for amount due by him to the deceased, $ 6000.

With the amount of the deceased's interest in the firm of John McKim, Jr., & Sons, as returned in the lists of debts, $ 99,025.85.

In their second account, they were credited with the item of $ 99,025.85, as prematurely, and erroneously brought on; the firm not [**8]  being, as yet, settled.

In their third account, the last item was restored, and the executors were allowed commissions on $ 156,976.22, at 6 per cent., $ 9418.57. There were allowed, also, a credit of $ 15,900, for two hundred and sixty-five shares Phoenix Shot Tower stock, which was bequeathed to David T. McKim, in trust, &c.

The executors, from time to time, passed four other accounts.

After the agreement to open the accounts upon the subject of commissions, and that the orphans court might reconsider that subject, de novo.

That court, on the 15th March 1845, (KEMP, LEARY, and READEL, J.,) decreed that neither of the executors should be entitled to any commissions, and that the court have no power under the will, to award the same; and that the executors further account, and charge themselves with the commissions credited in the accounts heretofore passed, &c.

From that decree the executors appealed to this court.

It was agreed, that upon this appeal the mortgage from D. T. McK., and J. McK., Jr., should not be considered as a ground of claim against him.  

DISPOSITION:
JUDGMENT REVERSED AND CAUSE REMANDED.  

HEADNOTES:

A testator by his last will declared, that neither of his executors should be entitled to any commissions for settling his estate, but that all necessary expenses relative to such settlement, should be charged to his estate. The orphans court allowed the executors a commission of six per centum. This was, however, cancelled by consent, and the question of commissions presented to that court de novo, when they decreed the executors were not entitled to any such allowance. HELD, upon appeal, that the executors were entitled to the commissions which had been previously allowed them.

If the acts of Assembly of this State do not expressly grant to the orphans court, power to allow executors commissions in such cases as those mentioned in the testator's will, no commissions can be claimed by them.

The act of 1798, chap. 101, which declares that the commissions of an executor shall be, at the discretion of the court, not under five, nor exceeding ten per centum, on the amount of the inventory or inventories, excluding what is lost or has perished, and prescribes the manner in which the account of an executor must be made out, confers upon the orphans court the power in this, as it does in all other cases, to allow a commission.

A testator cannot take from the orphans court a power which the law gives it.

The will of a testator is to be regarded in the administration of his estate; but this general rule is to be taken with this proviso, that such will be not inconsistent with the law.

The 2nd sec., sub chap. 20, act of 1798, chap. 101, must be read in connection with the 5th sec., 14th sub. chap. of the same act.

The first clause makes it the duty of the court in all cases to allow commissions to executors. The other makes one exception to that rule.

A testator is not permitted to deprive his executor of a commission of not less than five per centum, by bequeathing him, by way of compensation, any thing which shall appear to the court to be an insufficient compensation.

A person by undertaking the office of executor does not elect, and is not bound to give effect to all the provisions to be found in a will.

A testator cannot by his will prevent his executors from collecting and accounting for debts due his estate; nor can he authorize any other person to receive it from his debtors.

A testator bequeathed to his three sons, to be equally divided between them, the whole of his capital used in his copper business, that may be standing to his credit after the payment of all debts and claims upon, or growing out of, that business. The capital in the copper company was returned by the executors in the schedule of debts due the deceased. HELD, that whether the testator was a partner of the firm engaged in the copper business with his sons, or only accommodated that firm, of which he was not a member, with a loan of money, could make no difference; that the money due the testator was a part of his personal estate, payable only to his executors; and when paid, constituted a part of the assets in their hands, to be by them accounted for in their settlements with the orphans court.

A testator bequeathed to his son certain shares of stock theretofore transferred to him by his said son, who was also one of the executors of his father's will. HELD, that with the appraised value of such stock the executors must be charged, and it must be regarded as a part of his estate, and not the stock of its former owner, though there was no proof how the testator became the absolute owner.

Upon the last two items the executors were held to be entitled to commissions.  

COUNSEL:
By MCMAHON and REVERDY JOHNSON for the appellants:  [**9]  

This is an appeal from a decree of the orphans court of Baltimore county, by which all commissions were disallowed the executors of John McKim, Jr., deceased.

The facts of the case are as follows:--

The late John McKim, Jr., departed this life, leaving a considerable property, both real and personal. By his last will he appointed his sons, David and John, and his son-in-law, Marriott, his executors, and by that will he directed, that they should charge no commission for settling the estate; but that his estate should pay the necessary expenses. By this will he gives no bequest, whatever, to Marriott; and none to David, except in trust for his wife and children; but to John, a large bequest and devise are made. John renounced the executors of the will, and Marriott and David, after a probate filed with the orphans court, against the clause of the will prohibiting the charge of commission, took out letters testamentary upon said estate;--and before letters granted, the orphans court telling them, that commissions would be allowed, notwithstanding this clause in the will.

The executors settled three accounts, and the, then, orphans court, allowed them six per cent.  [**10]  commission, for their services in settling up the estate.

After such allowance made, some of the legatees of John McKim, Jr., filed a petition, requiring the court to disallow all commissions; and if the court will not do so, to disallow commissions on certain items in the accounts of the executors. They, the executors, assenting to consider such allowances, as open for the consideration and judgment of the orphans court. One item, was a commission on the interest of the deceased in the copper works, in which Mr. McKim permitted his name to be used as a partner, and into which he had put a large capital, without any participation in the profits; and merely obtaining interest on the principal, so lent to such copper works, and which he bequeathed by his will. The legatees of such fund having received the amount of such bequest, gave release therefor.

There are also objections made to other items of credit for commissions.

The present orphans court disallowed every allowance for commissions, and from that judgment this appeal is taken.

The appellants will contend:

1. That the orphans court are authorised and required, under circumstances similar to the present,  [**11]  to allow commissions to executors, although by the will appointing them executors, the testator directs none to be charged.

2. That the various allowances of commissions, as made by the former orphans court, were correct and proper, and that upon the facts and circumstances stated in the case, they ought not to have been disturbed by the present orphans court.

By S. J. K. HANDY and NELSON for the appellees, who insisted:--

1st. The authority to make a last will and testament of personal property, and to appoint an executor, is, by the common law of England, in force at the time of the settlement of Maryland, imported by our ancestors, incorporated into, and made a part of the laws of the State, and is not in virtue of any act of Assembly; that executors and administrators, at common law are entitled to nothing, by way of compensation or commissions; that each testator, at common law, has the right to debar his executors from receiving commissions, the office of executor being one of private trust named by the testator, and not by the law.

2nd. There is a defect of authority in the several orphans courts, by act of Assembly, to allow commissions to executors against [**12]  the declared intention of the testator, that his executors shall act without compensation or commissions; that the sound and true construction of the several acts of Assembly will exclude this case, as not within the meaning and intention of the legislature, leaving it to be governed as at common law; that the legislature intended, by the 5th sec., 14th sub. chap., of the Act of 1798, chap. 101, to embrace the case only, where testators desiring, and intending to compensate, give something by way of compensation, but give, in the opinion of the orphans courts, an insufficient compensation, repealing the law, pro tanto, as it existed prior to said act of Assembly:--this case comes not within the letter, nor within the meaning and the intention of said fifth section; nor is it embraced within the meaning and the intention, of the 2nd sec., 10th sub. chap., of the Act of 1798, chap. 101.

3rd. From the pleadings and the evidence in the cause, it appears, that the executors made no contract or agreement with the residuary legatees of their testator, to entitle them to an allowance of commissions against the prohibition of the will; but on the contrary, the executors took out letters,  [**13]  with the full understanding, that the residuary legatees refused to make any such agreement; that the appellants having voluntarily assumed the trust reposed in them by the testator, are bound to take the office of executor, with the condition imposed by the will, the testator intending, by excluding the allowance of commissions, that what would be allowed as such, without this inhibition, should fall into, and make a part of the residuum of his estate, made liable and charged by the will, to make up any deficiency in the legacies given to his daughters; that the sales of the real estate are inadequate to make up the legacies given to his daughters; which makes a resort necessary, under the will, to the residue; and if commissions are allowed, the residue will be much exhausted, and the intention of the testator will be defeated, as respects his daughters; which intention ought to prevail.

4th. The appellants being members of the testator's family, he made them large advances from time to time, incurred responsibilities, and paid debts and liabilities for them, to a large amount; and shortly previous to his death, relinquished and cancelled valid debts due by each of them to him,  [**14]  which would otherwise have made part of the personal estate; the testator nominated and appointed them, the executors of his last will, with the belief, and the full understanding, that they would perform the trust reposed in them by the will, on the terms specified, to which appointment they did not object in his lifetime, although they had knowledge of such appointment, at or about the time of making said will; and more especially, as both executors take beneficially by the will, they are bound by its terms and provisions, and ex aequo et bono, are not entitled to claim commissions, they having contracted and agreed to act without commissions, by the acceptance of the office of executors, under and by virtue of the will.

5th. The codicil to this last will and testament, made two days after the will, as disclosed by the evidence in the cause, is in the handwriting of David T. McKim, one of the executors and legatees, and was signed and attested at the instance, and at the request of said executor and legatee, and it is not competent for said executor and legatee now to set up the defence, that he takes nothing by the will, even if the fact were so, but he is estopped and precluded [**15]  from objecting to the codicil of said will, and is as much bound to act without commissions as executor, as if the codicil had not been made.

6th. David T. McKim waived all claim to commissions anterior to taking out letters testamentary on his father's estate; he also refused to make any agreement to allow commissions to his co-executor, Wm. H. Marriott, and therefore, in no aspect of this case, can he rightfully and legally claim the allowance of commissions; and as both executors entered on the performance of the trust reposed in them by the will, with full knowledge of the opposition to have commissions allowed contrary to the intention of the testator, and of the conditions annexed to the trust, they have no right to complain, and that both executors, under all the circumstances surrounding this case, ought to have no allowance of commissions made them by the orphans court, against the general, and the particular intent of the will.

7th. The claim made by said David, independently of his waiver of claim to commissions, is inadmissible, inasmuch as the evidence in the cause offered by the executors, discloses the facts, that he, David T. McKim, has elected to take the [**16]  legacies and benefits given him by his father's will and codicil; and has assumed the trusts, for the grand-children, created by the will, and also the peculiar and special trust created by the codicil, and therefore he is bound to give effect to the whole will, and is not entitled to commissions.

8th. That under no aspect of this case, ought the executors to be allowed commissions on the sum of $ 99,025.88, returned by them as a debt due to the separate estate of the testator, by David T. McKim, and John S. McKim, the surviving partners of John McKim, Jr., & Sons, and charged and credited as such, in their first, second, and third accounts, because by the death of Mr. McKim, the senior partner, the whole partnership property and business, devolved by law on his surviving partners, whose duty it was, as surviving partners, to settle up the said copartnership business; that the appointment of David, as one of the executors, he being a copartner, does not entitle him to claim commissions out of the separate estate of his testator, for winding up the copartnership business after his father's death, nor is his co-executor, Marriott, entitled to claim commissions on this item; nor [**17]  ought commissions to be allowed on the sum of $ 15,900, the value of two hundred and sixty-five shares of Phoenix Shot Tower stock, given and released by the will to David, it having been held by the testator as collateral security only, at the time of his death; nor ought any commissions to be allowed on $ 6000, a debt charged on the dwelling house devised to David, and returned by executors, as a debt due by said D. T. McKim, as executor.

9th. Commissions ought not to be allowed the executors on the sum and item of $ 99,025.85, returned by them in their list of debts, as "the amount of capital of late John McKim, Jr., in copper company, due by David T. McKim and John S. McKim, surviving partners of John McKim, Jr., & Sons;" and charged by executors in their first administration account, as "being the amount of deceased's interest in the firm of John McKim, Jr., & Sons, as returned in their lists of debts due the deceased," and which item and sum of money was extinguished by a credit and allowance in their second administration account; the executors alleging in said account, that they had "prematurely and erroneously charged themselves with said item in their last account, the [**18]  firm of John McKim, Jr., & Sons, not being settled up;"--and which item was again charged and credited in their third account: because the evidence shows, that the executors never reduced said item and sum of money, or any part thereof, into their possession as executors, nor was the same ever paid over to them as executors, by the surviving partners of John McKim, Jr., & Sons; but on the contrary, the said business and firm was conducted after the death of John McKim, Jr., by his surviving partners, who wound up the said business and firm, paid the debts of said copartnership, and divided the profits and capital of said copartnership business amongst themselves. And commissions ought not to be allowed on the sum of $ 7000, the appraised value of warehouse at the corner of Frederick and Pratt streets, where the copper business was conducted by John McKim, Jr., & Sons.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*83]  MAGRUDER, J., delivered the opinion of this court.
The will of the late John McKim, junior, gives rise to this controversy, and the first and principal question is, are the persons to whom [**19]  letters testamentary were granted, and who have administered the assets, entitled to receive any remuneration for the services they have rendered?
It will be assumed in this case, that if our act of Assembly of 1798, ch. 101, does not expressly grant to the orphans court, the power to allow to the executors of Mr. McKim a commission 

 [*84]  for their services, no commission can be claimed by them. But surely a law, which, in prescribing the manner in which the account of an executor must be made out, has these words: "His commission, which shall be, (at the discretion of the court,) not under five per cent., nor exceeding ten per cent., on the amount of the inventory or inventories, excluding what is lost or has perished," confers upon the orphans court the power in this, as it does in all other cases, to allow a commission. The question then is, can the testator take from the court the power which the law gives to it, and which is conferred in language, which makes it their duty to allow not less than five per centum?
The will of Mr. McKim, in one of its clauses, appoints David T. McKim, John S. McKim, and William H. Marriott, the executors; and afterwards it [**20]  is added: "I do hereby declare it as my will and intention, that neither of my said executors shall be entitled to any commissions for settling my estate, but all necessary expenses relative to such settlement, shall be charged to my estate." John declined, the others obtained letters testamentary, and now claim the commission. Is the above clause in the will a bar to the claim?
It must be conceded, that the act of Assembly no where gives to a testator the power which this testator attempted to exercise. It is true, that the will of the testator is to be regarded in the administration of his estate, but this general rule is to be taken with this proviso, that such will be not inconsistent with the law. That this provision of the will is inconsistent with the law, must be obvious upon an examination of the act of 1798, especially if the 2nd sect. of sub. chap. 20, be read in connection with the 5th sect. of sub. ch. 14. The first clause makes it the duty of the court, in all cases, to make an allowance; the other makes one single exception, and this case cannot be brought within that exception. To defeat a claim founded upon sub. ch. 20, sect. 2, because of this clause in the will,  [**21]  there must be found a law which gives to the testator a power to repeal the act of 1798, so far as it directs the manner in which the accounts to be passed by his executors are to be made out; a law which directs the commission to be allowed, 

 [*85]  unless the testator shall otherwise direct. The testator is not permitted to deprive his executor of a commission of not less than five per centum, even by bequeathing to him, "by way of compensation," any thing which shall appear to the court to be insufficient compensation. Surely, if he cannot take from the court its power to allow the executor ten per centum upon the amount of the inventory, by giving to him a less sum than the law authorizes the court to allow, and which the court believes to be sufficient, he cannot, by forbidding any allowance whatever to be made, deprive the court of the power which the law says it shall exercise in all cases, with but one exception, and that exception not embracing this case. The court may allow more, although the will gives eight per centum, (thus disregarding such a provision in the will.) Surely its power is not to be taken away by a clause of the will, which allows to the executor [**22]  nothing.
A person, by undertaking the office of executor, does not elect, and is not bound to give effect to all the provisions to be found in the will. Such clauses as are inconsistent with the law which the executor is to obey, are of no validity, and constitute no part of the will.
It is not believed, that the record furnishes testimony, that the executors agreed to release any commission to which the law might entitle them. The agreement spoken of might not have been executed, because, after the opinion expressed by the court, or one of its judges, it was not deemed of importance to obtain an agreement, in regard to the executor's commission, on an estate in which three married ladies were principally interested. Indeed, one of the executors seems to have taken quite unreasonable pains, to let it be distinctly understood by all who are concerned in the estate, that he had a will in regard to the commission, inconsistent with that of the testator, and that the law should settle the question between them.
The opinion of this court then is, that in this case, and notwithstanding the provision of the will, the executors were entitled to the commission which had been previously [**23]  allowed to them.

 [*86]  The petition filed by the appellees, besides insisting that no commission was to be allowed to the executors, also charges, that commissions had been improperly allowed upon particular sums of money. Upon these questions, the court below could express no opinion, because, in its judgment, it had no legal power to make any allowance when the will forbids it. Differing in opinion with the court below on this question, it is our duty to direct what shall be the decree in the premises.
The first objection is, to commission allowed on a sum of money returned by the executors as a debt, due the deceased by David T. McKim and John S. McKim, surviving partners of John McKim, junior. It can make no difference, in deciding this question, whether the testator was a partner of the firm, or accommodated that firm, of which he was not a member, with a loan of so much money. The money was unquestionably a part of his personal estate, payable only to the executors, and when paid to them, constituted a part of the assets in their hands to be by them accounted for in their settlements in the orphans court. The testator could not, by his will, prevent the executors [**24]  from collecting and accounting for this portion of his estate, or authorize any other person to receive it from the debtors.
It can be no objection, to the commission allowed on the appraised value of two hundred and sixty-five shares of Phoenix shot tower stock, that it was transferred to testator by one of the executors, "as collateral security." While the executors are charged with the appraised value of this stock, it must be regarded as a part of his estate. It cannot be regarded as the stock of its former owner, although we are not told when or how the testator became the absolute owner of it.
We are of the opinion, then, that the executors were rightfully allowed a commission on these two sums of money.
We are also of opinion, with respect to the $ 6000, that they are not assets, upon which a commission is to be allowed by the orphans court.
JUDGMENT REVERSED AND CAUSE REMANDED.  

12 of 23 DOCUMENTS 

CHRISTOPHER GEIGER, AND JOSEPH AND EDWARD PATTERSON, ET AL., vs. RICHARD GREEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 472; 1846 Md. LEXIS 54 

December, 1846, Decided 

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

On the 8th July 1846, Richard Green relying upon the following agreement, to wit:

"BALTIMORE COUNTY, 10th December 1838.

"I hereby grant to Richard Green, the privilege of digging and moving the ore on that part of my place joining Wilderson and Price's, at twenty-five cents per ton for the privilege of ground; leave also to build a house on said land, the workmanship to cost $ 100, the materials to be got on my land, at said Green's expense.     "CHARLOTTE C. D. OWINGS.

"Jas. W. Owings."    "RICHARD GREEN."

Filed his bill, setting forth the same; that in virtue thereof, he entered upon the land of the said C. C. D. O., and dug large quantities of ore therefrom, and paid her for the same; and should have continued to raise ore therefrom, but for an accidental mental affliction, which rendered him incapable of attending to business; that while he was so incapacitated, Christopher Geiger, acting on behalf of himself and others, &c., represented to C. C. D. O., that the appellee had abandoned his contract, and, by misrepresentation, induced the said C. C. D. O. to enter into some arrangement to sell to the said C. G. and [**2]  others, a portion of the lands comprised in her agreement with him; that Geiger and his partners had full notice of the agreement, &c., with the appellee, when they made their agreement; that the said C. G. and partners, are now raising ore, and unless restrained, will deprive the said R. G. of all benefit of his contract. Prayer, for subpoena.

The county court, (ARCHER, C. J.,) awarded an injunction, on bond being filed.

The answer of C. C. D. Owings admitted the bill

After the coming in of the other answers, none of which denied the contract relied upon in the bill, nor notice of the existence of some agreement between the said C. C. D. O. and Richard Green, but did deny all misrepresentation charged in the bill, a motion was made to dissolve the injunction. This motion, the chancellor, (BLAND,) on the 5th November 1846, overruled, and continued the injunction until final hearing.

The defendant appealed to this court.  

DISPOSITION:
ORDERS REVERSED, AND INJUNCTION DISSOLVED, AND BILL DISMISSED.  

HEADNOTES:

Where the object of a bill in equity is to obtain specific performance of a contract, and the writ of injunction is prayed for only to protect the property, the subject of the contract, against the wrongful acts of the defendant, pending the contest, and until the right to specific performance shall be determined, that writ cannot be maintained, unless the case presented by the bill, would authorize a court of equity to enforce the contract.

Specific performance of a contract, is not a matter of right in the parties, but depends upon the sound and reasonable discretion of the court; is granted or withheld according to the circumstances of the case; and the court must be satisfied, that the contract sought to be enforced is fair, just, and reasonable, equal in all its parts, and founded on an adequate consideration.

O granted to R, "the privilege of digging and moving the ore on that part of my (O's,) place, joining W and P's, at twenty-five cents per ton, for the privilege of ground; leave also to build a house on said land, the workmanship to cost, &c., the materials to be got on my (O's,) land, at R's expense." This confers the mere privilege of digging ore; is not compulsory; imposed no corresponding obligations on R, who might refuse to work the mine, and O could not oblige him to work it. It contains no mutual or reciprocal engagements, and cannot be specifically enforced in equity: consequently there was no ground for granting or continuing an injunction upon its stipulations.

Upon an appeal against continuing an injunction, if the Court of Appeals perceives that the complainant has, and can have, no equity at final hearing, the bill will be dismissed.  

COUNSEL:
By OTHO SCOTT and JOHN NELSON for the appellants, and

By MEREDITH and REVERDY JOHNSON for the appellees.  

JUDGES:
The cause was argued before DORSEY, SPENCE, MAGRUDER and MARTIN,  [**3]  J.  

OPINIONBY:
MARTIN 

OPINION:

 [*474]  MARTIN, J., delivered the opinion of this court.
This case comes before us by an appeal from an order of Baltimore county court, as a court of equity, granting an injunction restraining the appellants from digging iron ore on certain lands in that county, and also from an order passed by the court of chancery, to which the cause was transferred, continuing the injunction until final hearing, and presents for our consideration the meaning and operation of the agreement of the 10th of December 1838.
This contract, which appears to have been executed by Charlotte C. D. Owings and the appellee, is in these words:
"I hereby grant to Richard Green, the privilege of digging and moving the ore on that part of my place joining Wilderson's and Price's, at twenty-five cents per ton, for the privilege of ground; leave also to build a house on said land, the workmanship to cost one hundred dollars, the materials to be got on my land, at said Green's expense."
The original bill, after reciting this contract, and alleging, that the complainant had dug under it, a considerable quantity of ore, and was arrested in his operations by an affliction [**4]  which incapacitated him, till within about four months before the institution of the suit; and that during that period, an arrangement was accomplished, through misrepresentation, by Christopher Geiger, in behalf of himself and the other defendant, with Charlotte C. D. Owings, for a portion of the lands covered by the contract of the 10th of December 1838, of which Geiger had notice; and that the defendants were engaged in raising ore on this land, seeks a specific performance of the agreement, and prays, that the defendants may be restrained from raising and removing the ore.
On the 27th of July 1846, the complainant filed a supplemental bill, which contains a narration of the facts set forth in the original bill, without any material variation, but supplies 

 [*475]  an important omission in the first bill, by praying specifically for the writ of injunction. This bill was supported by the affidavit of the complainant, and a bond having been given, as required by the court, an injunction was ordered, on the 24th of July 1846.
It is apparent, from an examination of these bills, that the object and purpose of the complainant, was to obtain a specific performance of the [**5]  agreement of the 10th of December 1838, and the conservative power of the court was invoked, only to protect the property, the object of the contract, against the alleged wrongful acts of the defendants, pending the contestation, and until his right to a specific execution of this contract was finally determined. As the writ of injunction was granted, as auxiliary to the principal relief sought for by the complainant, it follows, that the order granting the injunction cannot be maintained, unless the case presented by the bills is of that character, which would authorize a court of equity, in the exercise of its extraordinary jurisdiction, to enforce the contract.
It is an acknowledged principle in the exercise of that branch of equity jurisprudence, which respects the specific performance of contracts, that it is not a matter of right in the parties, but the application is addressed to the sound and reasonable discretion of the court; it is granted or withheld according to the circumstances of the case, and a court of equity must be satisfied that the contract sought to be enforced, is fair and just, and reasonable, and equal in all its parts, and founded on an adequate consideration, [**6]  before the court will interpose with this extraordinary assistance.
In the case of Seymour against Delancey, 6 Johns. Ch. 222, the chancellor of New York said:
"Is it the dictate of sound legal discretion, that this agreement should be specifically carried into execution by the authority of this court? It is an application to sound discretion. This has been the uniform language of the courts of equity. It is not a case requiring the aid of the court, ex debito justiciae. It is a settled principle, that a specific performance of a contract is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances."

 [*476]  In defining the power and duty of a court of equity, in the exercise of this portion of its jurisdiction, the lord chancellor, in the case of Radcliffe against Warrington, 12 Ves. 331, announced:
"That the question was, not what the court must do, but what it may do, under circumstances, either exercising the jurisdiction by granting the specific performance, or abstaining from it."
In German against Machin, 6 Paige Ch. 288, at p. 292, the court determined:  [**7]  "That, to entitle a party to a specific performance, the agreement which is sought to be enforced, must not only be certain in its terms, but there must be mutuality in its character."
In Boucher against Vanbuskirk, 2 A.K. Marsh. 345, the court said: "That the general rule is well settled, that, to enable either party to compel a specific execution, the contract must be mutually binding on each."
In Moore's administrators against Fitz Randolph, 6 Leigh 175, the court declared: "That the contract must be mutual, otherwise equity will not execute it, that is, both parties must have, by the agreement, a right to compel a specific performance, according to the advantage which it might be supposed they were to derive from it."
The same doctrine is stated by Lord Redesdale, in Lawrenson against Butler, 1 Sch. & Lef. 13, at p. 18, where he says:
"I have no conception, that a court of equity ought to decree a specific performance in a case, except where both parties had, by the agreement, a right to compel a specific performance, according to the advantage which they might be supposed to have derived from it, because, otherwise, it [**8]  would follow, that the court would decree a specific performance, where the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him, he would be liable to the performance, and, yet, if advantageous to him, he could not compel a performance." This, he says, "is not equity."
The same principle is affirmed in the case of Bromley against Jeffries, 2 Vern. 415; and it is now established, that unless there is to be found in the contract, this essential ingredient of 

 [*477]  mutuality, a court of equity will not compel its specific execution.
This constitutes an insuperable objection to the specific performance of the agreement under consideration. It is true, that as this mine was worked, and ore raised from it by the appellee, an obligation to pay twenty-five cents for every ton that was produced, would be created. But the contract grants to the appellee the mere privilege of digging ore, and is not compulsory in its character; a privilege, to be exercised, or not, at his pleasure, imposing no corresponding obligations; and if the appellee considered the agreement into which he had entered injurious, and refused to [**9]  work the mine, it is apparent from every part of this paper, that the proprietor possessed no power to enforce in a court of equity an observance of the contract.
The practical operation of an agreement of this description, is, that while the appellee may use the mine, if he finds it productive, he may refuse to do so, upon discovering that his purchase is disadvantageous, and the owner of the property would be deprived for years of the revenue, which, under other circumstances, might be derived from it.
A contract so unequal in its stipulations and bearing, which binds one party, while it leaves the other unfettered, as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal engagements, and which must be regarded, therefore, as unreasonable and inequitable, can never be enforced by a court of equity.
As it is perfectly clear, that the contract, which forms the subject of the present suit, could not be enforced in equity, and that the court would have dismissed the bills, at the final hearing, there could be no ground for granting an injunction, the object of which, was to protect the property, pending the controversy, in reference to the [**10]  specific execution of the agreement. We think, therefore, that the county court erred in granting the injunction, and that, for the reasons already assigned, the chancellor was in error in continuing it.
Various questions were raised by the answers of the defendants, and discussed by the counsel in the progress of the argument, in reference to which it has become unnecessary to 

 [*478]  express an opinion, as we think that the case presented by the bill, did not entitle the complainant to the interposition of a court of equity.
The order of Baltimore county court, as a court of equity, granting the injunction, and the order of the chancellor continuing it, are reversed, with costs, and a decree will be signed reversing these orders, and dismissing the bills of complaint.
ORDERS REVERSED, AND INJUNCTION DISSOLVED, AND BILL DISMISSED.  

13 of 23 DOCUMENTS 

THE MUTUAL SAFETY INSURANCE COMPANY vs. ESDALE P. COHEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Gill 459; 1846 Md. LEXIS 1 

June, 1846, Decided 

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

This was an action of assumpsit, brought against the appellants, a foreign corporation, incorporated by the State of New York, on 31st December 1842. The company appeared, and pleaded non assumpsit.

At the trial of this cause, the plaintiff, to prove the issue on his part, offered in evidence the policy of insurance, executed by the defendant, for "E. P. Cohen, on account of whom it may concern. Loss payable to him, by which they caused to be insured, at and from the 13th August 1842, at noon, until the 13th August 1843, at noon; if then absent, liberty to renew for three months, at pro rata premium, each passage subject to its own average, upon the body, tackle, &c., of the good brig, called the T. Street. Beginning the adventure upon the said vessel, &c., at and from, as aforesaid, and so shall continue and endure, until, as aforesaid. And it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to, touch and stay at, any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to this insurance. The said vessel, tackle, &c., hereby insured, are valued at the [**2]  sum insured, $ 10.000, without any further account to be given by the assured to the assurers, or any of them, for the same, touching the adventures and perils, which the Mutual Safety Insurance Company is contented to bear, and take upon itself in this voyage; they are of the seas, men of war, &c.

And it is further agreed, that in case a total loss shall be claimed for, or on account of any damage or charge to the said vessel, the only basis of ascertaining her value, shall be her valuation in this policy."

It was admitted, that at the date of said policy, and thenceforth, and at the time of the loss claimed for in this case, the plaintiff was owner of the vessel mentioned, as insured by said policy. The plaintiff then read in evidence the following depositions:--

Thomas Cromwell deposes, that he was the master of the brig T. Street, on her voyage from New Orleans to Kingston, Jamaica; that he left the Balize, on the first day of October 1842; they had bad weather from the time the steamboat took them over the bar, and on the 3rd of October it came on so heavy, they had to heave to under a forespencer. About four o'clock, on the 4th of October, the spencer blew away,  [**3]  and they lay under bare poles, and the brig was on her beam ends, and they cut away her mainmast to keep her off before the wind, seeing that she would not right unless her mainmast was cut away. In cutting away her mainmast, it carried away the fore topmast and all the sails and rigging attached to them, and left them no sails at all, except, &c., which were in the cabin. After the gale was over, they got the before mentioned sails up, and steered before the wind, and on Monday week, the 12th of October aforesaid, they struck on Florida reef, and let go both anchors, and brought her up, head to the wind. They lay there all night, just clear of the bottom, and the next morning the sea broke all around her, and she began to thump heavy on her bottom, and deponent was afraid she would bilge, and slipped her chains and let her go ashore, and started his mate and two men to Key West for assistance, and at ten o'clock that night got assistance, and lightened the brig, by taking flour out of her, and they found three feet of water in her hold. Deponent finally gave her up to the wreckers, and they got her into Key West, by keeping both pumps going all the time to keep her free. At Key West [**4]  he called a survey on her, and the surveyors advised her to be sold, and deponent applied to the court for a sale. It was then costing twenty dollars a day to keep her pumped out, to prevent her sinking along side the wharf. The judge of the court ordered her to be sold, and awarded one-half of the proceeds of sale to the salvors. The brig was sold under the order of the court, and the vessel and all her materials sold for about eleven hundred dollars. He brought home about eighteen hundred dollars, on account of the vessel and cargo; how much on account of the vessel, and how much on account of the cargo, he does not know now; he gave the papers to Mr. Cohen, the plaintiff,

Cross Examined.--Deponent states that he could do nothing with her, that he was afraid of the lives of the crew, and they slipped the chains to let her go ashore, and sent for the wreckers. It was twenty miles from the reef to Key West. Deponent took the cargo of flour, (not quite all--as much as he could get,) and either the next day or the day after, the wreckers brought her to Key West; there were from twenty to thirty wreckers on board of her. Deponent went with the cargo of flour to Key West, and the [**5]  mate and crew went with the vessel to Key West. The brig drew about seven feet, without cargo, and ten when loaded with flour. He had two mates and four men before the mast, the cook and himself. The brig was sold by order of the court, and was bought by a gentleman of Key West, by the name of S. Healy. When deponent left, Healy was repairing her, and had put masts in her which he took from another vessel. Deponent knows nothing about her since. Deponent was about twenty days in Key West.

The survey set forth, that the surveyors report: "Repaired on board said vessel, and after a careful and impartial survey of her hull, &c., find that she was dismasted in a hurricane on the 4th inst., in which she lost all her spars, except fore-mast, fore-yard and bow-sprit, with the entire rigging and sail, and the hull very much strained throughout, after which she run ashore on the reef, where she lost both anchors and chains, and now leaks so badly as to keep both pumps constantly going. We therefore recommend the master of said vessel, to incur no expense on said vessel, but to sell her immediately for what she will fetch, as her condition is so bad as not to warrant an estimate of repairs.  [**6]  "

One of the surveyors, sworn by the plaintiff, on cross-examination deposed, that in the examination, the leak appeared to be in her bottom, occasioned by great straining the brig had had that the leak was not stopped then; that he saw the brig sometime afterwards, hove keel-out at Green's wharf, and carpenters endeavoring to heave the after-part of the keel into its place; that he presumes they stopped it then; does not know whether they did or not; that the leak was not ordered to be stopped by the surveyors, nor examination of her bottom had, in consequence of the brig being without spars and rigging sufficient to heave her down, and the expenses of fitting temporary ones (it not being possible to procure proper spars for the vessel here,) would have been so great, that it was judged for the interest of all concerned, better for the master to abandon her, and sell her; and the surveyors did not believe, that the hull of the vessel was worth the expenses of the outfit it would have required, to render her fit to go to sea, it having been so much damaged and injured in the recent hurricane, and the severe thumping she had had upon the reef.

Another of the plaintiff's witnesses [**7]  also stated on cross-examination, that he was present at the sale of the brig; thinks there were twenty or thirty persons present; that there were six or seven bidders; Healy was purchaser, as he understood from Healy himself.

