1 of 33 DOCUMENTS 

WM. K. GORDON, Ex'r of SAMUEL GORDON vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 231; 1847 Md. LEXIS 25 

December, 1847, Decided 

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

This was an action of assumpsit brought to January term, 1845, by the appellant against the appellee. The case was submitted upon the following statement of facts:

It is admitted in the above case, that the President and Directors of the Union Bank of Maryland, were chartered prior to the year 1821, and that they duly accepted and have complied with the terms and conditions held out to them in and by the State, in an act of the General Assembly of Maryland, passed in said year, chapter 131.

It is admitted that the said William K. Gordon, Executor of Samuel Gordon, as well as his intestate, were citizens of and residents of the State of Virginia; that letters testamentary, with the will annexed, upon the estate of the said Samuel Gordon, were in due form of law granted to the said William K. Gordon by the Orphans court of Baltimore county.

It is also admitted that in the lifetime of said Samuel Gordon, the shares of stock held by him in the said Union Bank of Maryland, were assessed, valued and taxed by the said Mayor and City Council of Baltimore, to the amount of $ 359 85; that said sum not being paid, an attachment or warrant [**2]  was issued against Samuel Gordon, at the suit of the said Mayor and City Council of Baltimore, and prosecuted to judgment of condemnation by default in Baltimore county court. Whereupon a fieri facias was issued upon certain shares of bank stock of the estate of the said Samuel Gordon, which will appear by reference to paper A, which is herewith filed, and which it is agreed shall be considered as a part of this agreement.

________________________________________________________________________________

Mayor and City Council vs. Samuel Gordon.	
   Paper A.--Fi. fa. in case No. 46.	
	Debt,	$ 359 85	
	Int.,	14 11	
	Costs,	15 68	
   June 15th, 1843, received payment		$ 389 64	
for N. TRACY, sheriff,	Com., &c.	20 51	
T. J. Laws.   		$ 410 15	
________________________________________________________________________________

On the back whereof is the following, to wit:

Whereas I, Wm. K. Gordon, executor of Samuel Gordon, deceased, have paid the tax and charges of the annexed Bill, Now I do hereby protest against the exaction of said payment as against law and oppressive, and insist upon the re-payment of the same, and all costs and interest by the city of Baltimore, when the illegality shall be ascertained by the decision of the Supreme Court of the United States, or otherwise.

Notice of the [**3]  above protest admitted.     N. TRACY, Sh'ff.

It is admitted that the said Wm. K. Gordon, as executor, paid upon the said judgment and fieri facias for the said tax, interest and costs, the sum of $ 410 15, at the same time protesting against the exaction of said payment, as against law and oppressive, and insisted that the same and all costs and interest should be repaid by the city of Baltimore; that said amount of taxes above mentioned has been paid over to the Mayor and City Council of Baltimore.

It is also admitted that the said taxes amounting to $ 359 85, so as aforesaid levied by the said Mayor and City Council of Baltimore, on the stock so as aforesaid held by the said Samuel Gordon, and which was so as aforesaid paid by the said William K. Gordon, executor; that the stock in said bank on which the said taxes were so levied and paid, were duly and properly assessed to said Samuel Gordon, as a part of his assessable property, under and in conformity to the acts of Assembly and ordinances of the city of Baltimore, in that case made and provided, and that said taxes were duly levied by the said Mayor and City Council of Baltimore, for the following years, viz: 1842,  [**4]  1843 and 1844. It is also admitted that the said taxes so as aforesaid levied and collected by the said Mayor and City Council, of William K. Gordon as executor of Samuel Gordon, were so levied and collected as city taxes from the said Gordon, for the purposes and uses of the said city of Baltimore.

It is also admitted that application was made to the said Mayor and City Council of Baltimore by the said William K. Gordon, executor of S. G., and others, for the refunding by the said city of the taxes so as aforesaid paid by the said William K. Gordon, executor of S. G., and that the said Mayor and City Council of Baltimore passed the resolution No. 119, of the resolutions of the said Mayor and City Council of Baltimore, at its January session, 1845. And said resolution it is agreed shall be a part of this statement, and may be read as such from the printed ordinances of the city of Baltimore.

And it is also agreed that any ordinance of the city of Baltimore, or any act of Assembly which either party may desire to use in the hearing of this case, either in the county court or Court of Appeals, may be used and read as part of this statement, from the printed ordinances of the [**5]  city of Baltimore and the printed acts of Assembly of Maryland, to have the same effect as a part of this statement as if inserted at large and duly authenticated.

It is further agreed that it shall be competent for the court to draw such and other inferences of facts from those above agreed on, as a jury could do if the same were offered in evidence to them. It is further agreed that if upon the aforegoing statement of facts, the court shall be of opinion that the said Wm. K. Gordon, executor of S. G., is entitled to recover back from the said Mayor and City Council of Baltimore the taxes so as aforesaid paid by him, or any part thereof, then the court shall render judgment against the said Mayor and City Council of Baltimore for the amount of said taxes, or so much thereof as the court shall be of opinion the said William K. Gordon, executor of S. G., is entitled to recover back from the said Mayor and City Council of Baltimore with costs. But if the court shall be of opinion that the said William K. Gordon, executor of S. G., is not entitled to recover back the said taxes so as aforesaid paid by him, or any part thereof, from the said Mayor and City Council of Baltimore, then [**6]  the court shall render judgment in favor of the said Mayor and City Council, the defendants in this action, with costs of suit.

And it is agreed that either party may appeal from the judgment of Baltimore county court upon the aforegoing statement; and that upon appeal by either party, the Court of Appeals may render judgment on the aforegoing statement of facts and agreement.

The county court rendered judgment pro forma for the defendants, and the plaintiff below prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The right to tax bank stock was not imparted to the city of Baltimore for the first time by the act of 1841, ch. 23.

The act incorporating the city of Baltimore, granted the taxing power in the most comprehensive terms, without any limitation as to the objects on which the power was to operate, and was confirmed by the act of 1817, ch. 148, as to property within the city.

The stock of a bank is the representative of its whole property; and when a tax has been laid on the stock in the hands of the shareholders the real and personal estate of the company becomes exempt from taxation. To tax both its real and personal property and its stock, would be a double tax, and therefore illegal and unjust.

The act of 1821, ch. 131, sec. 11, did not restrain the city of Baltimore from taxing bank stock within her corporate limits; such an intention is not clearly expressed in that act.

The stipulation in the act of 1821, not to impose any further tax upon the banks mentioned in it, during the continuance of their charters, was intended to protect the banks against any additional tax for twenty years, which might be imposed by the legislature for State purposes. The terms further tax, under the circumstances, have no application to the city of Baltimore. It was not intended to exempt the banks there situated from all taxation.

The intention of the act of 1841, ch. 23, was to subject the stock of the banks to both State and city taxation. In relation to the State, this was a violation of the act of 1821. The right of the city to tax the stock, is unaffected by any constitutional inhibition.

An act is not necessarily inoperative, where its whole purpose cannot be carried into effect.

It is a sound rule in the exposition of statutes, that they should be so construed as not to suffer any part of them to be defeated or eluded.

The tax on bank stock under the act of 1841, not being paid to the city of Baltimore by a stockholder, a non-resident, the city proceeded by way of attachment against the stock. After judgment of condemnation and execution levied upon the stock, the executor of the shareholder paid the city under protest, and brought an action of assumpsit to recover back the money, on the ground that the tax was illegally exacted. Held,

1. That money paid on an execution issued upon a judgment of a court of competent jurisdiction, as in this case, cannot be recovered back in assumpsit, although it was afterwards discovered that the money was not due, and the plaintiff is in a situation to prove the fact.

2. Where money has been paid under the sentence or judgment of a court which has no jurisdiction whatever in respect of the subject matter, an action to recover it back may be maintained.

3. With regard to the force and legal effect to be attributed to a domestic judgment, there is no distinction between a judgment of condemnation rendered in an attachment on warrant, in a case where the requisitions of the attachment laws have been complied with, and a judgment in personam.

Municipal and private corporations may proceed under the act of 1832, ch. 280, as natural persons may, to recover debts due them by attachment on warrant. And where the attachment is laid upon property within the State, though the debtor is a non-resident, there can be no objection to the jurisdiction of the courts to enforce the claim by condemnation and sale of the property attached.

Exemptions claimed under legislative acts, should be so clearly secured and granted, as to be free from all doubt and ambiguity. Otherwise the immunity claimed will not be considered as surrendered by the public. Various decided cases on this subject considered.  

COUNSEL:
By DULANY and MEREDITH for the appellant, and

By PRESSTMAN and MCMAHON for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*235]  MARTIN, J., delivered the opinion of this court.
In this case the tax in controversy was imposed by the Mayor and City Council of Baltimore, in pursuance of an act of the General Assembly of Maryland, passed on the first of April, 1841; and it has been contended on the part of the appellant, that this act, so far as it subjected the stock of the Union Bank of Maryland to valuation, assessment, and taxation, was unconstitutional and void; on the ground [**7]  that it impaired the obligation of the contract created between the State and the Bank, by the act of Assembly of 1821, ch. 131.
This is the first and principal question raised for our opinion upon this record.
The tax thus levied by the appellee upon the shares of stock 

 [*236]  held by the appellant's testator in the Union Bank, was imposed in conformity with the act of 1841, ch. 23; but it is a mistake to suppose that the right to tax the stock was imparted to the city for the first time by the provisions of that statute. By the act of Assembly, incorporating the city of Baltimore, the taxing power is granted in the most comprehensive terms, and without any limitation as to the objects on which the power is to operate. And by the subsequent act of 1817, ch. 148, sec. 4, it is declared,
"That the Mayor and City Council of Baltimore shall have power to lay and collect direct taxes on the assessment of private property within the city, to such amount as may be thought necessary for the public or city purposes, and may enforce the collection of all dues and impositions, except fines, &c. in the same manner as is now provided with respect to city taxes."
It is perfectly [**8]  understood that the stock of a bank is the representative of its whole property; and when a tax has been laid on the stock in the hands of the shareholders, the real and personal estate of the company becomes exempt from taxation. To tax both the real or personal property, and the stock, would be a double tax, and therefore illegal and unjust.  12 G. & J. 117. And it does not appear that the stock of this bank was taxed eo nomine by the city, prior to the year 1842, and then under and by virtue of the act of 1841, ch. 23; but as the situs of the stock was within the limits of the city, there can be no doubt that at the period when the contract of 1821 was entered into between the State and the banks, the city possessed the right to have valued and assessed the stock in the hands of a shareholder, as a legitimate object of taxation.
By the 11th section of the act of 1821, ch. 131, it is declared:
"That upon any of the aforesaid banks accepting and complying with the terms and conditions of this act, the faith of the State is hereby pledged not to impose any further tax or burden upon them during the continuance of their charters under this act.
And it has [**9]  been contended by the counsel for the appellant, 

 [*237]  that it was the object of the contract thus created, not only to restrain the Legislature from imposing additional taxes upon the banks, during the continuance of their charters, but also to secure them against taxation by the city; and that it was the imperative duty of the State, in the exercise of her unquestionable control over the constitution and laws of this municipal corporation, so to have modified or repealed the taxing power of the city, as to have accomplished what is asserted to have been the design of this contract, an absolute immunity from city taxation.
The counsel for the appellee have denied that this is to be considered as the true construction of the contract, and have insisted, that as the object of the contract was to operate on the taxing power; and as the contract itself was created by a legislative grant of certain immunities and privileges, private in their character, that interpretation is to be placed upon it if there is any ambiguity in its terms, which is more favorable to the State; and that the exemption claimed by the appellant cannot be sustained unless the court is satisfied, that an intention [**10]  to liberate the bank from city, as well as State taxation, is clearly and indisputably expressed.
This proposition is maintained, we think, by the adjudged cases, both in England, and in the tribunals of this country.
In the case of the Providence Bank vs. Billings & Pittman, 29 U.S. 514, 4 Peters 514, 7 L. Ed. 939, the question arose with respect to the right of the Legislature of Rhode Island to impose a tax upon the bank, which had been chartered in the usual mode, and without any stipulation in reference to the taxing power of the State.
The right of the State to impose the tax was upheld by the Supreme Court, and the late Chief Justice, in delivering the opinion, said:
"That the taxing power is of vital importance--that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it; that a consideration sufficiently 

 [*238]  valuable to induce a partial release of it may not exist: but as the whole community is interested in retaining it undiminished,  [**11]  that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear."
In the case by the Stourbridge Canal against Wheeley, 2 Barn & Adolph. 792, Lord Tenterden, when speaking of the rule, by which an act of Parliament, incorporating a Canal Company, was to be expounded, says:
"The canal having been made under the provisions of an act of Parliament, the rights of the plaintiff are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this:--that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public; and the plaintiffs can claim nothing which is not clearly given to them by the act."
In the case of the Elsebe, 5 Rob. 182, Sir William Scott stated with great clearness, the difference between the rules by which the grants of the Crown are interpreted, and those which are applied in the construction [**12]  of the grants of individuals. He said,
"Against an individual, it is presumed that he meant to convey a benefit with the utmost liberality that his words will bear. It is indifferent to the public in which person an interest remains, whether in the grantor or in the taker; with regard to the grant of the sovereign, it is far otherwise. It is not held by the sovereign himself as private property; and no alienation shall be presumed, except that which is clearly and indisputably expressed."
The same doctrine is announced in Barrett vs. The Stockton and Darlington Railway Company, 2 Manning and Granger 134, 40, Eng. Com. Law Rep. 298, and in the very able opinion delivered by the Chief Justice of the Supreme Court, in the case of the Charles River Bridge against the Warren Bridge, 36 U.S. 420, 11 Peters 420, 9 L. Ed. 773.

 [*239]  With this rule of construction for our guide, we proceed to an examination of the terms of the contract of 1821, as they are expressed in the statute; and the question is, whether the exemption claimed by the Union Bank, is so clearly secured and granted, as to be free from all doubt and ambiguity?
On this point, our [**13]  opinion is adverse to the claim asserted by the appellant.
When the contract between the State and the banks was entered into in the year 1821, the banks embraced by the statute were subject to a tax of twenty cents on every hundred dollars of the capital stock actually paid in, or which should thereafter be paid in, to be appropriated as a fund for the establishment of free schools; and the stipulation not to impose any further tax "upon them during the continuance of their charters," was intended, we think, to protect the banks against any additional tax, for the period of twenty years, which might be imposed by the legislature for State purposes. Under the circumstances of this case, the words "further tax," have no application to the city of Baltimore. And if the object of the contract had been, as is maintained by the counsel for the appellant, to exempt the banks from all taxation, whether imposed by the State or city, it is impossible to believe that the parties would not have employed more comprehensive terms, and have used language better calculated to accomplish their purpose.
It has been seen, that on the 1st April, 1841, the legislature passed an act for [**14]  the general assessment and valuation of property in the State, and to provide a tax to pay the debts of the State.
By the first section, it is enacted among other things, that all stocks or shares in any bank, incorporated by the State, shall be valued agreeably to the directions of the act, and shall be chargeable according to such valuation, with the public assessment.
By the 59th section it is declared, that so much of the several acts heretofore passed in relation to the assessment and collection of taxes, as may come within the provisions of this 

 [*240]  act, and conflict therewith, are repealed: and by the 60th section, that from and after the year eighteen hundred and forty-one, all county, district and city taxes shall be assessed on the property, valued under the provisions of this act, any thing in any other act to the contrary notwithstanding.
By the 29th section it is provided, that any person who shall feel himself aggrieved by the decision of the appeal tax court, upon any question arising upon the review of the valuation aforesaid, whereby property is valued, which in the opinion of such person ought not to be valued, &c. may prosecute an appeal from the decision [**15]  aforesaid to the Court of Appeals: and by the 34th section it is declared, that immediately after the determination of any such appeal, it shall be the duty of the clerk of the Court of Appeals to send a copy of the opinion of the court to the appeal tax court, to be preserved by them; and it shall be the duty of the appeal tax court, previous to the levy for the year 1842, being made by the Mayor and City Council of Baltimore, to review, and correct if necessary, the valuations as aforesaid made, in conformity with the opinions which may be expressed by the Court of Appeals, and report the same to the Mayor and City Council.
In the case of Gordon against the Appeal Tax Court, 44 U.S. 133, 3 How. 133, 11 L. Ed. 529, it was decided by the Supreme Court, that the State was restrained from taxing the banks, chartered previous to the year 1821, by the contract to which we have adverted, during the continuance of their charters; and the proposition presented by the counsel for the appellant, is that the taxing power of the State and of the city, both with respect to the objects to be taxed, and the mode in which the taxes were to be collected, are indissolubly [**16]  connected by the act of 1841, ch. 23; and that as the State was disabled from taxing the banks for twenty years, no tax could be imposed upon the stock for that period by the city of Baltimore.
To this proposition we cannot assent.
It was the intention of the legislature by the act of 1841, ch. 23, to subject the stock of this bank to both State and city taxation. This is plainly declared by the provisions of the 

 [*241]  statute. But by the construction which has been placed upon the contract of 1821, by the Supreme Court, the State is disabled from taxing the stock for State purposes, for the period of twenty years, and the object and purpose of the law has been in this way partially frustrated. The right, however, of the city to tax the stock, according to the interpretation which we have put upon the contract, remains unaffected by any constitutional inhibition. It was, as we have already said, the intention of the legislature to subject this property to a city tax. And can it be pretended, upon any fair principle of interpretation, that the power which remains unimpaired and in full force, so far as the stipulations of the contract are concerned, should be extinguished [**17]  or arrested in its operation, because the whole purpose of the legislature cannot be carried into effect? We think not.
It is a sound rule in the exposition of statutes, that they should be so construed as not to suffer any part of them to be defeated or eluded.
The taxing power of the city was unfettered by any constitutional restrictions; and the tax imposed on the stock of the Union Bank in this case, was in accordance with the provisions of the act of 1841, ch. 23. It must therefore be maintained.
It appears from the agreed statement of facts exhibited by this record, that in the lifetime of Samuel Gordon, the shares of stock held by him in the Union Bank of Maryland, were valued, assessed and taxed by the Mayor and City Council of Baltimore, amounting to the sum of $ 359 85; and that this sum not having been paid, an attachment on warrant was issued against Samuel Gordon, a resident of Virginia, and prosecuted to judgment of condemnation by default in Baltimore county court; upon this judgment, a fieri facias was issued and levied upon the shares of stock belonging to the estate of the said Gordon, and the claim having been paid by the appellant [**18]  as his executor, under protest, an action of assumpsit was instituted in Baltimore county court, for the purpose of recovering from the appellee the amount alleged to have been illegally exacted.