One of the defendant's witnesses deposed, that the vessel could not have been made seaworthy, for the prosecution of her voyage, for four times the amount that it cost Healy, as he did not put sufficient repairs upon her, to render her seaworthy.

Another witness for the defendant, deposed, that after she was purchased by Healy, he saw the brig hove out; that she appeared much strained; supposes that was the cause of her leaking; afterwards, made a voyage from Key West to New Orleans in the brig; that she continued to leak badly all the voyage. That the brig was sold, and bought by Healy, for himself. That the repairs of the brig here, Key West, were merely temporary, everything put upon her was temporary; these repairs cost between two and three thousand dollars, including the first purchase; that she was scarcely seaworthy when she left for New Orleans.

There was other proof of a similar character, that she could not have been repaired at a less [**8]  expense; that she was sold in New Orleans; that she took in a cargo for Havana; that she then leaked so badly, that an extra number of hands had to be shipped to keep her sufficiently free, to enable her to proceed on her voyage to Havana; that when she returned to New Orleans, she was taken in the dry dock, and thoroughly repaired and coppered; that those last repairs cost about $ 4000, as he was informed by the captain of the brig, who had become a part owner.

The plaintiff then read in evidence the following letters:--

Baltimore, October 28th, 1842.

CHAS. F. SINGLETON, ESQ.,

Agent of the Mutual Safety Ins. Co. of New York.

SIR:--The only information I have relative to the brig T. Street, insured with you, is what is contained in a letter published in the newspapers, dated Key West, 14th October 1842; from which I infer, that the damage done the vessel, the expenses of getting her off, the salvage to be paid the wreckers, the expenses of repairs, and other expenses at Key West, will amount to what may be deemed a total loss of said vessel. In consequence, I hereby abandon to you said vessel, and claim from you a total loss. I am, respectfully, sir,

Your [**9]  obd't serv't.

Signed,     E. P. COHEN.

November 28th, 1842.

E. P. COHEN, ESQ.

DEAR SIR:--I have just received instructions from the Mutual Safety Insurance Company of New York, to notify you, that they disclaim all interest in the brig T. Street, and deny their liability for any but a partial loss on said vessel, under their policy. This partial loss, when properly proved and adjusted, will be promptly settled. The directors, believing that your title to the vessel has not been divested, and not intending to acquiesce in any but a claim for partial loss, as above stated, have deemed it right to give you this notice, that you may avail of the earliest occasion to reclaim the vessel.

Yours, &c.     C. F. S.

The plaintiff then read in evidence, a transcript of admiralty proceedings at Key West, upon a libel filed in the district court of the U. S., praying for an allowance of salvage in relation to the said brig.

The district judge decreed, that the marshal advertise, and proceed to sell on the 19th inst., the said brig, she being found unworthy of repairs, and that he also sell so much of the cargo as may be necessary, with the proper proportion [**10]  of the proceeds of the sale of the brig to pay the costs and expenses of this suit, the wharfage, storage, and labor in landing said cargo. That the residue of said cargo, the marshal and clerk divide and set off to the libellants, the one moiety thereof in full compensation for their services in saving the same, and that the clerk also pay the one moiety of the proceeds of the sale of the brig, to the libellants, after first deducting its proper proportion of the costs and expenses of saving said brig."

Under this decree, the sales of the brig amounted to $ 1109.15. Her cargo, in part, $ 623. Residue, five hundred and seven barrels flour, divided in kind, &c.

The defendant then proved, under a commission to New Orleans, that the witness has knowledge of the brig T. Street, as she lay in the port of New Orleans, on the 5th December 1842, having been on board of her on that day; that she was then in good condition, and deponent thinks sea-worthy. The condition of her hull was good and sea-worthy. Deponent saw the brig in September or August, 1842. The difference in value, on the 5th December 1842, and at the former period, when deponent saw her, deponent thinks was about $  [**11]  1500; that is to say, she was worth less by $ 1500 on the 5th December 1842, than she was in September or August previous, when deponent saw her. He does not know the name of the owner of the brig, on the 5th December 1842. Thinks her captain's name, in whose charge she was, was Healy. The cost of repairs necessary to place her in the condition she was, previously to her disaster, must have been, deponent thinks, about $ 1500. The repairs which she seemed to have undergone, to enable her to prosecute her voyage from Key West to New Orleans, to her hull, merely heaving out and caulking, and putting on part of a false keel. Her spars, rigging and sails, had all been changed, part new and part old, except the fore-mast, bow-sprit, fore-gaft, and fore-rigging. The deponent estimated the value of the brig, as she arrived from Key West, at $ 3500. Her value, he thinks, at New Orleans, after all necessary repairs should have been put upon her, would have been $ 5000; that is to say, if she had been put into as good order or condition, as she was in when deponent saw her, in September or August 1842. If coppering had been put upon her, she would have increased in value to $ 6000.

The [**12]  defendant also proved by another witness, that he saw and examined the T. Street, for the first time, on the 9th January 1844; that he estimated the value of the said T. Street, on the said 9th January, if all necessary repairs were put upon her, at $ 5500; as she then was, he regarded her as worth $ 4000. If copper had been put upon her, the value would be varied, in his estimation, $ 1000. That he critically examined the said T. Street, on the 9th January 1844; that he found her hull in an excellent condition, and with no appearance of having ever suffered any damage; there had been no strain, either inside or outside, upon it; and her ways and fastenings, all appeared as fair as when first put in, and no signs of strains or leak in any part of them appeared. Her bottom, when she was hove out to be coppered, was in good order, and did not show any signs of repairs having been lately made, except putting on it a small piece of the false-keel. Her spars were all new, excepting the foremast, bow-sprit, and fore-gaff. Her rigging was all new, except the lower rigging on the foremast. Her sails were all composed of second-hand sails, that had been used in other vessels, and did not fit [**13]  the spars to which they were attached.

Other evidence was also offered, of the condition of the brig, and cost of repairs, after the injury at K. W., and, also, at New Orleans.

The defendant then prayed the court to instruct the jury:--

That the letter of the plaintiff to the defendant, given in evidence, and purporting to abandon to the defendant the vessel insured, does not operate as an abandonment; and that the plaintiff is entitled to recover only for a partial loss.

That the plaintiff is not entitled to recover for a total loss, unless they shall find, that the vessel by the disasters given in evidence, sustained damage, (including the amount of salvage adjudged and received, to an amount exceeding $ 5000; and that in estimating said damage, the jury are to take into consideration what was expended for the vessel's repairs at Key West after the sale, and what was afterwards expended on her to repair said damages, at New Orleans.

That in determining the necessity to sell, they are to have reference to the circumstances occurring subsequently to the sale of the vessel, in respect of the damage suffered by her, and the extent and cost of repairs actually [**14]  required, and the actual condition of the vessel at Key West, before said sale.

That if they shall find that the master, after the arrival of the vessel at Key West, might have communicated by letter with the plaintiff, and through him, with the insurers, and obtained their directions as to the course to be pursued by him with the vessel, without such a delay as would have rendered the destruction, meanwhile, of the vessel probable; or, as would have made a sale of her necessary, to prevent total loss from her actually perishing, or being rendered utterly worthless, then the plaintiff is not entitled to recover, except for a partial loss.

That the necessity that suffices to warrant a sale by the master, must be one which leaves no alternative to a sale, and puts the party in a state of positive compulsion to act.

That according to the true construction of the policy, as given in evidence, the necessity to justify a sale does not arise, unless the damage, (including the amount of salvage adjudged and received,) shall be found by the jury to have exceeded one-half of the value of the said vessel, as stated in the policy; that is to say, that if the jury shall believe from [**15]  the evidence, that the repairs and expenses of the vessel at K. W., and the necessary repairs at Key West to enable her to proceed to New Orleans, and the repairs and expenses for repairing her damage thoroughly, added to the salvage aforesaid, did not exceed the said one-half, the plaintiff is not entitled to recover for more than a partial loss.

That in determining upon the point of necessity to sell, the jury are to attach no weight to the recommendation of a sale made by the two surveys, inasmuch as the said surveyors are not on oath,--and show, that there was no thorough examination of the vessel by the surveyors, nor any estimate of requisite repairs, temporary or thorough; and that to ascertain the actual damage suffered by the vessel, and the necessity of the sale, the jury are not only to take into view the circumstances, as appearing at Key West, in reference to the vessel, but also the fact of the subsequent repairs, and the amount thereof, and the restoration of the vessel, so far as the same are shown in testimony.

The plaintiff prayed the court to instruct the jury, as follows:--

If the jury shall find from the evidence, that the vessel insured was, by [**16]  one of the perils insured against, so far damaged, that under all the circumstances attending her situation at Key West, consequent on said injury, it was necessary, in the opinion of the jury, for the interest of all concerned, that said vessel should be sold; and that under such necessity she was in good faith sold, by order of the court, at the time mentioned in the evidence, then the plaintiff is entitled to recover for a total loss on the policy; although the jury may find, or the court be of opinion, that there was no valid abandonment.

The court, (LE GRAND, A. J.,) refused to grant any of the prayers of the defendant, and granted the prayer of the plaintiff, and directed the jury as follows:--

The principles which necessarily arise in this case, are of the first importance to the commercial community; and have been, by the learned counsel, discussed with an ability, which has aided the court much in the formation of the opinions, which it is called upon to announce.

Whatever criticism the case of Bosley vs. The Chesapeake Insurance Company, 3 Gill & Johns., 465, may have been subjected to elsewhere, so far as this court is concerned, such strictures [**17]  can have no influence; for its duty is, to announce the law as it has been decided by the supreme court of the State, leaving to that tribunal the exercise of its peculiar function, of reviewing its own decisions, as well as those of the inferior courts. In that case the Court of appeals said: "Upon principles of reason, justice, and policy, we deem this rule undeniable, that the information which is sufficient to authorize the assured to give notice to the underwriters, that he abandons, must be of such facts and circumstances as would sustain the abandonment, if existing in point of fact, at the time the notice is given." Of what character those facts must be, the court refer to several authorities to show. Among these, is Philips on Insurance. This commentator, at page 448 of his treatise, says: "The underwriters ought to know the grounds of the abandonment, that they may determine whether to accept. Accordingly, the assured must, at the time of making the abandonment, make known to the insurers the reasons for which he abandons. He cannot avail himself of any other ground, than that alleged by him at the time of abandoning; and if there be any other facts, (either known, or not [**18]  known to him at the time,) on which an abandonment would be necessary, in order to entitle him to recover for a total loss, he must abandon anew, before he can recover for such a loss, on account of those facts." So in King vs. Delaware Insurance Co., 2 Wash. C. C. Rep., 309, where it is said: "The underwriter should have an opportunity of judging, whether he is bound to accept or not. If bound, that he may do so at once, and take proper means for the preservation of the property." The purport of these authorities, in the opinion of the Court of Appeals, is, obviously, that an abandonment, to be sufficient, must disclose to the underwriter such facts and circumstances, as would furnish him an opportunity to decide, whether or not he will accept.

In the case, Bosley vs. Ches. In. Co., in which these authorities are referred to, and adopted, the insured, by letter, communicated the intelligence to the company, that he had observed by a Boston newspaper of the 29th January, that the ship Gen. Smith, insured in their office, was driven ashore in a heavy gale of wind the 6th December; and by a Charleston paper, of the 26th January, that on the 13th, she was got off, that [**19]  in so dangerous a situation as Helvoct Roads, it was to be feared that a total loss had ensued, and he, therefore, abandoned her. The court, when considering this letter, inquired, whether "the facts disclosed in the notice shew a total loss, either actual or technical;" for said they, "unless they do, the abandonment is wholly defective." "If," (say the court, in the prosecution of this inquiry,) "mere stranding be not a total loss, there is no total loss disclosed by the notice. The only facts upon which such conclusion could rest, are, that in a gale of wind the ship was driven on shore, and had remained there seven days. But, whether she remained there from choice, to make some inconsiderable repair, as for example, to re-ship her rudder, or from necessity; whether she was thrown one foot, or one mile from the channel of the river; whether she laid high and dry, or in ten feet water; whether she had sustained any damage by the accident; whether any effort had been made to get her afloat; or whether the accomplishment of that object was impracticable, or could be accomplished by the expenditure of ten dollars, or ten thousand dollars; were matters on which the insurers were left [**20]  to speculate in utter darkness." The abandonment was held insufficient. Wherein the intelligence communicated by the plaintiff to the defendants, was more full than that communicated by Bosley, I am unable to discover. It informs the company of the following facts:--That, from a letter published in the newspapers, dated Key West, 14th October 1842, he inferred, the damage done the vessel, the expense of getting her off, the salvage to be paid the wreckers, the expenses of repairs, and other expenses, at Key West, would amount to what might be deemed a total loss of said vessel. What information the letter of 14th October contained, is unknown; it not having been offered in evidence. If this letter of the 28th October 1842, be subjected to the same kind of examination as was that of Bosley's, there certainly ought to be no difficulty in determining, that it is equally insufficient; and if this case was, in my estimation, similar in all its circumstances to that case, there would be an end, in my judgment, to the question of total loss. But according to my apprehension, there is a marked distinction between them.

The proposition of the plaintiff, contained in his first prayer, is [**21]  intended to raise the question, how far any act of the master of the vessel, and the circumstances attending that act, can operate to make a total loss. In other words, if the jury shall believe the master acted in good faith for all parties concerned; and shall further believe from the evidence, that at the time of the sale, such sale was a matter of necessity, whether such act of the master and such sale, make the loss a total loss? The same prayer of the plaintiff presents also the additional question, whether, upon the jury finding the facts just mentioned, in such a case, the plaintiff was under any obligation to abandon at all to entitle him to recover for a total loss?

In the case of the brig Sarah Ann, Woodbury and others, claimants, 2nd Summer's Reports, 215, Judge Story said: "It has been suggested, that as the stranding was on a home shore, at no great distance from the residence of the agent of the owners, the master was not authorized to sell without consulting the agent or the owners. I agree at once to the position, if there is no urgent necessity for sale. But if such an urgent necessity does exist, as renders delay highly perilous, or ruinous to the interests [**22]  of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore, or on foreign shore; whether the owner's residence be near, or be at a distance. I am aware of the doctrine maintained by my brother, the late Mr. Justice Washington in Scull vs. Briddle, 2 Wash. Cir. C. R. 150, and unless it is to be received with the qualification above stated, I cannot assent to it. The fact that the brig was actually gotten off by the purchaser after sale, is certainly a strong circumstance against the necessity of the sale. But it is by no means decisive; for we are not, in cases of this sort, to judge by the event; for a vessel may be apparently in a desperate situation, and yet by some luck, accident, or unexpected occurrence or fortunate circumstances, she may be delivered from her peril. We must look to the state of things, as it was at the time of the sale, and weigh all the circumstances: the position and exposure of the brig; the season of the year; the dangers from storms; the expense of any attempt to get her off; the probable chances of success; and the necessity of immediate action on the part of the master, one way or the other."

In the case [**23]  of Catlett and Keith vs. The Pacific Ins. Co. of New York, 1 Wendel, 561, it was held, that a report by the surveyors of a port, into which a vessel put in, in distress, that the repairs of a vessel insured cost $ 20,000, when the vessel itself was valued at $ 10,000; and proof, that upon such report, and at the request of the master, the vessel was sold by order of a court of vice-admiralty, is sufficient evidence of a technical total loss, especially where the underwriters put their refusal to pay upon other grounds.

In the case of Cambridge vs. Anderton, 9 Eng. Com. Law Rep., 224, the facts were these: assumpsit was brought on a policy of insurance on the ship Commerce, from Quebec to Bristol. It appears that the ship, with a cargo on board, sailed from Quebec, and about two hundred miles below Quebec, got upon rocks, in the river St. Lawrence, in foggy and tempestuous weather. She was much injured, and surveyed by experienced persons, who gave it as their opinion, that the expenses of getting her off the place where she was lying, if it could be accomplished, and repairing her, would far exceed the value of her when repaired; under these circumstances, the captain [**24]  and agent for the plaintiff, sold the ship, with her certificate of registry. The purchaser did succeed in getting her off the rocks, took her back to Quebec, and repaired her; she afterwards sailed on a voyage to England. The Lord Chief Justice told the jury, that if, under the circumstances in evidence, they thought that the ship was not repairable at all, or that when repaired, she would not be worth the expense of doing the repairs, the plaintiff was entitled to recover for a total loss; but if otherwise, they could claim for an average loss only. The jury found a verdict for a total loss, and a new trial was moved for. Abbott, Chief Judge, said: "whether the ship was repairable or not, was left to the jury, and I think they disposed of it correctly. If the subject matter of insurance remained a ship, it was not a total loss, but if it were reduced to a mere congeries of planks, the vessel was a mere wreck; the name which you may think fit to apply to it, cannot alter the reason of the thing." And Bayley, Judge, said: "I take the legal principle to be this, if by means of any of the perils insured against, the ship ceases to retain that character, and becomes a wreck, that is,  [**25]  a total loss, the master may sell, and the assured may recover for a total loss, without giving any notice of abandonment." And Holroyd, Judge, said: "when the damage sustained makes a total loss, it is unnecessary to give notice of abandonment.

The Supreme Court of the United States, in the case of the Patapsco Insurance Co. vs. Southgate, et al., 5 Peters, 621, observes, that "as a general proposition, there can be no doubt, that the injury may be so great, and the necessity so urgent, as to justify a sale. There must be this implied authority in the master, from the nature of the case. He, from necessity, becomes the agent of both parties; and is bound, in good faith, to act for the benefit of all concerned, and the underwriter must answer for the consequences, because it is within his contract of indemnity." The court, however, do not decide, whether in such a case, to enable the insured to recover for a total loss, it is necessary that he should abandon; but at page 623 of the same report, they intimate strongly, that such is the law. Their language is: "It may not be amiss to observe, that there is very respectable authority, and that too, founded upon pretty [**26]  substantial reasons, for saying, that no abandonment is necessary where the property has been legally transferred by a necessary and justifiable sale." In sustentation of this intimation, they refer to 2 Pickering, 249. In this case, Gordon vs. Massachusetts Fire and Marine Insurance Company, the whole subject is fully reviewed and discussed with eminent ability and clearness. It is not deemed necessary to refer to many cases cited in that opinion. The conclusion at which the court arrived, seems to me that which is only deducible from all of them. Parker, Chief Judge, in delivering the opinion of the court, in this case, said: "I think, when a vessel has been so far injured by a peril of the sea, as to make a survey necessary, and the master, with perfect good faith, calls such survey, and the persons appointed to take it, are competent in point of skill, and wholly disinterested, and they, after a full and sufficient examination of the vessel, find her essentially injured, and come to a fair conclusion, that from the high price of materials and labor, or the difficulty of procuring them, the expense of repairing will be more than the worth of the vessel after she is [**27]  repaired, and therefore they advise, for the interest of all concerned, that the vessel be sold; in such a state of things as this, it seems to me that a moral necessity is imposed upon the captain, to act according to their advice. It must be considered, that thus situated, he becomes, by law, an agent for the insurers as well as the insured; and is equally bound to look to the interest of both. Shall he, in defiance of such an opinion, proceed to repair the vessel, with the certainty of adding to the misfortune which has already befallen either the owner or the insurer? Or shall he leave the vessel, without selling or repairing, until he shall return home and communicate her situation to those concerned, that they may act for themselves in relation to her? I think neither of these things would be expected of him, and that such a course would be exceedingly prejudicial to commerce? The only alternative left for him, is to pursue the advice of that body of men, who, by the usage of trade, have been immemorially resorted to on such occasions. If they acted fairly, and the captain acted fairly, his acts in conformity with their opinions, will be justified; unless it shall be made to [**28]  appear, by those who contest the loss, that the facts on which they founded their opinions, were untrue, or the inferences which they drew from those facts, were incorrect. And the burden of proof should be upon those who would impeach the proceedings. If they should be successfully impeached, I think the sale of a vessel, founded upon them, cannot be set up as a ground for a claim of total loss, against the underwriters." "In such a case," says the court, "if the jury were satisfied from all the evidence, giving due weight to the opinions of the surveyors, that the sale was necessary, then the sale constituted a total loss; and we think, that an offer to abandon, would not have been necessary; but the fact, itself, of a sale, would constitute a total loss." All of these cases decide, clearly, the point, that if there be an urgent necessity for it, the master, as agent of both the insured and underwriters, has a right to sell the vessel, and that such sale constitutes a total loss, for which the underwriters are responsible; and the one in 9 Eng. C. L. Rep., 224, and the one in 2 Pickering, 249, also establish the principle, that in such a case it is not incumbent [**29]  upon the insured to abandon at all.

The same doctrine is maintained in a great number of other cases, both English and American, the most prominent of which are referred to in 2 Pickering, 249, and in case of Roux vs. Salvador, 32 Eng. Com. Law, 110. The principle seems to be this: that where the insured has property which he can transfer, he is bound to abandon; but when he has been divested of his title by a sale, which is warranted by the rules of law, there is nothing to abandon, and he is not compelled to perform a useless and unmeaning ceremony. From what has been said, it is obvious, that, in my opinion, if the captain himself had, at private sale, sold the brig T. Street, and the jury should believe, from all the circumstances, that such sale was made under an urgent and absolute necessity, there was no obligation on the part of the plaintiff to make an abandonment. This being the case, it is deemed a matter of no importance, whether the sale was made by the captain, or in pursuance of the decree of a court of competent jurisdiction, for on the concurrence of the circumstances which I have stated, the loss is a total loss. This capacity of the [**30]  captain to sell, is one, however, which only attaches in cases of extreme, urgent, and absolute necessity. His fears are not to be the standard by which the existence of any such necessity is to be determined; nor are the improper interferences of those with whom he consults, to determine the fact. It is for the jury to ascertain, from all the circumstances attending the case at the time of sale, whether there existed such a necessity for the sale, for the benefit of all parties concerned, as ought to have induced the captain to have effected it.

In the case of Bryant et al., vs. Commonwealth Ins. Co., 13 Pick., 543, this question of necessity is fully examined. The court there say: "He, (the captain,) might be justified, if the necessity were so urgent as to require immediate action; as, if the goods would probably perish or be destroyed, before the directions of the owners could be obtained. But, if the goods were not perishable, or damaged, and might be preserved in reasonable safety, until the owners could be consulted, he should preserve and guard them; and in such case, he would have no more authority to break up the voyage, and sell the cargo, than the mate [**31]  or a stranger would have. And, notwithstanding, he conducted himself honestly, yet, if the other elements, which make up this legal necessity, were wanting, the owners and underwriters would not be bound."

In the case of Hall vs. Franklin Ins. Co., 9 Pick., 478, it was held, that the necessity which will justify the master of a ship in selling her, is one in which he has no opportunity to consult the owners or insurers, which leaves no alternative. "There must be," say the court, "something more than expediency in the case; the sale should be indispensably requisite. The reason for it should be cogent. We mean a necessity which leaves no alternative; which prescribes the law for itself, and puts the party in a positive state of compulsion to act." Whether the sale in this case, was made to satisfy the claim of the salvors, and at their instance, or at the instance of the captain, I do not deem it important to decide; for whether the one or the other, I take it, its influence here would be the same. Whilst the third proposition of the defendant, that the decree should have no weight with the jury, must be rejected, nevertheless, that contained in the second prayer [**32]  of the plaintiff, cannot receive my assent. To sustain the third proposition of the defendant's counsel, the case of Parrling vs. Ex'rs of Bird, 13 John., 192; and the case of Baldwin and Worthington vs. Hale, 17 John., 272, have been referred to. According to my apprehension, neither of the cases have any thing to do with the question. In the first mentioned case, Pratt, Judge, said: "It is well settled, that a judgment in another State, (one of the U. S.,) is to be considered here as a foreign judgment in every respect, except in the mode of proving it, which is regulated by a statute of the United States. It is only prima facie evidence of a debt, and may be impeached, when attempted to be enforced, as unjust, or unfair, or irregular." In the other, 17 John., 271, it was held, that a replication of nul tiel record to a plea of judgment, recovered for the same cause of action in the circuit court of the U. S., must conclude to the country, and not with a verification. This decision was founded upon the idea, that as the State court of New York had not the power to compel the transmission of the record from the circuit court of the United States,  [**33]  the replication ought to conclude to the country, for that was the only way in which its verity could be tested. Both of these decisions proceed upon the idea, that the courts of the several States, to those of the other States, must be viewed as foreign courts. It is not necessary for me to controvert this opinion, although it might be done on the authority of a number of cases. A different doctrine was held in 9 Mars., 464, 465. 7 Cranch, 485. 1 Peter's Rep., 78. Hardin's Rep., 413. And in Wheaton. But, if we were to admit the truth of the doctrine in Johnson's Reports, still they can have no bearing upon this case; for in those cases, it was sought to enforce judgments obtained in other States, and it is only in such cases, the merits of a foreign judgment can be examined, 3 John. Rep., 169. Here, there is no such attempt made. The matter to be enquired of, is simply, whether there was a sale, either at the instance of the salvors, or at the instance of the captain; and if so, was it made under such circumstances as were warranted by the law, and determine the responsibility of the defendants. Assimilating, then, this decree, of one of the federal courts, to one of [**34]  a State court, and give to the cases in Johnson their full force, how does the matter stand? Simply this, the decree may be impeached, if the sale ordered was not justifiable. I mean, if it was not made on such grounds as would fix the liability of the underwriters. For, although the sale and delivery of the property, in pursuance of such decree, might vest in the purchaser a good title, yet, this circumstance alone, would not ascertain the liability of the defendants for a total loss. Their liability does not depend upon the decree, or upon the sale per se, but upon the justifiableness of the sale; upon the necessity there was for it. Entertaining these views, all the propositions of the defendant must be overruled, and, also, the second prayer of the plaintiff. Believing there is testimony to go to the jury, from which they may infer the existence of a necessity for the sale, the first proposition of the plaintiff is granted.

To the refusal of the defendant's prayers, and granting of the plaintiff's, and to the direction and opinion aforesaid, of the court, the defendant excepted, and prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where a vessel insured was, by one of the perils insured against, so far damaged, that under all the circumstances attending her situation consequent on said injury, it was necessary, in the opinion of the jury, for the interest of all concerned, that she should be sold, and that under such necessity, she was, in good faith, sold by order of a court of admiralty, decreeing salvage, the assured is entitled to recover for a total loss, although the jury may find, or the court be of opinion, that there was no valid abandonment by him.

If there be an urgent necessity for the sale of an insured vessel, damaged by the perils of the sea, the master, as agent, both of the insured and underwriter, has a right to sell the vessel, and such sale constitutes a total loss, for which the underwriters are responsible; and if the jury find such necessity, there is no obligation on the part of the assured to abandon.

Where a variety of prayers were submitted to the court by the plaintiff and defendant, and the instruction given by the judge to the jury, covered the whole ground of controversy, the judgment will not be reversed, though some of the prayers refused, were in themselves correct.  

COUNSEL:
By DAVID STEWART and MAYER for the appellants,  [**35]  and

By GLENN and MCMAHON for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*478]  MAGRUDER, J., delivered the opinion of this court.
This suit was brought in Baltimore county court, by the defendant in this court, on a policy of insurance; the vessel insured being, by some of the disasters insured against, much damaged.
The policy on which the suit was instituted, bears date 13th August 1842, and was effected on the brig, T. Street, valued in the policy at $ 10,000. On her voyage, she encountered a gale, which did her very much damage. While making her way to a port of safety, she was grounded on a reef about twenty miles from Key West, at which place she arrived, 14th August 1842, laden with about twelve hundred barrels of flour. Surveyors, appointed for the purpose, reported, that the condition of the vessel did not justify her being repaired, and they recommended that a sale of her should immediately be made; or, that the expense of keeping her afloat should be avoided, by allowing her to sink, until a sale should be made.
There is much other proof with respect to the damage [**36]  done to the vessel, the hopelessness of her condition, and the unavoidable expense of any delay in making sale of her.
Immediately after her arrival at Key West, the salvors filed their libel, in which they claimed salvage for the vessel and cargo. The court decreed a sale, allowing to the salvors one half of the amount of sales, after deducting all expenses. A few days thereafter, the brig was sold for $ 1010.
On the 24th October, the plaintiff in the court below, addressed a letter to the defendant, giving "the only information" he had, relative to the brig, T. Street, and claiming a total loss. An answer to that letter, bearing date 28th of November, "disclaimed all interest in the brig, T. Street, and denied their liability for any but a partial loss for the said vessel, under their policy."
The claim, then, of the plaintiff in the court below, was for a total loss; while his adversary insisted, that a recovery could only be had for a partial loss. The verdict was for the plaintiff, 

 [*479]  and the case comes here upon several exceptions, taken by the defendant there.
In opposition to this claim, it was insisted, in the first place, that there is no proof in [**37]  the record of a valid abandonment of this vessel. Of this opinion was the court below, and indeed, the plaintiff did not insist upon it, or seem to have supposed, that the letter written by him to the underwriter, would have entitled him to claim, as for a total loss; and accordingly he maintained, that in a case like this, the underwriter is under no obligation to abandon at all, in order to recover for a total loss.
The ground on which the claim was rested, was, that a sale of the vessel was necessary, and that it was for the interest of all concerned, that the vessel should be sold; and under such necessity she was, in good faith, sold at the time mentioned in the evidence. Of all this the jury were to judge, and by their verdict have established, the necessity for the sale; that it was for the interest of all concerned; and under such necessity, she was, in good faith sold, at the time and in the manner stated. All of this is conclusively established by the verdict of the jury, unless, indeed, the jury was misled by some erroneous instruction which they received from the court, or in consequence of a refusal by the court to give an instruction which was asked, and ought to have [**38]  been granted. If the court was correct in the opinions which it expressed, and especially in the opinion, that there was no valid abandonment, it seems to be quite unnecessary to enquire, what proof would have been necessary in order to make out the case, if the plaintiff below, to make out his case, had been obliged to prove a valid abandonment, or an acceptance of the abandonment.
It is insisted, that the necessity which is to justify the sale of the ship by the master, must be one which leaves him no opportunity of consulting the owner, or underwriter, and that the master can only act for them, when they have no opportunity of acting for themselves. We do not discover, that the learned judge who instructed the jury, thought otherwise. In his instruction he says: "If there be an urgent necessity for it, the master as agent, both of the insured and underwriter, has a 

 [*480]  right to sell the vessel; and such sale constitutes a total loss, for which the underwriters are responsible.--If the jury should believe, from all the circumstances, that such sale was made under an urgent and absolute necessity, there was no obligation on the part of the plaintiff to make the abandonment. [**39]  " Again, using the language of Justice Story, (2 Sumn. 215,) when answering a remark, that "as the stranding was on a home shore, at no great distance from the residence of the agents of the owners, the master was not authorized to sell, without consulting the agent of the owners," he said: "I agree at once to the position--if there be no urgent necessity for a sale. But if such urgent necessity does exist, as renders delay highly perilous, or ruinous to the interests of all concerned, the duty of the master is the same, whether the vessel be stranded on the home shore, or on foreign shore; whether the owner's residence be near, or at a distance." And after this, adopting also the language of another, he states: "The necessity which will justify the master of a ship in selling her, is one in which he has no opportunity of consulting the owners, or insurers--which leaves no alternative. The sale should be indispensably requisite." Surely in these passages, to be found in the opinion of the court below, (and others might be added to them, if more were requisite,) the jury received from the judge, all the instruction which, as yet, our courts have deemed to be requisite. [**40]  
It is insisted, however, that "the necessity should be" defined "to the jury, and that" a standard be "furnished, by which the question of adequate necessity is to be tested;" and in order to supply this "standard," and to justify the exercise of what is called "the master's" "extreme authority," it is said, that the language to be used by the judge, must be like this:--"The necessity must be urgent and stringent"--"a necessity which leaves no alternative, and puts the party in a positive state of compulsion to act."
We do not mean to say, that such language, in such a case, is inadmissible; we merely deny that it is necessary to introduce those phrases into a judge's instruction. It may be added, that these phrases insisted upon, do not furnish to the minds 

 [*481]  of the jury, any better "standard," than the language used by the court below, whereby to enable them to judge, whether "an adequate necessity" existed, for a sale.
In the case of the Patapsco Insurance Company, against Southgate and others, 5 Peters 604, at p. 619, the Supreme Court of the United States affirmed the judgment of the court below, in which, among others, was this instruction given [**41]  to the jury:-- "If they should be of opinion that it was not such a case of urgent necessity as to justify the sale, then the plaintiffs are not entitled to recover for a total loss." In the same opinion, the court seemed to suppose, that the difficulty in such cases is imposed upon the jury, rather than the court. "The difficulty," said Judge Thompson, "in all these cases, consists, principally, in the application of a rule, to a given case, than in determining what the rule is."
This court, too, in the case of Cohen against the Neptune Insurance Company, discovered no error in the instruction, in effect, that if it was necessary, in the opinion of the jury, for the interests of all concerned, that said vessel should be sold, and that under such necessity, she was in good faith sold, then the plaintiff is entitled to recover on the policy, though no valid abandonment was made.
We conclude then, that the court below did not err in granting the instruction asked by the plaintiff there; that there was evidence, from which the jury might infer a necessity to sell; and that the instruction given to the jury, was quite sufficient to enable them to apply the rule of law to the [**42]  circumstances of the case.
We thus dispose of the important questions raised in the court below. There was, it is true, some other exceptions; but in these we find nothing which will warrant a reversal of the judgment. In this case it was preferred, to submit at once a variety of prayers, and that the court should, in one charge, embody so much of them as the judge thought to be correct. It is no wonder, that among them are to be found prayers, which would demand our attention, if others had been disposed of, otherwise than they were. We discover nothing that was said, or omitted to be said by the judge, whereby the defendant 

 [*482]  in the court below, was aggrieved; though something to be found in those prayers might have been proper, if there had been a valid abandonment; and upon this ground alone, the plaintiff in the court below, had claimed as for a total loss.
Some of the instructions which were asked for, and refused, might have been granted; but it is believed, that the instruction given covers the whole ground, and therefore, for the rejection of them, the judgment ought not to be reversed. For this there are precedents, one of which may be found in Stokes against  [**43]   Saltonstall, 13 Peters 181.
JUDGMENT AFFIRMED.  

14 of 23 DOCUMENTS 

STATE OF MARYLAND vs. WILLIAM SUTTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 494; 1846 Md. LEXIS 57 

December, 1846, Decided 

PRIOR HISTORY:
 [**1]   WRIT OF ERROR to Baltimore county court.

At November term 1845, the grand jury of said county found a true bill of indictment against the defendant in error, charging him in one count with a rape, and in another count with an assault, with intent to commit a rape. The petit jury found the prisoner guilty of the charge as specified in the second count aforesaid, as, &c., and were thereupon discharged.

The prisoner moved in arrest of judgment, as stated in the opinion of this court, and the county court, (PURVIANCE and LE GRAND, A. J.,) delivered the following opinion:

The court will briefly state the principles which, in this case, induce them to sustain the motion on behalf of the prisoner, and to order his discharge from custody.

The prisoner was indicted by the grand inquest for Baltimore county. The indictment contained two counts: the first charging him with the crime of rape; the other, with the crime of an assault with the intent to commit a rape. On this indictment the party was duly arraigned, and pleaded not guilty. The jury was sworn to try the issues joined between the prisoner and the State. The attorney for the State made no election: but submitted [**2]  both issues to the jury for their determination. The jury returned a verdict of "guilty," "on the second count," but found nothing as to the first.

These being the facts, the questions for the determination of the court are:

1st. Can judgment be rendered on the verdict of the jury?

2nd. If judgment cannot be rendered, is the prisoner entitled to his discharge?

The crime imputed to the prisoner in the first count, is a felony;--that imputed in the second is a misdemeanor. Before the decision of the Court of Appeals, in the case of the State vs. Burke, 2 H. & J., 426, it was contended by as eminent lawyers as were ever known to the profession in this country, that it was not competent for the State to embrace, in a single indictment, a felony and a misdemeanor; but since, and by that decision, an opposite doctrine has been settled, as the law of Maryland. Under that decision then, the indictment, in this case, is a good one; and the question is, can the court render judgment on the finding of the jury? A thorough and careful examination of all the cases within our reach, involving in their enquiry this question, warrant, in our opinion, the assertion [**3]  of the following principles.

First. Where there is a special verdict, and the jury in it find the substance of the crime, the court may correct the form, and render judgment.

Second. Where there is one count in the indictment, charging the same species of crime in different degrees, as, for example, murder in the first, and murder in the second degree, and the jury find by their verdict, the prisoner guilty of the latter, that such finding is a negation of the guilt of the party, of the greater degree of the same crime, and the court may render judgment.

In this case, however, the crimes charged in the different counts of the indictment are not of the same nature; the one is a felony punishable by the death; the other, a misdemeanor, punishable by imprisonment. Since the decision in 2 H. & J., 426, a party may, in one indictment, be charged in one count with murder, which is a felony, and in another count with perjury, which is a misdemeanor. If, in such a case, the prisoner were found guilty, by the verdict of the jury, of the perjury, it could not be contended that he was not guilty of the murder, for he may have been guilty of both: so in the case under [**4]  consideration, the finding of the guilt of the party, so far as the misdemeanor is concerned, is no negation of the guilty of the felony. The jury are sworn to make a "true deliverance" between the State and the prisoner, on all matters on which issue was joined. This has not been done, and as those issues involved inquiries in regard to crimes, as distinct in their nature from each other as are murder and perjury, the finding of the misdemeanor could be no negation of the felony; for, non constat, the prisoner may have been guilty of both; but until found guilty of the felony, he could not be punished for it.

From these views, (and there is not a single authority, so far as the court are aware, in conflict with them,) it must be apparent, no judgment can be rendered on the finding of the jury, and for this reason, if the party were sent to the penitentiary for the misdemeanor, when his term of service expired, he could be tried for the felony, and, if found guilty, hung for it; for, as he had not been either acquitted or convicted of it by the finding of the jury, he would still stand charged with it, and liable to be tried for it at any distance of time. He could not, successfully,  [**5]  plead either autrefois acquit, or autrefois convict, for the truth of either of these pleas could only be tested by the record, which, on inspection, would show, that he had neither been convicted or acquitted.

Had the indictment been so improperly drawn, that if the party had been found guilty on all the counts, the court could not have pronounced judgment, the party would not be discharged; but the court would have sent the witnesses before the grand jury again, so that a perfect indictment might have been found. But, inasmuch as the indictment was perfect, and such, if the party had been found guilty of the felony charged in it, that the court could have sentenced him to capital punishment, then his life was once put in jeopardy; and for as much as the fifth amendment to the constitution of the United States provides, that no person shall "be subject for the same offence, to be put twice in jeopardy of life or limb," the court are compelled to order his discharge.

The State sued out a writ of error from chancery to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

A count in an indictment charging a rape, may be united with another count charging an assault, with intent to commit a rape. This is no misjoinder under our system of criminal jurisprudence.

Where an indictment containing two counts, is submitted to the jury upon the plea of not guilty, it is their duty to find both issues in their verdict.

And if the jury find the prisoner guilty upon one issue, as upon the inferior offence, and do not find the other issue, the verdict should be set aside and a new trial awarded.

A verdict which is a nullity, does not, in legal contemplation, jeopard life or limb. 

COUNSEL:
By RICHARDSON, Att'y Gen'l, for the State, and

By MALCOLM for the defendant in error.  

JUDGES:
The [**6]  cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
SPENCE 

OPINION:

 [*497]  SPENCE, J., delivered the opinion of this court.
The indictment in this case contained two counts:--the first, for a rape; the second, for an assault, with intent to commit a rape. The jury found the prisoner guilty on the second count, namely, of an assault, with intent to commit a rape.
The prisoner's counsel filed a motion in arrest of judgment, and assigned as the grounds therefor:--First, "because the jury have omitted, in their verdict, to find said Sutton guilty, or to acquit him, on the first count of the indictment, by answering to the second count alone, and have thus rendered a defective verdict."
The second reason assigned in arrest of judgment, is, "that the State has joined distinct offences in the same indictment, and for that reason, they respectfully submit the indictment is bad." Two issues were submitted to the jury:--the first, guilty, or not guilty, of the rape; the second, guilty, or not guilty, of the assault, with intent to commit a rape.
The jury found the prisoner "guilty of the charge as specified in the second count of the indictment [**7]  aforesaid, in manner and form as the said State of Maryland within against him hath alleged."
The law seems to be well settled upon authority, that if a jury find but a part of the matters put in issue, and say nothing as to the rest, it is ill. King vs. Hayes, 2 Ld. Raym. 1521; and in 1 Chit. Cr. Law 641, it is said: "With respect to the form in which a verdict should be given, which thus partially convicts and acquits, it has been holden, that it ought to 

 [*498]  find specifically not guilty of the higher, and guilty of the inferior charge; and that if it merely find the defendant guilty of the inferior offence, it will be of no avail."
The same doctrine is held by Hawkins, in his pleas of the Crown B'k, 2, ch. 47, sec. 5.
If the law requires all the matters involved in a single issue, to be found by the jury, unquestionably, it requires, where there are two or more issues submitted to the finding of the jury, that they should find upon each, and all, of the issues.
This verdict, therefore, in the language of the books, was ill, and should have been set aside by the court.
The second reason assigned as a ground for arresting [**8]  the judgment, is settled by the case of Burk vs. The State, 2 H. & J. 426, and, therefore, no argument on our part is necessary to maintain the decision of the county court, that a felony and misdemeanor may be joined in the same indictment.
We cannot agree with the county court in the course pursued by them, in arresting the judgment and discharging the prisoner. It cannot be said with correctness, that a verdict, which in legal contemplation is a nullity, could jeopard the life or limb of a party.
In this case, the jury found no verdict on the issue, under the first count in the indictment.
The verdict was imperfect, and the matter in issue not so ascertained, as that the court could render any judgment thereon, and therefore it was mistrial. The county court erred in discharging the prisoner; the court should have awarded a venire de novo.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

15 of 23 DOCUMENTS 

GEORGE POE, JR., vs. THE ASSOCIATED PROFESSORS OF ST. MARY'S COLLEGE, GARNISHEES OF PHILIP MCCLOSKEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 499; 1846 Md. LEXIS 58 

December, 1846, Decided 

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

This was an attachment on warrant, commenced on the 31st January 1843, by the appellant, to recover the amount of several promissory notes of Philip McCloskey. The warrant was laid in the hands of the appellees, who pleaded non assumpsit, by Philip, and nulla bona, as to themselves. Interrogatories and answers were filed, but they do not appear to have been used before the jury. The verdict was for the appellee.

At the trial of the cause, the plaintiff proved the promissory notes of the defendant filed with the attachment papers.

The plaintiff then offered in evidence, by Alexius J. Elder, that witness has been for many years, and still is, book keeper and agent of the garnishees, and that on the 2nd November 1835, the defendant brought his two sons, James and John, to the said college, to put them for education; that witness asked him, who was to be the responsible guardian, for the payment of the bills, according to the usual conditions of the college? which conditions the said defendant then had in his hands, in print, and which are as follows:--

"Every student from a distance greater than five hundred miles, must have a responsible [**2]  guardian in one of the commercial cities of the United States, within two hundred miles of the city of Baltimore, who will oblige himself in writing, to make the regular payments; and to receive his ward, in case he should be discharged by the college. Bills are sent at the close of every six months; drafts, at ten days' sight, for the amount, are issued on parents or guardians."

The said defendant then said, "I will stand my own guardian:" and further promised and said, that he would always keep the college in advance. The defendant then left the boys at the college, and that said children are still at said college, under said agreement, and have not yet finished their course. The plaintiff also offered in evidence the account between the defendant and the said garnishees, as stated on the books of the college.

"DR.--Philip McCloskey, Esq., for sons John and James, in account with St. Mary's College.--2nd November 1835. To amount of bills rendered, $ 385."

The same items were repeated every six months, until 2nd November 1843. The whole amount of debits being $ 7083.96.

The credits were as follows:--

________________________________________________________________________________
"1835.--	Nov. 2.	By cash,	$ 300 00 	
	3.	By cash,	85 00 	
 1836.--	June 20.	By cash,	400 00 	
	Nov. 28.	By cash,	500 00 	
 1837.--	Aug. 7.	By cash,	500 00 	
	Dec. 22.	By cash,	750 00 	
 1838.--	Aug. 4.	By cash,	500 00 	
	Dec. 5.	By cash,	500 00 	
 1839.--	Aug. 2.	By cash,	500 00 	
 1840.--	Feb. 6.	By cash,	500 00 	
	June 16.	By cash,	500 00 	
 1841.--	Jan. 2.	By cash,	500 00 	
	Mar. 24.	By cash,	500 00 	
	June 8.	By cash of Patrick McClos-	
		 key, and by him ordered to	
		 be placed to the credit of his	
		   Carried Forw'd,	$	
		   Brought Forw'd,	$	
		 brother's account, and for	
		 his children, and so placed	
		 immediately,	1240 80 	
 1843.--	Jan. 24.	By cash,	385 00 	
	June 15.	By cash of Patrick,	400 00 	
	
			$ 8060 80"	
________________________________________________________________________________

 [**3]  

The plaintiff also offered in evidence, that the words appended to the entry of the 15th June 1843, were added by the witness about two months after the original entry was made; that the $ 1240.80, entered on the 8th of June 1841, and the sum of $ 400, entered on the 15th of June 1843, were paid to him by Patrick McCloskey, the brother of the defendant; and that when the said P. paid the $ 400, he told this witness, that it was his, P's money; and at the time of said last payment of $ 400, he, the said Patrick, said, that the $ 1240.80, was also his money: but that the said P. did not say so at the time it was left. That when the said P. paid the said sum of $ 1240.80, he directed the witness to place it to the credit of his brother Philip's account, and for his children; which was immediately done. The plaintiff also offered in evidence by said witness, that the terms of the said college for boarders, such as the children of said Philip, were as follows:

Boarding per annum, $ 140; tuition for all the branches comprised in the course, except music, drawing and dancing, per annum, $ 60, payable half yearly in advance; washing, &c., are extra expenses.

Upon which, the [**4]  garnishees prayed the court to instruct the jury, as follows:

1st. If the jury believe, that the funds placed with the college, were there placed as stated in the evidence of Mr. Elder, as a fund to pay to the college, for the education of the children of the defendant, and that the education of the children was in progress at the time such deposit was made, and is still going on, and that the bills for such education are now sufficient to exhaust said funds, then the plaintiff cannot recover.

2nd. If the jury believe from the evidence, that the moneys paid by P. McC., to the garnishees, as stated by the witness, were not the moneys of the defendant, Philip McCloskey, in this suit, then the plaintiff cannot recover in this suit. To the granting of which said prayers, the plaintiff objected, but the court, (PURVIANCE, A. J.,) overruled said objection, and granted said prayers. The plaintiff excepted.

The plaintiff then prayed the court to instruct the jury:

That if the jury believe from the evidence, that the defendant, Philip McCloskey, deposited in the hands of the garnishees in this cause, more funds than were necessary for his said childrens' board and tuition,  [**5]  according to the terms of the institution over which the garnishees presided, up to the time of laying this attachment, and for the half year in advance thereafter; and that at the time of laying said attachment in the hands of said garnishees, and since that time, there has been a surplus in the hands of said garnishees, from said Philip's deposits, over and above the amounts required to be deposited by the rules of said college, that the plaintiff is entitled to recover against said garnishees, to the extent of such surplus; which prayer the court refused to grant; the plaintiff excepted.

The judgment being against the plaintiff, he prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

By the regulations of a college, the parents or guardians of scholars residing at a distance from the institution, were required to give security for board, tuition, &c.; the parent of a child in lieu thereof, deposited a sum with the agent of the college. HELD: that while the education of the children was in progress, unless the deposit was a fraudulent one, the sum so deposited by the parent could not be attached by his creditor, and the fact that the account, as kept in the books of the college, shewed a balance due the father when the attachment was laid, will not affect the original agreement.

The garnishees could not appropriate such special deposit, to the payment of other claims, which they might have had against the father.

If the specific object of the deposit had terminated, and a balance remained due the debtor, then it might be attached.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*502]  MAGRUDER, J., delivered the opinion of this court.
The judgment of the court below, in this case, must be affirmed.
The plaintiff undertook to attach as the property of his debtor, money in the hands of the agent of the garnishees, placed in his hands to pay the board, education, and other expenses of two young gentlemen, sons of the debtor, while at college. These funds were there,  [**6]  in consequence of an agreement several years previously made, by their father, with the college. The education was in progress at the time of the attachment levied, and was at the time of the trial still going on. Such 

 [*503]  was the proof, and the jury were instructed, that if they believed these facts, the plaintiff is not entitled to recover.
It is insisted, that the account for the tuition, board, &c., of these young gentlemen, was kept against the father, and these funds, therefore, were his funds, and answerable for his debts. It does not so appear to this court. Why they were there is distinctly proved, and the case would be the same if the young gentlemen, themselves, had been charged with the bills, and credited from time to time with the different sums of money placed in the hands of the agent of the garnishee, for their use, and to pay their bills.
If the garnishees had had other dealings with the debtor, and the latter had become indebted to them on account thereof, they could not have had a right to deduct from the funds in the hands of their agent, for the use of these scholars, the amount of such claim. If, when this attachment was laid in their hands, they had [**7]  paid the amount of the plaintiff's claim, still they would have been bound to furnish the scholars with tuition, board, &c., until the fund was exhausted. Money deposited under such an agreement, and for such purposes, cannot be attached as goods, even of the person depositing them, and the garnishees would have been guilty of a breach of trust, if they had appropriated such funds to the payment of debts due from the father in this case, and then have claimed a right to deprive the scholars of the education, &c., which they undertook to give them, in consideration of the payments in advance to them. This would have been the case, even if it had been in proof, that all the moneys which garnishees received, belonged to the debtor in this case. According to the proof, however, a considerable part of this money had been paid by the uncle of the young gentlemen, and the second instruction of the court was, that if the jury believe from the evidence, that the moneys paid by Patrick McCloskey, (the uncle,) were not the moneys of Philip McC., (the father and debtor,) then the plaintiff cannot recover. To this instruction, surely, there can be no well founded objection. The money of [**8]  the former, appropriated as it was by its owner, could not be answerable for the debts of the latter, merely because 

 [*504]  the person whose duty it was to keep an account of the moneys advanced, and expenses incurred, thought proper to keep that account in the way he did.
It cannot be material, that sometimes the sum in advance exceeded the sum, which, by the rules of the college, was to be paid, where there was a "guardian" who would oblige himself, in writing, to make the regular payments, unless the creditors of the person so advancing, could prove, that the transaction was fraudulent and void, as against them. This was not attempted to be shown.
If such guardian had been procured, the account, in all probability, would have been raised by the college against him, and yet, surely, because of this, his creditors could not have insisted, that the money paid from time to time by him in advance, could have been made answerable for his debts.
This money was paid for a specific purpose, and if the specific purpose was shown to be at an end, and that it had absorbed a certain sum only, and left a "balance," then, indeed, for such balance, the garnishees would be responsible; but [**9]  to whom, it is not necessary to decide in this case. See the case of Roberts, 3rd English Common Law Reports, 132.
JUDGMENT AFFIRMED.  

16 of 23 DOCUMENTS 

JOHN BEVANS vs. WILLIAM SULLIVAN, PETER RITNER, AND THOMAS BEERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 383; 1846 Md. LEXIS 48 

December, 1846, Decided 

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

The bill in this case was filed on the 29th September 1841, by the appellant, and stated, that on 1st September 1840, John Bevans and Thomas Beers, Peter Ritner and William Sullivan, entered into a verbal agreement, to become co-partners in the butchering business, in equal shares as to profit and loss; that it was agreed, that J. B. should be the active partner, should erect a slaughter house, buy and butcher the cattle, sell the meat, and collect the proceeds of all sales, except to the partners; that in consideration of the extra services, he was to be allowed, in addition to his share of the profits, the usual per diem wages to a person engaged in such business, and also a fair compensation for the hire of his carryall and horse, which were to be employed about the business of the company; that the business commenced on the 1st September 1840, and was conducted by the partners with success to the 25th September 1841, when said partnership was dissolved; that the said J. B. discovered that his confidence was misplaced, that his partners were combining to defraud him of his just share of the profits, and were aiming to force [**2]  him out of the business, with no other than daily wages; in consequence of which he notified his partners, and the public, of his voluntary withdrawal from the business, and called upon his partners for a settlement, according to their agreement, which they refused. The bill then proceeded to set forth the nature, character and extent of the co-partnership business, amount of profits made, and the possession of the books of accounts of the concern, withheld by the appellees; that his co-partners are largely indebted to the concern as purchasers. Prayer, for answers, an account, subpoenas, and for general relief, against the aforesaid appellees.

William Sullivan answered the bill, and denied any partnership with the parties, or either of them, as mentioned in the bill, and alleged, that he hired the complainant, J. B., to work and carry on the butchering business for him, W. S.; that he furnished the capital, and the business was carried on for his sole risk, by his means, and for his use. The said W. S. admitted a partnership between him and Thos. Beers and Peter Ritner, in a contract with the Baltimore and Ohio Rail Road Company, but denied they were interested in the butchering [**3]  business with him. The special manner of conducting the business relied on in the bill, &c., were also denied, and also all fraud and combination.

The answer of Peter Ritner admitted the alleged partnership in the butchering business, and the contract alleged in the answer of W. S., between him, P. R., and T. B., with the Baltimore and Ohio R. R. Co., for the construction and completion of the Doegully tunnel, that it was commenced in 1839, and completed in 1842; that owing to the extent and importance of that contract, it became necessary that they should have connected with their work a separate butchering establishment, which led to the formation of the partnership for that object between the four, of the profits of which the complainant was to have one-fourth. This answer then proceeded to set forth the manner of conducting the partnership, for the purchase, slaughter, and sale, of cattle and meat, &c.; that the business yielded profits; that complainant had conducted himself faithfully; and that an account ought to be taken.

The answer of the other defendant, Thomas Beers, was substantially like that of Peter Ritner.

A commission was issued and a great variety of [**4]  proof taken.

On the 13th October 1845, Allegany county court, (MARTIN, C. J.,) decreed as follows:

The bill in this case is filed against William Sullivan, Thomas Beers and Peter Ritner, in which the complainant charges the existence of a parol partnership in the butchering business, between himself and the defendants. Two of the defendants, Thomas Beers and Peter Ritner, admit the co-partnership, as alleged in the bill; but it is denied by William Sullivan, and the controversy is between the complainant and this defendant. It is clear, that the answers of Thomas Beers and Peter Ritner, cannot be used against William Sullivan for any purpose. It is an established principle of evidence, that the answer of one defendant cannot be read in evidence against a co-defendant. If the complainant was interested in establishing a fact by the evidence of a co-defendant, he might have examined him as a witness, on interrogatories, and the witness would then have been subject to the cross-examination of the other defendant. To withhold from such defendant the privilege of cross-examination, would be unjust, and this injustice must necessarily follow from the practice, of permitting the [**5]  answer of one defendant to be read in evidence against a co-defendant. This is the language of the Court of Appeals, in the case of Hayward against Carroll, 5 H. & J., 520, subsequently adopted by the same court, in Jones against Hardesty, 10 G. & J., 415, I therefore put entirely out of view the answers of Beers and Ritner.

A very different character has however been assigned by the law to the answer of William Sullivan. It has been made evidence by the complainant, and being responsive to the bill, must be received as true, unless contradicted by two witnesses, or one witness, with corroborating circumstances. This defendant has denied the existence of any partnership as charged in the bill; and an answer thus positive, and responsive, in its averments, in reference to a matter within the personal knowledge of the party, can only be overcome by strong and clear proof. The question is, has this answer been disproved? In my opinion it has not.

I do not consider it necessary to enter into an extended view of the conflicting and irreconcilable evidence taken in this cause. After a careful examination of the testimony, I am satisfied, that a partnership,  [**6]  as alleged by the complainant, has not been proved. The bill therefore must be dismissed.

An appeal from that decree was prosecuted by the complainant below.  

DISPOSITION:
DECREE REVERSED WITH COSTS.  

HEADNOTES:

B filed his bill, charging a partnership, entered into between himself and three others, in a special business, by verbal contract; that it continued about a year, at the end of which time, he voluntarily withdrew, apprehending injury from the misconduct of his co-partners. The object of the bill was to procure an account, and payment over of his portion of the profits. One of the partners, in his answer, denied the existence of the partnership, and claimed that B was employed by him for hire. The two other partners admitted the partnership in their answers, and consented to an account. HELD, that the answers of the two who admitted the partnership, were not evidence against the third partner, who denied its existence.

The general rule is, that the answer of one defendant is not evidence against his co-defendants.

The fact of the alleged existence of two partnerships, one of which was constituted of three persons, the other of the same three and another, will not make the answer of one of the three admitting the partnership, evidence, as a partnership act, against his other two partners, and thus establish the existence in fact of the partnership between the four, against the denial in the answer of one of the three partners. Such a state of facts does not make an exception to the general rule.

When one partner is permitted by his answer to testify against a firm, of which he is a partner, it ought to be, because he is testifying against himself, as a member of the firm.

Difficulties to be encountered in stating accounts, are no grounds why accounts ought not to be decreed, where the court perceives they are necessary to the rights of the parties, and ends of justice.

Every reasonable presumption will be made against those partners, whose fault it is that the books of accounts of a partnership are imperfectly kept; and if they claim to be entitled to other credits than those to which the books, at the close of the partnership, entitle them, it is usual to require of them very strict proof.

Circumstances stated, under which a court of equity will infer the existence of a partnership, in opposition to an answer denying it.

Where a bill alleged a partnership to have commenced and terminated at a particular day, and the proof established its commencement, a partner who insists that it was dissolved at an earlier period than that alleged, will have to prove it.

For personal services rendered by a partner, no compensation can be claimed, without proof of an express agreement, that he should be compensated for them.  

COUNSEL:
By PRICE and MCMAHON for the appellant, and

By MCKAIG and SCHLEY for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*387]  MAGRUDER, J., delivered the opinion of this court.
On the 29th September 1841, the appellant filed his bill of complaint against the three defendants, charging, that on or about the first day of September 1840, the four entered into a partnership in the butchering business; each to have an equal share of the profits, and to bear an equal share of the losses: the complainant to be the active partner in the business. By the terms of the agreement, which was a verbal one, the appellant was to be compensated for his services, and for the use of his horse and carryall, to be employed about the business of the co-partnership. It is charged, that the business was commenced on the 1st September 1840, and was continued until the 25th September 1841, when, for the reasons stated in the bill of complaint,  [**7]  the partnership was dissolved by himself, and the 

 [*388]  defendants when called upon, refused to settle the partnership business.
The bill prays, among other things, that an account may be taken of the business of the partnership.
Two of the defendants, Beers and Ritner, admit a partnership, as stated in the bill of complaint, and consent that an account be taken, as asked.
The other defendant, Sullivan, denies that any such partnership ever existed, and insists, that the butchering business, during the whole period, was carried on with his funds, and for his own individual profit, and that the complainant was employed by him, and to receive wages.
Much proof was taken by the parties, and the case having been submitted, Allegany county court, setting as a court of equity, dismissed the bill of complaint. From that decree an appeal was taken, and thus is presented for our decision, the question, whether the complainant is not entitled to an account? or in other words, is a partnership proved to have existed between the parties in the butchering business, as charged by the complainant?
Testimony of various descriptions is relied on by the complainant, to prove [**8]  the partnership. Among other things, it is insisted, that the answers of Ritner and Beers, the co-partners of the other defendant in a different concern, are evidence against that defendant, and this because, it is said, the firm of Ritner, Beers and Sullivan, contributed three-fourths of the capital, and were entitled to three-fourths of the profits in their partnership character; in other words, that it was a partnership consisting of two parties, the firm of Ritner, Sullivan and Beers, being one of them, entitled to three-fourths of the profits, and to contribute three-fourths of the capital; and the complainant was the other partner, to contribute one-fourth of the capital, and receive one-fourth of the profits.
It is not deemed necessary to inquire, at this time, whether this be a correct account of the partnership, it being the opinion of the court, that if such appeared to be the fact, still the answers of Beers and Ritner, filed in this case, would not be evidence against their co-defendant. The general rule, unquestionably, 

 [*389]  is, that the answer of one defendant is not evidence against his co-defendant: and this is said to be a strict [**9]  rule. The reason assigned for it is, that there is no issue between the parties, and no opportunity existed for a cross-examination. Exceptions have indeed been made to this rule, and in a few cases, the answer of one partner has been used as evidence against the others. The case before us, however, ought not to be admitted among the exceptions. The question between these four individuals is, whether a business which is regarded as profitable, was carried on by the four in partnership, or by one of them only, and for his exclusive profit. The other defendants have an interest in direct conflict with that of Sullivan, and their admissions would be for their own benefit. They might have been complainants in this case, and if they had united with the appellant in this application, there would have been as much propriety in contending, that the statements in their bill being the declarations of the partners of Sullivan, in the other firm, would be evidence against him.
It can scarcely be contended, that in answering this bill they are acting within the scope of their authority, as partners of the older firm.
The answers of the two, indeed, are not offered as evidence against [**10]  the other defendant, because they are the answers of co-defendants, but, because they are declarations and admissions of co-partners. If for this reason such declarations were admitted as evidence, then the unavoidable consequence would be, that every thing in relation to the second co-partnership, which the defendants, (Ritner and Beers,) introduced into their answers, whether responsive or not to the bill, would be evidence for themselves, by being evidence against Sullivan, who is denying that they have any interest in the profits of the butchering business.
When one partner is permitted by his answer to testify against a firm, of which he is a partner, it ought to be because he is testifying, not for, but against himself, as a member of that firm. In this case, however, it is asked, that they be permitted to testify for themselves as well as for the complainant.

 [*390]  It is insisted however, that if the answer of Beers be not evidence against Sullivan, for the reason already noticed, the declarations of the former are evidence against the latter, because of a combination or conspiracy, to which they were parties at one time, to defraud the defendant [**11]  Ritner, and the appellants, of their share of the profits of the concern.
Granting the combination with such intent to be proved:-- "Every act and declaration of each member of the conspiracy, in pursuance of the original concerted plan, and with reference to the common objects, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against them. **** Care must be taken that the acts and declarations thus admitted, be those only which were made or done during the pendency of the criminal enterprise, and in furtherance of its objects." 1 Greenleaf on Evid., sec. 111.
If, in deciding the question now submitted to us, it was necessary to ascertain which of the declarations of Beers are, by this law, made evidence against Sullivan, some difficulty would arise. It may be said with confidence, that the appellant cannot claim the benefit of any admission in Beers' answer. If the conspiracy alleged once existed, this answer certainly was not prepared "in furtherance of its objects."
The view, however, which is taken of this case, will render it unnecessary to discuss this part of it, and it will be dismissed with the [**12]  observation, that the defendant, Sullivan, cannot be allowed to set off those declarations of Beers, which, if admitted as evidence, would prejudice the claim of the appellant against those of a different character, on which the latter may have a right to rely.
The defendant, Sullivan, admits, that the butchering business was carried on, but denies the partnership, and insists, that the others were too poor to contribute the necessary funds. Upon this, and the probabilities of the case, we have listened to much discussion, and have been furnished with many references to the books of the business.
It has not, however, been shown to the court, that this business, conducted as it was, required any considerable amount of capital. The sales were rapid, the profits, it is quite reasonable 

 [*391]  to suppose, were considerable, and Sullivan himself was generally in the receipt of the funds, which were from time to time to be employed in the purchase of other cattle, which were to be sold to the workmen employed by the older company, and for the proceeds of sale that company was responsible. Other proof than that which has been furnished by Sullivan, and the entries [**13]  in the books, would be necessary, in order to prove that monied men only could engage in this business.
The want of capital is the reason assigned, why not only the appellant, but the other defendants, could not have been partners in the butchering business. Surely, if they had capital sufficient to be members of the company, to which the name of the Doegully Company has been given, we cannot take it for granted, that they could not procure the requisite capital to undertake the business of supplying with food the men whom they employed, and whom they were obliged to pay, in goods and in meat, or in money.
It has been urged as an objection to the relief which is sought, that the books were so kept that the accounts cannot be stated. The proof of the first cost of the articles, we are told, is not to be had, and there is nothing to show the amount of the expenses;--all this may prove, that the difficulties to be encountered in stating the accounts, will be unnecessarily great. Every reasonable presumption will be made against those whose fault it is that the books are so imperfect, and if they claim to be entitled to other credits than those to which the books, at the close of [**14]  the partnership, entitle them, it is usual to require of them very strict proof.
In the course of the argument, it seemed to be conceded by the counsel for the appellees, that there was some evidence to be found in the record, that the parties, at one period, contemplated a partnership; something is proved which could not have existed, if the parties who composed the elder firm, at one time had not designed to form a partnership in the butchering business. There is testimony to that effect. It was evidently thought, that it would be of advantage to the firm of Ritner, Sullivan and Beers, to supply the workmen with meat; and it is also evident, that in their opinion, in order to 

 [*392]  form a partnership for this purpose, it was necessary to introduce into it, as a partner, a fourth person, to be the active partner in the business, and that person to be a butcher. Hence the application to Johnson, to whom no proposition was made to become the agent of the other firm, at any fixed salary, although they failed in their effort to induce him to become a partner, and receive a portion of the profits of the business. It appears also from the testimony of Johnson, that  [**15]  Sullivan and Beers had, previously to the fruitless negotiation with the witness, had either made proposals to, or received proposals from, the appellant. It may also be inferred from the testimony of this witness, that they would have preferred him as a partner to the plaintiff, if the former would become a partner, upon as favorable terms as those which had been offered by the latter.
In this testimony, however, it is said, there is something inexplicable:--one agreed to take one-half of the profits, the other, it is true, proposed to take only one-fourth, but he was also to be compensated for his services, and for the use of his horse and carryall; and the compensation to be claimed for his own services, and the use of the carryall and horse, added to the one-fourth, exceeded, it is supposed, the portion of the profits, which, if offered to him, would have induced this witness to be a partner.
Of this there is no proof, and besides it does not appear that the witness owned any horse or carryall, or, if he had, that the company was to have the use of them without making compensation therefor. We infer from what is said of the horse and carryall of the appellant, that the [**16]  company would occasionally want to use a horse and carryall; that the appellant had those articles, and if he became a partner in this new business, he might thereby secure considerable employment for his horse and carryall. But there is no proof to warrant the belief, that by any agreement between the appellant and the defendants, the appellant was bound either to keep a horse and carryall during the existence of the partnership, or, if he had them, would not be at liberty to employ them elsewhere, when they could be employed elsewhere, with greater profit to their owner.

 [*393]  We have then in the deposition of this witness, satisfactory proof that Sullivan, as well as Beers, wished to have a slaughter house, for the accommodation of the workmen in the service of their company; that they designed to have a considerable interest in that business, but in order to engage in it with the greatest advantage, it was of importance to secure a fourth person, and he a butcher, not to be engaged as an agent, with a salary, but as a partner, to perform the services to be required of him for a certain portion of the profits. We have proof, that two of the partners, (Sullivan [**17]  one of them,) were at one time in treaty with the witness, (Johnson,) acknowledged, that they had already been treating with the appellant, and that the terms upon which he would become a partner, were more favorable than those to which the witness would accede. They separated from the witness without, as far as we can learn, applying to any other person, and shortly after the failure of the negotiation with Johnson, we find the appellant in the place, and performing the duties of this fourth partner. All of this appearing in the case, surely very little more proof is necessary to satisfy us, that after the negotiation failed with Johnson, the defendants secured the services of the appellant; and upon the terms already suggested, it not appearing that the appellant ever consented to be that fourth partner, upon any terms less favorable to himself, than those on which he had previously offered, to associate himself with the defendants in the butchering business. But little more proof is wanted to establish the partnership, and for this proof we need only to refer to the depositions of James Mullin, Leonard Moore, and Peter Lyons, and the admissions and declarations [**18]  therein proved to have been made by Sullivan himself.
It is true, indeed, that there are some declarations, which witnesses tell us, were made by the appellant, leading to a different conclusion. But in answer thereto, it may be said, that there existed reasons why the appellant wished his creditors to remain ignorant of his interest in the firm, and remain under the impression, that he was employed by the month or year. Upon these declarations, and the credit due to the witnesses who speak of them, it seems to be unnecessary now to 

 [*394]  insist, as they can be used rather to prove that the partnership did not continue, as long as the appellant alleges, and not that it was not formed.
The conclusion, then, to which all this testimony brings us, is, that a partnership once existed between the appellant and the three defendants, and was commenced in September 1840. For what length of time it was continued, it is unnecessary to decide, until the auditor makes his report. Of course it is for him who denies that it continued as long as the appellant alleges, to prove that it was dissolved at an earlier period. The account ought to be ordered, and in taking it, it will be necessary [**19]  to report upon the claims of the creditors, and among these will be placed the claim, if any such is established by the appellant, for services, and the use of his horse and carryall, this being the claim of the individual against the firm of which he is a member, and depending for its amount upon the time that the company had them in its service. For personal services rendered by a partner, no compensation can be claimed, without proof of an express agreement, that he should be compensated for them.
The court will sign a decree, reversing the decree of the court below, establishing the partnership, and the commencement of it, as above stated, and remanding the case to Allegany county court, sitting as a court of equity, in order that an account of the partnership transactions may be taken, and a final decree be passed, according to the proof now in the case, and such further testimony as may be authorized to be taken.
DECREE REVERSED WITH COSTS.  