 [*242]  And the question presented for our consideration on this branch of the case is, whether an action to recover back the money thus paid on the execution, could be maintained by the appellant, assuming that the tax imposed upon the stock was illegal and void?
It is an established principle, and not disputed by the counsel for the appellant, that money paid on an execution issued upon a judgment of a court of competent jurisdiction, cannot be recovered back, although it was afterwards discovered that the money was not due, and the party is in a situation to prove the fact.
And it is equally well settled, that where money has been paid under the sentence or judgment of a court which has no jurisdiction whatever in respect of the subject matter, an action to recover it back may be maintained.  Newdigate vs. Davy, 1 Lord Ray 742.
With regard to the force and legal effect to be attributed to a domestic judgment, pronounced by a court of competent jurisdiction, [**19]  there is no distinction between a judgment of condemnation rendered in an attachment on warrant, in a case where the requisitions of the attachment laws have been complied with, and a judgment in personam.  Taylor & M'Neal vs. Phelps, 1 H. & G. 492. They stand upon the same principle; they both import absolute verity; are equally conclusive with respect to the subject matter adjudicated, and cannot be re-examined or impeached in any collateral proceeding.
In the argument on this part of the case, several points were raised and discussed by the counsel for the appellant; but in our opinion, the right of the plaintiff below to maintain this action, supposing that the tax imposed by the Mayor and City Council of Baltimore was illegal and unauthorized, depends upon the single question, whether the judgment of condemnation rendered in the attachment suit, was the act of a court of competent jurisdiction.
In the case of Dugan vs. The Mayor and City Council of Baltimore, 1 G. & J. 499, it was held by the Court of Appeals, that the imposition and assessment of a tax by the Mayor and 

 [*243]  City Council, in pursuance of their charter, created [**20]  a legal obligation to pay such tax, and that it could be recovered in an action of assumpsit.
In delivering the opinion of this court, Chief Justice Buchanan said:
"In the Mayor and City Council vs. Howard, 6 Har. & John. 383, it was decided by this court, in relation to the 10th section of the act of incorporation, that the giving a remedy by distress or action of debt, was cumulative only, and did not take away the action arising by implication, or the legal obligation to pay a claim created by law. The tax for which this suit was brought, was imposed by virtue of that act, the imposition and assessment of which created the legal obligation to pay, on which the law raised an implied assumpsit, independent of the notice required by the fifth section of the ordinance, as a foundation for a summary mode of recovery, and unaffected by the omission of the collector to do his duty, which omission, though it caused the loss of the right to collect the tax by distress, and sale of the goods, left the right to recover on the original implied assumpsit unimpaired--an assumpsit raised by the law on the imposition and assessment of the tax, and not to arise on the delivery by the [**21]  collector of an account of the assessment and tax."
By the act of Assembly of 1832, ch. 280, it is declared, that the provisions of the attachment law of 1715, ch. 40, with its supplements, shall be held to apply to all debts due, and claims accruing to any corporations, to the same effect as if such corporations were natural persons; language sufficiently comprehensive to embrace all classes of corporations, whether municipal or private; and although the person against whom this attachment was directed was a non-resident, yet as the res, the stock, upon which the process operated was within the State, we can perceive no objection to the jurisdiction of the court.
We think, therefore, that the action instituted in this case by the appellant, could not be maintained; and on both grounds, affirm the judgment of the county court.
JUDGMENT AFFIRMED.  

2 of 33 DOCUMENTS 

JOHN B. MORRIS vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 244; 1847 Md. LEXIS 26 

December, 1847, Decided 

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

This was an action of assumpsit brought by the appellant against the appellees, to January term, 1845. The defendants pleaded the general issue.

The cause was submitted to the county court upon the following statement of facts:

In this case it is admitted that the President and Directors of the Union Bank of Maryland, the President and Directors of the Mechanics' Bank of Baltimore, and the President and Directors of the Bank of Baltimore, were chartered previous to the year 1821, and that they duly accepted and complied with the terms and conditions held out to them by the State of Maryland, by an act of the General Assembly of Maryland, passed at December session, 1821, being chapter 131 of the acts of that session of Assembly.

It is also admitted that the said John B. Morris was and is a citizen of Baltimore, and resident therein, that the said Morris was a stockholder in each of said banks before the year 1842, and at the period when the taxes hereinafter mentioned were assessed, levied, and collected.

It is also admitted that taxes were levied by the Mayor and City Council of Baltimore, and paid by said Morris upon the [**2]  stocks held by said Morris as aforesaid, in the said banks, to the amount of $ 318 95, of which $ 100 00 was paid before 1st September, 1842, and $ 46 31 on 22d November, 1842, and $ 102 16 on the 6th September, 1843, and $ 70 58 on the 13th January, 1845.

It is also admitted that the said taxes, amounting to $ 318 95, so as aforesaid levied by the said M. and C. C. of B. on the stocks so as aforesaid held by the said Morris, and which was so as aforesaid paid by the said Morris; that the stocks in said banks on which the said taxes were so levied and paid, were duly and properly assessed to said Morris, as a part of his assessable property, under and in conformity to the acts of Assembly and ordinances of the city of Baltimore, in that case made and provided; and that the said taxes were duly levied by the said M. and C. C. of B. for the following years, to wit: 1842, 1843 and 1844, and that the payments made by said Morris as aforesaid, were not made under any distress or legal process.

It is also admitted that the said taxes so as aforesaid levied and collected of the said Morris, were so levied and collected by the said M. and C. C. of B. of the said Morris, as city taxes [**3]  for the purposes and uses of said city of Baltimore, and they were paid to, and received by the proper officer of the said M. and C. C. of B., and by him paid to the M. and C. C. of B. in conformity to the charter and ordinances of the said M. and C. C. of B., providing for the collection of city taxes imposed by the M. and C. C. of B.

It is also admitted that under the provisions of certain ordinances, passed by the said M. and C. C. of B., which it is agreed shall form a part of this statement, and may be read as such from the printed ordinances of the said M. and C. C.; the privilege and right was given to every person chargeable with city taxes, levied by said M. and C. C., to have certain deductions made for prompt payment of any of said taxes. And that said Morris availed himself of the provisions of said ordinance at the time and in the manner previously stated, as to a portion of the taxes so levied and collected of him by the said M. and C. C. of B., and they were allowed to him and deducted from his said taxes to the extent of said payment. That on the above mentioned payments of taxes made by said Morris, he obtained a discount of 3 per cent. on $ 100 00 paid in 1842,  [**4]  and 2 per cent. on $ 102 16 paid in 1843, in conformity with the notices on said bills.

It is also admitted that on the back of the bills delivered to and paid by said Morris for taxes on the stock aforesaid, was endorsed the words following, to wit:

"If this bill is paid on or before the first day of July of the current year, a discount will be allowed of five yer cent."

"On or before the first day of August, four per cent."

"On or before the first day of September, three per cent."

"On or before the first day of October, two per cent."

"On or before the first day of November, one per cent."

"The collector is required to enforce the law against all persons whose taxes remain unpaid after the 1st day of November of the current year."

It is also admitted that application was made to the said M. and C. C. of B. by the said Morris and others, in the year 1845, for the refunding by the said city of the taxes so as aforesaid paid by the said Morris and others, and that the said M. and C. C. passed the resolution No. 109, of the resolutions of the said M. and C. C. of B. at its January session, 1845. And said resolution it is agreed shall be a part [**5]  of this statement, and may be read as such from the printed ordinances of the city of Baltimore.

It is also agreed that any ordinance of the city of Baltimore, and any act of Assembly which either party may desire to use in the hearing of this case, either in the county court or Court of Appeals, may be read and used as a part of this statement from the printed ordinances of the city of Baltimore, and the printed acts of Assembly of Maryland, to have the same effect as a part of this statement, as if it were inserted at large and duly authenticated. It is further agreed, that it shall be competent for the court to draw such and other inferences of facts from those above agreed on, as a jury could do if the same were offered in evidence to them.

It is further agreed, that if upon the aforegoing statement of facts the court shall be of opinion that the said Morris is entitled to recover back from said M. and C. C. of B. the taxes so as aforesaid paid by him, or any part thereof, then the court shall render judgment against the said M. and C. C. of B. for the amount of said taxes, or so much thereof as the court shall be of opinion the said Morris is entitled to recover back [**6]  from said M. and C. C. with costs. But if the court shall be of opinion that the said Morris is not entitled to recover back the said taxes so as aforesaid paid by him, nor any part thereof from the said M. and C. C., then the court shall render judgment in favor of the M. and C. C., the defendants in this action, with costs of suit.

And it is agreed that either party may appeal from the judgment of Baltimore county court upon the aforegoing statement; and that upon appeal by either party, the Court of Appeals may render judgment on the aforegoing statement of facts and agreement.

The judgment being against the plaintiff, he prosecuted an appeal to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

M., an inhabitant of the city of Baltimore, was a stockholder in several banks there, chartered prior to the year 1821. The Corporation of that city imposed taxes upon the stocks of said banks for the use of the city, and assessed a portion thereof to M., who voluntarily paid such tax. Afterwards considering said taxes illegally levied, M. demanded the return of the money paid by him, which the city refused. In an action of assumpsit brought to recover back the taxes paid, Held, that whether the tax was legal or illegal, the payment being voluntarily made, could not be recovered back.  

COUNSEL:
By DULANY and MEREDITH for the appellant, and

By PRESSTMAN and MCMAHON for the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*247]  MARTIN, J., delivered the opinion of this court.
The validity of the tax imposed in this case upon the stock held by the appellant in the banks of Baltimore, chartered previous to the year 1821, is maintained by the opinion delivered at the present term, by this court, in the case of  [**7]  Gordon against the Mayor and City Council of Baltimore; and the only question presented for our consideration is, whether, assuming the tax to have been unauthorized and illegal, an action to recover back the sum paid, could, under the circumstances exhibited in the agreed statement of facts, be sustained by the appellant against the Mayor and City Council of Baltimore?

 [*248]  In the case of the Mayor and City Council of Baltimore against Lefferman, heard and decided at the December term, 1846, the doctrine of voluntary and compulsory payments was discussed with great ability by the counsel who were concerned in the cause.
All the authorities cited during the present argument were by the research of the counsel in the former case, brought to the view of the court: in both cases it is apparent that the tax was demanded and paid under the impression, sincerely and honestly entertained by both parties, that it was legally due, and although the means of vindicating himself against the assessment, if it was illegal, was as amply secured to the defendant, as if an unjust demand had been imposed upon him by an individual, the right to maintain the action was placed in [**8]  the Mayor and City Council vs. Lefferman, as it has been in the present case, upon the ground of a supposed inequality in the condition of the parties.
After a careful review and examination of the authorities, the court announced in the case of the Mayor and City Council against Lefferman, what they regarded as the true doctrine upon the subject of voluntary and compulsory payments, as far as it was applicable to the case before them; and we certainly have not been able to perceive any reason for departing from the propositions there enunciated.
On the contrary, we desire to be understood as re-affirming the principles declared in the Mayor and City Council and Lefferman; and as that case cannot be distinguished from the one before us, we should have affirmed the judgment of the court below, even if we had considered the tax as unconstitutional and void.
JUDGMENT AFFIRMED.  

3 of 33 DOCUMENTS 

THE STATE OF MARYLAND vs. THE BALTIMORE AND OHIO RAIL-ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 363; 1847 Md. LEXIS 68 

December, 1847, Decided 

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

By a resolution of the General Assembly of Maryland, passed at its December session, 1846, the Attorney General was directed to institute suit against the Baltimore and Ohio Rail-road Company, to recover the dividend of $ 15,000, which had been declared by that Company, payable in part in the bonds of said Company. An action of general indebitatus assumpsit was accordingly docketed, by consent of parties, in Baltimore County Court at its May term, 1847, by the appellant against the appellee. The declaration contained the common money counts, and a count upon an account stated,--to which the defendant, the appellee, pleaded non-assumpsit. At the trial, the plaintiff, to maintain the issue on its part, offered in evidence the advertisement, admitted to have been published by the authority and direction of the defendant in the "Baltimore Patriot," which is recited in the opinion of the court.

It was also admitted, that the plaintiff was at the time when said dividend was declared, the holder of five thousand shares of the capital stock of the Baltimore and Ohio Rail-road Company.

The plaintiff further offered in evidence, the Twentieth [**2]  Annual Report of the President and Directors to the stockholders of the defendant. The letter of Mr. McLane, President of said Company, to Thomas Donaldson, Esq. and the resolution, No. 65, of the legislature of Maryland of December session, 1846; all which are sufficiently stated in the opinion of the court.

The defendant then offered the charter of the Baltimore and Ohio Rail-road Company, (act of 1826, ch. 123,) and its supplements. They also offered in evidence an extract from the proceedings of the meeting of the Board of Directors, declaring the dividend, by which it appears the following resolution was passed on the 26th November, 1846, without a division:--

"Resolved, that a dividend of three per cent. be declared on the stock of the Company, to be paid to all stockholders owning on the first day of the present month less than fifty shares, in cash; and to all stockholders holding fifty or more shares, one-third of the amount in cash, and two-thirds of the amount in bonds, to be issued in accordance with the resolution of the board, passed on the 3d December, 1845, authorizing the issue of bonds; and also of another resolution on the first day of the present month,  [**3]  and that said dividend be payable on the 20th November next."

They also proved that at the time the dividend was declared, there were present at the meeting six of the Directors on the part of the State. They further proved that the money to pay the cash part of the said dividend, was deposited at the Commercial and Farmers' Bank, to be paid to all stockholders who might demand the same--and that the certificates of stock were in readiness for delivery for the other portion of said dividend at the office of the Company in Baltimore,--and that all the stock had been issued and delivered to the stockholders, in accordance with the terms of the resolution declaring the dividend, except the stock that was payable to the State; and also that the entire dividend in cash had been paid, except the State's portion and some small sums not called for, but not exceeding what usually remains unpaid for a longer or shorter time after every dividend.

The defendant further offered in evidence the message of the Governor to the legislature of 1846-7, and the proceedings of the annual meeting of the stockholders of the Baltimore and Ohio Rail-road Company, held in October, 1846, accepting [**4]  the annual Report of the President.

Whereupon, the plaintiff prayed the opinion and direction of the court to the jury, as follows:--

1st. That the President and Directors of the Baltimore and Ohio Rail-road Company had not, under their charter, the right to appropriate and expend the revenue of the road for 1846, or any part thereof, for the re-construction of the road, under the resolution passed by the board on the 5th January, 1846; and that the portion of the revenue, as expended by the board, constituted a part of the net profits of the road for the year 1846, of which the dividend for that year was to be declared and made under the 19th sec. of the defendants' charter.

2d. If the jury shall find from the evidence, that the President and Directors of the Baltimore and Ohio Rail-road Company did, out of the net profits of the road for the year 1846, in October in that year, declare a dividend of three dollars per share on their capital stock, payable in the mode set out in their advertisement, offered in evidence by the plaintiff; and that the State was on the 1st October, a holder of five thousand shares of said stock; that then the mode of payment specified in [**5]  said advertisement is not obligatory on the plaintiff, and the plaintiff is entitled to recover the whole of its dividend on said stock in money.

3d. If the jury shall find from the evidence that the President and Directors of the Baltimore and Ohio Rail-road Company did, in October, 1846, declare a dividend of three dollars per share on the capital stock of said Company, and made the same payable in the mode specified in the advertisement offered in evidence by the plaintiff; and shall also find that the net profits of the said Company for that year, received by the President and Directors, were more than sufficient to pay said dividend; and that the plaintiff was a holder of five thousand shares of said stock on the 1st October, 1846; that then the plaintiff is entitled to recover the whole of its said dividend, although the jury shall believe that at the time when said dividend was declared, the said President and Directors had not sufficient cash on hand to pay the same.

4th. If the jury shall find from the evidence, that the President and Directors of the Baltimore and Ohio Rail-road Company did, in October, 1846, declare a dividend of three dollars per share on the [**6]  capital stock of said Company, and made the same payable in the mode specified in the advertisement offered in evidence by the plaintiff; and that the plaintiff was on the 1st October, 1846, a holder of five thousand shares of said stock; that then the plaintiff is entitled to recover in this action the whole of its said dividend in money.

And the defendant prayed the opinion and direction of the court to the jury as follows:--

1st. That the Company had a right to appropriate, as they did, $ 146,816 to the purposes of the road, as stated in the annual report of defendant offered in evidence by plaintiff.

2d. That it was the right of the Company by its Directors, to make such appropriations absolutely, and without being bound to refund the same to the stockholders, or to appropriate and agree to refund it to the stockholders, in their discretion.

3d. That under the 19th sec. of the charter, the Directors are only bound to divide, annually or semi-annually, such portion of the net profits of the Company as they may deem proper,--and that their judgment of what is proper is conclusive upon the stockholders.

4th. That whatever amount of net profits is not from [**7]  time to time divided, but retained by the board in the exercise of their judgment, under the authority vested in them by said 19th sec. they have a right to apply to any of the legitimate purposes of the Company.

5th. That the defendant having offered to pay the dividend which was declared in the mode in which it was made payable, and the plaintiff having refused so to receive it in that mode, or to receive any less sum in cash than $ 15,000, if the jury find that the plaintiff did so refuse, the plaintiff cannot recover in this case even the amount which was made payable in cash.

And the plaintiff then offered the following additional prayer:--

The plaintiff wishes the court further to instruct the jury, that under the fifth prayer of the defendant, they must find an actual offer on the part of the defendant, and an actual refusal on the part of the plaintiff, mutually communicated, the one to the other; and that the mere publication of the said advertisement given in evidence, although the same was known to the plaintiff, is not a sufficient offer, nor the meaning of said prayer: and the mere determination of the treasurer, not to take the dividend as declared, and [**8]  the communication of that determination by him to the legislature, is not a sufficient refusal within the meaning of said prayer.

And the court rejected and refused all the prayers offered on the part of the plaintiff, and granted all offered by the defendant: to which rejection and refusal of the plaintiff's prayers, and to the granting of the said prayers of defendant, the plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed.

The sections of the charter of the Baltimore and Ohio Rail Company, specially referred to in the opinion of the court, are as follows:--

13. And be it enacted, That if the capital stock of said Company shall be deemed insufficient for the purposes of this act, it shall and may be lawful for the President and Directors of said Company, or a majority of them, from time to time, to increase the said capital stock by the addition of as many shares as they may deem necessary, for which they may, at their option, cause subscriptions to be received in the manner prescribed by them, or may sell the same for the benefit of the Company, for any sum not under their par value; and that they, or a majority of them,  [**9]  shall have power to borrow money for the objects of this act, to issue certificates or other evidences of such loans, and to pledge the property of the Company for the payment of the same, and its interest.

14. And be it enacted, That the President and Directors of said Company shall be, and they are hereby invested with all the rights and powers necessary to the construction and repair of a Rail-road from the city of Baltimore, to some suitable point on the Ohio River, to be by them determined, not exceeding sixty-six feet wide, with as many sets of tracks as the said President and Directors, or a majority of them, may deem necessary; and they, or a majority of them, may cause to be made, or contract with others for making said Rail-road, or any part of it; and they, their agents, or those with whom they may contract for making any part of the same, or their agents may enter upon, and use and excavate any land which may be wanted for the site of said road, or the erection of warehouses, or other works necessary to said road, or for any other purpose necessary or useful in the construction or repair of said road, or its works; and that they may build bridges, may fix scales and [**10]  weights, may lay rails, may take and use any earth, timber, gravel, stone, or other materials, which may be wanted for the construction or repair of any part of said road, or any of its works, and may make and contract all works whatsoever, which may be necessary and expedient in order to the proper completion of said road; and that they, or a majority of them, may make, or cause to be made, lateral Rail-roads in any direction whatsoever, in connection with said Rail-road from the City of Baltimore to the Ohio River, and in the construction of the same or their works, shall have, possess, and may exercise all the rights and powers hereby given to them, in order to the construction or repair of the said Railroad from the city of Baltimore to the Ohio River.

18. And be it enacted, That the said President and Directors, or a majority of them, shall have power to purchase with the funds of said Company, and place on any Rail-road constructed by them under this act, all machines, wagons, vehicles, or carriages of any description whatsoever, which they may deem necessary or proper for the purposes of transportation on said road; and they shall have power to charge for tolls upon (and [**11]  the transportation of persons,) goods, produce, merchandize, or property of any kind whatsoever transported by them along said rail-way from the city of Baltimore to the Ohio River, any sum not exceeding the following rates, &c.; and that the said road or roads, with all their works, improvements and profits, and all the machinery of transportation used on said road, are hereby vested in the said Company incorporated by this act, and their successors forever; and the shares of the capital stock of the said Company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen by the States assenting to this law.

19. And be it enacted, That the said President and Directors shall annually, or semi-annually, declare and make such dividend, as they may deem proper, of the net profits arising from the resources of the said Company, after deducting the necessary current and probable contingent expenses; and that they shall divide the same amongst the proprietors of the stock of said Company, in proper proportions to their respective shares.

The 9th sec. of the act of 1835, ch. 39, containing a guarantee to the State, is as follows:  [**12]  --

SEC. 9. And be it enacted, That before any subscription shall be made to the capital stock of the said Baltimore and Ohio Rail-road Company, under and by virtue of this act, the stockholders of said Company shall, in general meeting assembled, stipulate, agree and bind the said Company by a proper instrument of writing, signed by the President, and under the corporate seal thereof, to be lodged with the Treasurer of the Western Shore, to guarantee to the State of Maryland, after the expiration of three years from the payment by the State, of each of the instalments on the stock hereby authorized to be made to the stock of said Company, the payment from that time out of the profits of the work, of six per cent. per annum, payable semi-annually, on the amount of money which shall be paid to said Company, under and by virtue of this act, until the clear annual profits of the said Rail-road shall be more than sufficient to discharge the interest which it shall be liable so to pay to the State of Maryland, and shall be adequate to a dividend of six per cent. per annum among its stockholders, and thereafter, the State shall, in reference to the stock so subscribed for, and on so much [**13]  thereof as the State may hold, be entitled to have and receive a perpetual dividend of six per cent. per annum out of the profits of the work, as declared from time to time, and no more, and all and so much of such annual profits as shall exceed six per cent. shall be distributed to the other stockholders, according to their several interests in the said Company; and in consideration of the interest so to be secured to the State, the said Baltimore and Ohio Rail-road Company shall be, and they are hereby authorized, in addition to the charge now authorized to be made by said Company, for the transportation of passengers, to increase the price or charge for such transportation, to any amount not exceeding one cent per mile for each person passing on said road: and the Eastern Shore Rail-road Company, the Maryland Canal Company, and the Annapolis and Potomac Canal Company are hereby respectively required as a condition precedent to the subscriptions by this act, authorized to said Companies respectively, to enter into covenants with the State of Maryland, under the corporate seal of each of said Companies respectively, to pay to the State of Maryland, semi-annually, by each of said Companies [**14]  respectively, out of the profits of said respective works, a sum equal in amount to the sum of six per cent. per annum, on the subscriptions authorized by this act, to be made on certain other conditions to the capital stock of the said respective Companies; such payments of interest not to be made to the State, until the expiration of three years from the payment of each instalment on the subscription to the respective Companies aforesaid, and any excess of dividends on the capital stock of the State, in either of said Companies, above six per cent. per annum, shall be distributed to the other stockholders of the Company declaring such excess of dividend.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The Board of Directors of the Baltimore and Ohio Rail-road Company having applied $ 146,816 of the net revenue of the Company for the year 1846, to the re-construction of the road between Harper's Ferry and Baltimore, and for machinery and other purposes, leaving a cash balance of only $ 90,504, and designing to reimburse the stockholders for the amount so applied, in November, 1846, declared a dividend of three dollars per share, payable on and after the 20th of that month, as follows: to all stockholders of less than fifty shares, cash; to all of fifty shares and over, one dollar per share in cash, and two dollars per share in the Company's bonds, bearing interest payable quarterly, and redeemable in twenty years, and deliverable to the stockholders at the office of the Company. The State being a stockholder to the amount of five thousand shares, refused to receive the dividend as declared by the Company, and instituted an action of assumpsit, to recover the amount of three per cent. in money. Held,

That by the 14th section of its charter, (act of 1836, ch. 123,) the President and Directors of said Company were invested with all the rights and powers necessary to the construction and repair of a Rail-road from the city of Baltimore to the Ohio River, and had a right to expend any part of its revenue for the re-construction of the road.

That the Company could make such expenditure absolutely, and without being bound to refund, or they might appropriate and agree to refund to the stockholders in their discretion.

Under the 19th section of the charter, the Directors are bound to divide only such part of the net profits as they may deem proper,--and their judgment of what is proper is conclusive upon the stockholders.

They can apply any portion of the net profits not divided, to any legitimate purpose of the Company.

In all questions of power arising under an act of Assembly, granting a franchise of this description, the test of the existence of the power is to be found in the inquiry, whether the same is expressly granted, or whether it is incidental to any express grant of power, and necessary to its accomplishment.

The established rule, that every corporation is limited in its powers by the object to be accomplished; and if there be a specification of the means for accomplishing a particular object, then such specification excludes all others, is admitted, but is not considered as applicable to this case.

The 13th section of this charter, giving the power to increase the capital stock on the terms therein mentioned, and to borrow money--however it may exclude other means of accomplishing the construction of the road--is no limitation of the grant of all powers, limited only by their necessity, conferred by the 14th sec.

The design of the 19th sec. was to define what was to be the subject of the dividend, and to prescribe the mode of dividing among the stockholders, and to allow a dividend from time to time, if the President and Directors deemed it proper; but if, in the honest discharge of their duties, they deemed that the net profits should be otherwise applied to further the objects of the act of incorporation, they were at liberty to withhold a dividend.

The 18th sec. authorizing the purchase of motive power, &c. with the funds of the Company, to be placed on any Rail-road constructed by them under the act, confers the same authority as if there had been a general power to purchase, without any reference to the funds of the Company, and does not militate against the construction above given to the 14th sec.

The true construction of the 9th sec. of the act of 1835, ch. 395, which guarantees to the State the payment of the interest on the instalments advanced by her on the stock subscribed for under that act, is that this guarantee is to be satisfied out of the gross profits of the Company: and this guarantee is in no manner impaired by the act of 1838, ch. 386.

The State was not bound to receive these bonds, (though if accepted, they would have been valid in her hands,) but might treat the dividend, so far as it proposed their delivery, as illegal,--and she has a remedy commensurate with the injury thereby sustained, but not in the form of an action of general indebitatus assumpsit.

By instituting this form of action, the State affirmed the dividend, and must take it as it is. Hence, she cannot recover the $ 15,000 in this suit, because the dividend declared did not profess to be a dividend to that extent in money.

The relation of trustee and cestui que trust exists in a qualified sense, as between the directors and the stockholders, and the funds in the hands of the former in which the latter have an interest, cannot be sued for in this form of action, unless a dividend has been declared.

The charter of the Company does not justify the discrimination made between the large and small stockholders, giving to the latter three per cent. in money, and to the former, money and bonds.

There can be no recovery in this case of the $ 5,000, which was the amount of the cash dividend payable to the State, there having been no demand for payment thereof, either of the Company, or its authorized agents; such previous demand being clearly necessary to maintain this suit.

The establishment of the principle, that suits could be instituted without demand, for dividends declared by banking and other corporations, would greatly impair the value of stocks held therein.

Interest will not be chargeable against an incorporation on dividends declared, nor will limitations run until demand made.  

COUNSEL:
By GEO. R. RICHARDSON, Attorney General, and J. NEVETT STEELE for the appellant.

By REVERDY JOHNSON and JOHN NELSON for the appellee.  

JUDGES:
The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, MAGRUDER and MARTIN, J. JUDGE CHAMBERS, dissenting in part.  

OPINIONBY:
MAGRUDER; ARCHER 

OPINION:

 [*372]  On the 14th February, 1848, before the final decision of the case, the following opinion and suggestion was filed by the court:--
"We are of opinion that power is conferred on the President and Directors of [**15]  the Baltimore and Ohio Rail-road Company, by its charter, to apply the revenues of the Company to the extension of the road to its terminus on the Ohio River, and that it has power to apply its revenues to the re-construction of any part of the road; that it has power, in its discretion, to declare dividends on the net profits of the road, or it may apply said net profits to construction or re-construction, or generally, to the prosecution of the objects of the charter. That such determination does not affect the guarantee of the State on her 

 [*373]  $ 3,000,000 loan to said Company, provided for by the act of 1835, ch. 395, because, by a proper construction of the acts of Assembly in relation thereto, that guarantee is to be satisfied out of the gross profits of the Company, before any portion of the profits can be applied to the extension, or re-construction of the road, or its repair. That the Company, as is conceded, in making a dividend, has no power to discriminate between its stockholders.
"That if the State could recover her claim of $ 15,000 in this suit, no demand on the Company, previous to the suit, was necessary to enable it to maintain this suit. That [**16]  if the claim of the State should be limited to $ 5,000, then the State could not, in this action, recover the said sum of $ 5,000, without a previous demand.
"For the present, the court do not propose to decide whether the State can recover the whole sum of $ 15,000 claimed in this suit. We propose to postpone the consideration of this question, so important to the public, the bondholders, and the corporation, in the hope that the legislature may, by its action on the part of the State, consent to accept these bonds, and that they may by law declare such dividends on bonds in future, illegal, which if accepted by the Company, would be binding upon it.
"Should nothing be done by the General Assembly in reference to this recommendation, which the court respectfully make, we shall, at the next term of this court, proceed to decide this question, and in the opinion we shall pronounce, we shall give the reasons which shall govern us upon this and upon all the points in the record.
"The clerk of the court is directed to transmit a copy of the above to the President of the Senate, the Speaker of the House of Delegates, and the President of the Baltimore and Ohio Rail-road Company. [**17]  "
A duly certified copy of the following resolutions of the General Assembly in reply to the above, passed February 23d, 1848, was sent to the court, and filed in the cause on the 1st March, 1848:--

 [*374]  "Whereas, by resolution No. 65 of December session, 1846, the Attorney General was directed to institute suit against the Baltimore and Ohio Rail-road Company, to recover the dividend of $ 15,000 which had been declared by that Company, payable, in part, in the bonds of said Company; and whereas, it is understood, that said suit was brought, as directed by said resolution, and that the same has been fully argued in the Court of Appeals at the present term, and inasmuch as the State has incurred the whole expense incident to the decision of this question, it is therefore
"Resolved, That it would be unjust to the State to take the bonds of this Company for the dividend declared, provided, the State should be entitled to receive said dividend in money.
"And whereas, in the view that the legislature will not again assemble for two years, it is important that the legislature should decide at the present session upon the course which the interest of the State will make [**18]  advisable in reference to said dividend,--therefore,
"Be it further resolved, by the General Assembly of Maryland, That the Court of Appeals be respectfully requested to decide fully, all the questions which are presented for their decision in said case, in time to enable this legislature to act upon the subject of said dividend, after the delivery of such opinion by the court.
"Resolved, That a certified copy of the aforegoing preamble and resolutions be sent to the judges of the Court of Appeals, immediately after the passage hereof."
On the 4th March, the following opinion and order of the court was filed:--
"We are of opinion that if the State had accepted the bonds, they would have been valid in her hands; but the State having refused to accept its quota of the dividend declared, in the manner it was declared, has a remedy commensurate with the injury she may have sustained in consequence of such a declaration of dividend. But what shall be the remedy of the State, as the question has not been discussed, and is not before us, we forbear to decide.

 [*375]  "In this action of general indebitatus assumpsit, there can be no recovery of the $ 15,000, because [**19]  there was not money in hand to divide that sum, and the dividend declared did not profess to be a dividend to that extent in money."
JUDGMENT AFFIRMED.

 [*376]  MAGRUDER, J., delivered his opinion as follows:
The resolution of the Board of Directors, declaring a dividend payable partly in bonds, and in part in money, is in this suit made the plaintiff's cause of action;--the evidence of its claim.
The court has already decided, that, in this suit, the plaintiff cannot recover the $ 5,000, for the reasons then stated.
I am further of opinion, that the State cannot recover the $ 15,000, and this for the reasons stated by a majority of the court, and that the judgment of the court below must be affirmed.
It was because of the difficulties that this proceeding, on the part of the Board of Directors presents, and the very many important and interesting questions, to which that proceeding might give rise, that I united with my brethren in advising the course, which was suggested by us a few days since. If it had been adopted, it would have obviated the difficulties and the evils which too much discussion, or too much opinion, perhaps, will cause, and prevent any such evils in future.  [**20]  
Disappointed in this, I can only say that the judgment must be affirmed.
ARCHER, C. J., delivered the opinion of this court.
The following paper, purporting to be a declaration of dividend, made by the defendant in this case, has given rise to the present controversy.
"OFFICE OF THE BALTIMORE AND OHIO R. R. COMP'Y,
November 4th, 1846.
"The President and Directors have declared a dividend, on the stock of the Company, as standing on the books on the first day     1846, of three dollars per share, payable on and after Friday, the 20th day of the present month, in the manner following, to wit: to all stockholders of less than fifty shares, cash, at the Commercial and Farmers' Bank; and to all stockholders of fifty shares and over, one dollar per share in cash, at the Commercial and Farmers' Bank, and two dollars per share in the Company's bonds, bearing interest payable quarterly, redeemable 

 [*377]  in twenty years, and deliverable to the stockholders at the office of the Company.     J. J. ATKINSON, Sec'y."
The Twentieth Annual Report of the Company, offered in evidence in this case, furnishes the basis and the reasons which actuated the Company in the [**21]  above proceeding. In this report it is said, that the net revenue, including the receipts from the coal trade, after deducting the expenses of working and keeping the road in repair, amounted to the sum of $ 440,475 34. Of this sum, however, besides $ 65,749 64, (being principal and interest, and premium, in sterling bills,) on account of the debt due the Messrs. Barings, there have been applied, during the year, to the re-construction of the road, and to the construction of burthen cars adapted to the general trade, to improvements at the depots, and to right of way, to the purchase of locomotive engines, and to the construction of water stations, to the purchase of additional power and machinery for the accommodation of an increasing coal trade, and on account of a subscription on behalf of the Company, to the capital stock of the Pittsburgh and Connellsville Rail-road, the further sum of $ 284,184 76, making together $ 349,934 40, and leaving, of the net revenue of the year, at the disposal of the Board, the sum of $ 90,540 94, or about one and a quarter per cent.
It appears, by the same report, that the Board determined to raise the means for the re-construction of [**22]  the entire length of the road between Harper's Ferry and Baltimore, by the sale of the Company's six per cent. bonds, payable in twenty years, and believing that a sufficient sum for this purpose might, in this way, be raised, in parcels, to meet their engagements, they directed thirty miles of the road to be immediately placed under contract.
The sale of the bonds, as contemplated, was not, however, effected--their price in the market not, in the opinion of the Board, justifying such sale, and they temporarily applied the revenues of the Company towards the consummation of this object, designing at the time, however, to reimburse the stockholders, and also to reimburse the stockholders, for such 

 [*378]  amount of the annual revenues of the Company, as had theretofore been applied to enable the Company to provide the necessary power and machinery, to enable them to commence and carry on the coal trade.
Upon this principle, adding the sums applied from the revenue, for the re-construction of the road, and for the power and machinery for the coal trade, (after deducting the sum of $ 43,312 14, with which that trade had been credited,) amounting together to $ 146,816 [**23]  05, to the residue of the surplus, to wit, $ 90,504 94, there would remain a net surplus of revenue of $ 237,356 99, expended and unexpended.
With the intention of carrying out the original design of reimbursing the stockholders, for such amount of revenue of the Company as had been applied, from time to time, to the purposes of the Company, above adverted to, and having only in hand cash to the amount of $ 90,504 94, it was determined that the sum of $ 146,816 05, expended as above detailed, should form the basis upon which the stockholders should be reimbursed, by bonds of the Company, to be issued in favor of the stockholders.
It appears from the evidence, that the money to pay the cash part of the dividend was deposited in the Commercial and Farmers' Bank, to be paid to all stockholders who might demand the same; and that the certificates of stock were in readiness, for delivery, for the other portion of said dividend, at the office of the Company in Baltimore; and that all the stock had been issued and delivered to the stockholders, in accordance with the terms of the resolution declaring the dividend, except the stock that was payable to the State; and also, that the [**24]  entire dividend, in cash, had been paid, except the State's portion, and some small sums not called for, but not exceeding what usually remains unpaid, for a longer or shorter time, after every dividend.
The State, being a stockholder, and refusing to receive the dividend thus declared by the Company, as it was declared, has instituted this action to recover the amount of three per cent. in money, considering the dividend in the same light, 

 [*379]  and as having the same legal effect, as if it had been declared in money, and not in money and bonds. The prayers of the plaintiff and defendant present the following propositions for the consideration of the court, so far as the charter is concerned.
1st. Had the Company a right to expend any part of its revenue for the re-construction of the road?
2d. Could it make such expenditure, absolutely, and without being bound to refund, or might it appropriate and agree to refund to the stockholders, in their discretion?
3d. Under the 19th section of the charter, are the Directors bound to divide only such part of the net profits, as they may deem proper? and is their judgment of what is proper conclusive upon the stockholders?
4th.  [**25]  Can they apply any portion of the net profits not divided, to any legitimate purposes of the Company?
The determination of these questions depends on the construction of the act of 1826, ch. 123, entitled, "An act to incorporate the Baltimore and Ohio Rail-road Company;" which act is the charter of this Company.
By the 14th section of this law, the purpose and object of the charter is disclosed. Its design is there declared to be, "to make a Rail-road from the city of Baltimore to some suitable point on the Ohio river;" by the 22d section of this act, the road was required to be finished within twelve years from the passage of the law; and by the 2d section, it is declared, that the capital stock of the Company shall consist of three millions of dollars.
In all questions of power, arising under an act of assembly granting a franchise of this description, the test of the existence of the power, is to be found in the inquiry, whether the same is expressly granted, or whether it is incidental to any express grant of power, and necessary to its accomplishment?
The 14th section declares, that "the President and Directors of said Company shall be, and they are hereby [**26]  invested, with all the rights and powers necessary to the construction and repair of a Rail-road, from the city of Baltimore to the Ohio river."