17 of 23 DOCUMENTS 

LUCIUS W. STOCKTON vs. IRA FREY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 406; 1846 Md. LEXIS 50 

December, 1846, Decided 

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

This was an action upon the case, for the negligent driving and upsetting of a stage coach, by which the plaintiff was injured in his person and mind, brought by the appellee against the appellant, as owner of the coach, on the 13th August 1841.

The defendant pleaded non cul, on which issue was joined. The verdict was against him.

1ST EXCEPTION. At the trial of this cause, the plaintiff proved, that up to October 1839, he had been an active, enterprising man, of good constitution, health and temperate habits, and being called by business, left home, Lowell, in Massachusetts, for Missouri, that he proceeded as far as Frederick, where he took a seat in a line of stages of the defendants for Wheeling; on the evening of the 8th October 1839, the coach in which he was, with other passengers, was furiously driven, the horses hurried on, and raced in opposition to another line of stages on the same rout; that at last, in going over a break in the road, the carriage was thrown so high, that the bolt was drawn out of the forward part of the stage, which, with the wheels and horses, escaped. The main part of the coach turned a complete somerset,  [**2]  was smashed to pieces, and all the passengers left in the road, more or less injured. That the plaintiff was seriously injured, wounded in the head and ear, and badly bruised; that he was detained at a tavern, near the place of his accident, for about eight days, and has since been subject to occasional violent attacks of head ache; that his mind is sometimes affected, his general health feeble, his capacity for business injured, and power of enduring labor, and his business nearly destroyed. One of the horses used in the coach had ran off before. After evidence to the above effect had been offered by a great variety of witnesses in detail, the plaintiff proposed further to prove, that he had a wife and several small children; to the admissibility of which the defendant objected. But the county court, (S. ARCHER, C. J., and PURVIANCE, A. J.,) overruled the objection, and permitted the evidence to go to the jury, when it was given. The defendant excepted.

2ND EXCEPTION. In addition to the previous evidence the defendant then proved, that the coach in which the plaintiff was travelling as a passenger, at the time he was injured, was one of the coaches of the line called The Reliance [**3]  Line, and that said line belonged to a company called The National Road Stage Company; a co-partnership, which was composed as members thereof, of the firm of Stockton Falls & Co., and of Daniel W. Moore, and S. R. Barry; and that said firm of S. F. & Co., was composed, as members thereof, of the said defendant and Moore N. Falls, and Charles W. Krebs; and that all the agents, drivers, coaches, teams, and property, appertaining to the said line, were the agents, drivers, coaches, teams, and property, of the said co-partnership, called The N. R. S. Co., and that the defendant had no other connection with said line, or with the agents, drivers, coaches, teams, and property, appertaining thereto, than as being one of the said firm of S. F. & Co.

The defendant further proved by James Cowdy, that during the year 1839, he was the agent of the said N. R. S. Co., and that he had charge of that part of the road in which the accident occurred; that the place where the accident occurred was on Tonoloway Hill, three and a half miles west of Hancock, that he, the said witness, was stationed at H., and it was his duty and his practice, to examine every coach as it passed up or down, in order [**4]  to discover whether any thing was out of place or out of order; and that on the night when this accident occurred, and previous thereto, and before the said coach left H., he carefully examined every part of the said coach, and discovered no defect or imperfection of any kind therein; and that he distinctly remembers to have examined the locking machine, and satisfied himself that in this, as in all other respects, the said coach was in perfect order and condition. The said witness says, that the coach was an excellent one; that it had been frequently over the same road, with the same locking machine thereon. The said witness further stated, that the coach arrived at H. about 8 o'clock that evening, on its journey westward, and that when he so examined it at H., previous to its departure westward, he examined it with a candle, and examined it with the greatest care. The defendant further proved, that the driver who drove on the night when the accident occurred, was Jerome McMullen; that he was an experienced, sober, skilful and careful driver, and one of the very best drivers he has ever known. The defendant further proved, that the team was a good and safe team. The witness then described [**5]  the place of the accident, as, &c., and the use of the locking machine affixed to the coach; the defendant further proved that the plaintiff rode over with witness to Mann's tavern, and that in a conversation which occurred between plaintiff and witness, at Mann's tavern, in reference to this disaster, witness inquired of plaintiff whether the driver was in fault, stating that it was the order of the proprietors to witness, to discharge any driver who had been guilty of the least negligence in any respect, and that the plaintiff then expressed the hope that the driver would not be discharged, stating, that he was not to blame; that he, the plaintiff, had himself been one time a stage proprietor, and that accidents of this kind would occur, notwithstanding every possible care, and that this was such an unavoidable accident.

The defendant then, further proved by Jerome McMullen, that he, the said witness, was the driver of the coach at the time it was overturned, that the coach was carefully examined before he started from Hancock, and no defect of any kind was visible, that it was a dark night and he had his lamps lighted. That he drove with particular care, and that in passing [**6]  over the first breaker on Tonoloway Hill, about fifty yards from the top, the locking machine gave way. That the breakage of the locking machine rendered him unable to retard the coach, which pressed on the horses, and soon caused them to run, and they did run with great speed down the hill. That he had never encountered the accident of overturning of a coach, nor had he witnessed one, but, &c. The driver then proceeded to give a particular account of the whole accident. The same witness further testified, that after the accident, he examined the locking machine, and found that the screw that ran through the roller and which connected the rod with the roller, was broken off at the shoulder; that the screw was about three-quarters of an inch in diameter, and the fracture was a new one, and which was the fracture of a solid piece of iron, and there was nothing to indicate any original defect in the iron, and to indicate that there was any flaw in the screw. The said witness described the locking machine as follows, &c.; that the immediate cause of the accident was the sudden shock given to the coach, by the obstruction of the lower breaker in the road, and the subsequent separation of [**7]  the front part of the carriage and front wheels from the body of the coach, and that but for this he believes he could and would have gone safely over the breaker, and down the hill, without accident; but that, in consequence of the breaking of the locking machine, at the first breaker of the hill, it was not in his power to retard the coach, nor to restrain it by holding back the horses; that it was necessarily pressed on the horses and made them run. He further said that he cannot account for the breaking of the locking machine, otherwise than as an accident.

The defendant further proved by Dr. Henry V. Bramwell, that at the time of this accident he resided in Hancock, and practised there as a physician, and that he visited the plaintiff at the time he was injured, &c.; described the wound, &c. The plaintiff also proved by the same witness, that after the plaintiff had been so injured, and when he, the witness, was on a professional visit to the plaintiff, it was stated by the plaintiff, that he had a right to sue for damages for the injury that he had sustained, and that it had been suggested to him to do so; but after some conversation, he stated that he knew that such accidents [**8]  would unavoidably occur, and that if the defendant's agent would pay all his expenses at Mann's tavern, and at McKinley's tavern, and the witness' bill for his professional services, and would furnish him a conveyance without further charge to Wheeling, whenever he should require to go on, either in the public stage, or in a private conveyance, as he might require, that he would be content and satisfied, and would not sue for damages; that the witness being friendly to the proprietors, and believing that they took all care and pains practicable to guard against accidents, undertook to assure him that all this should be done, and promised to see the agent, Mr. Cowdy, and state to him the plaintiff's willingness to settle the matter; and he states, that he accidentally did see Mr. Cowdy, and stated to him what the plaintiff had said he was willing to accept, in settlement of the matter, and that Mr. Cowdy thereupon, on behalf of the proprietors, assented to these terms; and the witness thereupon, on the occasion of his next visit to the plaintiff, stated to him that Mr. Cowdy had agreed to the terms, and would pay the expenses; and provide him a conveyance, free of further charge to [**9]  Wheeling, at any time he desired to go, either in one of the stages of the line, or in a private conveyance, as the plaintiff might prefer; and that the plaintiff on being so informed, expressed himself fully satisfied therewith. It was admitted, that the plaintiff had originally, on taking his seat, paid for the fare to Wheeling. It was also admitted, that Mr. Cowdy, as agent of the proprietors, paid the bill of Dr. Bramwell, and Mr. McKinley's bill, and that Mann's bill was charged by Mann to the company, and paid to him by said company, in the settlement of their account with him, at the end of that year. It was also admitted, that the plaintiff when he determined to go on, was furnished, without further charge therefor, a seat in one of the lines of said company to Wheeling, and that he went to Wheeling in said line, and that he did not require or request to be furnished with a private conveyance. The defendant also further proved by James Cowdy, the witness of that name, hereinbefore mentioned, that said Dr. B. stated to him, the said witness, as agent for said company, that the plaintiff would be satisfied and content, if his bills were paid at the taverns and to the said doctor,  [**10]  and he were provided with a conveyance, without further charge, to Wheeling, whenever he desired to go on; and that he, the witness, on behalf of said company, and as their agent, assented to these terms, and desired said Dr. Bramwell to assure the plaintiff, that at any time he wished to go, he should have a conveyance, and if necessary, or if desired, he would send him on in a private conveyance. And that afterwards, in pursuance of his understanding or agreement, he did pay said several bills, and did furnish said plaintiff a seat to Wheeling, without further charge, in one of the coaches of said company's line, and that he would, if so requested, have promptly provided a private conveyance for him to Wheeling; and he further stated, that all his acts in the premises were approved by the said company, and the defendant, and his payments allowed to him, as credits in his accounts, at the time he ceased to be agent. He further stated, that he so ceased to be an agent for the said company, sometime early in the year 1840.

The plaintiff then gave further proof of the unsteadiness and unfitness of the horses for a passenger coach, and insufficiency of the locking machine of the [**11]  coach; and both parties gave corroborative proof of the statements of their witnesses, and of their views of the case.

The plaintiff then offered the three following prayers, all and each of which were objected to by the defendant's counsel, viz:

1st. That it was the duty of the defendant, in the transportation of the plaintiff upon the journey mentioned in the evidence, to have had a driver of competent skill, and that such driver should have used such skill with diligence, and with utmost caution and prudence, and was well acquainted with the road he was bound to travel, and was furnished with well broken, safe and steady horses, a coach and harness of sufficient strength, and properly made; and that if the jury find, that there was upon the occasion of the said journey, the least failure in any one of these particulars, that then, in point of law, the defendant did not comply with his said duty, but was guilty of negligence, and is responsible for the injury or damage sustained by the plaintiff from such failure.

2nd. That if the jury find with the plaintiff, under the plaintiff's first prayer, that then the plaintiff is entitled to recover, notwithstanding they may [**12]  find from the evidence of Dr. Bramwell and Cowdy, that the plaintiff stated, at the periods mentioned by them, that he thought the upsetting of the stage was accidental, and that the driver was not to blame; and although they find, that he also stated, that he would be satisfied in the manner and upon the terms stated by said witnesses, and that the expenses of the said doctor, and the other expenses mentioned by said witnesses, were settled by the defendant, or his agents."

3rd. That if the jury find, that the plaintiff is entitled to recover under the preceding prayers of plaintiff, that then, in estimating the damages he is entitled to recover, they are to consider what, before the injury complained of, was the health, and physical and mental ability of the plaintiff, to maintain himself and family, as compared with his condition in these particulars, after and up to the institution of this suit, in consequence of the said injury, and how far said injury is permanent in its results, as well as the physical and mental suffering he sustained by such injury, and that they should allow such damages as, in their opinion, will fairly compensate said plaintiff for the loss and injury [**13]  which they may find he has so sustained, as aforesaid.

The defendant offered the six following prayers:

1st. That if the jury shall find from the evidence in the cause, that the coach in which the plaintiff was travelling as a passenger at the time he was injured, belonged to a partnership, as proprietors thereof, called the N. R. Stage Company, and that said company was composed of the firm of S., F. & Co., in its capacity as a partnership, and of D. W. Moore and -- Barry; and that said firm of S., F. & Co., was composed of the defendant, and M., N. F., and C. W. K., as members thereof, but that said defendant was not a member of said N. R. S. Co., in his separate or individual capacity, nor otherwise interested therein, except only as being one of the members, as aforesaid, of said firm, of S., F. & Co.; and shall further find, that the said coach belonged to a lien of coaches running from Hagerstown to Wheeling, and that said line, and all the agents, drivers, teams, coaches, servants and property, appertaining to or connected with said line, were the agents, drivers, teams, servants and property of said partnership, called the N. R. S. Co., and were not the agents, drivers,  [**14]  teams, coaches or servants, or property of the defendant, in his separate or natural capacity; and that said defendant had no connection with said agents, drivers, teams, coaches, servants or property, in any respect whatsoever, except only as being one of the members, as aforesaid, of said firm of S., F. & Co.; and shall further find, that the plaintiff paid his fare to the agent of said N. R. S. Co., and that the defendant had no personal connection with the receipt of said fare, or with the plaintiff in any manner, and did not even know that he had taken a seat as a passenger in said line, until sometime after the plaintiff had been injured, then the plaintiff is not entitled to recover upon the pleadings and proof in this cause, because there is a variance between the pleadings and proof in this, to wit, that in the pleadings, the plaintiff counts upon a contract with the defendant alone, and the proof is, of a contract with a company, of which the defendant was no otherwise a member, than as being one of a firm which, in the aggregate capacity of its members, as a co-partnership, was a member of said company.

2nd. That if the jury shall find the facts set forth in the preceding [**15]  prayer, then the plaintiff is not entitled to recover upon the pleadings and proofs in this cause, because there is a variance between the pleadings and proofs in this, to wit, that in the pleadings it is alleged, that the said coach, was the coach of the defendant, and the proof shews, that it belonged to a company of which the defendant was no otherwise a member, than as being one of a firm which, in the aggregate capacity of its members, as a co-partnership, was a member of said company.

3rd. That if the jury shall find from the evidence in the cause, the facts set forth in the first prayer, then the plaintiff is not entitled to recover in this cause, even if the jury shall believe, that the injury to the plaintiff was caused by the overturning of the coach in which he was so travelling, and that such overturning was caused by the negligence, carelessness, unskillfulness or default of the driver of said coach, and not otherwise, because there is a variance between the pleadings and such finding in this, to wit: that in the pleadings, the plaintiff complains of the alleged negligence, carelessness, unskillfulness, and default of the defendant, and his servants and agents, and [**16]  the finding would be of negligence, carelessness, and default of an agent of said company of which the defendant was no otherwise a member, than as being one of a firm which, in the aggregate capacity of its members, as a co-partnership, was a member of said company.

4th. That to entitle the plaintiff to recover in this case, the jury must find from the evidence in the cause, that the injury to the plaintiff was occasioned by the negligence of the defendant, his servants or agents; and that although the fact of the overturning of the coach is prima facie evidence of negligence, yet, if the jury shall find from all the evidence in the cause, that the overturning of the coach was an accident against which human care and foresight could not guard, and was not the result of negligence in any degree, then the plaintiff is not entitled to recover in this case.

5th. The defendant, by his counsel, prays the court to instruct the jury, that if they shall find from the evidence in the case, that after the plaintiff had been injured by the overturning of the coach, as testified by the witnesses in the cause, it was agreed, by and between the plaintiff and the agent of the defendant,  [**17]  that in satisfaction of any injury to the plaintiff, occasioned by the said overturning of the coach, the said defendant should and would pay to the several landlords and the physician, the expenses by said plaintiff, incurred by his detention in consequence of such injury, and should furnish to the said plaintiff a free conveyance to Wheeling, whenever he should be in a condition to travel, in the regular line, or by private conveyance, if the plaintiff should require it; and shall further find, that afterwards, and in pursuance of said agreement, the said agent of the defendant did pay all said bills, and did afford to the plaintiff a passage to Wheeling, in a coach of the defendant, and at the time, and in accordance with the mode of transportation required by the plaintiff, then the plaintiff, upon the issues joined in this case, is not entitled to recover in this suit.

6th. That if they shall find from the evidence in the cause, that after the plaintiff had been injured by the overturning of the coach, as testified by the witnesses in the cause, it was agreed, by and between the plaintiff and the agent of the defendant, that in satisfaction of any injury to the plaintiff,  [**18]  occasioned by the said overturning of the coach, the said defendant should and would pay to the several landlords and the physician, the expenses by said plaintiff incurred by his detention, in consequence of such injury, and should and would furnish to the said plaintiff a free conveyance to Wheeling, whenever he should be in a condition to travel, in the regular line, or by a private conveyance, if the plaintiff should require it; and shall further find, that afterwards, and in pursuance of said agreement, the said agent of the defendant did pay all said bills, and did afford to the plaintiff, without charge, a passage to Wheeling, in a coach of the defendant, and at the time, and in accordance with the mode of transportation required by the plaintiff, then the plaintiff, upon the issues joined in this case, is not entitled to recover in this suit.

The court, (ARCHER, C. J., and PURVIANCE, A. J.,) granted all the prayers offered by the plaintiff, and instructed the jury accordingly, and rejected all of the prayers offered by the defendant. The defendant excepted to the granting of the prayers offered by the plaintiff, and to the court's instruction accordingly to the jury; and [**19]  to the refusal of the court to grant the prayers so offered by the defendant.

3RD EXCEPTION. At the trial of this cause, and after the case had been committed to the jury, and partly argued before the jury by the counsel on both sides, it was discovered, that the several interrogatories propounded to Timothy Frey and to     French, on the part of the plaintiff, were not filed with the clerk of this court before the same were propounded, and that no copies thereof were served upon the defendant, or upon his counsel, and that the defendant received no notice thereof in any way; and that the same were filed for the first time at Lowell, at the execution of the said commission, and with the said commissioners, and returned by said commissioners to this court. The defendant hereupon, by his counsel, moved the court to strike out the answers of said Frey and said French, to the said interrogatories, and relied upon the following rule of Baltimore county court:--

"RULE XX.--When such issue shall be tendered, and the fifteen days allowed for amendment or demurrer have elapsed, either party may, within ten days thereafter, apply to the clerk for a commission to examine witnesses,  [**20]  and shall, within the same time, serve a copy of the interrogatories upon the adverse party, or his attorney, together with the names of commissioners; and if such adverse party shall not, within ten days from the time of such service, file cross-interrogatories, together with the names of commissioners, on his part, the commission shall issue ex-parte; and if such commission shall not be applied for in the manner and within the time above mentioned, although the clerk is hereby authorized to issue commissions on the application of either plaintiff or defendant, or their counsel, in all cases which are at issue, provided the party applying shall serve a copy of the interrogatories upon the adverse party, or his counsel, together with the names of commissioners, at least ten days before the commission issues, yet no commission so afterwards issued shall operate as a stay of proceedings, or prevent the cause being set down for trial, and tried in the ordinary course, unless the same shall have been issued by leave of the court, for special reasons shewn to them on affidavit."

But the court refused to strike out the answers, or any part thereof, but determined that the same was proper [**21]  evidence in the cause to be considered by the jury, upon the ground, that the same, with the other evidence taken under the commission, had been read in evidence to the jury, and were in evidence when the prayers on either side were offered and argued before the court, and decided, and the counsel had, until the objection was so made, argued the cause before the jury upon all the evidence. To which refusal and decision of the court, the defendant excepted.

The defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In an action to recover compensation for injuries done to the person of plaintiff, by the negligence of the driver of a stage, which was thereby upset, the plaintiff cannot give in evidence, for the purpose of increasing the damages, that he had a wife and children.

It is the duty of a stage owner, in the transportation of passengers, to have drivers of competent skill, who should use such skill with diligence, and the utmost caution and prudence; they must be well acquainted with the road they are bound to travel, furnished with well broken, safe, and steady horses; coaches and harness of sufficient strength, and properly made: the least failure in any one of those particulars, subjects the stage owner to the imputation of negligence, and makes him responsible for the injury or damage arising from such failure.

A prayer which enumerates the facts, to comply with which, constitutes the duty of the defendant, and that upon a failure in any one of the particulars enumerated, if so found by the jury, then, in point of law, the defendant did not perform his duty, but was guilty of negligence, and is responsible for the injury sustained by the plaintiff from such failure, does not raise any question upon the pleadings; it merely asks the court to instruct the jury, that the hypothesis of the prayer is the law of the case, if supported by the evidence.

In granting or refusing any prayer asking an instruction to the jury, that if they believe certain facts, the plaintiff is, or is not, entitled to recover, this court will not assume, that the county court inspected the pleadings in the cause, and adjudged their sufficiency to sustain the prayer.

If either party designs to raise any question upon the pleadings in an action at law, their prayer under the act of 1825, ch 117, should be framed with a direct reference to the pleadings.

Where a prayer may have a tendency to mislead a jury in reference to the evidence in the cause, as where it only incorporates a part of the evidence which constituted the defence, when it should have incorporated the whole, and prays, that notwithstanding the jury should believe the part embodied in the instruction, still the plaintiff is entitled to recover, it is error to grant it.

In an action to recover damages for a personal injury done the plaintiff, by the negligent driving and upsetting of a stage coach, the jury, in estimating his damages, are to consider, what, before the injury complained of, was the health, and physical, and mental ability of the plaintiff to maintain his family, as compared with his condition in those particulars, after and up to the institution of the suit, in consequence of the injury complained of, and how far it is permanent in its results, as well as the physical and mental suffering he has sustained by such injury, and should allow such damages as, in their opinion, will fairly compensate the plaintiff for the loss and injury which they may find he has so sustained.

Where a coach belonged to the R. line, which line belonged to the N. R. Stage Company, a co-partnership, composed of the firm of S., F. & Co., and of M and B, and the firm of S., F. & Co., was composed of the defendant, and M, and others, and that all the drivers and coaches of the line belonged to the N. R. Company; that the defendant had no other connection with the line than as one of the firm of S. F. & Co., and was declared against, as the owner of the line, in an action upon the case, for the negligent driving of one of the coaches by him used and employed, and pleaded not guilty, there is no variance between the pleadings and the proof.

The members of a firm are individually liable in actions of tort, for the acts of the firm, their agents and servants, and for such acts may be sued individually.

To entitle the plaintiff to recover against the owner of a stage coach, for injuries sustained by him in his person, the jury must find, that the injury to the plaintiff was occasioned by the negligence of the defendant, his servants or agents.

The fact of the overturning of a coach, is prima facie evidence of negligence; yet, if it was an accident against which human care and foresight could not guard, and was not the result of negligence in any degree, then the plaintiff is not entitled to recover.

The law makes proprietors of stage coaches responsible for carelessness and negligence--want of due care--in the conveyance of passengers; but not, at all events, as in the case of common carriers.

Where a plaintiff, after an injury sustained in his person from the tort of the defendant, agrees with the defendant, or his agent, that in satisfaction of such injury, the defendant should pay the expenses incurred by the plaintiff by his detention, in consequence of his injury, and would furnish him with a free conveyance to his point of destination, and the defendant performs his part of the agreement, the plaintiff cannot recover further damages for the tort.

In actions for general and unliquidated damages, the payment and acceptance of a sum of money, as a satisfaction, is a good bar.

The party aggrieved, may determine the sufficiency or insufficiency of the satisfaction paid and accepted by him.

After a cause had been committed to the jury, and partly argued before them, on both sides, it was discovered, that several interrogatories, propounded by the plaintiff to witnesses, under a foreign commission, had not been filed with the clerk of the county court, before they were propounded, nor copies served on the defendant, nor notice thereof in any way given him; but that they were first filed with the commissioners, at the place of executing the commission, it is too late, under the 20th rule of Baltimore county court, to move to strike out the evidence of such witnesses, which had been read to the jury.

Where the court is of opinion, that the plaintiff cannot recover, as where there is an admission of satisfaction of his demand, they will not, upon the reversal of the judgment, upon the appeal of the defendant, award a procedendo.  

COUNSEL:
By WILLIAM SCHLEY and MCMAHON for the appellants, and

By MEREDITH and REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*419]  SPENCE, J., delivered the opinion of this court.
This was an action instituted in Baltimore county court, by Ira Frey, for the recovery of damages against Lucius W. Stockton, the owner of a line of stage coaches, for carrying passengers from Hagerstown to Wheeling. The declaration alleges, that Mr. Frey was a passenger in the stage coach on the fifth day of October 1839, when, by the negligence, carelessness, unskillfulness and default [**22]  of the defendant, his agents, and servants, the stage coach was upset; by reason of which, the plaintiff had his skull bone fractured and broken, and was otherwise greatly cut, bruised and wounded, insomuch that the said plaintiff became very ill, and his life was endangered.
The first question presented for our review in this case, arises on the first exception.

 [*420]  At the trial, the plaintiff offered to prove by a witness, that he, the plaintiff, had a family, consisting of a wife and several small children. To the admissibility of which evidence, the defendant, by his counsel, objected; but the court overruled the objection, and allowed the evidence to go to the jury, and the defendant excepted. If, in an action of this character, it be legal to offer evidence of the relations of husband and wife, and father and child, by way of augmenting the damages, it would be difficult to determine, what relations in civil and social life might not be offered for the same purpose.
If the argument be, that the party injured is thereby rendered unable to discharge the obligations which he owes as husband and father, why may not the same argument apply to the relation of debtor and [**23]  creditor, guardian and ward, and many others? In all of these relations, there is both a legal and moral obligation, and to sanction such a distinction in this case, would be to establish an uncertain and dangerous doctrine. Instead of meting out to the plaintiff, the measure of damage which he has sustained from the injury, it would be compensating the wife and children for that injury.
Greenleaf, in his work on evidence, at page 220, vol. 2, states it to be law, "that injuries to the person or reputation, consist in the pain inflicted, whether bodily or mental, and in the expenses and loss of property which they occasion. The jury therefore, in the estimation of damages, are to consider not only the direct expenses incurred by the plaintiff, but the loss of his time, his bodily sufferings, and, if the injury was wilful, his mental agony also." The same author, in the same work, at page 210, uses this expression: "The damage to be recovered, must always be the natural and proximate consequence of the act complained of. This rule is laid down in regard to special damages, but applies to all damage." We therefore think the court erred in overruling the defendant's objection to [**24]  this evidence.
In the further trial of this cause, the plaintiff offered three prayers, and the defendant six; the court gave the instructions asked by the plaintiff's three prayers, and refused all of the 

 [*421]  defendant's; the defendant excepted, and the judgment of the court on these nine prayers, form the second exception.
The plaintiff's first prayer presented the law of the case correctly to the jury. Vide the cases of Curtis and wife, against Drinkwater, 22 E.C.L. 51, and 23 E.C.L. 331, Sharp vs. Grey. This prayer raises no question upon the pleadings in the cause, but asks the court to instruct the jury, that the hypothesis of the prayer, is the law of the case, if supported by the evidence. With a view to conform to the manifest intent of the act of 1825, ch. 117, this court have on more than one occasion determined, that neither appellant nor appellee can here be permitted to urge or insist upon any point or question, which shall not affirmatively appear to have been raised and decided by the court below.
In granting or refusing any prayer asking an instruction to the jury, that if they believe certain facts, the plaintiff is [**25]  or is not entitled to recover, this court will not assume, that the county court inspected the pleadings in the cause, and adjudged their sufficiency to sustain the prayer.
If the party seeking the court's instruction designed to obtain the judgment of the court upon the pleadings in reference to his prayer, he should have framed it accordingly; as for example, that the plaintiff is, or is not, entitled to recover under the pleadings in the cause. Then the court below must have decided, upon the sufficiency of the pleadings to support the prayer, and their decision on the question would have formed a fit subject for review, on an appeal to this court. But where, without any direct reference to the pleadings, a prayer is made for an instruction to the jury, that if they find certain facts, the plaintiff is entitled to recover; all that the court decides since the passage of the act of 1825, in granting the prayer, is, that the facts enumerated constitute a good cause of action, wherever it is competent for the plaintiff to recover. Upon the pleadings, as no exceptions are taken to them, the court expresses no opinion, and grants the prayer, as if their sufficiency and accordance with [**26]  the case made by the prayer, were admitted by the parties.

 [*422]  To give a contrary construction to this act of Assembly, would be to open the door to many of the evils, which it was prominently designed to shut out. By its passage, the legislative intent was, that all objections to pleadings should be raised and determined in the county courts, where, by amendments, if necessary, such objections might be obviated, and in accordance with these views, was decided in the case of Leopard vs. The Ches. & Ohio Canal Co., 1 Gill 222, where this court, in determining a question similar to that now before us, say:
"Whether the declaration states facts sufficient, if proved, to enable the appellant, the plaintiff below, to maintain his action, or whether the facts proved, sustain the allegations in the declaration, are questions which, in the case before us, under the act of 1825, ch. 117, we are not called on to decide."
The court erred in giving the instruction asked for by the plaintiff's second prayer. Notwithstanding this prayer did not state all of the terms of the accord; yet inasmuch as there was evidence in the cause to sustain, (if believed by the jury,)  [**27]  all the terms of the agreement or accord, the court, by instructing the jury that the plaintiff was entitled to recover, may have misled them.
There was no error in the instruction given under the plaintiff's third prayer.
The court properly refused to give the instruction, asked by the defendant's first, second, and third prayers. There was no variance:--the members of a firm are individually liable in actions of tort, for the acts of the firm, their agents and servants, and for such acts may be sued individually. 1 Chit. Pl., 74.
The defendant's fourth prayer should have been granted by the court.
We cannot sanction the conclusion of the plaintiff's counsel, that this prayer is, in principle, identical with the plaintiff's first prayer; it contains a very important qualification, not found in the plaintiff's first prayer, to wit, "That if the jury shall find from all the evidence in the cause, that the overturning of the coach was an accident, against which human care and 

 [*423]  foresight could not guard; and was not the result of negligence, in any degree, then the plaintiff is not entitled to recover in this case."
The law makes proprietors of stage coaches responsible [**28]  for carelessness and negligence, in the conveyance of passengers, but not at all events; as in the case of common carriers. In the case of Christee vs. Griggs, 2 Camp. 81, which seems to be a leading case on this point, Sir James Mansfield, C. J., says: "There is a difference, between a contract to carry goods, and a contract to carry passengers. For the goods, the carrier was answerable at all events; but he did not warrant the safety of the passengers. His undertaking, as to them, went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidental, the plaintiff had no remedy for the misfortune he had encountered."
This doctrine is sanctioned in the case of Stokes vs. Saltonstall, 13 Peters 181. So, also, in 2 Kent's Commentaries, 466. "The proprietors of a stage coach do not warrant the safety of passengers, in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care."
The court erred in refusing the defendant's fifth prayer. [**29]  The agreement set out in this prayer, contained all the legal requisites of an accord, with satisfaction. It was in full satisfaction; it was certain; and it was executed.
"In an action on the case, under the plea of not guilty, the defendant may not only put the plaintiff upon proof of the whole charge contained in the declaration, but may give in evidence any justification or excuse of it, or show a former recovery, release or satisfaction." 1 Chitty's Pleadings, 432. 3 Burr 1353.
It was very much pressed in the argument of counsel, upon this prayer, that this agreement was defective, because it was not a full satisfaction for the damage sustained; and many cases were cited, where the agreement contained no consideration, 

 [*424]  or not a full consideration, in which the courts had held such agreements void; but these are cases either of contract, ascertained damages, or tainted by fraud or unfairness: as in the case of Thomas against McDaniel, 14 Johns. 185. It seems at this day to be settled law, that in actions for general and unliquidated damages, the payment, and acceptance of a sum of money, as a satisfaction, is a good bar. And we are [**30]  entirely at fault to discover, by what rule, or in what mode, in such actions, the sufficiency or insufficiency of the consideration, is to be determined, if we reject the judgment of the party aggrieved. Shall the court assume the province of the jury, and ascertain the amount of damage inflicted on the plaintiff, to obtain a measure by which they may determine the adequacy of the consideration? Or is it to be presumed, that any tribunal is more competent to determine the point, than the party damnified? We think not.
We think the court erred in refusing the defendant's sixth prayer, for the reasons given in our opinion on the fifth.
The court, in refusing to strike out the answers of Frey and French, to the interrogatories stated in the third exception, committed no error. The motion came too late, and we concur with the county court in the reasons assigned, for rejecting the defendant's motion.
The judgment is reversed;--and as it is the opinion of this court, that the plaintiff cannot recover upon the evidence in this case, no procedendo is awarded.
JUDGMENT REVERSED.  

18 of 23 DOCUMENTS 

PERRY L. AND HORATIO TRUNDLE, vs. JOHN M. WILLIAMS, ADM. OF OVERTON WILLIAMS, USE OF JOHN M. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 313; 1846 Md. LEXIS 42 

December, 1846, Decided 

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

This was an action of Debt, commenced on the 30th October 1843, on the following single bill, of which oyer had been prayed.

"$ 1000.--On or before the first day of January 1841, we jointly and severally, promise and oblige ourselves, our heirs, executors or administrators, to pay or cause to be paid to Overton Williams, his heirs or assigns, the just and full sum of one thousand dollars, current money of Maryland, with legal interest from date, being for value received; as witness our hands and seals this 1st March 1839.

PERRY L. TRUNDLE,

(Seal.)

HORATIO TRUNDLE,

(Seal.)

HEZEKIAH W. TRUNDLE,

(Seal.)"

On the back of which said note were the following endorsements, viz:

"For value received, I hereby assign all my right, title and interest, claims and demands, of the within note, unto John M. Williams, this 6th day of April 1839, and guarantee the payment.     OVERTON WILLIAMS."

"Interest paid on the within, by note, up to the first day of January 1842.--J. M. W."

"20th September 1842.--By cash on the within note, one hundred dollars.--J. M. W."

"20th September 1843.--By cash on [**2]  the within note, two hundred dollars.--J. M. W."

The defendants pleaded, that the said single bill was assigned for value received, on the 6th April 1839, by Overton Williams to John M. Williams, and the said Perry L. Trundle paid to the said John M. Williams, for whose use the said suit is brought, the sum of $ 225, in part payment of the said single bill in the declaration mentioned, on the 24th February 1840, and the further sum of $ 309.91, in part payment of said single bill, on the 27th July 1840; and that the said defendant, Perry, afterwards paid to the said John M. Williams, for whose use the said suit is brought, and to whom the said single bill was assigned before then, the interest on the said single bill, up to the 1st January 1842; and on the 20th September 1842, the said Perry L. Trundle paid to the said John M. Williams, the further sum of $ 100; and on the 20th September 1843, the said Perry paid to the said John, the further sum of $ 200; and this the said defendants are ready to verify; wherefore, &c.

The plaintiff replied, that the said defendants have not, nor have either of them, paid to said plaintiff the said sum of money, in manner and form as the [**3]  said defendants above, in their pleading, have alleged, &c.

To this replication the defendants rejoined, that the said Perry L. Trundle paid to the said John M. Williams, for whose use the said action was brought, the said sum of money, in the bill obligatory in the said declaration, mentioned, in the manner and form as they, the said Perry L. and Horatio Trundle, above, in their plea had alleged; and of this they put themselves upon the country, &c. On which issue was joined.

The jury found a verdict for the plaintiff.

At the trial, the plaintiff offered in evidence to the jury, the single bill, and endorsements thereon.

The defendant, to support the issue joined on his part, having first proved them to be in the handwriting of the plaintiff, by a competent and credible witness, read in evidence to the jury the following receipts:

"February 4th, 1840.--Received of P. L. T., $ 225, in part payment on a note of hand, assigned to me from O. W., for $ 1000.     JOHN M. WILLIAMS."

"Received this 27th July 1840, of Mr. P. L. T., a check on the Bank of Baltimore, for 309.91, in part payment on a note of O. W., use of J. M. W., dated 1st March 1839.

JOHN [**4]  M. WILLIAMS."

"$ 100.--Received this 20th September 1842, of P. L. T., $ 100, in part payment on a note of hand assigned to me from O. W.     JOHN M. WILLIAMS."

"Sept. 20th 1843, then received of P. L. T., $ 200, in part on a note of hand for $ 1000, dated 1st March 1839.

JOHN M. WILLIAMS.

Ass'd from O. Williams."

Before reading the two last receipts to the jury, by the defendants, the plaintiff offered to admit them as being the same that were credited on the foregoing single bill, coupled with certain qualifications; which admissions, as qualified, the defendants declined, and refused to receive, and gave the said receipts in evidence to the jury.

The plaintiff, further to support the issue joined on his part, having first offered to prove them to be in the handwriting of the said defendant, P. L. T., gave in evidence to the jury the following letters, to wit:--

"JUNE 25th, 1840.

Dear Sir:--I have not sold my tobacco yet, and in consequence of that, I have not got you any money yet. I wrote to Mr. Star of Baltimore, yesterday, to sell, so I expect to get the money sometime this week; and if I do, I will bring it to you directly. Your's with [**5]  esteem, PERRY L. TRUNDLE.

Mr. John M. Williams."

"Dear Sir:--I shall try my best to get the money that I owe you. I am going to send my corn to town the next trip that Mr. Conly makes, that will be about to-morrow week. I saw Hezekiah, Sunday, and he had not any money at all. I will go again to-morrow morning to see him. If I can possibly get any money in the neighborhood, I will get it for you. You shall not suffer by me, if I can possibly help it. You have waited longer than I could expect, and I am very much obliged to you for waiting as long as you have.

Yours respectfully,     PERRY L. TRUNDLE.

Mr. John M. Williams, April 1st, 1840."

And the said plaintiff also offered evidence to the jury, to prove that the defendants, at the time the aforesaid single bill, the present cause of action, was given, executed another note or single bill, to the said Overton Williams, the intestate of the plaintiff; that the witness, Fielder Darnell, was present with the defendants, and the said Overton Williams, from whom the defendant, Perry L. Trundle, was about to purchase the land, for which the present cause of action was given, when the witness was asked, if he would [**6]  write two notes, at one and two years, for the deferred payments of the land; that the witness declined, but said his brother Thomas would do it, and left the room. That soon after, the witness returned, and saw his brother Thomas writing at a table. Whereupon the defendants objected to the admissibility of any testimony, shewing the existence of notes, given by the defendants to the said Overton Williams, or the plaintiff, John M. Williams, other than the notes or single bills themselves, without first laying a proper foundation for the introduction of such testimony; and accounting for the absence of the notes spoken of; but the court, (WILKINSON and BREWER, A. J.,) overruled the defendant's objections, and permitted the said testimony to go to the jury. The defendants excepted to the opinion and direction of the court to the jury, admitting the testimony hereinbefore objected to. The plaintiff appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The plaintiff declared on a single bill of the defendant, who pleaded payment specially to have been made at certain times, and in certain amounts, on which plea issue was joined. The defendant proved his plea by the production of various receipts of the plaintiff. The plaintiff then proposed to prove, orally, that he had two bills for the same sum, and that the receipts were applicable to the note not sued upon. HELD: that he must produce that one, or account for its non-production; otherwise, the parol proof was inadmissible.

The best evidence of the existence, character, and contents of a written instrument, is the instrument itself.  

COUNSEL:
By R. J. BOWIE and T. S. ALEXANDER for the appellants.

By J. BREWER for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*316]  DORSEY, J., delivered the opinion [**7]  of this court.
The cause of action, in this case, was a note of hand or single bill, for $ 1000, drawn by the appellants in favor of Overton Williams, the nominal plaintiff, by whom, in about one 

 [*317]  month after its date, it was assigned to John M. Williams, the cestui que use. To the declaration of the plaintiff below, the defendants pleaded specially, certain payments, specifying dates and amounts, which they alleged they had made to John M. Williams, on account of the single bill, long after its assignment to him. These payments being distinctly put in issue in the pleadings in the cause, on the trial, the plaintiff having given in evidence to the jury the note with the assignment thereon, the defendants gave in evidence the receipts of John M. Williams for the disputed payments: which receipts stated the payments, for which they were given, to have been made on account of a note assigned by Overton Williams to John M. Williams. The plaintiff, then, without producing the note; or accounting for its non-production; or laying any foundation for the introduction of secondary evidence in proof of its contents; offered oral testimony to prove, that [**8]  the defendants, at the time they gave the note already in evidence, had given to Overton Williams another note for the payment of money. The object of which oral testimony was to induce the jury to believe, that the disputed payments, insisted on in the defendants' plea, were made on the latter note; and not that on which the present action was instituted. To the admissibility of this oral evidence the defendants objected; but the county court overruled the objection, and permitted the testimony to go to the jury. In doing so we think the court were in error. The best evidence, of the existence, character, and contents, of a written instrument, is the instrument itself. Whether there were two notes, for the payment of money, given by the defendants to Overton Williams, is a question, which ought to be determined, by the production of the notes. As administrator of Overton Williams, and cestui que use in this cause, they are presumed to be in the possession of John M. Williams, and for their non-production, he has shewn no cause. If the note, of which oral testimony was offered, had been paid up, and delivered to the defendants, proof thereof should have been adduced;  [**9]  and a notice, to produce it at the trial, served upon the defendants. Of the hardship of his case, in this respect, the plaintiff had no cause to complain. He was 

 [*318]  not taken by surprise. The necessity of producing the testimony he offered, was not for the first time made known to him by the evidence on the part of the defendants. The payments, asserted in the pleadings of the defendants, were made to him; he of course knew to what note or account they were intended to be applied; and to have come prepared, with competent testimony, to resist the defence set up against him, was his most obvious duty.
The judgment of the county court is reversed, and a procedendo awarded.
JUDGMENT REVERSED.  

19 of 23 DOCUMENTS 

JOHN SCHWENNISKI, ET AL., vs. JOHN GLENN, P. T. OF ANNE WATSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 23; 1846 Md. LEXIS 8 

June, 1846, Decided 

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

On the 30th July 1845, the appellee filed a bill on the equity side of Baltimore county court, alleging, that a certain Anne Watson being largely indebted to various persons, and being altogether and hopelessly insolvent, did, on or about the 11th July 1843, execute unto her son, a certain Hugh McNeal, for an ostensible consideration of $ 404, a deed of a certain house or store, and lot, on Pratt street, &c.; that after the said deed had been put upon record, the said Anne Watson did proceed to expend upon the said house, so as aforesaid conveyed by her, repairs exceeding the sum of, &c.; that a short time afterwards, and while the repairs last mentioned were being put upon the house aforesaid, the said A. W., on or about the 22nd August, in the same year, did execute unto her said son, Hugh McNeal, a certain other deed or bill of sale, whereby, for an ostensible consideration of $ 8750, she did convey unto the said H. McN., all the stock in trade and furniture of her, the said Anne W., of all sorts and descriptions, as will appear by a certified copy of said bill of sale, &c.; that the said H. McN., at the time of the conveyance to him as aforesaid,  [**2]  was a young man, deriving from his trade, as an iron worker, but a moderate and mere subsistence, and utterly without pecuniary means; and that the said H. could not, and did not, pay, and has not paid to the said A. W., the said sums of money, or either of them, or any part of either of them, as set forth as the consideration of the said deeds, but that the said deeds were, and each of them was made and executed by the said A. W., fraudulently, and with the intent and purpose to delay, hinder and defraud the creditors of the said A. W., of their just and lawful debts and actions, and to disturb, delay, hinder and defraud the said creditors, and to conceal, sell, convey, lessen and dispose of the property and rights of the said A. W., thereby to deceive and defraud her said creditors, and to secure her said property and rights, to receive and expect for herself, the said A. W., profits, benefits and advantages thereby; and your orator further charges, that notwithstanding the said conveyances, said H. McN. did permit the said A. W. to continue in the house aforesaid, and to occupy the same as a store, precisely as she had occupied it previously to the first conveyance aforesaid, without [**3]  the payment of any rent whatsoever; and your orator charges moreover, that the said Hugh did likewise permit the said Anne to retain possession of the goods, merchandise and furniture, by the bill aforesaid to him conveyed, and to use and dispose of the same at her pleasure, and to take, receive and enjoy the profits thereof, as if the said bill of sale had not been made, to the great injury and wrong of the creditors aforesaid, and in furtherance and consummation of the frauds, wherefore said deed and said bill of sale were executed, as has been alleged; that continuing indebted and insolvent as aforesaid, and deriving her maintenance chiefly from and through the frauds aforesaid, having, on or about the 20th December 1844, given her four promissory notes, (as by the instrument hereinafter referred to will appear,) with a certain Joseph D. Worley, as her security to Thomas Flint & Co., for a debt due to the said firm by her deceased husband, whose administratrix she was, for which debt she was in nowise personally liable, having in no way wasted the estate of her said husband; knowing moreover the said Anne, that she should, and was about to apply for the benefit of the insolvent [**4]  laws of Maryland, which she did but two days afterwards; she, the said A. W., on the 20th March 1845, for the purpose of further carrying out the frauds aforesaid, executed and delivered unto the said Worley, a deed of mortgage of all the remaining property of her, the said Anne, to wit: her interest in the estate of her deceased husband, Donald Watson, for the ostensible purpose of securing the said Worley against loss upon the promissory notes aforesaid, and two other notes, which are referred to in said mortgage, though the amount thereof is not therein stated; that the said Worley, at the time when he became surety upon the notes in said mortgage referred to, was in possession of the house and lot aforesaid, on Pratt street, fraudulently, as aforesaid, conveyed to Hugh McNeal, and it was agreed by and between the said parties, that he should be indemnified from the rents of said house and lot, against loss by his said suretyship; and your orator charges, that by means of said rents, said Worley has been so indemnified, and that some of said notes, or all of them, without loss of said Worley, have been paid, and that said Worley, therefore, has continued in possession of said house [**5]  and lot, and has received the rents, profits and advantage thereof. Now, therefore, your orator avers and charges, that the said mortgage was fraudulently made and executed by the said Anne Watson to said Worley, with intent and purpose to hinder and defraud the creditors of said Anne Watson, of their just and lawful debts and actions, and to disturb, hinder and defraud the said creditors, and to lessen, dispose of, and convey the property, right and claims of the said Anne Watson, thereby to deceive and defraud her said creditors, and to secure the said property, rights and claims, to receive and expect profit and advantage thereby, and with a view and under an expectation of being and becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference, and that the said mortgage, moreover, is defectively and insufficiently executed; that afterwards, about the 22nd of March 1845, two days only after the date of the deed of mortgage aforesaid, said Anne Watson petitioned for the benefit of the insolvent laws, and your orator was duly appointed her permanent trustee, and gave bond as such, according to law; wherefore your orator says, that the deeds aforesaid [**6]  are, and each of them is, utterly null and void, and that the property thereby pretended to be conveyed, of right belongs to your orator, for the benefit of the creditors of said A. W.; and your orator alleges, that the property, by said last mentioned mortgages, pretended to be conveyed, consists of the interest of said Anne Watson, as widow of Donald Watson, in certain leasehold premises on Marsh Market space, in the city of Baltimore, now, and, for some time past, rented to a certain Henry Fay and Albert Meteer, from whom your orator is entitled to receive the share of the rents and profits to which said Worley, by said mortgage, pretends to have claimed, but who continue to pay the same to said A. W., and not to your orator.

The bill then prayed for a discovery by H. McN. and J. D. W., an account of rents, profits and sales; deeds to be decreed void; subpoena, and for general relief.

With this bill were exhibited the several conveyances mentioned in it.

Afterwards the complainants filed their petition, charging, that the said Anne, and a certain John Schwenniski, with whom she hath, since said bill was filed, intermarried, having notice of said bill, and with intent [**7]  to interfere with the authority of this court, and to thwart your petitioner in the relief which he had prayed, did, on the 4th October 1845, cause to be issued, or did issue a warrant of distress, directed to, &c., commanding him to distrain the goods of, &c., for part of the said rents, which he accordingly did, and do now intend, and are about so to proceed against the goods and chattels of, &c., when the rent next to become due from him shall accrue, notwithstanding the pendency of the proceedings aforesaid, in contempt of this court and its jurisdiction, already accrued, and to the interruption of your petitioner, and the relief by him prayed. Prayer, that the said J. S. and wife, may be attached to answer to this court of the contempt aforesaid, and that your honors will cause to be issued the writ of injunction, to the said J. S. and Anne S. directed, enjoining and restraining them, and each of them, and their, and every of their servants, bailiffs or agents, and all other persons whatsoever from meddling with the rents of the share of said property, by your petitioner claimed in his said bill, and from interfering with the same in any manner whatsoever, &c.

Upon this petition,  [**8]  (ARCHER, C. J.,) on the 7th October 1845, ordered, that injunction issue as prayed, to operate during the pendency of the suit of the complainant, upon the petitioners executing a bond, with security, to be approved by one of the judges of this court, in the penal sum of, &c., conditioned to indemnify the defendants herein.

The defendants, H. McN. and J. D. W., answered the bill, but their answers are deemed unnecessary to be stated upon the appeal from the injunction, granted upon the petition of the complainants.

The answer of J. Schwenniski and wife, to the said petition, alleged, that by the bill of complaint of said John Glenn, referred to in his said petition, it is shewn, that this respondent, Anne, was, at the time of filing said bill of complaint, and these respondents aver that she still is, administratrix of all the goods, &c., which belonged to Donald Watson in his lifetime, and as such administratrix, these respondents charge, that she now has, and had at the time of filing the said bill and petition of John Glenn, a perfect legal right to sue for, demand, and receive the rents coming due on the property situated on Frederick street and Marsh Market space, as [**9]  described in the petition of said John Glenn, inasmuch as the said property was leasehold estate, held by said D. W. at the time of his death, all of which these respondents offer themselves ready to prove, if denied by said John Glenn. And these respondents further answer and say, that the said administration on the estate of said D. W., is not yet fully settled up, and that no distribution has ever been made between the children of said D. W. and this respondent, Anne, his widow, in respect to said leasehold property. That the said J. G. had not been duly appointed permanent trustee of A., who denied the frauds alleged against her, &c.

The cause, upon the suggestion of the defendants, was then removed to the court of chancery, where exceptions were taken to the answers.

It was then agreed, that the rents covered by the injunction, issued from leasehold estate belonging to Donald Watson, in his lifetime; and the proceedings of the insolvent commissioners of Anne Watson, for relief under the insolvent law, were filed in the cause. She made her application on the 22nd March 1845, and the complainant bonded as her permanent trustee on the 7th May 1845.

On the 21st January [**10]  1846, the chancellor, (BLAND,) ordered, "that as this court cannot revise, alter or reverse any judgment of the court, from which the case has been brought, that the order of the 7th October 1845, (which granted the injunction,) stand and remain in full force, according to its terms," from which order the defendants appealed to this court.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

W. died intestate, possessed of certain leasehold property, leaving a widow and children. The widow administered on his estate.--Engaging in trade she became indebted; mortgaged said property to an endorser on her own notes, which she paid away for her husband's debts, and immediately applied for relief under the insolvent laws. After this, she proceeded to collect the rents. Upon a bill filed by her permanent trustee, to vacate the mortgage and enjoin her from the collection of the rents, HELD: that as the estate of W. had not been distributed, as it appeared some of his debts were yet unpaid, the administratrix still held the property in that character, bound to rent it, and account for the rents as a part of W's estate.

The permanent trustee might cite the administratrix before the orphans court to settle the estate, and upon its distribution might claim the widow's interest.

Where a bill upon which an injunction had been granted, was removed from the county court to the court of chancery, and the chancellor refused to revise, alter, or reverse the order for the writ, on a motion to dissolve, because he could not interfere with the prior action of the other court, upon appeal, such order was reversed, and the injunction dissolved. 

COUNSEL:
By HORSEY for the appellants, and

By GLENN for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*28]  MAGRUDER, J. delivered the opinion of this court.
The injunction in this case was granted, to prevent John Schwenniski and his wife, from collecting rents due for a house and lot, which had been mortgaged by the latter to the appellant, Joseph D. Worley,. The mortgage is alleged to be fraudulent as against creditors, and the bill of complaint is filed by the appellee, who is the permanent trustee of the wife, she having applied for the benefit of the insolvent law. It appears, however, that in this property the former husband of the wife of the first named appellant had a leasehold interest; that he died intestate, and his widow administered [**11]  upon his estate.
It is nowhere alleged, and the administratrix expressly denies, that the estate has been distributed; and it would seem, that some of the debts due from the deceased are yet unpaid. The administratrix, then, still holds the property in that character, 

 [*29]  and in that character is bound to rent it, and collect the rents, and account for them, as a part of the estate of her husband.
It may be that the administration ought some time ago to have been closed, and the widow's interest in it ascertained. But this the bill, taken in connection with the answer, will not authorize this court to presume. Until this distribution is made, the court cannot say that the appellee, as permanent trustee, has any title to this portion of the intestate's estate; and it is in his power at any time to apply to the orphans court, for a distribution of it among the widow and her children; one of whom is made a party to the bill of complaint.
Order of chancellor, continuing the injunction, reversed, and the injunction dissolved.
ORDER REVERSED.  

20 of 23 DOCUMENTS 

PATRICK CROWLEY vs. SAMUEL M. BARRY AND JOHN HURST.--PATRICK CROWLEY vs. JAMES A. SANGSTON AND GEO. E. SANGSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 194; 1846 Md. LEXIS 26 

December, 1846, Decided 

PRIOR HISTORY:
 [**1]   APPEALS from Prince George's county court.

These were actions of assumpsit, brought by the appellees against the appellants, argued together in this court.

In the first cause, No. 10, the claim arose on the following note and protest:

"$ 309.30.     WASHINGTON CITY, 16th March 1842.

Nine months after date, we promise to pay P. Crowley, or order, three hundred and nine dollars and thirty cents, for value received.     WALL & SASSCER."

Endorsed, "P. Crowley, Barry & Hurst."

"DISTRICT OF COLUMBIA, Washington county, sct. Be it known, that on the 19th December 1842, I, Thomas Corcoran, notary public for the county aforesaid, residing in said county, duly commissioned and sworn, at the request of the president and directors of the Bank of the Metropolis, presented to Mr. Wall, one of the drawers, the original note, whereof the above is a true copy, and demanded of him payment of the sum of money in the said note specified, whereunto he answered, 'Mr. Crowley has to pay it.' On the same day, I deposited in the post office, Washington, notice of protest to P. Crowley, Upper Marlborough, Md., and to each of the other endorsers, enclosed to R. Mickle, Esq.  [**2]  , cash'r, Balto., Md. Wherefore I, the said notary, at the request aforesaid, do hereby protest against the drawers and endorsers of the bill aforesaid, and all persons liable for, or chargeable with, the sum of money in the said bill specified, for as well the same sum of money, as for all legal interest, damages, costs and charges, which have accrued, or which may accrue, by reason of the non-payment of said sum of money, according to the tenor of the said bill. Thus done and protested on the 19th day of December 1842. In testimony whereof, I have hereto set my hand, and affixed (Seal.) my notarial seal of office.

THOS. CORCORAN, Notary Public."

"Cost of protest, $ 1.75."

1ST EXCEPTION. At the trial of this cause, the plaintiffs, in support of the issues joined on their part, offered to prove by William B. Sasscer, that the note on which this suit is brought, was made by the firm of Wall & Sasscer, the witness, and one Sam'l T. Wall, being the members of said firm; and that the said note was endorsed by the defendant. But the defendant objected to the testimony of said witness, on the ground that he was one of the makers of the said note, and incompetent as a witness [**3]  to charge the defendant. The court, (MAGRUDER, C. J.,) overruled this objection, and permitted the testimony of said witness to go to the jury. The defendant excepted.

2ND EXCEPTION. In addition to the testimony contained in the preceding exception, and which is, by agreement, made part of this, the plaintiffs, to prove that the said note had been duly presented for payment to the makers, and that notice of demand and non-payment was duly given to the defendant, offered in evidence the note and protest aforesaid.

And further proved by the said William B. Sasscer, that the defendant, in the spring or summer of the year 1842, requested him, if he had any business with him, the defendant, to address him by letter at Upper Marlborough, and his letters would be sent to him, when he could not call for them.

The defendant then proved, that at the time that the said note became due, he resided within a few miles of the Long Old Fields, where a post office was kept; and that Upper Marlborough was four miles further from the residence of the defendant, than the post office at the Long Old Fields.

The plaintiffs then proved by competent testimony, that Upper Marlborough, the [**4]  place to which the defendant directed that his letters on business from said Wm. B. Sasscer should be sent, is, and was, the county town at the time, where a post office is and was kept, and where the defendant had a brother-in-law living at the time, and by whom, as the defendant told the witness, his letters as aforesaid would be sent him, the defendant, when he did not call for them himself.

The defendant prayed the court to instruct the jury, that upon all the evidence offered, if believed by the jury, the plaintiffs were not entitled to recover: because the said protest, as offered in evidence, was not admissible or sufficient to prove demand for payment of the said note upon the makers thereof, and of non-payment, and of notice to the defendant of such demand and non-payment.

But the court, (MAGRUDER, C. J.,) refused the instruction. The defendant excepted.

3RD EXCEPTION. In addition to the evidence contained in the preceding exceptions, which, by agreement, is made part of this, the defendant proved, that the partnership of Wall & Sasscer was dissolved in March 1842; that public notice thereof was given in the National Intelligencer, a paper published in Washington,  [**5]  in the District of Columbia, and that the settlement of the partnership concerns devolved on the said William B. Sasscer, who continued to reside in the city of Washington, where the note was made, until after December, in the year 1842. The plaintiffs then proved, that they do now reside, and did reside, in the city of Baltimore, in Maryland, during the whole of the year 1842; and thereupon the defendant prayed the court to instruct the jury, that if they find from the evidence, that the partnership was dissolved at the time the said note became due, that public notice was given, as aforesaid, of said dissolution, that the settlement of the business of the firm devolved on the said William B. Sasscer, that he resided in Washington when the note became due, and that the demand was made on Wall alone, that the plaintiffs have failed to prove such a demand and notice to the endorser as entitle them to recover, and their verdict must be for the defendant. The court refused to give the instruction as prayed. The defendant excepted.

4TH EXCEPTION is omitted.

The action in the second appeal, No. 6, was founded upon the following note and protest:

"Dolls. 1204.85.

WASHINGTON [**6]  CITY, March 16th, 1842.

Eight months after date, we promise to pay P. Crowley, or order, twelve hundred and four dollars, eighty-five cents, value received.     WALL & SASSCER."

Endorsed, "P. Crowley, J. & G. E. Sangston & Co., Wm. Tiffany. Pay R. Smith, cash., or order.

R. MICKLE, Cash."

"DISTRICT OF COLUMBIA, Washington county, sct. Be it known, that on the 19th November 1842, I, Thomas Corcoran, notary public for the county aforesaid, residing in said county, duly commissioned and sworn, at the request of the president and directors of the Bank of the Metropolis, presented to Mr. Wall, one of the drawers, the original note, whereof the above is a true copy, and demanded of him payment of the sum of money in the said note specified, whereunto he answered, 'Mr. Crowley will pay it, we cannot.'

"On the same day I deposited in the post office notice of protest to P. Crowley, Upper Marlborough, Maryland, and to each of the other endorsers, enclosed to R. Mickle, Esq., cash., Baltimore, Maryland.

"Wherefore I, the said notary, at the request aforesaid, do hereby protest against the drawers and endorsers of the note, aforesaid, and all persons liable for,  [**7]  chargeable with, the sum of money in the said note specified, for as well the same sum of money, as for all legal interest, damages, costs, and charges, which have accrued, or which may accrue, by reason of the non-payment of said sum of money, according to the tenor of the said note. Thus done and protested on the 19th day of November 1842. In testimony whereof, I have hereto set my (Seal.) hand and affixed my notarial seal of office,

THOMAS CORCORAN, Notary Public."

"Cost of protest, $ 175."

5TH EXCEPTION. After the preceding testimony had gone to the jury, which by agreement is made part of this exception, the defendant offered in evidence to the court and jury, the following paper:

"WASHINGTON, July 22nd, 1842.

"We, the undersigned, do hereby sell and assign all the books, papers, debts, credits, and evidences of debts and credits of William B. Sasscer and Samuel T. Wall, by the name of Sasscer & Wall, and of William L. Dixon and William B. Sasscer, by the name of Sasscer & Dixon, to Patrick Crowley, in consideration of the sum of ten dollars, current money, said debts, credits, and evidences of debts and credits, amounting in gross to about the sum of [**8]  $ 7000; the price agreed upon is the sum of $ 4526, valuing the same at sixty-two cents in the dollar. The terms of payment are, ten dollars cash, the balance to be paid by the payment, when due, of certain notes of William B. Sasscer and Samuel T. Wall, by the name of Wall & Sasscer, to become due and payable at the times, in the amounts, and to the persons and firms following:--Jas. A. & Jas. E. Sangston, November 19th, 1842, $ 1204.85. William Henry, October 19th, 1842, $ 312.97. Same, December 19th, 1842, $ 312.77. Barry & Hurst, October 19th, 1842, $ 309.30. Edward Pittman & Co., August 18th, 1842, $ 698.75. Same, October 18th, 1842, $ 698.75. Same, December 18th, 1842, $ 698.75. Same, February 18th, 1843, $ 698.75. Jas. A. & J. E. Sangston, December 30th, 1842, $ 218.57. Amounting in all to $ 5153.75. Said Crowley hereby binds himself, in consideration of said sale, to pay said notes when due, to the holders thereof.--Said William B. Sasscer and Samuel T. Wall, and William L. Dixon, have received,--which is hereby acknowledged,--the said sum of ten dollars.

SAM'L T. WALL.

WILLIAM B. SASSCER.

WILLIAM L. DIXON.

P. CROWLEY."

Which he proved by the said Sasscer,  [**9]  was executed by the parties whose names are thereto signed, with the knowledge and consent of the plaintiffs in this cause; and also proved by the records of Prince George's county court, that the said plaintiffs have already obtained a judgment against the said Sasscer, upon the very note on which this suit is brought.

The defendant's counsel had informed the court and the plaintiffs' counsel, in the commencement of said Sasscer's examination, that other objections than the one presented by the first exception would be made to his competency, on the ground of interest, in the course of the trial, when the defendant came to offer his proof, and the court said, that it would be competent for him to do so. And thereupon the defendant insisted, that the said Sasscer was incompetent as a witness in this cause, for the plaintiff, because he was interested in procuring a judgment against the defendant in this cause; as he was liable to the plaintiffs on the judgment against him; and if he were made to pay the same, he would be entitled to an assignment of the judgment against the defendant, obtained in this cause. And prayed the court to exclude from the jury, all the testimony of the [**10]  said Sasscer. But the court, (MAGRUDER, C. J.,) were of opinion that he was a competent witness, notwithstanding the execution of said paper, and refused to exclude his testimony. To which opinion of the court, and the refusal of the court to exclude the testimony of said Sasscer, the defendant excepted.

6TH EXCEPTION. Upon all the testimony in the preceding exceptions, which, by agreement, is made part of this, the defendants insisted, that the plaintiffs could not recover under the pleadings in this cause, because of a variance between the declaration and the proof, in this, that the declaration does not state the note to have been made at Washington city, to wit, at the county aforesaid, and does not aver, that the presentment and demand of payment of the maker, was made in Washington city, to wit, at the county aforesaid. And also, in this, that the presentment and demand is alleged to have been made of Wall & Sasscer, whereas no demand is proved to have been made of said Sasscer, but of Wall alone, after the said partnership was dissolved; and prayed the court to instruct the jury accordingly; but the court, (MAGRUDER, C. J.,) overruled the objections, as to variance between [**11]  the pleadings and proof, and refused to give the instruction as prayed. To which opinion of the court, and their refusal of the instruction, as prayed, the defendant excepted.

The defendant appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

In an action by an endorsee against the payee and endorser of a negotiable note, the maker is a competent witness to prove the execution of the note by himself and partners, as makers, and the endorsement by the defendant.

By the act of 1837, ch. 253, the legislature designed, as to the mode of proof of demand, and notice, to place foreign and inland bills upon the same footing; and, as regarded inland bills and notes, to dispense with the necessity of producing oral proof of demand and notice, by substituting therefor the protest of the notary, duly made.

In the case of foreign bills, the protest of a notary, duly authenticated by his seal, is received as proof of demand and notice, as therein stated.

When a protest, or an authenticated copy thereof, is offered in evidence, it must be received on the footing of the lex fori, and the only enquiry is, whether the protest has been duly made?

When a protest states, in substance, a demand on the drawer, and notice of non-payment, it is sufficient in point of form.

When the court can perceive that a seal is attached thereto, the protest is sufficiently authenticated; neither the seal, nor the signature of the notary, need be proved.

Where it was in proof, that the defendant had directed his letters to be sent to M, where he had an agent who would deliver letters, there arriving, to him; and it was also in proof, that the defendant received letters at a post office four miles nearer his residence than M, he cannot set up, the want of due diligence, in sending his notices of protest to him at M.

The protest of a promissory note of W & S, dated, payable, and protested at the city of Washington, which certified, that the notary demanded payment of it from W, one of its makers, and was answered, C has to pay it, we cannot, and that on the same day he deposited in the post office notice of protest to C, (the endorser,) at M, states a sufficient demand and notice to bind C.

W, S, D & C, agreed to sell to C all the books, debts, credits, &c., of the firm of S & W, and of the firm of D & S, estimating the same at $ 4526, for ten dollars in cash, and certain outstanding, enumerated notes of the two firms, amounting to $ 5153.75, and C bound himself to pay said notes when due. In an action upon one of said notes of S & W, against C, the endorser, by the holder thereof, he proved, that he had already obtained judgment against S. HELD, that this agreement did not render S an incompetent witness in the cause, for the plaintiff. If the witness was compelled to pay the note, he could recover upon the agreement against C, and by paying the judgment against him, he would not be entitled to an assignment of it, as he was not a security for C.

The declaration alleged, that a note on which the suit was brought, was made at the county aforesaid, when the note in fact was dated at the city of W; this is no variance.

The place where a note is dated, is clearly immaterial. 