 [*380]  Here, then, is a sweeping grant of power, both to construct and repair, with no other limitation on its exercise, than that it shall be necessary to accomplish the one object or the other. All right and power to accomplish these objects are given, with no other limitation than that just adverted to.
Thus is the power conferred, and thus is the duty imposed, of constructing a Rail-road. For this purpose a capital is provided, of $ 3,000,000; and this power, and this duty, are to be exercised in no other way, looking to this section alone, than by the means placed at the disposal of the Company, that is, by its capital, and the products of its capital. It was certainly a part of the contract of the Company, when they accepted their charter, that they would make and keep in repair the road, though it required their whole fortune, which consists of their capital, and of the earnings of their capital. These duties the Company undertook to perform, with the means placed by the charter at their disposal; subject, however,  [**27]  to the right, conferred by the 19th section, at the discretion of the President and Directors to divide the net profits. To accomplish a work of this vast magnitude, requiring a costly Rail-road to be made over a difficult and mountainous country, required enlarged powers; and they were liberally given, in the section under consideration. It has been urged, that it is an established rule that every corporation is limited in its powers by the object to be accomplished, and if there be a specification of the means for accomplishing a particular object, then such specification excludes all others. The rule is admitted. But we do not consider it as applicable to this case. The means for accomplishing the object, it is said, are provided by the 13th sec. of the act. That section is as follows:
"That if the capital stock of said Company shall be deemed insufficient for the purposes of this act, it shall and may be lawful for the President and Directors of the said Company, or a majority of them, from time to time to increase the said capital stock, by the addition of as many shares as they may deem necessary, for which they may at their option cause subscriptions to be received in the manner [**28]  prescribed by them, 

 [*381]  or may sell the same for the benefit of the Company, for any sum not under their par value; and they, or a majority of them, shall have power to borrow money for the objects of this act; to issue certificates, or other evidence of such loans; and to pledge the property of the Company for the payment of the same and its interest."
The above section undoubtedly does specify powers for the purpose of accomplishing the object,--that is, it gives the power to increase the capital of the stock, on the terms therein mentioned, and the power to borrow money.
But such specific powers, given as a means of accomplishing a power, however it might exclude other means of accomplishing the construction of a road, furnishes most certainly no limitation of a grant of all powers, limited only by their necessity; and this, we have seen, is the grant of power in the 14th section.
It is obvious that the legislature, having granted the specific powers referred to in the 13th section, were apprehensive that, by these means, the great object had in view by the act could not be accomplished; they therefore, the more effectually to carry out these purposes, by the 14th [**29]  section endowed the Company with all rights and powers necessary to make and keep the road in repair. And in so doing they had a wise foresight; for, if the Company were to be made dependent on the means provided by the 13th section, for constructing the road, it might be questionable whether the great purpose of the act could ever be effected. The evidence in the cause shows us that, even in 1846, the stock of the Company could not be sold but at ruinous sacrifices; and this suit apprizes us that, even with the aid of extensive liens, money could not be borrowed but upon unfavorable terms.
The 19th section interposes no difficulty in the way of the above construction. That section we will advert to. It is in the following words:
"And be it enacted, That the said President and Directors shall annually, or semi-annually, declare and make such dividend as they may deem proper, of the net profits arising from the 

 [*382]  resources of the said Company, after deducting the necessary current and probable contingent expenses; and that they shall divide the same amongst the proprietors of the stock of said Company, in proper proportions to their respective shares."
There [**30]  is clearly nothing in this section which is in any manner imperative on the Company to declare dividends of their net profits. Their duty is defined to make such dividend as they may deem proper from the resources of the Company. If, in the honest exercise of their duties, looking to the whole interest of the Company, they deemed that the net profits should be otherwise applied, to accomplish or further the objects of the act of incorporation, they were at liberty to withhold a dividend.
The design of this section was, to define what was to be the subject of a dividend, and to prescribe the mode of dividing among the stockholders, and to allow a dividend from time to time, if the President and Directors deemed it proper.
If we are right in our construction of this section of the act, then this section strengthens our interpretation of the 14th section. If they are not compelled to divide the net profits, but may retain, then such retention must be to accomplish the objects designated in the 14th section. They could apply them to nothing else legitimately.
The 18th section of the charter, which authorizes the President and Directors to purchase, with the funds of the Company,  [**31]  and place on any Rail-road constructed by them under the act, all machines, wagons, vehicles, or carriages of any description, which may be necessary or proper for transportation on said road, does not militate against the construction which we give to the 14th section. This section itself takes a distinction between the construction of the road, and the motive power and vehicles for transportation; and however true it may be, in the language of the President of this Company to the committee of ways and means, that "professionally, construction comprehended the whole cost of not only making the railway, but of stocking it with motive power, machinery, and stations of every kind, and also any new appurtenances of the same description 

 [*383]  that might from time to time be needed;" still, it seems to have been supposed by the legislature that, to enable the Company to purchase the motive power, &c., some further authority was necessary, and out of abundant caution this power was given by the 18th section. That the section directs the purchase to be made out of the funds of the Company cannot affect the question. The funds of the Company are its entire resources, comprehending [**32]  its capital and its receipts; and the authority conferred by the section stands as it would have stood if there had been a general power to purchase, without any reference to the funds of the Company.
But it is urged, that if the net profits of the Company can be applied to the construction of the road, or to extraordinary works of repair there would be no profits left to secure the guarantee provided by the 9th section of the act of May session, 1836.
But we think the true construction of that section is, that this guarantee is to be satisfied out of the gross profits of the Company.
This section provides, that the interest on each instalment of stock subscribed shall, after the lapse of three years from the time of payment by the State, be paid out of the profits of the work. The term profits may mean gross profits or net profits. Which it means must be determined by its association, and by the whole clause. Now, in the same sentence, the terms clear annual profits are used. Then, in another part of the same section, and in the same sentence, on a contingency therein mentioned, the language is, that the State shall be entitled to receive a perpetual dividend of [**33]  six per centum per annum, out of the profits of the work, as declared from time to time. So that the term profits, as used in the first part of the sentence, is used without limitation or qualification, and wherever afterwards it is used, it is qualified and defined to mean clear annual profits, or as declared from time to time, which declaration of profits, as declared from time to time, would be only from the clear annual profits by the charter. It then appears, that they have used the term profits as contradistinguished 

 [*384]  from net profits, or clear annual profits, or profits declared from time to time. And as this has been done, we think the inference is clear, that by the term profits, as first used in reference to the guarantee, they meant gross profits. This guarantee is in no manner impaired by the act of 1838, ch. 386.
The above views dispose of the various propositions contained in the prayers, except the question arising under the second proposition, as to the ability of the Company, at its discretion, to appropriate its net revenue, and agree to refund the same to its stockholders, or to make such appropriations absolutely to the purposes [**34]  of the road.
We have before seen that the Company, in the honest discharge of its duties, may, under the charter, appropriate the net revenue of the Company to the purposes of the charter; it is, we think equally clear, that they may, having appropriated the net revenue of the Company to the purposes of the charter, designing at the time to repay them, agree to refund the same to the stockholders.
If designing to make a dividend of the net profits, they have used them for the purposes of the Company, intending at the time to return them to the stockholders, as was the case in the cause before the court, as is abundantly evident from the Twentieth Annual Report, which is in evidence before the court, we think there is nothing in the charter which would prohibit the Company from refunding the amount thus used by them to the stockholders. The character of the act ought to be determined by its intention.
The legislature would not, certainly, have designed, that if the Company had on hand $ 500,000 of net profits, and designing to divide the same, and should from any cause connected with the prosecution of the enterprise, have required the use of $ 100,000, that they must, in order to [**35]  carry out their design of dividing the said $ 500,000 among their stockholders, abstain from the appropriation of any part of the net profits temporarily to that object, and resort to a loan for the purpose, keeping the net profits idle in their coffers, until the period of the declaration of a dividend should arrive.

 [*385]  We are satisfied they might agree to refund the net profits which they may have used, and might, under the powers granted to them by the charter, borrow money to supply the place of that which had been used, and that they might borrow from the stockholders as well as from any one else, and that they had a perfect right, with the consent of the stockholders, to treat the money thus used as a loan, and for this purpose, might pass to the stockholders, who were willing to receive them, their bonds. The second, third and fourth prayers of plaintiff give rise to other questions.
The propositions contained in these prayers, may be reduced to two.
1st. That the mode of payment specified by the advertisement, was not obligatory on the stockholders, and the plaintiff was entitled to recover.
2d. That the plaintiff could recover the whole of said dividend, [**36]  though the Company had not sufficient cash on hand to pay the same.
We agree with the first part of the first proposition, which asserts that the mode of dividend was not obligatory on the plaintiff. The plaintiff was certainly not bound to accept the bonds which the Company proposed to deliver. The State, if she pleased, might refuse the bonds, and decline to become a lender to the Company, and certainly the Company could not become a borrower from the State without the State's assent. A forced loan could not be contended for, and a valid loan requires the assent of all the parties. But, although the State was not bound by the mode of dividend, it will not follow that the State is entitled to recover; the reason which conducts us to this conclusion, will be assigned in discussing the second proposition.
Now, as to the second proposition, which asserts that the State can recover the whole amount of the dividend, although the Company had not cash on hand sufficient to pay the dividend, and did not intend to declare a cash dividend of three per cent., but of one per cent. only,--we remark that the plaintiff has certainly no standing in court, except upon the 

 [*386]  dividend. [**37]  The relation of debtor and creditor cannot exist as between the Company and the stockholder in this respect, until the dividend is made. The plaintiff, by the institution of this action, affirms the dividend, and he must take it as it is.
The relation of trustee and cestui que trust, exists in a qualified sense, as between the President and Directors and the stockholders; and the funds which may be in the hands of the President and Directors, in which the stockholders may have an interest cannot be sued for in an action of general indebitatus assumpsit, unless a dividend has been declared. It is immaterial in our view of the subject, whether the declaration of a dividend constitutes a contract, or is to be considered in the light of the performance of a duty. In either case, it is to be taken as it emanates from the Board. A part of it cannot be taken and the rest discarded. It cannot be said you have declared three per cent. and we will have the money, although in the very declaration, they say they can only pay you in the liabilities of the Company. All the evidence in the cause demonstrates, that all the net revenue of the Company, designed by the Company for its stockholders, [**38]  under the provisions of the 19th sec. of the charter, except the cash on hand, at the time of the dividend, was used in the works of the Company; but with the design of repaying it to the stockholders; and that it should, with the assent of the stockholders, assume the shape of a loan. This, we have seen, it was competent for them to do, with the consent of the stockholders; but any stockholder might refuse to receive the liabilities of the Company, thus offered, and might treat the dividend, so far as he was concerned, and so far as the declaration of dividend proposed the delivery to him, of the bonds of the Company, as an illegal dividend; and to the extent, the State has been damnified as a stockholder, by the accomplishment of this loan from the other stockholders, she is entitled to redress, but surely not in the form of an action of general indebitatus assumpsit.
Is it not obvious, that if the State is allowed to treat this advertisement as a cash dividend, she is producing the very 

 [*387]  injustice of which she complains? She would receive her three per cent. in money, and when all the other stockholders above fifty shares, had received but one per cent. and [**39]  the residue in bonds. It is true, the President and Directors have discriminated in this advertisement, between the large stockholders and the small, giving to the latter three per cent. in money, and to the others, money and bonds. This, it is conceded, the charter did not justify. But this distribution to the small stockholders, was a greater proportion of cash, than they were entitled to, looking to the amount of cash in hand for division. The illegal payment to the small stockholders of more cash than from the unexpended funds they were entitled to, could surely furnish no reason, why the State should receive a like sum. If the State, as a stockholder, has received injury by such payment, she no doubt has her remedy, but not that which has been pursued.
The question arising, under the fifth prayer of the defendant, and the last prayer of the plaintiff, is, whether there can be any recovery in this case, of the $ 5,000, which was the amount of the cash dividend, payable to the State, without a demand being made, either of the Company or its authorized agents, for payment. We are clearly of opinion, that such demand was necessary, before a right of action would exist, on the [**40]  part of the plaintiff, to recover this dividend. The establishment of the principle, that suits could be instituted without demand for dividends, declared by banking and other corporations, would greatly impair the value of stock held therein, by rendering it necessary to employ agents, to hunt up the stockholders, in various parts of the State, or the Union, in order to prevent a multiplicity of suits, or on a failure to do this, suits, and of consequence, costs might be multiplied to an alarming extent. Such a doctrine has, certainly, never been supposed to exist. Dividends are paid when called for, and we apprehend, that limitations would not run until demand was made.
Moreover, interest would not be chargeable against an incorporation, on dividends declared, until a demand was made, 

 [*388]  which could not be so, if the Company was liable without demand.
The decision of this court, in 1 G. & J. 425, on the principle which it establishes, bears a strong affinity to this case. There it was decided, that a trustee, ordered by a Court of Chancery, to pay claims allowed by the Chancellor, would not be liable to a suit, until, not only notice should be given to him [**41]  of the order, but demand made upon him by the claimant, for payment. We do not think the Company stood in the situation of a common debtor, whose business it is to look to a compliance with his engagement. As regards the argument, ab inconvenienti, we think it would apply as strongly to the case before the court, as to that case.
JUDGMENT AFFIRMED.  

DISSENTBY:
CHAMBERS 

DISSENT:

The opinion of the court was afterwards delivered at length, as follows:--
JUDGE CHAMBERS dissented in part, and delivered the following opinion:--
I do not concur in that portion of the opinion expressed by the majority of the court, which decides the right of the State to recover; or that which decides upon the contingent validity of the bonds issued or executed by the Company to the State, for $ 10,000.
The questions, (in reference to this part of the case,) involved in the record and argued at the bar, were, first, whether the act of the Board of Directors in declaring a dividend in part payable in bonds, was a lawful exercise of authority, and obligatory on the State; and if not, then whether the present action could be sustained by the State, for the $ 10,000, the nominal value of the bonds.
The court has [**42]  declared, that "no discrimination can be made between stockholders, in making a dividend."
It would seem to follow, necessarily, from this position, that, in this instance, the issue of bonds was unauthorized; and, if the President and Directors, by their charter, had no authority to issue the bonds, they are not obligatory on the stockholders, for whom the Directors were trustees.
The argument was not at all directed to maintain, or deny, the right of the State to recover the specific sum of $ 10,000, or any other sum, in any form of action other than that resorted to, and without the aid of an argument I am unwilling to go beyond the points necessarily arising in the cause, to decide questions, in regard to which difficulties are apparent to my mind.  

4 of 33 DOCUMENTS 

DANIEL W. HALL vs. THE UNITED STATES INSURANCE COMPANY OF BALTIMORE, FOR THE USE OF THE RECEIVERS OF SAID COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 484; 1847 Md. LEXIS 42 

December, 1847, Decided 

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

This was an action of Assumpsit, commenced on the 31st August, 1837, by the U. S. Insurance Company, against the appellee. All errors of pleading were waived by consent.

It was agreed by the parties in this cause that the plaintiff may give in evidence, on the trial of this action, any facts or circumstances which would be admissible upon any special declaration, or count in a declaration, that the evidence to be offered would legally authorize; and that the defendant under the general issue of non assumpsit may give in evidence any matters which he could or might do upon any special plea, or account or matter in bar, or by way of off-set, and that either party upon the trial may object to the competency of any evidence, and raise and have the benefit of any points or questions of law that might have been raised by demurrer, or otherwise, in any stage of the pleadings, or upon trial upon any issues that might have been lawfully made or joined upon any state of the pleadings; and that it is admitted that the defendant held, as owner, the policies issued by the United States Insurance Company, the plaintiff at the time of its failure, and [**2]  before the thirty-first day of May, 1834, numbered 1243, 1243, 948, 1055, 1486, and 1154, and that he has ever since continued to hold the same to this time, and that they were duly presented for payment at the office of said company when due.

1st EXCEPTION.--Upon the trial of this cause, the plaintiffs, to support the issue on their part, read in evidence the act of Assembly of Maryland creating the plaintiffs a body corporate, passed at December session, 1831, chap. 191, and the following agreement for subscription to the stock of said corporation:

"We, whose names are hereunto subscribed, do promise to pay to the president and directors of the United States Insurance Company of Baltimore the sum of twenty dollars for every share of stock in the said company set opposite to our respective names, agreeably to an act of the State of Maryland, entitled An act to incorporate the United States Insurance Company of Baltimore." Witness our hands this fifteenth day of March, eighteen hundred and thirty-two.

Which, it is admitted, was signed by Joseph P. Grant, for one hundred shares of the stock of said company. And further read in evidence the certificate of election of directors [**3]  of said corporation.

United States Insurance Company of Baltimore,

Baltimore, March 31st, 1832.

The undersigned commissioners, having given the public notice required by the charter, on this day held an election, between the hours of 10 o'clock A. M. and 1 o'clock P. M., for eight directors, to serve for the ensuing year, when, upon counting the ballots, the following gentlemen were found to be duly elected: Peter Neff, &c.

And gave in evidence that the said corporation was after the agreement or subscription of said stock organized agreeably to the requirements of said act of incorporation. And also offered in evidence the following instrument of writing, purporting to be a transfer of said one hundred shares of stock to the defendant, in form following, to wit:

"I hereby transfer to D. W. Hall an hundred shares of stock now standing in the name of Joseph P. Grant on the books of the United States Insurance Company of Baltimore. Witness my hand this 12th day of July, 1832. Joseph P. Grant."

And offered in evidence, by Joshua J. Atkinson, a competent witness, that after the date of said transfer the said defendant paid several instalments on said one hundred [**4]  shares of stock, that were called for by the president and directors of said company.

The defendant objected to the reading of said instrument of writing, purporting to be a transfer, as incompetent and inadmissible as evidence to prove that the said defendant, by virtue thereof, become the owner of said stock, or a stockholder in said company, notwithstanding the said defendant paid several instalments after the time of said supposed transfer, because the said Grant, by virtue of the said agreement or subscription for said stock, and by virtue of the act of Assembly aforesaid, became a stockholder debtor to said company for the whole sum of twenty dollars upon each and every of said shares, including the nine dollars upon each of said shares sought to be recovered in this action; and because, by the provisions of the ninth section of said act of Assembly, no stockholder, indebted to the company, is permitted to make a transfer or receive a dividend until such debt be paid, or secured to the satisfaction of the president and board of directors of said company; and, furthermore, because there is no consideration expressed in said supposed transfer, for the making thereof. Which [**5]  objection the court (LE GRAND, A. J.) overruled, and admitted the aforesaid instrument of writing in evidence. The defendant excepted.

In addition to the facts stated in the foregoing exceptions, and which, it is agreed, shall form part of this

2ND EXCEPTION. The plaintiffs, further to prove the issue on their part, offered to read in evidence the following proceedings in Baltimore county court, in equity, in a certain cause wherein William H. Stump is complainant and the United States Insurance Company aforesaid is defendant, viz:

"Ordered by the court this 24th May, 1834, that injunction issue, as prayed upon the complainant's filing bond, with security to be approved by the judges of this court, in the penalty of twenty thousand dollars, to indemnify the defendants against all costs and damages from said injunction. And it is further ordered by the court, that the defendants shew cause on Tuesday next at 10 o'clock, why a receiver should not be appointed to take charge of all the effects of the defendants, and administer the same according to justice and equity, provided a copy of this order be served on the president of the said company, or on the board of directors [**6]  of said company, or left at the office for doing business of said company, before 3 o'clock of this day.

Signed,

S. ARCHER, R. B. MAGRUDER, JOHN PURVIANCE, Judges of B. C. C.

And also the following petition:

To the Honorable, the Judges of Baltimore

County Court, in Equity:

The petition of Harman Stump, of Harford county, sheweth to your honors, that he heretofore filed his bill of complaint in this honorable court, against the United States Insurance Company of Baltimore, and that upon the prayer contained in that bill, your honors appointed James Harwood, John B. Howell and Walter Farnandis, receivers of the estate and effects of said company, as will be seen by reference to said bill of complaint, and the proceedings now therein remaining of record, in this court. Your petitioner further shews, that the former president and directors of said company, to wit, Peter Neff, Job Smith, John Patterson, John A. Hamilton and Joseph P. Grant, were each holders of a large amount of the stock of said company, on which there was, and still is due to said company, unpaid instalments to a large amount, and that said president and directors, when they knew said company [**7]  was insolvent, and when too, that insolvency had been produced by their management, assigned and transferred their stock to irresponsible persons, for the purpose of exempting themselves from liabilities for the unpaid instalments of said stock, and in fraud of your petitioner and the other creditors of said company. Your petitioners further shew, that all the stockholders of said company, owe to said company nine dollars, on each share of stock, and that by the act of incorporation, said stockholders are entitled to a notice for sixty days, previous to the time at which the unpaid instalments can be demanded. That said company is insolvent, and that all its effects and estate, together with the unpaid instalments due on its stock, is wholly insufficient to pay its debts. Wherefore, your petitioners pray your honors will direct and order said receivers to institute suits against said president and directors, for the unpaid instalments on said stock so fraudulently assigned as aforesaid, and to give notice to all other stockholders and persons, liable to pay the unpaid instalments on said stock, to pay the same. And upon their failure to do so, to institute suits for the recovery of [**8]  the same. And your petitioners, &c.

On the foregoing petition it is ordered by the court, this 26th June, 1834, that the aforesaid receivers institute suit against the president and directors therein named, as prayed, and that the receivers aforesaid, give sixty days notice, by advertisement, in three of the newspapers printed in the city of Baltimore, to all the stockholders of the said Insurance Company, (except said president and directors,) to pay the remaining instalments due on their stock respectively. And it is further ordered, that if said stockholders fail to pay, according to said notice, that said receivers forthwith proceed to coerce the payment of the same by suit, unless said receivers shew cause to the contrary, on or before Tuesday next. Provided a copy of this order be served on or before Saturday next.

R. B. MAGRUDER,

JOHN PURVIANCE.

And it is further agreed, that the persons named as receivers in said proceedings were duly appointed and qualified to act as such.

To the reading of all and every part of which proceedings the defendant objected as incompetent and inadmissible, because they are proceedings in equity and in a case still pending;  [**9]  and because the defendant was not a party to said cause in equity, nor to any of said proceedings. Which objection the court overruled, and admitted the aforesaid proceedings in evidence. The defendant excepted.

3RD EXCEPTION. In addition to the facts stated in the aforegoing exceptions, which are agreed shall form part of this, the plaintiffs then further offered in evidence the following notices, having proved that they were published in three newspapers in the city of Baltimore.

"Office of the Receivers of the United States Insurance Company of Baltimore, (South street,) June 30th, 1834."

"By virtue of an order of Baltimore county court, notice is hereby given to the stockholders of the U. States Insurance Company of Baltimore, that an instalment of one dollar on each share of the capital stock of said company is required to be paid to the receivers on or before the first day of September next, and that an additional instalment of two dollars on each share of said stock is required to be paid on or before the first day of October next, and also an instalment of two dollars on each share of said stock on or before the first day of November next.

By order of the [**10]  Receivers of the U. S. I. Co.

July 3rd, 1834.     G. W. Atkinson, Secretary."

Another notice was published on 17th October, 1834, requiring the stockholders to pay an instalment of four dollars on each share of stock standing in their respective names, by virtue of and in compliance with an order of Baltimore county court, and proof of their publication was also given.

To the admission of which notices the defendant objected, as incompetent and inadmissible evidence to charge, or affect, the defendant as notices required by the terms of the second section of said act of incorporation, and because they were not made by the president and directors of said company, or by their authority, and because said notices are not sufficient legal notices to charge the defendant.

But the court overruled the objection, and admitted the said notices in evidence. The defendant excepted.

4TH EXCEPTION.--In addition to the facts stated in the foregoing exception, and which it is agreed shall form part of this, the plaintiffs further offered in evidence the following proceedings, signed by the president and four directors of said corporation, viz:

Baltimore, 24th June [**11]  1837. At a meeting of the directors, held this day, at which the undersigned directors were present, it was resolved, that the president cause notice to be given through the public papers, to the stockholders of this company, to pay up the balance of the stock remaining unpaid, in the following instalments, viz: Five dollars on the 26th day of August, and four dollars on the 26th day of October, to be paid to Mr. J. J. Atkinson, at the office of the Receivers of the company. Signed, Hugh Birckhead, President U. S. Ins. Co. James Harwood, George H. Newman, John Kettlewell, Philip J. Dawson.

And proved the publication thereof.

To the admission of all which notices the defendant objected, as incompetent and inadmissible to charge or affect him with a liability to pay any one of the instalments therein called for; which objection the court overruled, and admitted the aforesaid proceedings in evidence. The defendant excepted.

5TH EXCEPTION.--In addition to the facts stated in the foregoing exceptions, which is agreed shall form part of this, the defendant, to support the issue on his part, and to bar a recovery by the plaintiff, read in evidence to the court and jury, by [**12]  way of discount in bar or off-set, the following short copy of a judgment, obtained in Baltimore county court on the 2nd February, 1837, by Daniel W. Hall (the defendant in this action,) against the United States Insurance Co. of Balto., (the plaintiff in this action,) with a statement of the amount due thereon, and on oath of said Hall, as a probate annexed:

DANIEL W. HALL vs. THE UNITED STATES INSURANCE COMPANY OF BALTIMORE.--In Baltimore county court, January Term, 1837.

Debt, nar, &c. 2nd February 1837, judgment by confession for $ 1,000 debt, and $ 500 dam's in nar and costs. Damages to be released on payment of interest on debt from 11th August 1834, and costs. Writ issued 30th August, 1834. Plaintiff's costs, $ 10 13 1/3.

I hereby certify that the foregoing is a true short copy of the judgment, taken from the record of proceedings of said court in the above cause. And I further certify that there is no entry or proceeding in said court to shew that said judgment has been satisfied.

In testimony whereof, I hereto set my hand and affix the seal of Baltimore county court, this first of June, eighteen hundred and forty-six.

(Seal's place.)     A. W. Bradford,  [**13]  Cl'k Balto. Co'ty Co't.

Statement of the amount due on the above mentioned judgment:

________________________________________________________________________________

To the principal debt,	$ 1,000 00	
To interest thereon from 11th Aug. 1834 to 20th	
  Octo. 1841,	431 50	
	
	1,431 50	
And costs,	10 13	
	
	1,441 63	
1841, Octo. 20, Credit by cash,	120 00	
	
	1,321 63	
Int. on $ 1,321 63 until 1st June, 1846,	365 85	
	
    Amount due,	1,687 48	
________________________________________________________________________________

And proved, by the record of said court, that the action in which said judgment was rendered was instituted on the 30th August 1834, and the cause or causes of said action, upon which said judgment was rendered, were two policies or writings obligatory, for the payment, to bearer, of $ 500 each, duly executed by the United States Insurance Company aforesaid, and sealed with its corporate seal, both dated the 4th April 1834, and numbered 1243, and payable, one on the 4th, and the other on the 11th August 1834, the form of which policies is as follows:

210 92/100.   210 92/100.

Policy No. 1053. In consideration of securities deposited and of the premium paid thereon, the United States Insurance Company of Baltimore guarantees to the bearer, the payment of the sum of two hundred [**14]  ten 92/100 dollars, on the 18th August 1834, on presenting this policy for payment, at their office. Baltimore, Jan'y 29, 1834.

G. W. Atkinson, Sec'y.     Peter Neff, Pres't.

And also read in evidence, by way of discount in bar or set-off, three other like policies of said company, sealed with its seal, of the several numbers, and for the several amounts and dates, and payable or due at the respective times as follows, viz: one policy No. 1053, dated Jan. 29th 1834, due Aug. 18th 1834, for $ 210 92; one policy No. 1086, dated Feb. 11th 1834, due Sept. 1st 1834, for $ 139 93, and one policy No. 1154, dated March 1834, due May 14th 1834, for $ 102 95. And it was and is admitted, that the said Daniel W. Hall was the bona fide holder and owner of all of said policies, including those upon which the said judgment was rendered when the said company failed, and before the proceedings in equity aforesaid were instituted, and before the said receivers were appointed, and has continued ever since, such holder and owner of the same. And it was further admitted, that a dividend was declared by order of court of the assets received by said receivers, as appears by the proceedings in [**15]  the equity case aforesaid, and that said Hall received of the receivers a dividend of twelve per cent. upon each of the said claims, so offered by way of discount in bar or off-set.

The defendant prayed the opinion and direction of the court to the jury, as follows: that the plaintiff is not entitled to recover upon the evidence in this action.

1. Because, upon the evidence, the law does not imply any assumpsit on the part of the defendant to pay any of the instalments called in after the said receivers were appointed.

2. Because the said court had no jurisdiction or power as a court of equity, in said equity cause, to determine that the defendant should pay any of the unpaid instalments upon said one hundred shares of stock subscribed for by said Grant being a part, viz: nine dollars per share upon such of said shares, unpaid and uncalled for at the time when the said receivers were appointed, nor to determine when they should be paid, nor any jurisdiction or power to authorize the said receivers to call in and collect of the defendant, or sue him for any of said instalments, this power having been vested exclusively in the president and directors of said company by [**16]  the act or charter of its incorporation, read in evidence by the plaintiffs, and because the said Grant was and is the only person responsible (if any person is responsible,) to pay those instalments, by virtue of his original express agreement, and promise to pay the same by the terms of his subscription, as prescribed by said charter, and is in fact made by him, which precludes any implied assumpsit on the part of the defendant to pay the said instalments, or any part thereof. And furthermore, because the said court as a court of equity destroyed, or essentially and materially impaired the considerations and benefits that might accrue to the defendant as a stockholder, by assignment of said stock from said Grant, under the provisions and franchises of said charter.

3. That the instalment of $ 2 per share called for by the receivers and made payable on the 1st October, 1834, could not be lawfully made payable on that day, it being only thirty days after the day on which a prior instalment was by them made payable.

4. Because the decree and proceedings in the case of Stump vs. the United States Insurance Company of Baltimore, put an end to all power of the president and directors [**17]  of said company to call for the instalments, which are the subjects of the advertised notice on the part of said president and directors given in evidence, while the said decree remains in force.

5. Because the receivers appointed by the decree above referred to are not lawfully entitled to call for and receive the instalments mentioned in the public notices in evidence, notwithstanding the order of Baltimore county court, in said cause, authorizing the call and collection of the said instalments, there being no evidence of the instalments, or of any of them, having been called for by the president and directors, and having become payable before the appointment of receivers as aforesaid.

6. Because the proceedings and order of Baltimore county court, given in evidence, do not, nor do any of them, estop the defendants from maintaining in this action that the said court had no authority to direct said receivers to make the calls for the instalments, for recovery of which this action is brought.

7. Because the said order of Baltimore county court, directs the total amount of the instalments payable on the stock to be called for upon sixty days notice, contrary to the charter [**18]  given in evidence, which allows no larger amount than five dollars upon such period of notice at any one time to be called for, while the testimony and claim of the plaintiffs, in this cause shew that the amount of unpaid instalments was nine dollars at the date of said order, and of the filing of the petition whereon it was passed.

8. Because the said order of Baltimore county court has not, in respect of the notice thereby directed, been complied with, inasmuch as by the showing of the plaintiffs the notice for one of the instalments was, for the first time, published on the third day of July, in the year eighteen hundred and thirty-four, and required payment of said instalment on the first day of the next ensuing September; and because said notice was not sufficient in that it was published only (daily) four times during the period between the third day of July, 1834, and said 1st day of September.

9. Because said order had not been complied with, inasmuch as it required, according to the due construction thereof, that one payment of all the said instalments should be made, and that the amount of all should be comprehended in a notice or notices for one and the same day [**19]  of payment, while the evidence shows that said entire amount was divided into several sums, and called for by separate notices for said several sums respectively to be paid on different days respectively.

10. Because there is no evidence of personal notice to the defendant of the call for any of the instalments claimed in this case.

11. Because the contract given in evidence for payment of the instalments on the stock subscribed by the defendants is with the president and directors of the company and cannot be sued upon by the plaintiffs.

12. Because the order of the president, and of the directors, given in evidence, was signed and passed by only four directors and the president of the corporation, the number of directors being eight as prescribed by the charter; and there being no evidence of notice to all the directors to attend the meeting at which said order was passed, and not more than the said four directors and the president appearing to be present at said meeting.

13. And that the plaintiffs cannot recover in this cause the instalment of four dollars mentioned in the notice of 24th June, 1837, from the president and directors of said company, because the [**20]  sum is made payable on the 26th October, 1837, and the present suit was instituted on 31st August, 1837.

14. And the defendant thereupon further prayed the opinion and direction of the court to the jury, that the defendant is entitled to the benefit of the balances due on said judgment and policies read in evidence, by way of discount, or set-off against the claim of the plaintiff in this action, notwithstanding the defendant did receive from the receivers, on the twentieth day of October, 1841, a dividend of twelve per cent. upon the principal sums of said policies, including those upon which said judgment was founded; and, furthermore, that the plaintiff is not entitled to recover if the jury find that the sum of money due on said judgment and on said policies, including interest, is equal to or greater than the amount of money which the jury may find due from the defendant to the plaintiff, upon the evidence in this action. All which prayers and directions contained in this 6th exception of the defendant, the court refused to grant, but granted the following prayer, on the part of the plaintiff.

The plaintiff prayed the court's opinion to the jury, that if they find, from [**21]  the evidence, that the defendant became the owner of 100 shares of the stock of the U. S. Ins. Co. by regular transfer from original subscribers for such shares, and if they also find that the defendant, after so becoming the owner of such shares, paid, as duly called for, the instalments due on each of said shares, except the two instalments sued for in this case, and if they find that said two instalments were called for, under the authority and in the manner stated in the plaintiff's evidence, and if they also find that the proceedings in equity were had, as also given in evidence by plaintiff and the receivers appointed under the same, duly qualified according to the terms of the decree or under it in said case, that then the defendant is not entitled, by way of set-off, or discount, to have set-off or discounted from plaintiff's said claim, either the judgment or the policies he has given in evidence; provided the jury shall find that defendant came in under said equity proceedings, in said equity case, and made claim for and obtained a dividend upon his said judgment and policies out of the assets claimed and distributed in said case. To which refusal and opinion of the court [**22]  as to all the prayers or points of defendant, as also to its opinion and direction in granting the plaintiff's said prayer, the defendant excepted.

The defendant appealed to this Court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where an original subscriber to the stock of an incorporated company, bound to pay the instalments upon his subscription, from time to time, as they were called in by the company, transfers his stock to another, with his assent, such other person is substituted to the rights and obligations of the original subscriber, and bound to pay up instalments called for, after the transfer to him.

Payment of instalments, by a transferree of stock, is evidence of his assent to the transfer to him.

When the charter of a company declares that no stockholder, indebted to the company, shall be permitted to transfer his stock, until his debt be paid or secured to the satisfaction of the directors: this is a privilege which may be waived or asserted, at the pleasure of the president and directors.

Instalments upon subscriptions to stock not called in are not within the meaning of such a clause. It relates to debts due and payable in presenti, not in futuro.

A transfer of stock on the books of an incorporated company, is merely to pass it to the transferree, and is as good between the parties, if made without consideration, as if made with it. It does not profess to disclose the consideration which induced it, nor the terms of the contract from which it emanates, and of which it is the consummation.

Proceedings in equity against an insolvent corporation, to have receivers appointed, and unpaid instalments, due from corporators collected--the court appointed them with orders to coerce payment. In an action at law against a delinquent stockholder, such proceedings are evidence against him, though not a party to the bill, for the purpose of showing by what authority the action was prosecuted.

Stockholders in chartered companies, bound to pay instalments as called for upon notice from such companies, are affected by notices published in the newspapers where the companies transact their business. They cannot require personal notice, and where receivers are appointed to collect the sums due from them, they possess the powers of the directors of such companies, as given by their charters in such cases, both as to time of payment, and amounts called in.

The substitution of such newspaper publications, in lieu of personal notice, has so long been an universal usage, and of a notoriety equal to that of newspapers themselves, that the custom of doing so has become a part of the law of the land.

An order of court which directed receivers to give sixty days notice, by advertisement in three of the newspapers printed in the city of B., to all the stockholders of, &c. to pay the remaining instalments due on their stock respectively, and that if they fail to pay according to said notice, the said receivers shall proceed forthwith to coerce the payment of the same by suit, is not to be interpreted as requiring them to call for the whole amount of unpaid instalments upon sixty days notice, but leaves to the receivers the power of fixing the amount of instalments called for, in conformity with the provisions of the charter of any such company.