COUNSEL:
By DIGGES and TUCK, for the appellant, and

By C. C. MAGRUDER and J. JOHNSON for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*201]  ARCHER, C. J., delivered the opinion of this court.
This, (No. 10, the first appeal,) is a suit by the endorsee of a note against the endorser and payee, and the question arising on the first bill of exceptions is, whether the maker of the note is a competent witness for the plaintiff, to prove the execution of the note by himself and partner, as makers, and the endorsement by the defendant? The witness was answerable, in any possible event of the suit, for the amount of the note, and could therefore have no interest in its event. He may, indeed, be considered as testifying against his interest, for if the plaintiff should recover, he would be answerable to the defendant for the costs of this suit. It has accordingly been often adjudged,  [**12]  that in the like circumstances the maker of a note is a competent witness. 1 Greenl. Ev., 430, note 2, and authorities there cited.
The only question raised in the second exception is, whether the protest offered, was evidence to prove demand and notice?
By the act of 1837, ch. 253, relating to promissory notes and bills of exchange, a protest by a notary public, duly made, shall be prima facie evidence, in the case of inland and foreign bills, of non-payment or non-acceptance, and of presentment for payment and acceptance, at the time and in the manner stated in the protest; and the act further declares, that when such protest shall state, that notice of such non-payment or non-acceptance has been sent or delivered to the party or parties to such note or bill, and the manner of such notice, such protest shall be prima facie evidence, that such notice has been sent or delivered in the manner therein stated. The design of this act of the legislature, as to the mode of proof, of demand and notice, was to place foreign and inland bills upon the same footing, and as regarded inland bills and notes, to dispense with the necessity of adducing oral proof of demand and notice, [**13]  by substituting therefor the protest of the notary, duly made. And as in the case of foreign bills, the protest of a notary, duly authenticated by his seal, was, before the act, received as proof of these facts, we should not be carrying out the intention of the law makers, unless we also received the certificate of the notary, authenticated by his seal, as proof of the demand and 

 [*202]  notice stated therein. The act, in its terms, is too imperative to admit of any doubt. When the protest, or an authenticated copy thereof, is offered in evidence, it must be received on the footing of the lex fori, 2 Hill 230; and the only enquiry, therefore, would seem to be, whether the protest has been duly made? This enquiry involves two considerations, its form, and its mode of authentication. To its form, no available objections could be urged; in substance, it states a demand on the drawer, and notice of non-payment. As to its mode of authentication, it is sufficient that we can perceive a seal to be attached thereto. No proof is necessary, that the seal attached is the notary's seal, or that the handwriting signed thereto, is the proper signature of the notary. Much ingenious [**14]  reasoning has been urged before the court, to establish the invalidity of the protest, offered in evidence, upon the ground, that the seal of the notary does not contain the inscriptions pointed out by the act of 1801, ch. 86, sec. 7. Without determining whether this would be important or necessary, had the protest been made by an officer of this State, it is only necessary to say, that the protest was made beyond the limits of the State, by a notary, in no manner bound to provide a seal of the peculiar designation, which might be required for our own officers. In 2 Hill 227, the certificate of the notary was rejected, because it had, according to the common law, no seal attached to it, and because there was no proof of the law of the State where the protest was made, that it was sufficiently authenticated. But we could not reject this protest upon the ground urged, without, at the same time, subjecting all protests, wheresoever made, of even foreign bills, to the same rule.
But it is further urged, that the protest is inadmissible and insufficient to prove demand and notice, upon the ground that notice was not sent to the defendant at his nearest post office. The notice [**15]  was sent to Upper Marlborough, to which office it is in proof, that the defendant had directed the witness to send him letters; at which place, it is proven, he had an agent, who would deliver letters there arriving to him. It is also proven, that he received several letters at a post office four miles nearer his residence. The defendant had, therefore, from the 

 [*203]  proof, two post offices, to either of which it would have been sufficient to have sent the notice of protest; he could not say that due diligence had not been used, when letters were sent to the post office where the defendant had directed letters from his copartner to be sent, and from which direction, it is reasonable to presume, he would, having an agent in the town, more readily and speedily receive them, than if sent to the post office nearest to him.
The third exception raises the question, whether a demand ought to have been made on both the drawers of the note, who were partners, and who had dissolved their partnership, and given notice of such dissolution in a paper printed in the city of Washington? It might be sufficient to say, that this dissolution had, by no evidence in the cause, been brought [**16]  home to the knowledge of the holder of the note. But we do not desire to determine the question on this ground, because we are clearly of opinion, that a demand on one of the partners was sufficient, as each partner represents the partnership. Before a dissolution, it clearly would not be necessary to make a demand on both; Story Prom. No., 285, nor could it be necessary after a dissolution, as the partnership, as to all antecedent transactions, continues until they are closed.
The above views dispose of all the questions presented for our consideration in the appeal No. 10, and in No. 6, the second appeal; except the questions arising on the fifth and sixth exceptions in No. 6.
We cannot perceive that the introduction of the agreement, between Sasscer, Wall, Dixon and Crowley, into the case, (by which the latter undertook to pay certain liabilities of Sasscer and Wall, among the rest the note in controversy,) should exclude Sasscer from being a witness. If Sasscer was compelled to pay amount of the note, his remedy against Crowley, the defendant, would be by an action on the agreement, just adverted to. By paying the judgment, the witness would not [**17]  be entitled to an assignment of the judgment, as his relation to the plaintiff in such judgment was that of a principal, and not a security for Crowley.

 [*204]  The only variance alleged in the sixth exception, to which we need advert, is, that the nar alleges the note upon which the suit was brought, to have been "made at the county aforesaid," when the note shows, that it bore date at the city of Washington; and it is insisted, that the declaration should have averred, that the note "was made at the city of Washington, to wit, at the county aforesaid." In Robert vs. Harnage, 2 Ld. Raym. 1043, a bond dated at Fort St. Davids, in the East Indies, was declared upon as a bond made at London. It was decided, that there was a variance. The same decision was made in Mostyn vs. Fabrigas, Cowp. 176. These decisions appear to have been followed in New York and Massachusetts. 13 Johns. 449. 5 Pick. 412. There have, however, been contradictory decisions. In Houriet, et al., vs. Morris, 3 Camp. 303, it was decided, that the contract evidenced by a promissory note is transitory, and the place where [**18]  it purports to be made is immaterial, and it was held to be no variance; and the same doctrine is laid down in 1 Stephen's N. P., 773, 774. But that when the place of payment was stated in the body of the note, it made a material part of the instrument. Roche vs. Campb., 3 Camp. N.P. 248. Chitty, in his forms of pleading, adopts the doctrine of Lord Ellenborough, and his forms conform to those decisions. 2 Chitty's Plead., 115, 116, 117, 118; 9 Am. Ed. In Chitty on Bills, 582, 9th American edition, the decision in 3rd Camp. is referred to; and it is there said, that inland bills, although they bear date at a particular place, may be alleged to have been made anywhere in England or Wales. Bailey on Bills, 380, is cited by Chitty for this position. In bills drawn and payable in countries where the currency differs from our own, there is much reason for maintaining, that it was necessary to aver the place where the bill was drawn; accordingly, it has been decided, that where a bill was drawn in Dublin in Ireland, for Irish currency, and the declaration stated, that the bill was drawn at Dublin, to wit, at  [**19]  Westminster, &c., without alleging that Dublin was in Ireland, nor stating the bill to be for Irish currency, there was a variance, inasmuch as the bill must be taken to be drawn for English currency. 2 Barr. and Ald., 

 [*205]  301. But Mr. Chitty intimates, that a different decision might be made since the act assimilating the currency between Great Britain and Ireland. 1 Chit. Plead., 581.
In this conflict of authority, we feel ourselves justified in adopting as a rule, that authority which occurs to us as the most reasonable. In 13 Johns. 450, although the court say, they might feel themselves bound by the cases, yet they intimate that their opinions were against the position, that such an allegation was a variance. The place where a note is dated is clearly immaterial; and if it be conceded, that in inland bills, no matter where dated, the allegation may be made, that such bill was made in any county where the suit is brought, it is difficult to perceive a reason, why in a foreign bill the same principle should not prevail, unless in consequence of the difference of currency between the currency of the country where the bill [**20]  is drawn, and where it is sued upon, should render the true statement of the date necessary, to avoid a variance.
We are of opinion, there is no variance, and believe the court below were right in their decision on the sixth bill of exceptions.
The result of the above views is, that the decision of the court, in both appeals, should be affirmed.
JUDGMENT AFFIRMED.  

21 of 23 DOCUMENTS 

GEORGE MCCULLOUGH vs. THE ANNAPOLIS AND ELKRIDGE RAILROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 58; 1846 Md. LEXIS 14 

June, 1846, Decided 

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

On the 21st April 1846, the appellant filed his petition, alleging, that heretofore, on or about the 14th February 1846, the Annapolis and Elkridge Railroad Company, by their resolution duly passed, authorized and directed the president of the said company to issue to Passmore McCullough, or to his order, or to his assignees, if it should appear that any assignment had been made prior to the said resolution, certain bonds which the said company were authorized to issue under an act of the General Assembly of 1841, ch. 168, to the amount of $ 4227.96, after deducting from said amount whatever interest might be due on the several claims of Robert Welch, of Ben., for which bonds were, on the said day, directed to be issued to the said Welch, provided that before the said bonds should be issued to the said McCullough, he should file with the president of the said company a written obligation, to be approved by the counsel of the said company, discharging the said company of any indebtedness to him on any account whatever. That the said Passmore McCullough had, previously to the passing of the said resolutions, assigned to your petitioner of [**2]  his claim upon the said company to the extent of $ 3116.39; and afterwards, that is to say in the month of March in the said year, the said Passmore McCullough presented to the said president, and offered to file with him his release to the company, duly approved by Thomas S. Alexander, Esq., counsel of the said company, wherein he discharged and exonerated the said company from all claims which he had against them, which was duly executed under his seal, and thereby authorized and required the said president to issue to your petitioner bonds directed to be issued under said resolution, to the extent of the sum of $ 3116.39, all which will more fully appear by a reference to the said release, herewith filed and marked exhibit A. That on the day on which the said Passmore offered to file with the said president his said release, your petitioner, by his counsel, demanded the issue of the said bonds, according to the said resolution, which the said president positively and peremptorily declined and refused to do, alleging, that the said resolution was not properly passed, because he, as president, had not been permitted to vote at the meeting of the president and directors of the said [**3]  company, at which the said resolution was passed; whereas your petitioner avers, that the majority of the said directors had determined that the said president had no right to vote in the said matter, under an existing by-law of the said company, which prevented his so doing, and that whether he had or had not voted, and the reason of his not voting could not and did not in anywise concern your petitioner, or affect his right to the said bonds as aforesaid, directed by the said resolution to be issued as aforesaid. That at the time of the passing of the said resolution, and ever since, up to the present time, James Iglehart, of the city of Annapolis, was and still is, president of the said company, and that as such, the said James Iglehart has refused, as aforesaid, to issue the said bonds above demanded by your petitioner, as aforesaid, and that by means of his said refusal to issue the said bonds, your petitioner has suffered great injustice and is without remedy, except by the interposition of your honors by the State's writ of Mandamus. And he therefore humbly prays, that the State's writ of Mandamus, may be issued by your honors, to be directed to the said James Iglehart, president [**4]  of the Annapolis and Elkridge Railroad Company, commanding him, without any further delay and all excuses set apart, to issue to your petitioner and in his favor, bonds to the extent of $ 3116.39, as authorized and directed by the said resolution; and the said George McCullough further shews, that it was the duty of the said James Iglehart, as president of the said company, to issue and put the corporate seal of the company to the said bonds, and in proof thereof and of the passage of the said resolution, herewith files as part of his petition, exhibits B and C.

This petition was verified by the oath of the petitioner.

Exhibit A.--Whereas by a resolution of the board of directors of the Annapolis and Elkridge Railroad Company, passed on the 14th day of February 1846, the president is directed to issue bonds to Passmore McCullough, or to his order, or to his assignees, authorized under the act of 1841, ch. 168, to the amount of $ 4427.96; and it is further provided, that before the said bonds shall be issued as aforesaid, the said McCullough shall file with the president of the company a written obligation, to be approved by the counsel of the company, discharging the company [**5]  of any indebtedness to him on any account whatever; and whereas the said president is about to issue bonds, as aforesaid, to James Murray, of the city of Annapolis, to the amount of $ 519.79, and to George McCullough to the amount of $ 3116.39, amounting in the aggregate to the aforesaid sum of $ 4427.96, after deducting from said last amount the sum of $ 282.78, for interest due on the claims of Robert Welch, of Ben. Now this obligation witnesseth, that the said Passmore McCullough, in consideration of the delivery of the said bonds to the said James Murray, William Schley and George McCullough, and concurrently with the execution of these presents, doth hereby release, acquit, exonerate and discharge the Annapolis and Elkridge Railroad Company from all claims and demands whatsoever, which the said Passmore McCullough hath or ever had, or might have at any time, against the said Annapolis and Elkridge Railroad Company, founded on or arising out of any dealings or transactions which has ever been had between the said company and the said McCullough. In witness whereof, the said Passmore McCullough hath hereunto set his hand and affixed his seal, on this 24th day of February, in the [**6]  year 1846.

PASSMORE MCCULLOUGH, (Seal.)

Signed, sealed and delivered in the presence of H. McCullough.

Upon which said exhibit was thus endorsed, to wit:

"The resolution within recited, refers to nothing more than the form of the release to be given by Mr. McCullough, for my approval; I think the within is in form right.

Feb'y 24th 1846.     TH. S. ALEXANDER."

Exhibit B.--At a meeting of the president and directors of the Annapolis and Elkridge Railroad Company, held on Saturday, the 14th February 1846. Present, James Iglehart, Esq., president, Nicholas Brewer, George Wells, George McNeir, William Bryan, James H. Iglehart, Joseph H. Nicholson, Dennis Claude, William T. Wootton, Stevens Gambrill, directors.

Among other, were the following proceedings, to wit:

The board proceeded to the consideration of the report of the committee upon the memorial of Passmore McCullough, asking the issue of bonds under an award of arbitrators, when Col. Wootton submitted the following resolution:

Resolved, That the president of this company issue bonds to Passmore McCullough, or to his order, or to his assigns, (if it shall appear that any assignment of [**7]  his claim against this company, has been made previous to the passage of this resolution,) authorized under the act of 1842, ch. --, to the amount of $ 4427.96, after deducting from said amount whatever interest may be due on the several claims of R. Welch, of Ben., for which bonds were this day directed to be issued; provided, that before said bonds shall be issued as aforesaid, the said McCullough shall file with the president of this company, a written obligation, to be approved by the counsel of the company, discharging the company of any indebtedness to him on any account whatever, which was read, when Judge Brewer offered the following as an amendment, to commence after the word assigned: "or to such person as the attorney shall determine to be entitled to receive said bonds."

The president here insisted upon his right to vote, and that he should, if permitted, vote for the amendment, but a majority of the directors refused to permit his vote to be taken, and the question was then taken by yeas and nays, as follows:

Affirmative.--Messrs. Brewer, Wells, James H. Iglehart, Claude, 4. Negative.--Messrs. McNeir, Bryan, Nicholson, Wootton, Gambrill, 5. Determined in the [**8]  negative, the vote of the president not being counted, and the amendment rejected.

The question then recurred upon the original resolution--the president again insisted upon his right to vote, and declared that if permitted, should vote against the resolution--but his vote being again rejected by a majority of the directors, and the yeas and nays being taken, appear as follows:

Affirmative.--Messrs. McNeir, Bryan, Nicholson, Wootton, Gambrill, 5. Negative.--Messrs. Brewer, Wells, James H. Iglehart, Claude, 4. Determined in the affirmative, the vote of the president being excluded, and the resolution adopted.

True extract from record of proceedings.

N. H. GREEN, Sect'y.

Exhibit C.--Extract from the by-laws of the Annapolis and Elkridge Railroad Company.

It shall be the duty of the president to exercise a vigilant supervision over all the operations of the company, he shall conduct the general correspondence of the company, shall attend to the titles of its real estate, and do all the business of attorney of the company, shall sign all certificates of stock when issued, shall carry into effect all such orders as the board shall direct, shall preside at the [**9]  meetings of the board, and give the casting vote where there is a tie, shall submit for the consideration of the board such subjects as in his opinion will promote the interest of the company, shall cause minutes of the proceedings of the board to be carefully kept and plainly recorded, in case of the absence of the president, his place may be supplied by a president pro tem., by such director as he under his hand shall appoint, and in future to make such appointment by the board.

Five directors and the president shall be necessary on all occasions to constitute a quorum for business, and a majority of the votes present shall be necessary to decide any question affirmatively, questions may be decided by yeas and nays when required by any member, a motion to adjourn shall be always in order, and a motion to postpone shall take precedence of all others, except that to adjourn.

True extracts from record of proceedings.

N. H. GREEN, Sect'y.

Memorandum. The last paragraph of the foregoing petition, commencing with the words "and the said George McCullough," was inserted as an amendment to the same, on the motion of the said George McCullough, by his attorneys aforesaid,  [**10]  and by leave of the court here first had and obtained, on the day of the hearing of the said petition, being the 25th day of the said month; and at the same time, the exhibits B and C, therein set forth, were filed as part of said amendment.

The county court dismissed the petition, with costs, and the petitioner prosecuted this appeal.

By the act of 1841, chap. 168, it was enacted, that the A. & E. R. Co., be authorized to issue their bonds to an amount not exceeding $ 80,000, in the names of the creditors of the company, as payees, for their respective claims against the company, to be ascertained by the president and directors thereof, with the exception of the claims thereinafter referred to, irredeemable, except at the pleasure of the company or of the State, until after the expiration of thirty years: and the faith of the company was pledged for the ultimate payment. The bonds to be received by creditors, in full satisfaction of the claims of creditors against the company.

By the 2nd sec., the interest on those bonds was payable exclusively out of the net profits of the company, and the profits which the State may derive from the use of the railroad in connection [**11]  with the Washington branch of the B. & O. Railroad, to the extent of seven-fifteenth parts.

The 5th sec. declared, that the claims preferred by Passmore McCullough, &c., against the A. & E. Co., should be submitted to the arbitrament of J. C. Le Grand, whose award shall be final; and if the arbitrator shall award any thing to be due, the amount thereof shall be certified to A. & E. Co., who shall thereupon execute and deliver to him a bond for the amount so awarded, and payable, principal and interest, as aforesaid, and in no other way; and secured, &c.

By the act of 1843, chap. 188, the claims of P. McC., were submitted to the arbitrament of J. W. and J. G., with power to call in an umpire, the award of any two to be conclusive: the arbitrators were to proceed de novo, disregarding the award made under the act of 1841, chap. 168, charging him with any sum, &c., P. McC. had received under that award.

The 3rd sec. enacted, that "the company be, and they are hereby authorized and directed, to issue their bonds authorized by the above mentioned act, (1841, 168,) to such an additional amount as may be requisite and sufficient to pay the amount which may be found due, under [**12]  the provisions of this act, to the said P. McC., which he is to receive at par, in satisfaction for any sum found due him."

By the act to incorporate the Annapolis and Elkridge Railroad Company, (1836, chap. 298,) it is enacted, that "the election and continuing the succession of the president and directors; the mode of voting and filling vacancies;"--the powers of the president and directors, with the mode of their qualification, shall be the same as is described in the 3rd, 4th, 6th, 7th, 8th, 9th, 10th, 12th and 13th sections of the act to incorporate the Baltimore and Ohio Railroad Company."

It also enacted, that "on a subscription being made on behalf of the State, the governor and council shall have power to appoint annually one director."

And by the 5th sec., that "the president and directors of the company shall be invested with all the rights and powers necessary to the construction and repair of a railroad from the city of Annapolis to, &c., with as many sets of tracks as the said president and directors, or a majority of them, may think necessary."

The 6th sec. of act of 1826, chap. 123, authorized the stockholders of the B. & O. Railroad Co. to elect,  [**13]  by ballot, twelve directors, and these twelve directors, or a majority of them, shall have power of electing a president of the company, either from amongst the directors or others.

The 12th sec. enacted, "that the said president and directors, or a majority of them, may appoint all such officers, &c., and to determine by their by-laws the manner of adjusting and settling all accounts." 

DISPOSITION:
AFFIRMED.  

HEADNOTES:

By the act of 1841, chap. 168, the Annapolis & Elkridge Railroad Co. were authorized to issue bonds, to an amount not exceeding, &c., in the names of the creditors of that company, as payees. A special fund was designated in the act for the payment of interest, the principal being irredeemable for thirty years. Another section of the act referred the claims of P. to the arbitrament of L., and any amount so found due him, should be paid in like manner as the claims of other creditors, "and not otherwise." HELD: that the creditors for whom provision is made, as aforesaid, were to be creditors of the company at that time; and the fund thereby created, is for the payment of those claims, and none others. All the, then, creditors have an interest in it; and of which they could not be deprived by the board of directors of the company, without their consent.

To entitle P. to an interest in this fund, he must submit his claim to the award of L., which is conclusive, and so of his assigns. The proof of such submission is upon him, and the directors of the company could not authorize their president to issue a bond to the assignee of P., payable out of the fund created by that act, unless P's claim had been first ascertained by L.

And where the legislature, by a subsequent act, (1843, chap. 188,) submitted the claim of P. to other arbitrators, to proceed de novo, disregarding the act of 1841, and directed the company to issue the bonds mentioned in the first act, to such additional amount as would be sufficient to pay the second award. It was further held, that the creditors of the company, or such of them as had agreed to the law of 1841, and their claims ascertained by the company, have an interest in the fund, and without their consent, no part of it could be applied to the payment of any debt for which the act of 1841 did not provide.

Until creditors to whom bonds were issued under the act of 1841, are satisfied, the fund provided by that act belongs to them, and cannot be taken from them.

Under the charter of the Annapolis and Elkridge Railroad Company, (1836, chap. 298,) many of the provisions of which are borrowed from that of the Baltimore & Ohio Railroad Company, the directors thereof cannot, by resolution or by-law, deny either to the president of the company or the directors appointed by the State, the same right to vote upon the various questions to be decided by the president and directors, as those who are elected by the stockholders possess.

The president of that company, therefore, cannot by resolution have his right to vote restrained to the mere right of giving a casting vote in case of a tie.  

COUNSEL:
By MCLEAN and W. SCHLEY for the appellant, and

By T. S. ALEXANDER for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*65]  MAGRUDER, J., delivered the opinion of this court.
The appellant applied by petition to the judges of Anne Arundel county court for a writ of Mandamus, to be directed to James Iglehart, as president of the Annapolis and Elkridge Railroad Company, requiring him to execute a bond to the petitioner. This application seems to have been grounded upon a resolution of the board of directors, directing the president of the company to issue bonds to Passmore McCullough, or to his order, or to his assignees, if it should appear that any 

 [*66]  assignment of [**14]  his claim against this company had been made previous to the passage of this resolution, authorized under the act of 1842, chap.    , to the amount of $ 4427.96, after deducting from said amount whatever interest may be due on the several claims of R. Welch, of Benj., for which bonds are, this day, directed to be issued, with a proviso, that before the bonds are issued, he shall file with the president a written obligation, discharging the company from any indebtedness to him on any account whatsoever.
How much is due to Passmore McCullough, after making these deductions, does not appear in the record. But the petition of the appellant states, that of this sum the said Passmore had assigned to the petitioner $ 3116.39, previously to the passage of the resolution.
He applied to the president, and offered to file with him the release required. Thereupon the petitioner, by his counsel, demanded the issue of said bonds, according to the resolution, which he, (the president,) peremptorily refused to do. He insists that he is entitled to the bonds, and prays that a Mandamus may be issued, requiring him to execute them.
No such act as that alluded to in the resolution [**15]  is to be found, but in the release which Passmore McCullough executed, and which accompanies his petition, reference is made to the act of 1841, chap. 168; and certainly there is nothing in that act of Assembly which authorizes those proceedings. By a reference to that law it will be found, that the amount of the claim of this individual, if he had any against the company, was to be ascertained by John C. Le Grand, Esq., and that neither the board of directors, nor the president and board of directors, had any authority to issue bonds to him for any amount, not authorized by that gentleman; unless this sum was awarded by Mr. Le Grand, the president of the board could not be bound, in obedience to the resolution, to issue the bonds, as the board of directors was not authorized to issue them, until the amount was certified to them by the arbitrator.
All claims against the company then existing, with the exception of those of McCullough and another, are to be ascertained by the president and directors of the company, 

 [*67]  but with the adjustment of the claims of those individuals, the company is not charged.
It is obvious, that the creditors for whom provision [**16]  is made by the act of Assembly, were to be creditors of the company at that time, and the fund thereby created, is a fund for the payment of those claims, and none others. It is a fund in which all the, then, creditors may have an interest, and of which they could not be deprived by the board of directors, without their consent. The assignor of the petitioner is a person who may have a claim against the company. To entitle him to any interest in this fund, he must consent to submit his claim to Mr. Le Grand, and that his award shall be final and conclusive: (see the Act of Assembly.) To this mode of having his claim finally adjusted, he was not bound to consent; but unless he does consent to it, the act of 1841 makes no provision, whatever, for the payment of any claim which he may have against this company. It does not appear in the record that he did consent to such arbitrament. Mr. Le Grand may or may not have awarded, in the premises, No resolution of the board of directors can authorize the president, or any other officer, to issue a bond, (payable out of that fund,) which is not authorized by the law which creates the fund; we certainly cannot infer from that resolution,  [**17]  (even if it was legally passed,) that the sum mentioned in it was the sum, or any part of the sum, ascertained by Mr. Le Grand to be due to this person. The language of the resolution would lead to a different conclusion, and besides this, the act of 1841 does not authorize a bond or certificate of debt to be issued to any other than the creditor himself.
We have also been referred to the act of 1843, chap. 180. But the creditors of the company, or such of them as agreed to the law of 1841, and have had the amount of their claims ascertained by the president and directors, have an interest in this fund, and without their consent no part of it must be applied to the payment of any debt for which the act of 1841 does not provide. Now, the claim of McCullough, as ascertained by the persons named in the act of 1843, is not one of the claims for which the act of 1841 provides. If the board of 

 [*68]  directors can apply any portion of these funds to procure from McCullough a release of all his claims, it might next attempt to pay debts since contracted, out of the same fund. Until the creditors, to whom bonds were issued in virtue of the act of 1841, are satisfied, these [**18]  funds belong to them, and cannot be taken from them. But it nowhere appears that the resolution is grounded upon any award, given in virtue of the act of 1843.
But it is said, that the president of the company, (Mr. Iglehart,) when the application was made to him for the bonds, assigned no reason for refusing to issue them, save this, that he was not allowed by the board to vote on the occasion; and the appellant has furnished us with a copy of the proceedings of the board, whereby it appears, that the directors excluded the president from voting, and thereby obtained a majority in favor of the resolution. These doings, it is insisted, are authorized by the charter of this company, and we are referred to a clause in the charter of the Baltimore & Ohio Railroad Company, (made a part of this charter,) which says, that the stockholders shall elect a certain number of directors, "to manage the affairs of said company." To be sure, if this was the only section at which we are to look, in order to decide whether others have not a right to vote with the directors appointed by the stockholders, we might conclude, that the president of the board was not allowed a vote; but for the [**19]  same reason we should be obliged to deprive of their votes the directors, which, by another clause, are to be appointed by the State. When, however, we examine the different clauses which define the duties of the president and directors, what duties the president and directors, (they, "or a majority of them,") are to perform, we feel justified in concluding, that the president and the directors appointed by the State, have the same right to vote upon the various questions which are to be decided by the president and directors, as those who are elected by the stockholders.
If then the resolution was such an one as might be passed, the president had a right to vote, and being deprived of his vote, he was not bound to issue the bonds.
ORDER OF THE COURT BELOW AFFIRMED.  

22 of 23 DOCUMENTS 

JAMES MCCALL, ET AL., vs. HINKLEY AND WOODWARD, GARNISHEES OF CAREY, ET AL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 128; 1846 Md. LEXIS 21 

December, 1846, Decided 

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

On the 22nd March 1841, the appellants sued out an attachment upon a judgment of that court, rendered in their favor, against Carey, Wethered, and O'Donnell.

The attachment was laid in the hands of the garnishees, who appeared and pleaded nulla bona, on which plea issue was joined.

EXCEPTION. At the trial of the cause the plaintiffs to support the issue on their part, offered in evidence the judgment rendered in this court on the 30th September 1840, as contained in the writ, and proved that the attachment in this case was issued on the 21st March 1841, and laid in the hands of Edward Hinkley, one of the garnishees in this case, on the 1st April 1841, and in the hands of William Woodward, the other of said garnishees, on the 7th of the same month; and that said garnishees had in their hands funds collected by them, as trustees, under and by virtue of a certain deed of trust, executed to them by the said Carey, Wethered & Co., and delivered to, and accepted by said trustees, on or about the day of its date, which deed is as follows:--

"This indenture, made this 24th September 1840, between George Carey, George Y. Wethered, and [**2]  John H. O'Donnell, now, or late partners, trading under the firm of Carey, Wethered and Company, all of the city and county of Baltimore, of the first part, and W. W. and E. H., of the same place, of the second part, witnesseth, that the said parties of the first part, partners as aforesaid, for and in consideration of the sum of ten dollars, lawful money of the United States, to them in hand paid by the said parties of the second part, at or before the sealing and delivering of these presents, the receipt whereof is hereby acknowledged; and also for divers good causes, and other valuable considerations, them thereunto moving, have granted, bargained, &c., and do hereby grant, bargain, &c., unto the said parties of the second part, as joint tenants, all and singular, the real and personal estate, goods, &c.; of debts, claims and sums of money, due, payable or owing to the said C., W. & Co., and the late firm of C. & W., or to said firms, or either of them, in any wise coming, and all bonds, notes, vouchers, evidences and writings, touching and concerning the same; and all the right, title, interest, claim, demand, power and control whatsoever, of said parties of the first part, and [**3]  each and every of them, of, in, unto, and out of, and over the same, to have and to hold, receive and take the same, and every part thereof, unto the said parties hereto of the second part; and the survivor of them, and the heirs, executors, administrators and assigns of such survivor; to execute the powers and trusts hereby intended to be reposed in them, the said parties of the first part have constituted and appointed, and by these presents do constitute and appoint the said parties of the second part, and the survivor of them, and the legal representatives of such survivor, to be the true and lawful attorneys, irrevocable of the said parties of the first part, and in their names, or in the name or names of any of them, or otherwise, as the case may require; but to the uses and purposes hereinafter declared, to collect, and by all lawful ways and means whatever, recover, receive, and get into the hands, custody and power of the said parties of the second part, all and singular, the estate, property, debts and claims, hereby conveyed and assigned, and every part thereof; and upon recovery and receipt thereof, good and sufficient acquittances and discharges therefor, in whole or in [**4]  part, as the case may be, to give execute and deliver, and to compound for and settle, by arbitration or otherwise, all debts and claims so hereby assigned, or any part thereof, in such manner as the said trustees or trustee, and attorneys or attorney, shall think proper; and for all and every the purposes aforesaid, one or more attorney or attorneys under them, the said trustees to substitute and appoint, and such appointment at pleasure to revoke, and reasonable compensation to such substitute or substitutes, to allow, and generally to do, perform and transact, all and whatsoever may be requisite in the premises, as fully and effectually as the said parties of the first part, or any of them, could or might do personally, if these presents had never been made; the said parties of the first part, and each of them, hereby agreeing, and binding themselves and himself, to ratify and confirm whatsoever the said parties of the second part, or the survivor of them, or the legal representatives of such survivor, shall or may lawfully do, or cause to be done, in the matters aforesaid, by virtue hereof, in trust and confidence nevertheless, and to, for, and upon the uses and trusts, and to [**5]  the ends, intents and purposes, and under and subject to the powers, provisos, limitations, declarations and agreements, hereinafter mentioned, expressed and declared, of and concerning the said estate and property, and other the premises hereby granted and assigned; that is to say, in trust, that the said trustee shall and will, as soon as conveniently may be, dispose of the said estate and property hereby conveyed, by sale of the same, (which sale the said trustees or trustee, are, and is hereby authorized and empowered, to make, whenever, and in such manner as they or he shall think best and proper,) and collect the debts and claims hereby assigned and transferred, wherever the same may be; and upon the further trust, that the said trustees, or the survivor of them, or the legal representatives of the survivor, shall and will pay, apply and dispose of all the moneys that may be received or come to the hands of them, or either of them, or the legal representatives of the survivor of them, in manner following, that is to say: in the first place, may deduct therefrom the expenses attending the execution of this trust, including five per cent. commission to the trustees, and counsel [**6]  and attorney's fees; in the second place, shall thereout pay and satisfy a certain judgment obtained in the city of New York, in the State of New York, by Bankard and Hutton, of said city, against said George Carey, for a debt due by said Carey, Wethered and Company, to said B. & H., on and for which the said Carey was, in July or August last, arrested by said plaintiffs in New York, aforesaid; on which arrest John Coster, of Brooklyn, State of New York, became bail for said Carey; and in case the said bail Coster has paid, or shall be compelled to pay and satisfy such judgment, then to pay and satisfy, and indemnify the said Coster therefor, in lieu of paying said plaintiffs as aforesaid; in the third place, shall pay and satisfy all the small debts of said C., W. & Co., of or under the sum of one hundred dollars, and after such deduction shall, in the next place, pay and appropriate the whole of the residue of such money, or so much thereof as may be necessary, to and amongst such of the creditors of the said C., W. & Co., as shall within ninety days from the date of this deed, signify their assent to the terms of this deed, and execute and deliver to the said parties of the first [**7]  part, a full and final release and discharge, of and from all claims or demands, to the time of executing these presents, in manner following, that is to say, shall out of such residue, first, pay twenty-five per centum of the principal money of the debts due or owing to such creditor, so releasing as aforesaid, for goods and merchandise purchased by said C., W. & Co.; and after such payment of twenty-five per cent., shall then pay to such creditor, so releasing as aforesaid, all borrowed money, accommodation notes, accommodation endorsements, and other confidential engagements of said C., W. & Co., to such creditors, so releasing as aforesaid, in full of principal and interest; and then out of the balance remaining, to pay in full, for principal and interest, the balances due and owing to such creditors, so releasing as aforesaid, for goods and merchandise purchased by said C., W. & Co., if the fund be sufficient therefor; but rateably and proportionally in the order aforesaid, if the fund be not sufficient to discharge the whole; and after the full satisfaction and discharge of all the foregoing claims, and all interest thereon, out of the residue, if any, shall pay all other creditors [**8]  of said C., W. & Co., in full, or in equal proportions, if the said residue be not sufficient to pay such other creditors in full; and in the last place, shall pay over the balance or surplus, if any, to the said parties of the first part, or their respective legal representatives, provided, that neither the said trustees, nor their representatives, shall in any manner be answerable for the acts of the other, but for his individual acts only; nor be accountable for any loss or diminution of said trust estate, except so far as the same may come to their hands respectively, or be lost by their or his wilful neglect. In testimony whereof, the said George Carey, George Y. Wethered, and John H. O'Donnell, have hereunto respectively set their hands and affixed their seals, on the day and year first herein written.

GEO. CAREY,   (Seal.)

GEO. Y. WETHERED, (Seal.)