Where the defendant prays the court to instruct the jury that the plaintiff is not entitled to recover, the grounds assigned for that instruction must be co-extensive with the plaintiff's right, as established by the proof, or it is not error to refuse it.

To claim a right of discount or set-off, is not an obligation or duty on the part of him who is entitled to it. He may waive or assert it at his election. Having once waived it, and thereby obtained a dividend out of the effects of his debtor, to which, neither at law nor in equity, would he otherwise have been entitled, he will not afterwards be permitted to assert his claim by way of discount or set-off. To suffer him to do so, would, in contemplation of law, if not in fact, be practising a fraud upon the other creditors of his debtor.  

COUNSEL:
By HINCKLEY, for the appellant and

By REVERDY JOHNSON, for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*497]  DORSEY, J., delivered the opinion of this court.
The suit before us was instituted to recover certain instalments on the stock of the United States Insurance Company. And to show the defendant's liability for the payment thereof, after proving that Joseph P. Grant was an original subscriber for one hundred shares of the stock of the company, the plaintiff below gave evidence of the following transfer thereof to the defendant below, to wit:
"I hereby transfer to D. W. Hall an hundred shares of stock, 

 [*498]  now standing in the name of Joseph P. Grant on the books of the United States Insurance Company of Baltimore.
Witness my hand this 12th day of July, 1832,
Witness present, J. J. Atkinson.     Joseph P. Grant."
And to prove the defendant's [**23]  assent to the transfer thus made to him, the plaintiffs gave evidence by Joshua J. Anderson, a competent witness, that after the date of said transfer, the said defendant paid several instalments on said one hundred shares of stock, that were called for by the president and directors of said company. Whereupon the said defendant objected to the reading of said instrument of writing, purporting to be a transfer, as incompetent and inadmissible as evidence to prove that the said defendant, by virtue thereof, became the owner of said stock, or became a stockholder in said company; notwithstanding, the said defendant paid several instalments after the time of said supposed transfer, because the said Grant, by virtue of the said agreement or subscription for said stock, and by virtue of the act of Assembly aforesaid, (meaning the charter of the company) became a stockholder debtor to said company for the whole sum of twenty dollars upon each and every of said shares, including the nine dollars upon each of said shares sought to be recovered in this action; and because, by the provisions of the ninth section of said act of Assembly, no stockholder indebted to the company, is permitted [**24]  to make a transfer or receive a dividend until such debt be paid, or secured to the satisfaction of the president and board of directors of said company; and furthermore, because there is no consideration expressed in said supposed transfer for the making thereof. Which objection the court overruled and the defendant excepted.
Was the county court right in so doing is the question involved in the defendant's first bill of exceptions?
The appellant insists that there is error in the county court's decision, because Grant, by subscription for the stock, became a debtor to the company for the sum of twenty dollars on each share of the stock, which included the amount for which suit had been instituted against him. But there is nothing in this objection. 

 [*499]  The transfer of the stock having been duly made to him; and he having assented thereto, as is unequivocally demonstrated by his payment of instalments subsequently called in by the president and directors of the company, he was, in respect to said stock, substituted to all the rights and liabilities which would have attached to Grant, had he continued the owner thereof, and no such transfer had ever been made. And [**25]  there is quite as little weight in the appellant's second reason, assigned in support of his objection, founded on the ninth section of the act of Assembly of 1831, ch. 191, which declares, that no stockholder indebted to the company shall be permitted to transfer his stock, until such debt be paid or secured to the satisfaction of the president and board of directors.
The object of this section was to confer a privilege, not to impose an imperative duty, upon the company. Being a privilege, it might be waived or asserted, at the pleasure of the president and directors. And the transfer having been by them permitted, it was as valid and obligatory upon the appellant, as if no such indebtedness had existed. But suppose the ninth section of the act were to be construed, not as conferring a privilege, but as imposing a duty. Instalments not called in, constituted no such indebtedness as was contemplated by the act of Assembly. It contemplated only a debitum, solvendum in presenti, not in futuro. To give to the charter of the company the construction contended for by the appellant, would be to render its stock wholly untransferrable, until the par amount of it had been paid [**26]  up. Although the requisite instalments for that purpose had never been called in by the president and directors.
And there is still less foundation for the third reason urged to sustain the appellant's objection to the testimony offered, viz: because there is no consideration expressed in said supposed transfer, for the making thereof. It is as good, inter parties, if made without consideration, as if made with it. The only office of the transfer is to pass the stock to the transferree. It professes not to disclose the consideration which induced it; or the terms of the contract from which it emanates; and 

 [*500]  of which it is the consummation. There is, therefore, no error in the ruling of the court below, in the first bill of exceptions.
Neither is there any error in the court's overruling the objection of the appellant to the testimony offered by the appellee in the second bill of exceptions. The proceedings of Baltimore county court when sitting in equity, which were objected to as evidence, were not offered as an adjudication of any of the rights of the parties in any suit between them, and upon that ground as admissible evidence in the present controversy; but [**27]  were offered, without reference to the parties thereto, for the purpose of shewing by what authority the present action was prosecuted. In that aspect of their being offered, they are obnoxious to neither of the reason urged for their rejection. The court's order for the institution and prosecution of this suit was definite and final. As to the power exerted by Baltimore county court, sitting in equity, in the proceedings before it, it is believed no well-founded exception can be taken. It was indispensably necessary for the prevention of fraud; and to do justice to persons whose grievances were undeniable and incapable of relief any where else, or in any other way, than in that pursued by the county court. In such a case, and under such circumstances, it cannot be necessary to cite authorities to establish the propriety of the exercise of such a power. The county court then committed no error in overruling the objection taken by the appellant to the testimony offered by the appellee in the second bill of exceptions.
On the third bill of exceptions, the appellant has insisted that the county court in overruling his objection to the testimony offered by the appellee, erred upon [**28]  three grounds: first, because by the second section of the act of 1831, ch. 191, no call for the payment of any instalment on the stock of the company was legal, unless made by the president and directors thereof. Secondly, that a notice for the payment of such instalments must be personal notice, and that no newspaper publication thereof was sufficient. And thirdly, that the notices given by the receivers were insufficient, because by the provisions of the company's charter, sixty days must intervene 

 [*501]  between the times for the payment of each instalment. Having asserted the legality of the proceedings of the county court in assuming the jurisdiction, which it sought to exercise through the instrumentality of receivers, it follows as a necessary consequence, that under the court's order of the 26th June, 1834, the receivers had the same power to determine on the times of payment, and the amount of the instalments called in, that the president and directors of the company possessed, when uncontrolled by any intervention of the county court upon the subject.
In support of the second ground of objection: that the notice for the payment of the instalments must be personal;  [**29]  and that no newspaper publication thereof is sufficient. No authorities have been referred to; and there is nothing in the act of Assembly to induce a belief that it contemplated or required such notice to be personal. On the contrary, there is every reason to induce the adoption of a contrary opinion. The act of Assembly provides for the subscription of ten thousand shares of stock; amongst how many persons they may be distributed, not even a conjecture could be formed: they may have amounted to thousands. Of their respective residences there is equal, if not greater uncertainty, the law making no provision for a registry thereof, which it certainly ought to have done, had such personal notice been deemed necessary. And there is no proportionate object attained for the great inconvenience, labor, and expense, incident to such a notification, conceding it to be practicable. Persons who are stockholders in such a corporation are not inattentive to the concerns thereof, and obtain information in relation to its proceedings either through their own inquiries or the communications of friends resident at or near its office of business, or from publications in newspapers edited in its vicinity.  [**30]  The substitution of such newspaper publications in lieu of personal notice, has so long been an universal usage, and of a notoriety equal to that of the publication of newspapers themselves, that the custom of doing so has become a part of the law of the land.

 [*502]  It is true that in many of the charters of such corporations, there are express provisions for the publication of newspaper notices. But such provisions are rather to be regarded as declaratory of what the law is, and ought to be, than innovations upon it. In the very charter before us, some such newspaper notices have been provided for; but there is nothing to be found in it, which induce even a momentary belief, that the legislature omitted to prescribe such a notice in the section now under consideration, in order that a personal notice might be given to each individual stockholder. The third reason assigned for the rejection of the testimony offered in this bill of exceptions, cannot be sustained without interpolating into the charter, a provision which it does not contain. It no where prescribes any length of time which shall intervene between the times for the payment of any of the instalments. That is a matter [**31]  left entirely to the judgment and discretion of the president and directors. The only restriction imposed upon them, (in reference to instalments) for the benefit of the stockholders, is, that they shall be notified of their amount and time of payment, sixty days before the payment is required. No error is perceived in the ruling of the court in the third bill of exceptions.
The opinion expressed on the third bill of exceptions supersedes all necessity for the expression of any opinion on the defendant's fourth bill of exceptions.
In the fifth bill of exceptions, the defendant having offered in evidence by way of set-off, a judgment by him obtained against the plaintiff and three policies of the United States Insurance Company, and that he had been the bona fide holder of those claims before and ever since the failure of the company, and having admitted that, at a dividend made by the receivers of the assets of the company subsequently to the time when all the instalments called in by the receivers were payable, he had received a dividend of twelve per cent. on the full amount of his said claims, prayed the opinion and direction of the court to the jury, as follows: that [**32]  the plaintiff is not entitled to recover upon the evidence in this action. And in support of his 

 [*503]  prayer, assigned twelve separate reasons: the first, second, third, fourth, fifth, sixth, tenth and eleventh have been disposed of, and their insufficiency as the basis for the prayer predicated upon them, sufficiently shown by the preceding portion of this opinion.
The seventh ground on which the defendant claimed the granting of his prayer was: "because the said order of Baltimore county court directs the total amount of the instalments, payable on the stock, to be called for upon sixty days notice, contrary to the charter given in evidence, which allows no larger amount than five dollars upon such period of notice, at any one time to be called for, whilst the testimony and claim of the plaintiff in this cause shew, that the amount of unpaid instalments was nine dollars at the date of said order." Upon this ground, the appellant's prayer was properly refused, being founded in a misconception of the order of the court, which did not direct that all the instalments, which the receivers were to call for, should be made payable at one and the same time: but that sixty days [**33]  notice should be given to the stockholders previously to the time of the required payment of the instalments, and leaving to the receivers the power of fixing the amount of the instalments called for, in conformity to the provisions of the charter. Such appears to have been the receiver's interpretation of the court's order; and their proceedings under it were designed to be in strict accordance both with it, and the charter.
The eighth reason is: "because the said order of Baltimore county court has not, in respect of the notice thereby directed, been complied with, inasmuch as by the showing of the plaintiffs, the notice for one of the instalments, was, for the first time, published on the third day of July, in the year eighteen hundred and thirty-four, and required payment of said instalment on the first day of the next ensuing September: and because said notice was not sufficient, in that it was published only (daily) four times during the period between the third day of July, 1834, and said first day of September." As to the first branch of this reason, however, it might be a bar to 

 [*504]  the plaintiff's recovery of the first instalment, the payment of which was required [**34]  on the first of September; it assuredly formed no bar to the recovery of the three other instalments, the payment of which was fixed for the first day of October, the first day of November, and twenty-second day of December: and consequently was no warrant for the granting of the prayer made to the court. The second branch of the reason interposed no barrier to the plaintiff's right to recover. The notice given, as respects the mode of publication in the newspapers, was a sufficient compliance with the order of the court, and the requisition of the charter; and, of course, in no wise sustained the prayer addressed by the appellant to the court.
The ninth reason assigned for the granting of the appellant's prayer is sufficiently answered and obviated, in what has been said upon the seventh reason.
The twelfth reason was abandoned by the appellant in the argument of this cause.
The defendant below, after enumerating the twelve grounds upon which he claimed the court's opinion and direction to the jury, that the plaintiff was not entitled to recover; with a view to obtain an additional opinion and direction from the court to the jury, makes the following addition to his prayer:
"And [**35]  that the plaintiff cannot recover in this cause the instalment of four dollars, mentioned in the notice of 24th June, 1837, from the president and directors of said company, because it is made payable on the 26th of October, 1837, and the present suit was instituted on the 31st of August, 1837. Had this prayer been granted by the court, it is manifest that it would have been regarded by the jury, as, in fact, it would have been, a direction to them, that the plaintiff was not entitled to recover more than five of the nine dollars due on each of the hundred shares of stock, owned by the defendant. Such an opinion the court below could not have given to the jury, consistently, with the views herein before expressed as to the legality and sufficiency of the notices previously given by the receivers. In refusing this addition to the prayer of the appellant, the court below committed no error.

 [*505]  The only remaining prayer of the defendant below, in the fifth bill of exceptions, is in the record, numbered fourteen, and presents for our consideration the single question, whether the appellant after, in common with all other creditors, receiving from the receivers a dividend of twelve [**36]  per cent. on the entire amount of his claim against the company, can be permitted to set off the balance due to him against the claim of the appellee in the present action?
This suit was instituted in the year 1837, and the dividend was declared and paid in the year 1841. That the defendant understood the nature of the dividend declared: that he made known to the receivers the amount of the company's indebtedness to him, on which he claimed his dividend, cannot well be doubted; because three out of the five policies of the company on which that indebtedness arose were payable to bearer: and the receivers, in the nature of things, must have been apprized of his being the holder thereof, through some communication from himself. Indeed, it is a natural inference, that to justify and protect themselves, they must have required an exhibition of the policies by him, who claimed a dividend on account thereof. To claim a right of discount or set-off, is not an obligation or duty on the part of him who is entitled to it. It is his privilege, which he may waive or assert at his election. But having once waived it, and thereby obtained a dividend out of the effects of his debtor, to which, neither [**37]  at law nor in equity, would he have otherwise been entitled, he will not afterwards be permitted, either in a court of law or of equity, as a matter of right, to assert his claim by way of discount or set-off. To suffer him to do so, would in contemplation of law, if not in fact, be practising a fraud upon the other creditors of his debtor. And this may be briefly illustrated by a supposititious statement, entirely analogous to the case before us.
Suppose the claim of the company against the defendant was $ 1,000, and that of the defendant against the company, $ 1,150; upon the principles of discount of set-off, the actual indebtedness of the company would be $ 150; the dividend of twelve per cent., on which is $ 18, and that is all that the defendant 

 [*506]  could justly claim or receive under the dividend as made by the receivers. But instead of thus preferring his claim, he waives his right of set-off, and prefers his entire claim of $ 1,150, and receives a dividend of $ 138, instead of $ 18; that is $ 120 more than upon any principle of set-off, he had even the shadow of a claim upon the funds in the hands of the receivers. The county court were clearly right in refusing this [**38]  prayer of the defendant. This view of the question renders it unnecessary to inquire into the general right of set-off, if no such dividend has been received by the appellant.
The granting of the prayer of the appellee would necessarily follow, from what has been said in relation to the prayers made by the appellant.
Concurring in all that has been done in this case by the county court, its judgment should be affirmed.
JUDGMENT AFFIRMED.  

5 of 33 DOCUMENTS 

ASHTON ALEXANDER AND JOHN WILSON vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 383; 1847 Md. LEXIS 34 

December, 1847, Decided 

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

The bill of the appellants, Ashton Alexander and John Wilson, filed on the 26th January, 1847, charged that by an act of the General Assembly of Maryland, passed at its December session, 1838, chapter 226, entitled "An act to vest certain powers in the corporation of the city of Baltimore, in relation to streets," the State of Maryland purports and attempts to confer upon the Mayor and City Council of Baltimore, the full power and authority to provide for opening, laying out and extending, widening, straightening, or closing up, in whole, or in part, any street, square, lane or alley, within the bounds of said city, which, in their opinion, the public welfare or convenience may require; and bestows upon this municipal corporation, the unbounded privilege (heretofore regarded as one of the transcendant attributes of sovereignty) of taking private property and taxing, (and that even under a scheme of partial and arbitrary taxation) and for the taxes charged, selling real estate within the said city; that the said corporation, seeking to provide for the exercise of the powers thus proffered to it by the legislature, passed (on the 9th March, 1841)  [**2]  an ordinance, No. 10, entitled, "An ordinance to provide for exercising certain powers vested in the corporation," in relation to streets in the city of Baltimore, authorizing the appointment of commissioners, to act in effecting the extending, and opening, and changing streets, lanes and alleys, as aforesaid, under said act of Assembly, and the taking of property, and the taxation, (upon the partial basis as aforesaid) and the enforcement of taxation aforesaid, to which ordinance your orators refer; that under said ordinance, there were appointed commissioners, who are and have been acting as such, to wit: Anthony Miltenberger, John Dushane and John F. Hoss; that by an ordinance of said corporation, passed the 15th April, 1835, entitled "An ordinance providing for the extension of Fayette street, the said corporation required that Fayette street should be extended easterly from the east side of Gay street across Johnes' Falls, and thence to go in a straight line until it should strike the line of the south side of Pitt street, so connecting and opening into one continued street, Fayette street and Pitt street, said ordinance, among other things, providing and enjoining, as your orators [**3]  charge, that for said extension of Fayette street, and any expenses and damages therefor, any property on Baltimore street should not be assessed or charged, although, as your orators state, said Baltimore street is parallel with Fayette street, and next thereto, and within the possible, if not indeed the probable range of fair assessment, even upon the partial scheme of taxation prescribed by the said general ordinance, passed for carrying out the said act of Assembly; and said ordinance for extending Fayette street, also exempts the said corporation (constituted, as the incorporating act shows, of the inhabitants of the city of Baltimore) from any expense, cost or charge, in relation to, or connected with, said extension of Fayette street, except the building of a bridge over Jones' Falls; and as regards assessment on property held by said corporation, that the commissioners aforesaid proceeded in the office aforesaid, of extending and opening Fayette street, under color of the last mentioned ordinance, by ascertaining and assessing the value of the property, to be taken and appropriated for the said object, and the necessary expenditures, and assessing the amount and damages accordingly,  [**4]  not as a debt and burden of the public and of the city at large, but (in the terms and spirit of said general ordinance) upon particular individuals and corporations, judged (and conjecturally assumed, as your orators believe and charge) by said commissioners to be benefited by said work of extension and opening, in respect of pieces of ground owned by them on or near Fayette or Pitt street, among which parties so charged were certain religious congregations, whose taxation in that respect was of a large amount in all; that on an appeal from said assessment, and taxation of said commissioners, taken to Baltimore City Court, under the general ordinance aforesaid, the said religious congregations were absolved and declared exempt by said court from said assessment and taxation, and from all charge and taxation whatsoever, for or relative to said extension and opening; that thereupon, most unjustly and arbitrarily, and without reference to special benefits of any of the other parties charged, flowing from said extension and opening, the amount of the said taxation from which said religious congregations were relieved, was charged and apportioned (and most unequally too, apportioned) upon [**5]  and among the remaining taxed parties aforesaid, of which number are your orators; the taxation in some instances being made double the amount assessed as aforesaid by said commissioners; that they were not parties to said appeal, and were unrepresented and undefended before said City Court, as was the case with many of said parties, thus subjected to the increased and aggravated taxation aforesaid; nor had your orators any notice whatsoever of any claim or design or pretension whatsoever, to augment as aforesaid the said taxation already imposed on them by said commissioners, and not brought into question by your orators, nor submitted to the action of said City Court by any appeal on their part; that the tax on your orator Alexander's property, which, by the assessment of the commissioners was $ 368, is now, by the arbitrary increase aforesaid, $ 436 49; and that your orator Wilson's said tax, from (as is believed) $ 162, is increased to $ 220 68; that sales were made for the benefit and uses of said extension and opening of certain property taken for said project, and to an amount exceeding eighteen hundred dollars, which amount your orators insist and charge should in the taxation [**6]  reviewed and determined upon under said appeal, have been abated from the whole assessment, and been deducted rateably and distributively from the respective assessments of the parties charged; but your orators charge that no such abatement nor any allowance or consideration whatsoever, for or of said proceeds of sale, was made or had upon the final adjustment and determination aforesaid of the said taxation, in said City Court; that said entire assessment of said commissioners was thus in manner and arbitrarily as aforesaid, passed upon and finally determined by the verdict of a jury in the said City Court, on appeal aforesaid, and under the direction of the judges of said court. And thereby your orators are taxed and required to pay the amounts aforesaid, specified for and in respect of said extension and opening of Fayette street, and the said amounts are claimed from them respectively under the said oppressive and invalid act of Assembly, ordinances and proceedings of commissioners, and of jury and court; and the real estate of your orators respectively, in respect of which they are taxed as aforesaid, is liable to be sold and threatened to be sold to satisfy said unjust requirements;  [**7]  that said final assessment has been returned by the City Court aforesaid, to the Register of the city of Baltimore, and that the collector of taxes for said city, Henry Snyder, is accordingly now claiming payment of the several amounts of assessment aforesaid from your orators respectively, and in default of payment, the several pieces of ground, for which your orators are so taxed, are on the 11th February, 1847, to be advertised to be sold; and your orators are thus in jeopardy of their estate, from the operation of a law, ordinances, and proceedings, contrary to the acknowledged principles of constitutional law, and in defiance of all the safeguards of the citizen's property, and civil liberties; for your orators maintain that not only have the proceedings as now detailed by your orators under said ordinances, been most irregular and arbitrary, and the partial character of the said taxation been most oppressive, but that the said act of Assembly bestowing the supreme powers upon the said corporation is unconstitutional and invalid, as delegating to a subordinate agency, an authority and discretion peculiar to the sovereign power, and to abide with it, and to be exercised by that [**8]  sovereignty directly and exclusively. But notwithstanding all these irregularities and oppressive procedures, and the utter invalidity of said act of Assembly, and the virtual usurpation of power, although colorably conferred by said act, asserted by said corporation, and to which your orators are about to be subjected, by the penalty of having their property sold, and themselves divested of their rightful estates, the claims aforesaid against your orators are persisted in, and your orators are in imminent hazard of the unjust and onerous exactions aforesaid, all which is against equity, and much to the grievance of your orators. In tender consideration whereof, and for and to the end that the said corporation, the Mayor and City Council of Baltimore, may answer the premises, and that said corporation be perpetually enjoined, and prohibited from selling the property aforesaid of your orators respectively, for and in regard to which, they severally are as aforesaid assessed and taxed, and from in any wise claiming, or proceeding to obtain payment of said assessments and taxes from your orators, and that your orators may respectively have such further and other relief in the premises,  [**9]  as may seem proper. Prayer for injunction, enjoining and prohibiting the selling, or offering to sell, any of the property aforesaid, of your orators respectively, for or on account of the assessment, taxation and charges aforesaid against your orators respectively, or any of their property, and from in any wise claiming or proceeding upon, or in relation to said assessments, taxations and charges, until this court's further order in the premises.

The Chancellor (JOHNSON) refused the injunction, stating he could not regard the act of Assembly as unconstitutional; and for the alleged improper conduct of the commissioners, redress might have been had by appeal.

On the 10th day of March, 1847, the solicitor of the complainants filed in the said cause an attested copy of the said bill, with the following opinion and order of the Honorable STEVENSON ARCHER, Chief Judge of the Court of Appeals.

Opinion of ARCHER, C. J. of Maryland.

I think it cannot be contended, at this day, that the act of Assembly of 1838, ch. 226, is unconstitutional.

The appropriation of private property to public use is undoubtedly a high sovereign power; but the practice of our State, from [**10]  the formation of our government, has sanctioned the delegation of this power to subordinate jurisdictions, both judicial, and municipal.

The power of legislation is a high sovereign power, yet even that has been delegated with certain limitations to municipal corporations, and the power has never been disputed, but has been expressly sanctioned by judicial decision.

Judicial tribunals have been empowered from time to time to open roads for the public convenience, and the county commissioners or levy courts in some of the counties, possess, and exercise that power.

It is not perceived that the assessment of benefits equivalent to damages, if, in fact, the benefits are equal to the damages, on particular districts benefited, can be objectionable. Upon such principles, the roads in the counties are opened; the expenses are either levied on the counties generally, or on the petitioners immediately benefited. Why are roads opened? It is upon the ground that they are conducive to the general welfare; yet the expenses of opening them are levied not on the State, but upon the county benefited, in some instances; and in other instances, on a more circumscribed locality, if that [**11]  should be found to be more immediately benefited. The determination that assessment of expenses cannot be made, as was contemplated to be done under this law, would in fact overturn nearly our whole system of county and city expenditures, and county and city taxes. The welfare of the whole State is promoted by the prosperity of each part, and the prosperity of each part is promoted by convenient highways; yet who would say, that the taxation for opening a road in one county, must, for these reasons, be laid upon the whole State? These roads promote the public welfare, yet the expenses are laid on the particular district more immediately benefited. This has been sanctioned by the practice of the government since its organization, and even in the counties, (where particular districts are peculiarly benefited, or presumed to be benefited, from the fact that persons petitioning for a given road) the expenses are levied or may be levied on the persons applying, instead of subjecting the whole county to taxation for the road.

Applying this practice of the State authorities, which has existed so long, to the principles upon which the law of 1838 is based, and I am clearly of opinion [**12]  that no objection can be taken on constitutional grounds to the law of 1838, certainly in point of justice none can be taken. Each man according to the theory of this law, paying according and only equivalent to the amounts of his benefits, from the particular improvement made.

It is no objection to the mode in which this power has been executed by the city, that she pays no expenses, except that she is taxed with others for the benefits conferred on her property by the opening of the street; such a procedure is only equivalent to saying, that if the benefits are not equal to the damages, and the street cannot be opened in that way, it shall not be opened at all;--or in other words, there shall not be a general tax for opening the street. The law does not, nor does the ordinance, require any man to pay more than his benefits shall be valued at. The act of 1838, ch. 226, no doubt contemplated that the benefits from the opening of a street should be assessed on all the property within the city, benefited by such improvement; and if it had satisfactorily appeared, that property benefited by such opening was exempted by the city authorities from the proposed taxation, no doubt the [**13]  ordinance would be void, because, instead of carrying out the intention of the legislature, it would have been a violation of the system of taxation which the law proposed. But the ordinance for opening Fayette street does not indicate in any of its provisions, that the property on Baltimore street, which it exempts from taxation, would be benefited by the opening of Fayette street; on the contrary, the presumption from such exemption is, that it was the opinion of the City Council that it was not benefited, and therefore should not be assessed. There is nothing in the ordinance to show that any property on Baltimore street was benefited, nor is there any averment in the bill that the property on Baltimore street was benefited. The only averment is, that Baltimore street is parallel with Fayette street, and next thereto, and that it is within the possible, if not indeed the probable range of fair assessment.

When the exercise of so high and extraordinary a power is called for, as the granting an injunction, attended with such consequences as the granting of this would be, I must see clearly and distinctly that a positive injury has been inflicted. It will not do in such a case [**14]  to act on possibilities or probabilities. Suppose the injunction granted, it may turn out that by the exemption of property on Baltimore street, no injury has been done to the complainants, because the property on Baltimore street has not been benefited. Nay, it may appear that Baltimore street, being a great through fare from east to west through the city, is, instead of being benefited materially, prejudiced by the opening of another street, (Fayette) parallel to it, through the city from east to west, and near thereto, by means of which the travel and business of the street is diverted to the street to be opened, and the property thereon situated thereby materially lessened in value.

The other allegations in the bill do not furnish any ground for an injunction. I have accordingly endorsed on the bill, in pursuance of the act of 1832, ch. 197, my refusal to grant the injunction.

From the refusal of the Chancellor to grant an injunction, the complainants prosecuted this appeal.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

The act of 1838, ch. 226, enacted that the M. and C. C. of Baltimore should have full power to provide for laying out, opening, extending, &c., in whole or in part, any street, &c. within the bounds of said city, which in their opinion the public welfare or convenience may require; to provide for ascertaining whether any, and what amount, in value of, damage will be caused thereby, and what amount of benefit will thereby accrue to the owner &c. of any ground within or adjacent to said city, for which such owner &c. ought to be compensated, or ought to pay compensation, and to provide for assessing and levying either generally on the whole assessable property within the said city, or specially on the property of persons benefited, the whole or any part of the amount of damages and expenses which might be incurred; to provide for granting appeals to Baltimore City Court, from decisions of any commissioners who might be appointed under the authority of the city, &c. securing a review of the assessment by a jury. Held, that this act was a constitutional exercise of legislative power, and all proceedings of the city in conformity to it valid.

The power of appropriating to a public use the property of individuals, when public necessity or utility requires it, upon securing to the party whose property is sacrificed, a just compensation for any injury he may sustain, resides in the State as a portion of its inherent sovereignty.

It is this supreme power over the property of individuals which enables the State to confer upon our subordinate jurisdictions, both municipal and judicial, the right to take private property, for the purpose of opening streets and roads, when in their opinion it is demanded by the public welfare and convenience, adequate provision being made for indemnification.

The ordinance of the city of Baltimore, of the 9th March, 1841, passed to carry into effect the powers granted by the act of 1838, ch. 226, directed the commissioners, after ascertaining the amount of damages and expenses to be incurred in any case, to assess the same on all the ground and improvements within the city, the owners of which, as such, the said commissioners should decide to be benefited by accomplishing the object authorized in the said ordinance--apportioning them in just proportion, according to the value of the benefit, which, in the estimation of the said commissioners, will accrue to each owner of any right or interest claimed in any such ground or improvements--does not subject the individuals embraced by it to an unequal and partial tax, for the prosecution of an improvement in which the whole community is interested.

No burden is imposed by such an ordinance on the person on whom it operates. It is a mere requisition that the owners of property, the value of which is enhanced by the opening of the street, shall pay for the improvement in a ratio to the benefit derived from it.

Extravagant estimates of benefits in such cases may be corrected upon appeal, and by a contest before a jury, which is secured to an aggrieved party.

Assessments equivalent to benefits derived in such cases are equitable.

The ordinance in question exempted certain property, as not benefited, from the assessment to be made under it. If it had appeared in fact, that the property so exempted was benefited, then the ordinance would be void.

Chancery will not interpose, and arrest by injunction the progress of a public improvement in a municipal corporation, upon a mere inferential and argumentative statement with reference to an essential fact omitted in the bill, necessary to establish the complainants right to the writ.

Where an act of Assembly gave a power to a municipal corporation, to provide for opening a street, with a right of appeal, and to a trial by jury, by any party aggrieved, before an inferior tribunal, and the right of appeal was exercised, the Court of Chancery has no jurisdiction to supervise or re-examine the proceedings and judgment of the court, to which the appeal was taken.  

COUNSEL:
By MAYER for the appellants, and

By B. C. PRESSTMAN for the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*392]   [**15]  MARTIN, J., delivered the opinion of this court.
In the argument of this case, the counsel for the appellants has contended that the act of Assembly of 1838, ch. 226, is to be considered as an unconstitutional exercise of legislative power, and that all the proceedings of the Mayor and City Council of Baltimore, with respect to the extension of Fayette street, as exhibited in the record, were unauthorized and void. And upon this ground he has claimed the interposition of the Chancery court, to protect the property of the appellants from the enforcement of a tax, which it is alleged was illegally imposed upon it.
But we think that the counsel for the appellant has not succeeded in establishing a want of power in the legislature to pass this act.
That the power, of appropriating to a public use the property of individuals, when the public necessity or utility requires it, upon securing to the party whose property is sacrificed, a just compensation for any injury he may sustain, resides in the State, as a portion of its inherent sovereignty, is a proposition which cannot be denied.
In defining the nature and extent of this power, in the case of Bonaparte vs. The Camden and  [**16]   Amboy Railroad Company, 1 Bald. Rep. 221, the learned judge, after stating that the complainant by his contract of purchase, authorized by the law of the State, is so far protected, that his property cannot be transferred to the defendants, without his consent, by mere legislative power, said:
"To make such a transfer valid, it must be an appropriation to a public use, in virtue of the inherent sovereignty of the States, which carries with it the obligation to make compensation. When this is done, no contract is impaired, as all persons hold their property subject to requisitions for public service; it is protected only against arbitrary seizure, not when it is taken or appropriated by public right for public use; compensation must indeed be made, but no particular mode is prescribed by which its amount shall be ascertained. It is a principle of Magna Charta, recognized in all the States, that 

 [*393]  no man shall be disseized or dispossessed of his property without due process of law, or legal process, or the judgment of a jury; but if either mode is pursued, the principle is unimpaired. A law which authorizes the appropriation of property to public use, and prescribes [**17]  a mode of proceeding by which compensation shall be ascertained and made, is not obnoxious to Magna Charta, or its construction in England or in this State."
It is this supreme and controlling power over the property of individuals, which enables the State to confer upon her subordinate jurisdictions, both municipal and judicial, the right to take private property for the purpose of opening streets and roads, when in their opinion, it is demanded by the public welfare or convenience; and when property is thus taken, and accompanied by an adequate provision for the indemnification of the injured party, the appropriation is legalized by the fact, that it has been taken for a public purpose, under the authority and sanction of the State.
It is not an arbitrary seizure of property, and therefore, is not in conflict with the principles of Magna Charta, or the provisions of the constitution.
The taxing power is a power of vital importance; it exists in the State, like that of the eminent domain, as a part of its inherent sovereignty; it is capable, from its nature, of being greatly abused, and yet this power was granted by the original and supplemental charters of the city [**18]  of Baltimore, to the Mayor and City Council, to be exercised in their discretion, upon all property within the corporate jurisdiction and limits, and without any limitation with respect to the objects on which it was to operate. This grant of power to the city, has never been questioned, and in principle cannot be distinguished from the authority delegated to the Mayor and City Council of Baltimore, by the act of Assembly of 1838, ch. 226.
In the case of Burgess vs. Pue, 2 Gill 11, the Court of Appeals held, that it was competent for the legislature to delegate the power of taxation to the taxable inhabitants of a school district, for the purpose of raising a fund for the support of primary schools; and we quote the opinion of the 

 [*394]  court, as directly applicable to the principle involved in this controversy. The court say--
"We think there is no validity in the constitutional question which was raised by the appellee's counsel in the course of his argument, relative to the competency of the legislature to delegate the power of taxation to the taxable inhabitants, for the purpose of raising a fund for the diffusion of knowledge, and the support [**19]  of primary schools. The object was a laudable one, and there is nothing in the constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to other bodies, for political purposes, have been coeval with the constitution itself, and that no serious doubts have ever been entertained of their validity. It is therefore too late at this day to raise such an objection. The ground of objection taken in the argument to the constitutionality of the tax, seemed to be, that the act of the legislature delegating the power of taxation to the taxable inhabitants, was a violation of the fourth and twelfth sections of the bill of rights, the first of which provides, 'that all persons invested with the legislative and executive powers of government are the trustees of the public, and as such, accountable for their conduct:' and the last, 'that no aid, charge, tax, fee or fees, ought to be set, rated or levied, under any pretence, without consent of the legislature.' It is not perceived how the act in question can be deemed a violation of either of those principles of the fundamental law. The tax was [**20]  levied with the consent of the legislature, because the power to impose it emanated from the legislative department of the government, and was expressly given by a law passed for that purpose, and there is nothing in it which can be considered as impairing in the slightest degree the responsibility of the law-making power to their constituents, for the due and faithful execution of the trust confided to them; because, if deemed to be unwise or inexpedient, an expression of the popular will to that effect was all that was necessary to procure its repeal."