J. H. O'DONNELL,  (Seal.)"

This deed was regularly acknowledged and recorded in Baltimore county court.

The garnishees further to support the issue on their part, and to sustain said deed of trust as a bona fide and valid conveyance, gave in evidence by George Carey, a competent witness, that prior to [**9]  the execution of said deed of trust, there were two or three meetings of creditors of said C., W. & Co., held in the city of Baltimore, the first of which was held in the month of May, and the others in the summer, probably in July 1840. At the first meeting C., W. & Co., made a proposition to pay, first, all borrowed money, and then, the residue to all other creditors; the plaintiffs never attended any of these meetings, or assented to said deed of trust. To this proposition some creditors objected; and at the second meeting another proposition was made, that had been suggested by some of the creditors, in the interval between the first and second meeting. This second proposition was in accordance with the terms expressed in the said deed of trust, and many of the creditors, at the second meeting, assented to the form of the deed, and signified that they would sign the release as therein required; and most of all the creditors did execute such release, within the period of ninety days after the execution of said deed of trust; and the garnishees then read in evidence the release so executed. "To all to whom these presents shall come: we," &c.

The garnishees further gave in evidence [**10]  by said witness, Carey, that immediately after the execution of said deed of trust, the said trustees took possession of the books, notes, bills and accounts of the said C., W. & Co. That the said firm owed, altogether, about one hundred and ten thousand dollars: forty or fifty thousand of which amount had been secured before the said deed of trust was executed. The claims of creditors who did not execute the release, including the plaintiffs, (who refused within the ninety days to execute it,) amount to about ten thousand dollars. The trustees in said deed were appointed at the suggestion of William E. Mayhew and Robert A. Taylor, who were creditors, at a meeting of the creditors, which was numerously attended by creditors of both classes, business and confidential. That the said firm had no goods or merchandise when the said deed was executed. It had bills receivable and debts due on open account, chiefly from persons resident in the western country, including Virginia and Tennessee. That the said firm stopped payment in February 1840; that it never transacted any business after the execution of said deed of trust; neither of the partners had any individual property at the date of [**11]  said deed of trust. That the said C., W. & O'D., all applied for the benefit of the insolvent laws of Maryland, Carey on the 12th January 1841, Wethered on the 7th August in the same year, and O'Donnell on 13th July 1841, and each of them obtained a final discharge upon such application. That no permanent trustee has been appointed upon such application.

The plaintiffs prayed the opinion and direction of the court to the jury, that the plaintiffs are entitled to recover in this attachment, notwithstanding the said deed of trust and releases given in pursuance thereof; and that said deed of trust is void in law, in that it gives an undue preference to one class of creditors, and requires all creditors who may partake of its benefits, to execute a general release to the debtor, Carey, Wethered & Co., or for other reasons; which opinion and direction the county court, (PURVIANCE, A. J.,) refused to give, and declared that the said deed of trust was valid. The plaintiffs excepted.

The plaintiffs prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A deed from the several partners of a firm in failing circumstances, for a nominal consideration, conveyed all their effects to trustees in trust:

1st. To take possession of and recover such estate; give acquittances, and compound and arbitrate all debts-assigned; appoint agents and substitutes, and sell the estate recovered.

2nd. To pay and discharge the expenses of the trust.

3rd. To pay and satisfy a certain judgment mentioned in the deed against one of the partners, for a debt due by the firm in New York.

4th. To pay and satisfy all the small debts of the firm, under the sum of one hundred dollars.

5th. To pay the whole of the residue of the estate recovered, or so much thereof as might be necessary, to and amongst such of the creditors of the firm as should, within ninety days of the date of the deed, signify their assent to the terms thereof, and execute and deliver to the grantors a full and final release and discharge of and from all claims, in manner following, to wit: 25 per cent. on account of merchandize purchased; then 25 per cent. on account of borrowed money and accommodation paper, and other confidential engagements of the firm; then the balance, principal and interest, of the releasing creditor's claims.

6th. If the funds prove more than sufficient for the above objects, the residue to be paid to the grantors.

Upon the prayer that the said deed is void in law, in that it gives an undue preference to one class of creditors, and requires all creditors who may partake of its benefits, to execute a general release to the grantor's debtors. The county court declared the deed to be valid; upon appeal, affirmed by a divided court.  

COUNSEL:
By MEREDITH for the appellants, and

By HINCKLEY for the appellees.  

JUDGES:
The cause was argued before DORSEY, CHAMBERS, MAGRUDER and [**12]  MARTIN, J. MARTIN, J., CHAMBERS, J., concurring.  

OPINIONBY:
DORSEY; MAGRUDER 

OPINION:

 [*135]  DORSEY, J., delivered his opinion, as follows:
The only question designed to be decided by this opinion, is that which arises on the deed of the 24th of September 1840, from Carey, Wethered and O'Donnell, to Edward Hinkley and William Woodward, whereby the grantors, being unable to pay their debts, and in failing circumstances, (in other words insolvent debtors,) conveyed all their property to the grantees, in trust, to sell and dispose of the same, and to apply the proceeds thereof, after deducting the expenses incident to the trust, to the full satisfaction and payment of the claims of certain enumerated creditors of the grantors; and, "in the next place, to pay and appropriate the whole of the residue of such money, or so much thereof as may be necessary, to and amongst such of the creditors of the said Carey, Wethered and Company, as shall, within ninety days from the date of this deed, signify their assent to the terms thereof, and execute and deliver to the said parties of the first part, (that is, the grantors,) a full and final release, and discharge, of and from all [**13]  claims and demands, to the time of executing these presents, &c., and after the full satisfaction and discharge of all the foregoing claims, and all interest thereon, out of the residue, if any, shall pay all other creditors of said Carey, Wethered and Company."
Whether an assignment, made by a debtor in insolvent circumstances, of all his property, for the benefit of all his creditors, with a proviso, that each creditor assenting to receive a dividend under such conveyance, shall, within some specified reasonable time, release the debtor from his claim against him, is fraudulent and void, under the 13 of Eliz., chap. 5, is a question on which, in the examination of the case before us, it is not intended to express any opinion. Believing that, even if the validity of such an assignment were conceded, such a concession would fall far short of removing the fraudulent imputations cast upon the assignment under our consideration.
Before proceeding to an examination of the authorities referred to, as bearing upon this subject, let us see how the case 

 [*136]  would stand upon the broad principles of morality, law, and justice, apart from all adjudications, or expressions of [**14]  opinion by courts of justice, or eminent jurists. And, first, what are the obligations imposed on the debtor, and what the rights conferred on the creditor, by the character in which they respectively stand to each other? Upon principles of morality, law and justice, debtors are bound to apply their present property, and their future earnings and acquirements, to the payment of their just debts; and creditors, upon the clearest principles of natural justice, and of law, (irrespective of our insolvent system,) have a right to pursue such property, earnings, and acquirements, until their claims be fully satisfied and paid. Of this inherent right of the creditor, unless relinquished by his consent, the debtor has no right to deprive him. All unjust and indirect means, used by a debtor, to extort from his creditor a surrender of such, his rights; all physical or moral coercion, resorted to by the debtor, to effect such a purpose, are fraudulent, as well at common law, as under the statute of Eliz., against creditors, who, withholding their assent to such proceedings, are injured thereby. What is the nature? what was the design of the assignment before us? The answer is so unequivocally [**15]  apparent upon its face, as to leave not a moment's doubt upon the subject in the mind of him who reads it. Its object was, by a species of moral duress, by indirect means, by a violation of the principles of natural justice and right, to place a portion of the creditors in a condition, whereby they were to be compelled to relinquish all claim to any part of the present property of their debtor, or to surrender all right to seek payment out of his future earnings and acquirements. The injustice and impropriety of such an effort, on the part of the debtor, must shock the moral sense of every man, and its fraudulent design and effects, in legal contemplation, upon the rights of those creditors who refuse to accede to its terms, cannot, by argument or illustration, be made more obvious.
It was admitted, in the discussion of this case, (and such is the principle established by a current of authorities,) that, if the assignment contain but a part of the property of the debtor; or if, before the full payment of the entire claims of the creditors, 

 [*137]  any part of the property assigned be reserved to the debtor, such an assignment is fraudulent and void. Void against whom? Not against [**16]  the creditors, who, knowing its provisions, have assented thereto, and released their claims. But void as against dissenting creditors. But why fraudulent and void as to them? Is the injustice visited upon them? Is the detriment to which they are subjected?--is the fraudulent hindrance and delay in the recovery of their claims, greater? Nay, are they not much less under such assignments, than they are under that, now for our consideration? Sanction the validity of the present assignment, and it is a fact conceded in this cause, and is practically true, as to almost every assignment containing a provision similar to that which forms the subject matter of the present controversy, that the dissenting creditors are utterly excluded from all participation in any part of the debtor's property owned at the time of the assignment. But what is the fraudulent injury sustained by a dissenting creditor in the aforementioned cases, in which the assignments are adjudged and admitted to be fraudulent, as against him? Unquestionably less than in the case now before us. He, in those cases, is left in the full enjoyment of his right to recover his claim out of the unassigned portion of his debtor's [**17]  property, or out of that part of the property assigned, which was reserved to the debtor. And, yet, in Massachusetts, and, it is believed, everywhere else, where such assignments have been submitted to the cognizance of judicial tribunals, in reference to the statute of Elizabeth, they have been held fraudulent and void, as against dissenting creditors.
Assuming, then, as against dissentient creditors, the invalidity of the assignments, by reason of the requisition of releases from creditors, in those cases where but a part of the debtor's property is conveyed for the benefit of creditors, upon what possible ground can it be contended, that, as concerns dissenting creditors, assignments of the whole of the debtor's property, with such stipulations for releases, are not fraudulent and void? Is the nature of the transaction changed? Is it purified by the fact, that, in the latter case, the noncurring creditor is deprived of the whole of his debtor's property? whereas, in the former 

 [*138]  case, he is only deprived of a part. Yet, to this result, you must necessarily arrive to draw a distinction between the two cases, favorably to the latter. If the extent of the wrong and [**18]  injury sustained by the suffering party, could in anywise affect the nature and character of the transaction, it is surely much greater in such latter than in the former case. And it should be borne in mind, that, in most, if not all of the cases in which has been adjudged the invalidity of assignments of part of the debtor's property, with stipulations for releases by creditors receiving dividends under such deeds, all the property conveyed was not given to the assenting creditors, but their just dividends only. In those cases, therefore, there did not exist that strongest of all the indicia of legal fraud in such cases, and which exists in this case, to wit, a provision to operate, by way of fraudulent moral compulsion on the creditors, by which they are notified by their debtor, in language too plain to be misunderstood, that, willing or not willing, they must surrender rights secured to them by contract, law, and justice, or be excluded from all participation in the property owned by the debtor at the time of the assignment. To sustain the deed now under consideration, is to declare that such conduct of the debtor is free from all illegality or fraud towards dissenting creditors.  [**19]  
If the assenting creditors were the parties seeking to vacate an assignment, transferring only a portion of the debtor's property, because it did not embrace the whole of it; such application would not be unsupported, by, at least, some show of reason and justice. But that a dissenting creditor should successfully assert, in a court of justice, the invalidity of an assignment, depriving him of only part of his debtor's property; and that he is entitled to no relief, where he is, by a like conveyance, deprived of all claim to any portion of his debtor's property, is certainly an anomaly in judicial proceedings; and rests upon reasons or principles, far beyond the ken of ordinary human intellects, nor can the distinction be satisfactorily accounted for upon any legitimate system of reasoning, which announces the validity, as against dissenting creditors, of an assignment of all a debtor's present property, with a stipulation for releases by creditors; and the invalidity of an assignment of 

 [*139]  part of a debtor's property, with a stipulation for like releases. In contemplation of law, the fraudulent character of each instrument is the same: they differ only in the extent of the [**20]  injury attempted to be inflicted by the fraudulent act of assignment.
Why is it that the assignments referred to, of a part of a debtor's property, or of the whole, with a reservation of a part, or some interest therein, to the debtors, with a stipulation for releases by creditors before their claims are fully paid, are held fraudulent and void as against dissenting creditors? It is because the creditor is required to release his entire debt, for but a dividend thereof; whilst the debtor is to be left in the full enjoyment of a portion of that, which, by the tenor of his contract, and the law of the land, ought to be applied to the payment of his debts. What is it, that was attempted to be effected by the assignment before us? Nothing more nor less than, by a partial payment, to obtain a full release; and to leave the debtor to the enjoyment of his future earnings and acquirements, which, by the terms of his contract, and the law of the land, he was as much bound to apply to the payment of his debts, as he was the "reserved interest or portion" of his, then, property. The assignment before us further contains this pregnant and conclusive evidence of a legally fraudulent intention,  [**21]  the announcement made to his creditors, by the execution of the assignment, that unless they assented to the terms thereof, they should be forever debarred from all interest in the property conveyed. The legal intendment of a fraudulent design, in each of the three cases, manifestly appears upon the face of the assignments:--It is to coerce the creditors to surrender their rights, upon the terms of injustice the debtor has seen fit to prescribe. Unless immorality be morality and wrong and right be convertible terms, human ingenuity can make no discrimination in the legal character of the three transactions: and certainly not favorably to the last of the three cases. As well might it be contended, that, because in grand and petty larceny, the gain by the offenders, and the loss by the offended, is greater in the one case than in the other, they are not both larcenies. That in legal contemplation, they are entirely different: the one being right, and the other wrong.

 [*140]  In some of the United States, it has been determined, that if a debtor in failing circumstances, make an assignment of all his property, for the benefit of all his creditors, with a proviso, that each creditor [**22]  on receiving his dividend shall release all claims against the debtor, such an assignment is fraudulent and void, as regards a dissenting creditor. And yet, how much less cause to complain has such a creditor, than the present appellants. There the dividend, designed to be applicable to the claim of a creditor, who is debarred from receiving it by reason of his rejection of the terms proffered by the assignment, by way of resulting trust, becomes the property of the debtor; and as such, may by law be made available to the payment of such creditor's claim, so that in effect he might receive, in common with all other creditors, his just proportion of the effects of his debtor.
As a circumstance shewing that nothing fraudulent was intended, we are referred to that part of the deed which provides, that after the full satisfaction and discharge of the claims of the creditors previously provided for, the residue, if any, shall be applied to the payment of the claims of all other creditors. This provision, regarding it in reference to all past experience, in relation to such conveyances, is rather a mockery, than a bona fide offer of any substantial benefit to dissenting creditors. The [**23]  history of such conveyances, almost, if not altogether, without an exception, as might well be supposed, proves, that before the expiration of the limited period, creditors enough will be found assenting to the terms of the conveyance, to exhaust all the property assigned. And that such was the result in this case, was admitted by the appellee. And that such was the anticipation of the debtors, in executing this assignment, is manifest from the stringent provision it contains, in respect to the releases of creditors.
The provision of this assignment, as concerns releases by creditors, has been attempted to be justified as being nothing more than the giving of preferences to particular creditors, which, by the acknowledged principles of law, every debtor has a right to give. This provision cannot be supported on that ground. A debtor may, by a transfer of property, prefer 

 [*141]  one creditor, or class of creditors, to another: but it must be done bona fide, for the purpose of conferring a benefit on the creditor; not of securing a benefit to the debtor. The privileges cannot be exerted, as in this case, as a device contrived for the purpose of obtaining a benefit to the debtor,  [**24]  by imposing on his creditors, what, in law, cannot be otherwise regarded, than as a fraudulent moral coercion, practised upon them, to induce an unwilling surrender to him of their just rights.
To sanction such a deed as this, would be to annihilate the just and salutary principles of the insolvent laws, in almost every instance, in respect to all insolvents who are possessed of property to any considerable extent. Every such debtor will dictate his own terms to his creditors, and make for himself his own insolvent law. Let it be once announced that courts of justice will sustain such conveyances, and thenceforth there will be no dissenting creditors. All your numerous acts of legislation, designed to prevent and vacate undue preferences and to secure the equal distribution of the estates of insolvents, amongst all their creditors, will be virtually repealed. There will be no dissentient creditor, who, driving the debtor to petition for an insolvent's discharge, will, through his trustee, seek to vacate such a conveyance. But suppose a creditor, indignant at the insult and injustice with which he had been treated, should refuse to accede to the terms of the assignment, and having [**25]  driven the debtor to seek the benefit of the insolvent laws, should call on the trustee to proceed in a court of law or equity, to vacate such a conveyance: what imaginable benefit could he anticipate from such a proceeding? The trustee receiving nothing from the insolvent's estate, the creditor must secure, or advance to him, all the expenses of the litigation. And what must be the, almost, inevitable result of such a controversy?--Why, the debtor will appear in court, and swear, as well he might, that he expected all his creditors would have come in under the assignment; and that, at the time of executing the same, he had no intent or expectation of being or becoming an insolvent petitioner. The necessary consequence of which would be, that the trustee is dismissed from court, and the dissenting creditor must pay all the expenses of the fruitless litigation.

 [*142]  By giving validity to such deeds as that now before us, an unjust and odious discrimination, in the inverse ratio of their merits, is created between two classes of insolvent debtors. The one having property, and withholding it from their creditors as long as the law's delays will allow: the other honestly appropriating [**26]  their means and earnings to the payment of their just debts, are ultimately driven to the necessity of becoming insolvent petitioners, with little or nothing to surrender for the benefit of their creditors. The former class are virtually permitted, severally, to pass insolvent laws for themselves; to prescribe the terms of their own discharges, and to exempt from the pursuit of their creditors their subsequent acquirements, by gift, devise, descent, or in the course of distribution. Whilst the latter, and more meritorious class, can only obtain their discharges under the general insolvent laws of the State, and must leave, subject to the claims of their creditors, whatever they may subsequently acquire by way of gift, devise, descent, or in the course of distribution.
But it is urged, that conveyances like the present have been so long used, and have been of such frequent occurrence in this State, without objection, that to shake their validity would be productive of most mischievous consequences. Without stopping to enquire, whether such assignments are not much less numerous?--their results much less serious in reality, than in imagination?--whether the statute of repose, as it [**27]  is called, be not an adequate remedy for most of the apprehended mischiefs?--whether the frequent occurrence, (if it be so,) of such assignments, without objection, results not rather from the fact that all the creditors assented thereto, than from any acquiescence, by dissenting creditors, in the validity thereof?--can any precedents be found, where courts of justice, for such a reason, have sanctioned proceedings which have been concocted in fraud, and are in direct violation of the statute law of the land? It is believed not. Due respect and indulgence have been shewn to popular errors, in the adoption of the trite maxim, that "communis error facit jus." But that axiom has never been applied to a case like the present, and he would be a bold jurist, and the advocate of a new code of morality, who 

 [*143]  would assert, that "communis fraus et violatio legis faciunt jus." And to that length must the maxim be extended, to support the conveyance, the validity of which is based upon it. That a model of such an assignment as that now before us, could have been substituted for the old and common form of a deed of composition, is strange indeed. And it can only be accounted [**28]  for, by supposing it to be, the cunningly devised invention of him, who, in stretching his ingenuity to rescue the debtor from the power and rights of the creditor, lost sight of the principles both of law and morality. Common usage or custom may explain or change the nature of a contract; or the liabilities or rights of the parties thereto. But no such custom is of any validity; it being in its origin and character, unjust and unreasonable, and in contravention of the statutory enactment on the subject.
Having thus far endeavored to shew what ought to be the decision of this case, upon the general principles of reason, law, and justice, applicable to its determination, let us next enquire how far the results, which have been thence obtained, are controlled by the authorities upon the subject. And first let us examine the adjudications in England, relied on in the argument for the appellee, as decisions of the question before us. But two of them have any bearing upon it. The first is that of Pickstock vs. Lysters, 3 Maule & Selw. 371, where a debtor being in insolvent circumstances, to prevent one creditor from laying an execution upon it, conveyed all his property [**29]  by a general assignment, to trustees, for the benefit of all his creditors, without giving any preference to any one of them; or imposing any condition, by which any creditor was to be excluded from an equal participation with other creditors, under the deed. In that case Lord Ellenborough says: "the act arises out of a discharge of the moral duties attached to his character of debtor, to make the fund available for the whole body of creditors. *** I see no fraud; the deed was for the fair purpose of distribution." And Bayley, Justice, in delivering his opinion, says: "and this creditor is not excluded by the deed; but will stand, to all intents and purposes, in the same situation with all the rest of the creditors." La Blanc, Justice, says: 

 [*144]  "this was not a deed, by which the party stipulated for a benefit to himself; but all the property of the party is fairly to be distributed amongst his creditors." The design and operation of the assignment in Pickstock vs. Lyster, being wholly dissimilar, the judgment of the court upon it, can give no sanction to the conveyance before us; but, according to the reasoning of the judges, is a clear authority against [**30]  it.
The remaining case is that of The King vs. Watson and another, 1 Exch. 265, where, upon demurrer, the question did properly arise, whether an assignment of all the property of Wheeler, an insolvent debtor, in trust for the benefit of all his creditors, with a proviso, "that in consideration of such assignment they should take the same, and the moneys to arise therefrom, in full satisfaction and discharge of their several and respective debts, then due and owing to them, and release the said Wheeler therefrom," was fraudulent? In favor of the demurrer, that is, of the validity of such an assignment, Pickstock vs. Lyster was the only case referred to by the counsel: in which case it appears, that the assignment was general, for the benefit of all the creditors; and without any stipulation or provision therein, for the release of the debtor from the claims of all creditors receiving their distributive portions of the trust funds. By such an assignment as that, no fraud or injustice was done to any of the creditors, they being required to surrender no right, and the debtor reserving nothing to himself; no benefit not conferred on him by the most extended [**31]  construction of his legal liabilities. The counsel opposed to the demurrer, and asserting the invalidity of the deed, in The King vs. Watson and another, does, it is true, say, that the assignment was fraudulent under the statute of 13 Eliz., "from the fact of there being inserted in the assignment, a condition, to be imposed on all, who should entitle themselves to benefit under it, by signing it, that they should release the debtor from the rest of their demands, in consideration of such dividend as they should receive." That, therefore, if the deed was not ipso facto, void, it was voidable by him as delaying the recovery of his debt; and also operating to compel him to accede to a composition, which the bankrupt 

 [*145]  laws could not force him to submit to;" and, "that the nonassent of some of the creditors to a deed of assignment, renders it fraudulent and void, was decided in Eckardt vs. Wilson, 8 Term. R. 148." As to which, Baron Graham observed, "in that case there was an actual commission of bankrupt taken out." After such a mere statement of points, (for argument it can scarcely be called,) the opinion of the court is thus laconically [**32]  delivered: "There is certainly no fraud in this case, affecting the assignment which has been made for the equal benefit of all the creditors, Braddock, as well as the rest. Nor is any such inference to be drawn from the facts averred in the replication. It would have been a different thing if there had been a commission of bankrupt sued out, and the property had been divested. This is a very common arrangement, which it would be injurious to disturb, where there has been no commission." It is not a matter of surprise, that Justice Sutherland should regard the case of The King vs. Watson and another, as a very bald one, and entitled to very little weight as authority.
By this case, of The King vs. Watson and another, it is asserted by the counsel for the appellee, that the validity of such an assignment as that now before this court, has, in England, been conclusively established. If this assertion were well founded, it would certainly have its weight in the determination of the case before us. But, for this assertion, there is no sufficient foundation. In the assignment in the case of The King vs. Watson and another, there was wanting that provision which [**33]  unequivocally impresses the stamp of fraud on the assignment in the case before us, viz., that the whole property of the debtor should be divided amongst such only of the creditors as should release their demands against him. In the case referred to, the property assigned was for the benefit of all the creditors, each of whom was required, to entitle him to his dividend, to give a release in full to his debtor. But the amount of dividend to be received by any creditor who acceded to the terms of the assignment, was identically the same, whether he alone, or all of the creditors, consented to conform to the conditions of the assignment. Upon no contingency could any creditor 

 [*146]  receive more than his just proportion, upon an equal distribution of the property of the debtor amongst all his creditors. The dividends of those creditors, who rejected the terms proffered by the assignment, upon the principles of a resulting trust, became the property of the debtor, and as such could be pursued by the rejecting creditors. All that was there decided was, that the hindrance and delay to creditors, produced by the assignment, did not avoid it; and that it was not vitiated by the requisition,  [**34]  that the creditors participating in the benefits which it conferred, should release their claims. It left open to a dissenting creditor the means of recovering, from the effects of his debtor, the same pro rata amount which was received by the assenting creditor. It violated not, therefore, in that respect the rule of equity and justice, equality amongst creditors in the distribution of the estate of the debtor. But above all, it imposed no unjust moral compulsion on the creditor to surrender rights, with which he was unwilling to part. In that case the residue, in the hands of the trustees, was not, as here, to be divided between those who should release their claims, but between all the creditors, each creditor receiving his dividend to release the debtor.
Believing the question now before us never to have been decided in England, how does it stand affected by American decisions, is our next inquiry? Three of the cases relied on by the appellee, relate to the construction of a statute of the State of Pennsylvania, (which, as regards the present question, differs not from the 13 of Eliz., chap. 5,) and to transactions originating there, and subject to the lex  [**35]   loci contractus. And the first to which we are referred, is that of Pearpoint and Lord, vs. Graham, 4 Wash. C. C. 232. There the same question was presented for adjudication with that now before us. But the grounds upon which, in that case, the court's opinion is based, on the question as to the validity of the assignment, by reason of its benefits being exclusively confined to such creditors as should, within sixty days from its date, release their demands against the assigning debtors, are any thing but satisfactory. The learned judge, after stating that such a deed would be void, if no time, or an unreasonable time were 

 [*147]  prescribed for the execution of the releases, thus proceeds: "but where a reasonable time is limited, within which the trust property is to vest in those, in whom the beneficial interest is intended, or will be relieved from the operation of the assignment, I can perceive no reason for imputing fraud to such a transaction. It is true, that during that period the property is, or may be protected from the claims of creditors: but is so protected for the benefit of those very creditors, and consequently, for an honest purpose. It cannot,  [**36]  in short, be said to be made with intention to defraud or delay creditors, when its professed object is, to put it in the power of the creditors to accept or to reject the benefit intended them; and in the latter case to leave the property subject to their rights, in like manner as it would have been, had the assignment not been made."
Such a view of the question presented to the consideration of the court, is neither sound nor practical; and makes the solution of the question depend on the mere delay to the creditors: which deserved not to be regarded as an ingredient in the fraud, imputable to the assignment. It was not to be complained of, as fraudulent, because creditors were delayed or hindered for the space of sixty days, in the prosecution of their claims, but because, by an ingeniously devised proviso in the assignment, the debtor has practically placed all the property he owned in a situation, in which he, in truth, says to his creditors, unless you release to me, that to which in justice and according to the obligation of my contracts, and the laws of the land, you are entitled, such of you as refuse to do so, shall receive no part of the property that I owned, and which [**37]  ought to have been applied to the payment of your debts. That such would be the intention of the debtor in executing such an assignment; that such must be its effect and operation, no man, who reflects upon the subject, or is at all acquainted with such transactions, can for one moment doubt. View it in any other light, and instead of the stringent coercion and fraudulent aspect which it has assumed, it will become a mere proffered deed of composition between the debtor and his creditors, and from the reasons which are assigned for his decision, in that light only was it regarded by the learned judge. He says, it cannot, in short, 

 [*148]  be said to be made with intention to defraud or delay creditors, when its professed object is to put it in the power of the creditors to accept or to reject the benefit intended them; and in the latter case, to leave the property subject to their rights, in like manner as it would have been had the assignment not been made." Had such been the object, and natural result and operation of the assignment, the soundness of the judge's reasoning could not have been controverted. But the manifest design and effect of the assignment is wholly misconceived [**38]  in such an interpretation of it. He appears to have looked at it as if it were the offer of a benefit to creditors, to be accepted by all or none of them. Nothing could be further from the true interpretation and clearly expressed intent of the assignment. The opinion of the judge, as manifestly appears by his reasoning, was given on the assignment, where all the creditors should have accepted or all should have rejected, its stipulated terms. In the first branch of this alternative, there could be no fraud perpetrated injuriously against the rights of any creditor, upon the principle of "volenti non fit injuria:" in effect the transaction would then become a composition between debtor and creditors, of the validity of which there cannot be a doubt. On the second branch of the alternative, all that was determined was, that it was no such hindrance or delay of creditors, as under the statute of 13 Eliz., chap. 5, would render it fraudulent and void. Whether such an assignment as that before the court, in Pierpoint and Lord, vs. Graham, where part of the creditors accepted and part of them rejected the terms prescribed, was, in that case, fraudulent and void, was a question [**39]  which the reasoning of the learned judge demonstrates, was not in his contemplation when delivering his opinion, and was not considered or determined by him. The case, therefore, cannot be regarded as an authority of any weight in the determination of the question now before us.
The next case is that of Lippincott vs. Barker, 2 Binn. 174, which presents the same question as that submitted for our decision; but the strong ingredient of fraud, the principle of coercion and exclusion, was never noticed by the counsel who argued the case. It is true, Chief Justice Tilghman does 

 [*149]  briefly mention the exclusion of creditors as an objection to the deed, but he refers more strongly to the requirement of the release by the debtor; and after an examination of the facts in the case, (amongst which was the assent of all the creditors, but two or three, before the execution of the assignment,) he thus concludes his opinion. "I beg, however, to be distinctly understood, that my opinion is confined to the circumstances of the present case, for there are many and strong objections to deeds of assignment, made without the privity of creditors, and excluding all who do [**40]  not execute releases." Justice Yeates delivers his opinion in the case, sustaining the deed without the expression of any such reservation as was made by the Chief Justice. But Justice Breckenridge gives his opinion, which is both able and eloquent, pronouncing the deed to be fraudulent and void. Looking to the dissenting opinion of Breckenridge, J., and the qualification attached to his opinion by C. J. Tilghman, it may well be questioned, whether the validity of such a deed as that now before us, has, by the two cases referred to, been definitively settled in the State of Pennsylvania.
The third case is that of Brashear vs. West and others, 7 Peters 608; and is said, by the counsel of the appellee, to be decisive of the present question. But the decision in that case is productive of no such result, nor are its facts such as they are regarded by the counsel for the appellee. The case was decided, not upon the ground that either upon reason or principle the decision below could be sustained, but that the assignment being made in Philadelphia, and its validity depending on a statute of Pennsylvania, the construction of which, the Supreme [**41]  Court supposed, had been settled in that State, by the case of Lippincott and Annesly vs. Barker, 2 Binn. 174, and therefore said, "but whatever may be the intrinsic weight of this objection, it seems not to have prevailed in Pennsylvania. The construction which the courts of that State have put upon a Pennsylvania statute of frauds, must be received in the courts of the United States." And immediately preceding this extracted passage from the opinion of the Supreme Court, Chief Justice Marshall, by whom it was delivered, says: 

 [*150]  "yet we are far from being satisfied that, upon general principles such a deed ought to be sustained." In Maryland, then, where, (as was said by both parties litigant here,) the question on the 13 of Eliz., now before us, has, for the first time, so arisen, as to render its decision indispensable, and which must, therefore, be decided as well upon general principles as authority: the case of Brashear vs. West and another, is rather to be regarded as of weight against the doctrines contended for by the appellees, than in their favor. And the same remarks applies with equal force, and for a like reason to [**42]  the case of Halsey et al., vs. Fairbanks, in 4 Mason C.C. 206, hereafter to be remarked on. But suppose the case of Brashear vs. West and others, not to have been decided, as in fact it was, upon the local law of Pennsylvania, but upon general principles, it would not then, as was asserted, be a decision upon the very question now before this court, because the facts are essentially variant in the two cases. In that before us it is conceded, that the assignment being made for the benefit of such creditors as should release their claims, the appellant, the recusant creditor, can receive nothing from the property assigned. In the case of Brashear vs. West and others, the releasing creditors were not entitled to the whole property assigned, but to such dividends only as they would have been entitled to had all the creditors consented to come in, and had complied with the terms of the conveyance. The dividends to which the dissentient creditors, if assenting, would have been entitled upon the principle of resulting trusts, became the property of the debtor, out of which, in the race of diligence with other dissenting creditors, if any, any one of them might have recovered [**43]  the full amount of his claim, or as much thereof as he would have been entitled to, had the assignment been made for the general benefit of all the creditors, without the requirement of any releases. That an assignment, without such requisition, for the general benefit of all creditors, would be good, it cannot be necessary to cite authorities.
To prove that the same principle prevails in Massachusetts that, it is alleged, has been established in Pennsylvania, the case of Halsey et al., vs. Fairbanks, 4 Mason C.C. 206, decided 

 [*151]  by Justice Story, is relied on as of paramount authority: the question there being identical with that now under consideration. The learned justice, after a very extended examination of various adjudications, in none of which was the precise point adjudicated, which he was then called on to determine, proceeded to state the grounds on which his judgment was about to be pronounced, as follows: "The decisions in Massachusetts, therefore, leave the question in equilibrio. But when we take into consideration the great length of time during which stipulations of this nature have prevailed in this State, without objection, there [**44]  is much reason to believe, that the profession have deemed the law settled in favor of the debtor on this point. Then, on the other hand, in Lippincott vs. Barker, 2 Binn. 174, where the direct point arose, it was settled, that a stipulation for a release was not fraudulent. The reasoning of the court is limited, indeed, to the circumstances of the particular case, but it would be difficult not to perceive, that it naturally reaches further. I find also that my brother, Mr. Justice Washington, in Pierpoint vs. Lord, in 1820, is reported to have held, that an assignment, in trust for the benefit of such creditors as should release their debts, is founded upon a sufficient consideration in law. The case is not in point, but it was probably decided on the general principle. There is, however, a case in England directly in point. It is The King in aid of Braddock, vs. Watson, 3 Price 6, where the very exception was taken by counsel, and the assignment was held to be good by the Court of Exchequer, against the claim of the crown itself. The weight of authority is then in favor of the stipulation, for the decision in New York did not turn upon the [**45]  naked point of a release, but upon that as incorporated into a peculiar trust. I am free to say, that if the question were entirely new, and many estates had not passed on the faith of such assignments, the strong inclination of my mind would be against the validity of them. As it is, I yield without reluctance, to what seems the tone of authority in favor of them. If the result had been different, this assignment would have been void in toto, for it could not, where the fraud was apparent on the face of the deed, be good in favor of any of the creditors 

 [*152]  who had signed it. They must, under the circumstances, be deemed cognizant of, and participators in, the unlawful object."
In commenting on the case of King vs. Watson, 1 Exch. 265, which is the same case referred to by Justice Story, as Braddock vs. Watson, 3 Price 6, it was attempted to be shewn, and it is believed not unsuccessfully, that the same question now before us, did not, and could not arise in that case. From it, therefore, his decision can derive but little support; and by the other authorities it is but feebly sustained. The learned justice, after stating, that if the question were [**46]  a new one, his own opinion would be against the validity of the deed, and that the decisions in Massachusetts were in equilibrio upon the subject, seeming to feel that the opinion he was pronouncing, stood in need of all the aid he could invoke, to its support, states: "but when we take into consideration the great length of time, during which stipulations of this nature have prevailed in this State, without objection, there is much reason to believe, that the profession have deemed the law settled in favor of the debtor on this point." Had Justice Story reflected upon the nature and object of the assignment before him; the designs of its inventor, and its potency for their accomplishment; he would have been able to have given a much more satisfactory reason than he did, for "the great length of time, during which stipulations of this nature have prevailed" in Massachusetts. By the execution of such assignments, debtors but surrendered what their creditors could, without their consent, have taken from them; and that too, without condition or stipulation. The stipulations in the assignment were, if assented to, of great value and importance to the debtors. If dissented [**47]  from, their condition was no worse than before the assignments were executed. Both they and their creditors well knew, or must be assumed to have known, that neither the validity or invalidity of such assignments was a matter of legal certainty: that to say the least of it, there was a doubt upon the subject. And of this the natural consequence was, the prevailing, continuing execution of such instruments. By them the debtors had every thing to 

 [*153]  gain and nothing to lose. And the fears of creditors, on which it was the object and intention of such conveyances to operate, were sufficiently powerful in most cases to induce the acceptance of the proffered stipulations. As a matter of course then, the prevalence of such assignments would continue, until their invalidity was judicially determined. On this theory, the long continued practice of making such assignments, is much more truly and rationally accounted for, than by the assumption of Justice Story, "that the profession have deemed the law settled in favor of the debtor on this point." On what grounds he drew the inference, that no objection had been made to such stipulations, prevailing for so great a length of time,  [**48]  we have not the means of ascertaining. But it is somewhat difficult to understand, how the judicial decisions of the State should have left "the question in equilibrio," if there never had been, with the profession, an objection or doubt as to the validity of such stipulations. If, as was asserted, there never had been an objection by the profession to such stipulations, how could there have been decisions upon the subject, which should "leave the question in equilibrio?" Referring to the law reporters of that State, we find them long before, and about the time of the decision in 4 Mason, and long afterwards, filled with cases, in which objections to the validity of such stipulations, were the matters in controversy, and for decision by the court. And that in many, nay, most of the cases, the stipulations were far less objectionable, than those in the assignment before Justice Story; and that now before this court. And that many of those cases were conducted by members of "the profession," who stood amongst the foremost at the bar of that State. Viewing the case in 4 Mason, therefore, as it must here be regarded, it cannot be entitled to much additional weight,  [**49]  from its alleged conformity to the settled opinion of "the profession" in Massachusetts.
But it is alleged, that whatever doubts may have once existed in Massachusetts, the question is now definitively settled, in favor of the validity of such a deed as that now before us. And as authority for this, the case of Nostrand vs. Atwood, 19 Pick. 281, has been cited. The allegation as to this case, is 

 [*154]  unsustained by its examination. It was determined upon a distinct and independent ground, and leaves the question, now before us, wholly undecided; as is manifest from the following extract from the court's opinion: "In the view we have taken of the present case, it is wholly unnecessary to consider those various adjudications, or to pronounce any opinion upon the abstract question, of the effect of the introduction into an assignment of a stipulation for a release by the creditors, who became parties to it, in a case where such a stipulation might be prejudicial to a creditor, indisposed to assent thereto, and who might thus be deprived of receiving his share of the fruits of the assignments."
It has been stated, on the part of the appellees, that the [**50]  validity of such an assignment, as that now before this court, was established in the State of Maine, by the case of Fox vs. Adams et al, 5 Greenl. 345. But in that case the question was not decided: the deed having been adjudged to be invalid on other grounds.
It is believed that the only State in the Union, in which the validity of such a deed as that now before us, can be regarded as having been adjudicated, is the State of Pennsylvania. Whilst the invalidity of such conveyances has been conclusively settled in Maine, Connecticut, New York, Ohio, and Missouri: and that too, after a most thorough and learned examination and consideration of the subject. For which, see Lord vs. The Brig Watchman, 8 Am. Jur. 284. Ingraham vs. Wheeler, 6 Conn. 277. Armstrong vs. Byrne and others, 1 Edw. 79. Mills and others, vs. Levy and others, 2 Edward's C. R., 183. Grover vs. Wakeman, 11 Wend. 187. Atkinson and Rollins vs. Jordan and others, 5 Ohio 293. And Brown vs. Knox, 6 Mo. 302. That the uncontrolled opinions of Chief Justice Marshall, and Justice Story, [**51]  were in accordance with these decisions, is clearly shewn by the cases hereinbefore referred to in 7 Peters, and 4 Mason.
The sound and sensible doctrine upon this subject, as applicable to the case before us, was settled by the case in 11 Wendell, where it was held, "that a debtor, in failing circumstances, 

 [*155]  might, by assignment of his property in trust, prefer one creditor, or set of creditors, to another, provided he devote the whole of his property assigned to the payment of his just debts, and the assignment be absolute and unconditional, without any reservation or condition for his benefit; without extorting from the fears and apprehensions of his creditors, or any of them, an absolute discharge as a consideration for a partial dividend, or making the preferences, or any of them, to depend on the execution of a release by such preferred creditors to him, of all claims against him. An assignment, giving preferences upon such a condition, is void; and the assignment being void in part, as against creditors, and the provision of the statute, is void in toto, though there be no fraud in fact, intended."
It may not be amiss to notice, that if by judicial decisions [**52]  in Massachusetts and Pennsylvania, such assignments, as that now before us, may, as has been contended, formerly have been sanctioned; the legislatures of those States have, by positive enactment, removed all doubt as to the invalidity of such instruments, subsequently executed. See Massachusetts Statutes of 1836, chap. 238; and Laws of Pennsylvania of 1843, No. 131, page 273.
Will the judiciary of Maryland, now, for the first time, acting upon the subject, and not constrained to do wrong against its conviction of right, at this time of day, give countenance to conveyances which every State in the union, where they have been definitively acted upon, have, legislatively or judicially, exploded as unjust or fraudulent against creditors? It should not be so.
Whilst insolvents, whose conduct merits kindness and protection, will ever be treated accordingly by courts of justice, in doing so it should not be forgotten, that creditors have rights, which it is an equal duty to protect. And whilst those tribunals should legitimately exert all the powers they possess, to protect debtors from the oppression and persecution of creditors, they should vigilantly [**53]  guard against that over-weening, dangerous sympathy, which would lead them to sanction unjust and fraudulent designs of debtors towards their creditors.

 [*156]  Dissenting from the county court's refusal to grant the appellants prayer; and from its opinion, as expressed to the jury; I think its judgment should be reversed, and a procedendo awarded.
MARTIN, J., concurred with DORSEY, J.
MAGRUDER, J., delivered the following opinion:
This appeal is taken from a judgment of Baltimore county court. The record contains but one exception, and that exception presents but this one question. Did the plaintiff show a right to impeach the validity of the deed on which the defendants relied, as evidence of their title to the property in controversy? The court below said that he did not, and the verdict in consequence being for the defendants, we are now to decide whether the plaintiff can complain of that decision?
The case was this: On the 24th September 1840, George Carey and others executed a deed of trust to the appellees, thereby transferring to them property of which the possession was delivered, for the declared purpose of paying their creditors. By the provisions of the [**54]  deed, some of the creditors are to have a preference, all others are to be paid so far as the trust funds will enable the trustees to pay them, provided within ninety days from the date of the deed, such creditors shall execute and deliver to their debtors a full and final release, and discharge from their claims. Nothing is reserved to the debtors, unless there be a surplus after discharging all claims against them. The grantors, who had been engaged in trade, had, some months previously to the execution of this deed, stopped payment, and not long after its execution took the benefit of the insolvent laws, and obtained a final discharge.
The appellants, acknowledged creditors of the firm, refused to accede to the terms of the deed, to which many of the creditors had agreed, and on the 22nd March 1841, sued out of Baltimore county court an attachment, upon a judgment which they had obtained against the insolvent firm. This attachment was laid in the hands of the appellees, (the trustees in the deed,) the appellants insisting, that the deed of trust was, as against them, void, and that their attachment, and the service 

 [*157]  of it, as stated, gave to them a right to be paid [**55]  the amount of their judgment, out of the effects which the deed had placed in the hands of the garnishees. This claim, of course, was inadmissible, if the deed was valid, and thus the question arises.
It cannot be denied, that a debtor may give a preference to a creditor or class of creditors. "A debtor has a right to prefer one creditor to another, and his private motives for giving the preference cannot affect the exercise of the right, if the preferred creditor has done nothing improper to procure it." 7 Wheat. 556. "An insolvent debtor has a right to prefer one creditor to another, in payment, by an assignment made bona fide, and no subsequent attachment, or subsequently acquired lien, will avoid such assignment." 8 Wheat. 268. "An assignment by a defendant, pending the plaintiff's suit, of all his effects for the benefit of his creditors, under which possession was immediately taken, is not fraudulent, although made to delay the plaintiff's execution, neither is it fraudulent to confess a judgment to one creditor, in order to defeat the pending execution of another creditor, for a debtor, as well as an executor, may give preference to a particular [**56]  creditor." 2nd Starkie, 622, 1st Am. edit. "As a debtor may prefer one creditor to another, so he may, on the eve of an execution by one creditor, assign his property to another, so as to satisfy the latter and leave the other unpaid." 5 T. R., 235. "An assignment by a creditor of all his funds, for the use of such creditors as shall, within a prescribed period, execute a release of all their demands, is valid, if reasonable time is given to enable the creditors to have notice, and to decide whether they will accede to the terms." 4 Wash. C. C. 232.
If, in the books which have been cited, the law is correctly laid down, it would be difficult to maintain, that the deed under consideration is void. To be sure, in England, such a deed, if executed by a trader, would be considered fraudulent, and would be an act of bankruptcy. But this is not because, all debtors are under a real obligation to pay all creditors an equal proportion of their debts, but simply because it is in contravention to the policy of the bankrupt system. For the same 

 [*158]  reason, if a debtor convey all his property to trustees, though for the benefit of all his creditors, it is [**57]  an act of bankruptcy. There are some acts, remarks Smith, in his treatise on mercantile law, which, if done by private persons, are valid, but if done by a trader, are fraudulent. Here we have no bankrupt law, and all acts of this description, done by our citizens, are treated as the acts of "private persons," and are valid, if, when done in England by persons who are not traders, they would not be pronounced to be fraudulent and void, as against creditors.
The deed, it is true, must not be so framed as to keep the property in the power of the debtor. Such a case is to be found in 14 Johns. 458. But in that case the deed was declared to be void, not because of the clause which required a release to be executed by the creditors, but by reason of a clause, that in case any of those creditors should refuse to give a discharge, then, "in further trust, after paying the debt due to the trustee, to pay such of the creditors of the assignors as they," (the debtors,) "should appoint." This clause, it was determined, kept the property in the hands of the debtors, and would enable them to compel the creditors to acquiesce in the terms offered to them. The [**58]  deed was therefore declared to be void in part; and being void in part, the whole must be void. But with respect to the case before us, it may be said, in the words of Jeremy, p. 418, "the creditors are not under any obligation to accede to the terms proposed, and this court will not interfere to prevent any who have not accepted the same, from adopting measures to compel satisfaction of their demands, or to direct the execution of the purposes of the deed, where all of them have not concurred." In Brashear vs. West and others, 7 Peters 608, Chief Justice Marshall said, "the preference given in this deed to favored creditors, though liable to abuse, and perhaps to serious objections, is the exercise of a power resulting from the ownership of property, which the law has not yet restrained."
Deeds of trust for the benefit of creditors may be fraudulent. They must not be executed mala fide. In 1st Story's Equity, 370, &c., we are told what will render them void. But any 

 [*159]  thing like an intent to defraud the plaintiff in this case, cannot be pretended. It can scarcely be said that such arrangements are necessarily void, while it is admitted,  [**59]  as in Grogan vs. Cooke, 2 Ball & B. 230, that it is "neither illegal nor immoral" for the debtor to prefer one creditor to another. What then is the amount of the doctrine contended for on the part of the plaintiff? The deed which had been executed became void, because these plaintiffs, for whose benefit, among others, it had been executed, refused to accede to the terms of it. But the debtor may cancel that deed, and afterwards execute another, conveying the same property to those creditors, (naming them,) who have acceded to the terms, and this deed will place all his property out of the reach of the plaintiffs.
It must indeed be admitted, that in some of our sister States there seem to have been decisions that deeds, like the one before us, are void. These decisions, however, it is believed, have proceeded from a disposition in their courts, to make what has already been stated to be the policy of the bankrupt system, a part of the general law. Other courts, certainly entitled to as much respect here, have adjudged them to be valid. See 4 Wash. C. C. 232. 4 Mason C.C. 206. 2 Binn. 174. See also 2nd Story on Equity, (the latest edition,  [**60]  ) sec. 371. 4 Dallas 224.
In Maryland, it is believed, there has been no decision by our highest judicial tribunals; but the general impression, it is thought, always has been, that a deed of this description, executed, bona fide by a debtor, for the benefit of such creditors as will release their claims, cannot be declared void at the instance of a creditor, who refused to sign such release; and that such deeds have not been condemned by that class of the community, who must be allowed to be the best judges upon the subject. In 4 H. & J. 474, (Pannel vs. McMechen,) we have a deed, like this in its provisions, executed as long ago as in the year 1813, and to which every objection might have been urged, which has been urged to the deed under consideration. It is true, the point was not, and perhaps could not well be raised, in that case: but those who have a knowledge of those times, know, that there were creditors who would have 

 [*160]  denied the validity of that deed, but for the, then, belief, that for any of the reasons now assigned, deeds of that description could not be assailed.
It is true it cannot be said, that in this State the question is [**61]  res adjudicata; and of course it must be admitted, that the question, as yet, has not been finally and conclusively settled in this State. But is this a reason why these general, and long existing impressions of the law should not have great influence in the decision of the question? Our predecessors seem to have thought differently. In the case of the Cannell v. M'Clean, 6 H. & J. 297, it was argued that the action could not be sustained, because, as it was supposed, the act of 1786, chap. 53, did not authorize a suit against the State, upon a claim of that description. The question had never before been made, and, of course, no decision in favor of the plaintiff could be cited. But the court said there was nothing in that objection: "The act of 1786, has so long and so often been practised upon," (some four or five suits grounded upon it had been brought,) "that it is not now thought to be open to construction." In the case of Kiersted and others, vs. the State, the question arose, whether upon a bond given to the State by an insolvent, a suit could be brought for the use of creditors, there being "no authority so to take them." After stating, that upon [**62]  enquiry the court had ascertained, that for more than twenty years they had been passed to the State, whether taken by the courts, the judges, or the commissioners of insolvent debtors, and remarking, that it is not easy to say what may have produced this unanimity, the learned judge proceeded: "Whatever may have led to the practice, its consistency fully establishes the cotemporaneous construction of the first act in this system of laws, and we think it has too long obtained to be at this time shaken and disturbed. See 1 G. & J. 231. A reference might also be given to Shafer vs. Stonebraker, 4 G. & J. 345. So in the case of M'Keen vs. Delancy's Lessee, 5 Cranch 22, it was determined, that although the law of Pennsylvania required deeds to be acknowledged before justices of the peace of the county where the lands lie; and a practice which prevailed, of acknowledging them before a justice 

 [*161]  of the Supreme Court, was clearly, as the court supposed, unauthorized by the law, yet, as the impression and the usage in consequence of it had prevailed for many years, that usage, and not their interpretation of the words,  [**63]  was adopted by the court, as a correct construction of the act. How far the judges of England will be governed by a prevalent usage, in commercial transactions, and others too, may be seen by a reference to "Ram on Legal Judgments," p. 67, &c.
These remarks have been made because of, and perhaps we can only find for them an excuse, in the strange and unhappy disposition which sometimes is met with, to quarrel with received opinions in regard to the law, and perhaps for no better reason, than that they have been for a long time the received opinion. It often happens that a question is not res adjudicata, because the community which is interested in it, had but one opinion about it, and yet, (such is the weakness of man, and how much to be deplored, if discovered in courts,) a belief is often entertained, that to question doctrines well known, though not authoritatively settled, denotes superior wisdom; and that the man who can imagine that to be law, which never was deemed to be so, must necessarily be wiser than all who lived before him. Another evil of the day, (and it is an evil which it ought to be the business of courts to check, and correct, as far as it is [**64]  possible,) is this, a jurist, or qua jurist, gets possession of a volume of the Reports of some other of the States, and there finds an express adjudication, expressly at war with the prevailing impressions in regard to the law of Maryland,--without reflecting, that although the law of another State be, as it there is adjudged to be, yet this is no proof that the law is so in Maryland,--he concludes, that the law as understood by those around him, cannot be our law, because the law is adjudged to be otherwise, elsewhere. Now this is unquestionably to assume, that the law of this State is better understood every where out of this State, than by even the learned men of the State. There are persons, moreover, in our community, who would be gainers by the discovery, if our own courts should chance to approve of the exterritorial decision, and without caring to enquire, how much of evil a decision 

 [*162]  contrary to the usage and custom among us, may produce, commence a litigation which is to decide a question, never before decided, because it never had been, and but for the decision in a different State, never would have been, questioned in Maryland. While [**65]  it will not be maintained that the law, as understood by every body, ought not in any part of it, or under any circumstances, to be decided to be otherwise than it is so generally supposed to be, yet in a case of this description, I am prepared to say, that believing this deed to be valid, according to the consistent, and perhaps unvarying, impression among us, for very many years, it ought to remain unchanged: except, in the words of this court on a former occasion, "upon the most imperious and conclusive grounds." And I hesitate not to adopt unqualifiedly the reasoning of Justice Story, in deciding this question for Massachusetts, in the case, 4 Mason 206. I will add, that in deciding this question, of such importance to the commercial community, I am not disposed to undervalue the opinion of the eminent judge, who signed the exception before us, and this upon a question like the one under consideration.
In closing these remarks, which owe their existence to an equal division of the Court of Appeals, upon a question of importance to the business part of the community, I shall adopt, as more appropriate language in which to express my opinion, than any which I can command,  [**66]  the words of the distinguished judge in Pearpoint and Lord vs. Graham, 4 Wash. C. C. 232, at p. 236: "If," (said Judge Washington,) "the condition of executing releases is, per se, an evidence of fraud, then the deed was void as soon as it was made; and the subsequent acquiescence and compliance with the terms of the assignment by a part of the creditors, could not give it validity. **** Where a reasonable time is limited, within which the trust property is to vest in those for whom the beneficial interest is intended, or will be relieved from the operation of the assignment, I can perceive no reason for imputing fraud to such a transaction. It is true, that during that period the property is, or may be, protected from the claims of creditors: but it is so protected for the benefit of those very creditors, and consequently for an 

 [*163]  honest purpose. It cannot, in short, be said to be made with intention to defraud, or to delay creditors, when its professed object is to put it in the power of creditors to accept or reject, the benefit intended them: and in the latter case, to leave the property subject to their rights, in like manner as it would have [**67]  been, had the assignment not been made."
CHAMBERS, J., concurred with MAGRUDER, J.
JUDGMENT AFFIRMED.  

23 of 23 DOCUMENTS 

ROBERT ANNAN vs. EZRA HOUCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Gill 325; 1846 Md. LEXIS 44 

December, 1846, Decided 

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

This was an action of assumpsit, commenced on the 10th October 1843, by Ezra Houck against Robert Annan.

The plaintiff declared:

1st. That whereas the said defendant, on the 30th September 1842, at, &c., made his certain promissory note in writing, bearing date the day and year aforesaid, by which said note the said defendant, six months after date, promised to pay Z. Jodon, or order, $ 271.62, with interest from date, for value received, and alleged its delivery to the payee, and endorsement by him to Ezra Houck, &c.

2nd. For so much money, by the plaintiff lent and advanced to the defendant, at his special instance and request.

The defendant pleaded:

1st. Non assumpsit.

2nd. As to the said first count, that the said promissory note was endorsed and assigned to the said plaintiff by a certain Zachariah Jodon, the payee in the said note, after the said note was due, to wit, on the 10th April 1843, at, &c.; and the said Zachariah Jodon, before commencement of this suit, and before the said note was endorsed and assigned to the said plaintiff, by the said Zachariah Jodon, as aforesaid, to wit, &c., was indebted to [**2]  him, the said defendant, in a large sum of money, to wit, &c., for money by the said defendant before that time lent and advanced to, and paid, laid out and expended, for the said Zachariah Jodon, and at his special instance and request; which said sum of money, so due and owing from the said Zachariah Jodon to the said defendant, as aforesaid, exceeds the damages sustained by the said plaintiff, by reason of the non-performance by him, the said defendant, of the said supposed promise and undertaking in the said first count mentioned, and out of which said sum of money, so due and owing from the said Zachariah Jodon to the said defendant, he, the said defendant, is ready and willing, and hereby offers to set off and allow to the said plaintiff the full amount of the said damages, according to the form of the statute in such case made and provided; and this the said defendant is ready to verify, wherefore, &c.

3rd. As to the said second count, repeating same plea in bar as to the first count.

To these second and third pleas the plaintiff demurred generally, in which the defendant joined.

The county court rendered judgment on the demurrer for the plaintiff below, overruling [**3]  the pleas in bar, and the defendant, after verdict, &c., on first plea, appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A gave his promissory note to J, who endorsed it to H. In an action by H against A, he pleaded, that after the note was due, and before the commencement of the action, a period of about five months, and before the note was endorsed to H, J was indebted to him in a large sum, &c., for, &c., which exceeds the amount of the note and the damages sustained by H, which he, A, offers to set off, and allow to H to the full amount of such damages in bar, &c. HELD, upon general demurrer, that this plea was no bar to the action.

A claim which the maker of a note has against the payee, not connected with it, cannot be set off in an action brought by an endorsee against the maker, though the note was endorsed after it fell due.

Any objection which may be taken against a note, may be taken against an endorsee thereof if, when he took it, it appeared upon the face of it to have been dishonored.

A promissory note is certainly negotiable, as well after, as before it became due.

A set-off means a cross claim. One, therefore, upon which the defendant never could have sued the plaintiff, cannot be used as a set-off.

Courts will give a liberal construction to beneficial and remedial laws, but still it is the business of courts to declare, not make the law. So improvements in the law are to be accomplished by further legislation, not by misconstruction.

In an action upon a promissory note, in the name of the endorsee, bona fide, and for valuable consideration, a demand in favor of the maker against the endorser, is not admissible as a set-off, although the note may have been discredited when the endorser took it.

A set-off is confined to mutual debts between the plaintiff and defendant. It is a privilege unknown to the common law.

Courts of law, upon application to them, set off a judgment which the defendant has against the plaintiff, against another judgment which the latter has against the former.  

COUNSEL:
By F. A. SCHLEY for the appellant.

In this case, the appellant gave his promissory note, payable to Jodon, or order, six months after date. After the note was past due for some time, Jodon assigned the note to Houck, the appellee. Before the note was due, Annan, the drawer, had paid considerable sums of money, in the aggregate amounting to as much as the note, to Jodon, and for his use. These sums of money so paid, laid out and expended, &c., Annan pleaded as a set-off or discount to the note in the hands of Houck, the assignee, they being paid for Jodon, and to Jodon, before the assignment of the note. To this plea the plaintiff demurred, and the court gave judgment in favor of the plaintiff, for the amount of the note, overruling the demurrer.

The appellant will contend, that this judgment is erroneous, because the note being assigned when it was over-due, Houck, the assignee, took it, subject to all the equities that existed at the time of the assignment between the drawer and assignor. In other words, that the note being past due, the assignee stands [**4]  in the shoes of the assignor, and has no greater rights, and will be subjected to all the defences that the assignor, had he sued, would be subjected to.

In support of his views, he cited the following references:

1729, ch. 20. Balt. Ins. Co. vs. McFadon, 4 H. & J., 40. 1829, ch. 51. Clarke vs. Magruder, 2 H. & J., 77. 1 Stev. N. Prius., 860. Brown vs. Davis, 3 Term, 80, 83a. Boehm vs. Sterling, 7 Term, 429. Burrough vs. Moss, 10 Barn. & Cres., 558. 21 E. C. L., 128. 1 Stev. N. P., 861. 3 Kent, 91, Ed. 1844. O'Callaghan vs. Sawyer, 5 John., 118. Bank of Niagara vs. McCrackem, 18 John., 493. Ford vs. Stuart, 19 John., 342. Bridge vs. Johnson, 5 Wend., 351, 355. Driggs vs. Rockwell, 11 Wend., 508. Evans vs. Smith, 4 Binney, 369. Ritchie and Wales, vs. Moore, &c., 5 Munf., 395. Sargent, et al., vs. Southgate, 5 Pick., 312. Boylston vs. Greene, 8 Mass., 465. Andrews vs. Pond, et al., 13 Peters, 79. Robinson vs. Lyman, 10 Ct., 30.

By J. M. PALMER for the appellee, who contended:

1st. The act of Assembly of 1785, ch. 46, sec. 7, authorises the defendant to file an account in bar, or to plead discount of any claim he may have against the plaintiff. Therefore the appellee [**5]  submits, whether the defendant in the court below, could, and was justified, in pleading a set-off of the said claims and demands he had against Zachariah Jodon, to defeat the plaintiff's action, as endorsee of said promissory note.

2nd. The promissory note in question being over-due, when endorsed and delivered to the appellee, was nevertheless negotiable, and the legal interest in the note passed to the appellee by virtue of the endorsement, &c.

3rd. The endorsee of an over-due promissory note is liable to such equities only as attach to the note itself, and not to claims arising out of collateral matters, between the original parties to the note.

4th. A plea of set off is not an equity, but is a legal defence in the nature of a cross-action for a legal demand, introduced to prevent a multiplicity of actions.

He cited as follows:

1785, 46, sec. 7. 5 Wend., 342. Wheeler vs. Raymond, 5 Cowen, 231. 1829, ch. 51. Raymond vs. Wheeler, 9 Cowen, 296. 5 Wend., 353. Chandler vs. Drew, 6 New Hamp., 469. Ranger vs. Cary, et al., 1 Medcalf, 374. Charles vs. Marsden, 1 Taunt, 223. Balt. Ins. Co. vs. McFadon, 4 H. & J., 40. Holland vs. Makepeace, 8 Mass., 418.  

JUDGES:
The [**6]  cause was argued before ARCHER, C. J., DORSEY, MAGRUDER and MARTIN, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*329]  MAGRUDER, J., delivered the opinion of this court.
A promissory note, executed by the plaintiff in error, to one Zachariah Jodon, or order, bearing date 13th September 1842, and payable six months after date, is the cause of action in this case.
It is not pretended that to this claim any defence can be offered, unless the matters set forth in the second and third pleas furnish such defence. Those pleas state, that the endorsement of said note, was made after it became due, to wit, on the 10th day of April 1843, and that Jodon, the endorser, before the commencement of this suit, and before the endorsement, to wit, on the day last mentioned, was indebted and still is indebted to said defendant, the plaintiff in error, for money lent and advanced, and paid, laid out and expended, to and for said Jodon, $ 500, which exceeds the amount of said note; and this he offers to set off, and allow in this suit. To these pleas the defendant in error demurred, and thus is presented to us the only question, which, in this case, can be decided by the court:--Is a claim, which the defendant [**7]  in the 

 [*330]  court below, (the drawer of the note,) had against the endorser who is no party to the suit, to be set off in this action, brought by the endorsee in his own name?
The decisions of the courts of Maryland, to which reference has been given by the counsel for the plaintiff in error, do not decide this question.
In the case of Clarke against Magruder and others, 2 H. & J. 77, the demand which it was proposed to set off, was a legal demand which the debtor (the defendant in the suit,) had against the legal plaintiff, and it would seem from the report of the trial in the General Court, that the question which the court was asked to decide, was, whether the defendant could avail himself, in the form of a set-off, of a claim, which he had not at the time of the institution of the suit against him?
In the case of the Baltimore Insurance Co. and M'Fadon, 4 H. & J. 31, the action was brought on a policy of insurance by McFadon, for the use of Dorsey and Hollins, and in discount or bar of that claim, the defendant offered in evidence, the promissory notes of the legal plaintiff, and others, to the defendants. The case was obviously [**8]  unlike the present. The decision of the General Court was, that these promissory notes could not be received, in bar of the plaintiff's claim, that claim being for uncertain, unliquidated, damages. In the reversal of this opinion, the Court of Appeals, it is believed, only decided, that a liquidated claim which the defendant has against the plaintiff, may be set off against an unliquidated claim, on which the suit was brought, &c.
It is said, that if a man becomes the owner of a promissory note, after it is due, he takes it subject to all the equities to which it would be liable, if still in the hands of the endorser, that this is not universally true may be seen by a reference to the case of Kemp's Ex. vs. McPherson and others, 7 H. & J. 320. But what are the equities, of which a defendant may avail himself, in an action against the drawer of a promissory note by the endorsee, when the note is endorsed after it became due? Chitty, in his Treatise on Bills, p. 242, Am. Edit., 1839, after the remark, "that there is a material distinction, in the effect 

 [*331]  of a transfer, before a bill (and it is equally true of a promissory note,) is due, and [**9]  one made after that time," proceeds, "when a transfer of a bill is made, after it is due, whether by endorsement or mere delivery, it has been long settled, that at least it is to be left to the jury, upon the slightest circumstance to presume, that the endorsee was acquainted with the fraud, or had notice of the circumstances, which would have affected the validity of the bill, had it been in the hands of the person, who was holder thereof at the time it became due, and though the endorsee may have been ignorant of the fraud, yet any objection which might have been taken against the bill, when in the hands of the endorser, may be taken against him, if the bill or note when he took it, appeared upon the face of it to have been dishonored."
The plaintiff in error, had no such equity of which to avail himself. His note did not appear on the face of it, to be dishonored, and for the non-payment of it, when it became due, he assigns no reason. All that we are told by him is, that before the suit was instituted, and indeed before the endorsement of the note, (but non constat, that at the time the note became due,) he also had a claim against the payee, which he is willing to [**10]  set off against the note, after it has been endorsed to another; who, it is to be presumed, in deciding upon this demurrer, was ignorant of any circumstances, which, by any form of pleading, would prejudice his claim against the drawer of the note.
A promissory note is certainly negotiable, as well after, as before it becomes due, and surely, the plaintiff in error is not entitled to more equity than an obligor in an assigned bond, yet even in equity, we are told by Judge Johnson, in the case 4 H. & J., 45, the debtor can have no redress where a claim had been transferred to a third person, who had no notice at the time he received the assignment.
A set-off means, a "cross-claim, for which an action might be maintained against the plaintiff, and is very different from a mere right to a deduction from, or reduction of, his demand, on account of some matter connected therewith." See the authorities cited, 2 Saunders on Pleading and Evidence 314, 

 [*332]  Am. Edit., 1829. Surely upon this claim, on which the plaintiff in error relies, no action could be instituted against the defendant in error, who is the plaintiff in this action.
As a reason [**11]  why the plaintiff in error should be allowed to discount in this case, we are told, that the statutes of George 2nd, and our act of Assembly of 1785, ought to receive a most liberal construction. No doubt they are beneficial laws, and it may be, that the legislature might make them more so. But it is the business of courts, jus dicere, and not, jus dare. If the law of set off can be improved, let this be done by further legislation; not by misconstruction.
In 4 Dallas' Reports, p. 30, No. 1, Mr. Justice Chase of the Supreme Court of the United States, after remarking, "that by the rules which have been laid down for the construction of statutes, and the latitude which has been indulged in their application, the British judges have assumed a legislative power, and, under the pretence of judicial exposition, have in fact made a great portion of the statute law of the kingdom." adds, "of these rules of construction, none can be more dangerous than that, which, distinguishing between the intent and the words of the legislature, declares that a case, not within the meaning of the statute, (according to the opinion of the judges,) shall not be embraced [**12]  in the operation of the statute, although it be clearly within the words; or, vice versa, that a case within the meaning, though not within the words, shall be embraced." Perhaps it was the fault of some judges, whose decisions have been read to us, that they did not avoid the error here imputed to English judges; did not "conform to the expressions of the legislature." Without commenting upon these, and such like cases, we prefer the decisions, and the reasoning in support of them, to be found in 8 Mass. 418; 6 N.H. 469; 10 Conn. 30; and think, that "in an action upon a promissory note, in the name of the endorsee, bona fide, and for valuable consideration, a demand in favor of the maker against the endorser, is not admissible as a set-off, although the note may have been discredited when the endorser took it;" and therefore affirm this judgment.

 [*333]  In thus disposing of this cause, we are warranted by the plain language of the law, which authorizes a set-off, of "mutual debts between the plaintiff and defendant; and where the defendant shall have any claim or claims against the plaintiff." In these cases, the defendant is [**13]  allowed, if he thinks proper to set off his claim against the other. The power, or privilege here given to a defendant, is unknown to the common law. Courts, indeed, have always been in the practice, upon application, of setting off a judgment, which the defendant has against the plaintiff, against that which the latter has against the former. This practice, we are told, rests upon the general jurisdiction of courts over the suitors in them. 3 East 149. 1 M. & S. 240. 4 Durn. & East 123. Before judgment is obtained, the right of the defendant to set off his claim, depends entirely upon statute, and there is none of force in Maryland, which will authorize the plaintiff in error to set off his claim, in bar to this suit.
JUDGMENT AFFIRMED.