 [*395]  That the General Assembly possesses the power to delegate to the Mayor and City Council of Baltimore, and to the commissioners or levy courts of the counties, authority to alter or open streets and roads, when, in their opinion, such an improvement is required by the public convenience, is a proposition that has been, repeatedly, and in various forms, acknowledged by both the legislative and judicial departments of the government; and is sanctioned by a practical exposition of the constitution, as exhibited in the usage and practice of the State, for a long series of years.
A statute of New York granting to the [**21]  corporate authorities of that city, a privilege similar to the one professed to be delegated by the act of 1838, was treated by the Chancellor, in the cases of Livingstone vs. The Mayor of New York, 8 Wend. 101 and Wiggin vs. the same party, 9 Paige 23, as an undoubted exercise of legislative power, and, we think, that this question of power must be considered as too firmly settled in Maryland to be questioned or disputed.
By the sixth section of the ordinance of the 9th March, 1841, passed to carry into effect the powers granted to the Mayor and City Council by the act of 1838, ch. 226, it is provided:
"That the commissioners after having ascertained the amount of damages, and added thereto an estimate of the amount of expenses which will be incurred in the performance of the duties required of them, shall proceed to assess the amount of said damages and expenses on all the ground and improvements within the city, the owners of which, as such, the said commissioners shall decide and deem to be benefited by accomplishing the object authorized in the ordinance aforesaid, apportioning them in just proportion according to the value of [**22]  the benefit, which in the estimation of the said commissioners will accrue to each owner of any right or interest claimed in any such ground or improvements."
And it has been contended, that this ordinance is to be pronounced unconstitutional and void, on the ground, that it subjects the individuals embraced by it to an unequal and 

 [*396]  partial tax for the prosecution of an improvement in which the whole community is interested. But the error of the argument addressed to the court on this point, exists in a misapprehension of the nature and object of this assessment. No burden is imposed by it upon the person on whom it operates. It is a mere requisition, that the owners of property, the value of which is enhanced by the opening of the street, shall pay for the improvement in a ratio to the benefit derived from it.
It cannot be denied that injustice is sometimes inflicted in the application of this principle, by an extravagant estimate of the benefits conferred by the improvements: but when this occurs, the aggrieved party may appeal to the City Court, and contest the correctness of the assessment made by the commissioners before a jury of the country. And, assuming [**23]  that the amount of the assessment is only equivalent to the benefit derived by the owner from the enhanced value of his property, nothing can be more equitable and just than that he should pay it.
In the matter of the Mayor of New York, 11 Johns. 77, the commissioners appointed by the court for the enlarging of Nassau street, made a report of their estimate and assessment of the damage and benefit to the parties interested, in enlarging the street, by which it appeared that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The several churches objected to the assessment, on the ground, that they were exempt from it by virtue of the general tax act which declared, that no real estate belonging to any church, or place of public worship, should be taxed by any law of the State.
The claim of the churches was overruled; and we refer to the opinion of the court, as illustrative of the principle upon which this doctrine of assessments for benefits is supposed to stand.
The court said--
"The churches are not well founded in their claim to a total exemption of their lots from assessments, for opening, enlarging, [**24]  

 [*397]  or otherwise improving streets in the city of New York, made in pursuance of the act of the 9th April, 1813. These assessments are directed and intended to be made upon the owners of lands and lots who may receive benefit and advantage by the improvements. The exemption granted by the act of 1801, was in the general act for the assessment and collection of taxes; and the provisions of that act all refer to general and public taxes to be assessed and collected for the benefit of the town, county, and State at large. The words of the exemption are, "that no church or place of worship, nor any school house, &c., should be taxed by any law of the State." The word "taxes" means burdens, charges or impositions, put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word talliage, 2 Inst. 532, and Lord Holt, in Carth. 438, gives the same definition, in substance, to the word tax. The legislature intended by that exemption to relieve religious and literary institutions from these public burdens, and the same exemption was extended to the real estate of any minister, not exceeding in value $ 1,500. But [**25]  to pay for the opening of a street, in a ratio to the benefit or advantage "derived from it, is no burden. It is no talliage or tax within the meaning of the exemption, and has no claim upon the public benevolence. Why should not the real estate of a minister, as well as of other persons, pay for such an improvement in proportion as it is benefited? There is no inconvenience or hardship in it, and the maxim of the law, that qui sentit commodum sentire debet et onus is perfectly consistent with the interests and dictates of science and religion."
The same doctrine is enunciated by the Chancellor, in the case of Livingstone vs. The Mayor of New York, 8 Wend. 101; and, we think, that the act of 1838, ch. 226, and the ordinance of the 9th March, 1841, passed in pursuance of it, must be regarded in all respects as a valid exercise of legislative power.
It was manifestly contemplated by the legislature, that the amount of damages and expenses incurred in the improvement 

 [*398]  of the streets in the city of Baltimore, under the act of 1838, ch. 226, should be distributed in a rateable proportion among the owners of property especially benefited; and [**26]  if it had appeared that the property in Baltimore street was enhanced in value by this extension of Fayette street, the ordinance of the 15th April, 1845, exempting this property from assessment, would be void.
But there is no allegation in the bill that the property in Baltimore street was benefited by this proposed improvement; and in the absence of such an averment, the objection that the ordinance is to be treated in this respect, as invalid, does not arise.
It is not to be supposed, that the Chancery court would be authorized to interpose its strong arm, and arrest by an injunction, the progress of this improvement upon the mere inferential and argumentative statement, that because Baltimore street and Fayette street were parallel, the property in the former street might, possibly, or even probably, be within the range of fair assessment.
As the property in Baltimore street is exempted from assessment by the provisions of the ordinance, the presumption is, that it was not benefited by the extension of Fayette street. And if it was the object of the complainants to call into action the preventive and conservative power of the Chancery court, for the [**27]  purpose of enjoining the collection of this assessment, upon the ground, that the ordinance was void; the fact on which they relied to invalidate the ordinance, should have been expressly charged in the bill, and not left to inference and conjecture. This they have not done: and upon the case made by the bill, the ordinance is to be regarded, we think, as a valid exercise of the power delegated by the act of 1838, ch. 226.
It is perfectly clear, that the Court of Chancery has no jurisdiction to supervise or re-examine the proceedings and judgment of the City Court, with respect to these assessments.  4 Johns. Ch. 352. And we think, that the order of the Chancery, refusing this injunction, was correct, and must be affirmed.
ORDER AFFIRMED.  

6 of 33 DOCUMENTS 

EPHRAIM LARRABEE vs. W. A. TALBOTT, P. T. OF CHARLES P. ROGERS AND GEORGE A. FRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 426; 1847 Md. LEXIS 36 

December, 1847, Decided 

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

This was an action of trover, brought on the 31st March, 1842, by the appellee against the appellant, for divers articles of merchandise and promissory notes, enumerated and described in the declaration. The defendant pleaded not guilty, on which issue was joined. The verdict was for the plaintiff.

At the trial of the cause, the plaintiff offered evidence to show that Rogers & Frick being citizens of Baltimore, applied for the benefit of the insolvent laws of Maryland, to the commissioners of insolvent debtors for the city and county of Baltimore, on the 30th August, 1841. That the plaintiff was appointed permanent trustee of said applicants on the 20th December, 1841, and filed his bond with approved security, for the faithful discharge of his duties as such; that on the 12th May, 1841, Rogers & Frick were co-partners under that name, were then insolvent, and that such insolvency was then known to D. Berrien, Jr. & Co.; that on said 12th May, 1841, Rogers & Frick were indebted to D. Berrien, Jr. & Co. in the sum of $ 1071 73 in the promissory note hereinafter inserted, and gave the said D. Berrien the goods to the amount of $ 535, and [**2]  the bills receivable and promissory notes of debtors of said firm of R. & F. to the amount of $ 538 80, being the goods and notes set forth in the declaration in this cause, in payment of the indebtedness of said R. & F. to D. Berrien, Jr. & Co., and that said goods and notes came into the possession of the defendant, as the agent of the said D. Berrien, Jr. & Co.; that at the time of such payment, said Rogers & Frick intended to apply for the benefit of the insolvent laws of the State of Maryland.

The defendant, to maintain the issue on his part, offered evidence to show that said Rogers & Frick were not insolvent on the said 12th May, 1841, but then believed themselves able to pay all their debts; that they did not intend to take the benefit of the insolvent laws, nor did they suppose from the nature of their circumstances that they would have to do so, but expected fully to pay all their debts. And further offered evidence that Rogers & Frick on that day had ample means to pay their debts, without being compelled to take the benefit of the insolvent laws; that D. Berrien, Jr. was wholly unaware of the insolvent condition of Rogers & Frick on the 12th May, 1841, and for some [**3]  time thereafter.

The plaintiff, further to maintain the issue on his part, gave in evidence by J. P. Delacour, that he, witness, was clerk of R. & F. from June, 1840, till they failed; that D. Berrien, Jr. came to Baltimore on or about the 12th May, 1841, who told witness that at the instance of R. & F. he had come on from New York to settle his account; that Berrien and R. & F. had a settlement, and that Berrien received goods and notes in satisfaction of the indebtedness of R. & F. The goods were packed up in six boxes, marked T, (diamond T) and were sent off on Monday morning early, succeeding the settlement. Witness looked at the books, and found they were charged to E. Larrabee. Berrien gave witness a list of the notes taken in part settlement of R. & F's indebtedness to D. Berrien, Jr. & Co., and told witness the notes were at Larrabee's, where the debtor's on the notes might find them; and asked witness to take any of said debtors he might see, to Larrabee. Witness took Johnson, one of the debtors, to Larrabee, who paid his note. Witness asked Larrabee if he would give witness a commission of two and a half per cent. to bring the debtors to him. Larrabee said he was but [**4]  an agent for Berrien, and would write to Berrien to see if he would consent to the commission; that the notes taken by Berrien and left with Larrabee were of good men; that witness has never known of any dealings between Rogers & Frick and Larrabee, and does not know that Rogers & Frick were known to Larrabee at the time of the settlement with Berrien. Witness never saw Larrabee at the store of Rogers & Frick, and Larrabee always told witness he was but the agent of D. Berrien, Jr. & Co.

The plaintiff further gave in evidence the promissory note of Rogers & Frick in favor of D. Berrien, Jr. & Co., with its endorsements.

Baltimore, Nov. 6th, 1840.

$ 1071 70. Six months after date, we promise to pay to the the order of Messrs. D. Berrien, Jr. & Co., ten hundred and seventy-one dollars and seventy cents, value received.

No.     Due 6--9.     Rogers & Frick.

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

Pay to the order of Mr. E. Larrabee.

D. Berrien, Jr. & Co.

Baltimore, May 12th, 1841.

Received on the within note, bill of merchandise to the amount of five hundred and thirty-five dollars.

$ 535 00.     [**5]  Eph'm Larrabee.

Received the following notes to balance the amount of this note:

________________________________________________________________________________

Wolfenburger & Kerr,	$ 207 43	
Wm. Johnson,	63 82	
Eli Overdeen,	51 62	
W. W. Wolfenburger,	74 96	
Wilson & Spier,	124 82	
Jno. H. Grigg,	16 15	
	
	$ 538 80	
________________________________________________________________________________

May 12th, 1841.     Eph'm Larrabee.

The signatures to said note of the makers, endorser and of Larrabee being admitted to be genuine; and further gave in evidence that the receipt of E. Larrabee on said note was the receipt of the defendant, and was for the goods and notes given by Rogers & Frick in payment of their debt to D. Berrien, Jr. & Company.

The plaintiff further gave in evidence the plaintiff's demand of the defendant of the goods and promissory notes (mentioned in his declaration) given as payment by R. & F. to D. Berrien, Jr., which demand was made on the 20th January, 1842, on the defendant, and by him refused.

The defendant, further to maintain the issue on his part, gave in evidence by Joseph W. Larrabee, that witness was clerk of defendant and is his brother, that he never knew of any business transactions with R. & F. by the defendant. That he was clerk on the 12th May, 1841, and that [**6]  he never saw any goods come in the store of defendant from Rogers & Frick: that if any had come, witness would have known it, as it would have been his duty to have entered them in the receipt book. Witness saw Berrien in defendant's store in May, 1841, when then in Baltimore; does not know of any boxes shipped to New York in May, 1841.

The defendant further gave in evidence by John Brown, a competent witness, that the witness is agent for the coasting transportation line between Baltimore and New York; that on the 14th May, 1841, E. Larrabee shipped in his line of packets to New York, six boxes of goods marked T, (diamond T,) to A. Gilbert; that these goods were received on board on the 14th May, 1841; that he does not personally know who shipped these goods, but that the bill of lading is in the name of E. Larrabee.

The defendant further gave in evidence by Edward W. Larrabee, that he remembers when Berrien was in Baltimore in May, 1841; that Berrien left for Washington, on the 12th or 13th of May of that year; and then returned to the city of Baltimore. That Berrien went to Washington within two days after reaching Baltimore; that on the 14th May, 1841, about 8 or 9 o'clock,  [**7]  A. M., a drayman stopped before the defendant's store door with some boxes of goods on his dray, and entering the defendant's store, said to witness, "here are some goods from Rogers & Frick, who have told me to call here for the bill of lading for the New York packets:" that witness then saw the defendant step back to the desk in the back of the store, and after a little time give the drayman a piece of paper, which the drayman took, and drove off with the goods.

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

1. If the jury shall find from the evidence, that at the time Rogers & Frick assigned and delivered the merchandise and notes in question to Berrien or Larrabee, they had no reasonable expectation of being exempted from liability or execution, for or on account of their debts, without applying for the benefit of the insolvent laws, then the said transfer was made with a view, or under an expectation on the part of Rogers & Frick, of being or becoming insolvent debtors, and said transfer is void; and shall further believe, that Rogers & Frick did afterwards apply for the benefit of the insolvent laws of Maryland, the plaintiff is entitled to [**8]  recover, provided the jury shall also believe that Berrien had notice of the condition of insolvency of said Rogers & Frick. Notwithstanding, they shall also believe that Larrabee acted as the agent of Berrien, in the receipt of the property, and had shipped the goods to Gilbert before the demand of the plaintiff.

2. Although the jury should believe that Rogers & Frick had reasonable expectations of being exempted from liability or execution for or on account of their debts at the time of the assignment and delivery as referred to in the first instruction, yet, if the jury find the said assignment and delivery, and that the same was made with a view of being or becoming insolvent debtors, and with intent thereby to give an undue and improper preference, and that they afterwards applied for the benefit of the insolvent laws, then said assignment is void, although the jury should believe that said assignment was made in satisfaction of a bona fide debt due from said Rogers & Frick; and although the jury should find that Berrien had no notice of the condition of insolvency of said Rogers & Frick, if such insolvent condition existed at the time of said assignment; and the plaintiff [**9]  is entitled to recover, although the defendant acted as mere agent of Berrien, if the jury shall find that the defendant shipped the goods before action brought, to Gilbert of New York.

Which instructions, the court (ARCHER, C. J., and PURVIANCE, A. J.) gave. The defendants excepted and prosecuted this appeal.

It was admitted in the Court of Appeals, that it was proved by each party, at the trial of this case in the court below, that D. Berrien Jr. & Co. were citizens of the State of New York, residing in the city of New York, before any dealings between them and Rogers, Frick & Co., and so continued till the trial of this cause; and that the indebtedness of Rogers & Frick to said D. Berrien, Jr. & Co. was for goods sold and delivered by said Berrien & Co. at the city of New York, to said Rogers & Frick, and for which indebtedness the promissory note set out in the bill of exceptions, was given by said Rogers & Frick to said D. Berrien, Jr. & Co.; that the said promissory note was given in Baltimore, on or about the 12th May, 1841, and after the 9th May, 1841; that the 9th May was the due day, by average, for the previous purchases of Rogers & Frick; that Rogers & Frick applied [**10]  for the benefit of the insolvent law, and received their personal discharge on the 30th August, 1841; and the plaintiff was then appointed provisional trustee, and bonded as such. And it is agreed, that these facts shall be taken as part of the bills of exceptions.

It was also agreed, that the first three points of the appellant were raised by prayers offered, and refused on the trial below, which prayers were mislaid, and therefore, not inserted in the record. And that no objection shall be taken to said points, because of the non-appearance of said prayers in the record.

And it is further agreed, that no objection shall be taken to the prayers in the record, because of any informality or omission appearing on the face of such prayers.

That the fifth and sixth points be waived, and the seventh point be also waived, except so far as it raises the question whether the act of 1834, merges or repeals the sixth section of the act of 1816, ch. 221, and also the act of 1812, ch. 77, sec. 1.

It is further agreed, that if the court shall not reverse the judgment on any of the first three points, but shall be of opinion that in case there had been sufficient evidence given [**11]  below, to prove that the goods shipped by the appellant to Gilbert, of New York, were so shipped by the order and direction of Berrien & Co., and were in fact delivered to Berrien & Co. immediately thereafter; that such shipment and delivery discharged the defendant to that extent, and the plaintiff below, was not entitled to recover for such goods, that then the judgment shall be reversed, and judgment entered for the appellee, to the amount of six hundred and two dollars, with interest from the 30th September, 1843; and that the costs below, shall be paid by the appellant, and the costs in this court, by the appellee; the appellant reserving any right of appeal he may have to the Supreme Court of the United States.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

D., a resident and citizen of New York, sold and delivered goods in that city to R., a resident and citizen of Maryland, for which the latter on the 12th May, 1841, in fact, gave the former his note at six months, dated 6th November, 1840, due 9th May, 1841. On the back of that note was endorsed a receipt of the 12th May, 1841, of L. in Maryland, for merchandise to the value of $ 535, and several promissory notes of third parties for $ 538 80, from R. on account of the note at 6 months, which was delivered up to him. On the 12th May, R. was insolvent, which fact was known to D., for whom L. acted as agent. In August following, R. applied for relief under the insolvent laws of Maryland. In an action of trover, brought by his permanent trustee against L., to recover the value of the merchandise and notes which he received from R. Held:

1. That the original contract between D. and R. was a New York contract, in legal contemplation to be performed there, and governed by the laws of that State.

2. That the note subsequently given by R. to D., as evidence of his indebtedness, could not alter the locality of the original contract.

3. As that note was not paid, D. might have sued on the original contract.

Upon a contract made with a citizen of Maryland, out of this State, to be performed in another State, by a citizen of another State, a discharge, obtained under the insolvent laws of Maryland, cannot affect the right of the creditor to an absolute and unqualified judgment in the courts of this State, and to place his execution upon any property of the insolvent debtor, to be found undistributed in the hands of his permanent trustee, under our insolvent system.

The decisions of the Supreme Court of the United States, upon all questions of constitutional law, are to be received as conclusive.

The late bankrupt law of the United States was enacted on the 19th August, 1841. It expressly provided that it should take effect only from and after the 1st February, 1842. This is equivalent to declaring that it should have no effect until that day, and hence it did not suspend the operation of the State insolvent laws until that day.  

COUNSEL:
By WM. H. NORRIS and REVERDY JOHNSON for the appellant, and

By TALBOTT and DOBBIN for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*433]  MARTIN, J., delivered the opinion of this court.
By the sixth section of an act of Assembly of 1816, ch. 221, entitled an act relating to insolvent debtors in the city and county of Baltimore, it is enacted:--
"That all deeds, conveyances,  [**12]  transfers, assignments or sales of any property, real, personal or mixed, or of any debts, rights, or claims to any creditor or creditors, security or securities which have been or shall hereafter be made, by any person, with a view, or under an expectation of being or becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference to such creditor or creditors, security or securities, shall be absolutely null and void, and the title to property or claims so attempted to be conveyed, transferred, assigned or sold, shall vest in the trustee or trustees of such insolvent debtor as effectually as any property specified in the schedule of such insolvent debtor."
And by the first section of the act of 1834, ch. 293, entitled "a further supplement to the act relating to insolvent debtors in the city and county of Baltimore," it is declared:
"That in all cases of applications hereafter to be made for the benefit of insolvent debtors under the act to which this is a supplement, all conveyances, assignments, sales, deliveries, payments, conversions or dispositions of property, &c. that shall be made or allowed to be made, whether upon request or otherwise,  [**13]  by any applicant with a view to the advantage or security of, and with intent to prefer any creditor or creditors, &c. of such applicant, when such applicant shall have no reasonable expectation of being exempted from liability 

 [*434]  or execution for or on account of his debts without applying for the benefit of the insolvent laws as aforesaid, shall be deemed within the meaning and effect of the sixth section of the act to which this is a supplement, to have been made with a view or under an expectation on the part of the applicant, of being or becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference;" with a proviso, "that the provisions of this section of the act, shall not apply as against any person claiming by virtue of any assignment, &c., for valuable consideration, from or under the creditor or creditors, &c.; nor to any case where the said creditor, or security, shall appear not to have had notice of the condition of insolvency aforesaid, of said debtor."
It appears from the evidence in this case, as incorporated into the bill of exceptions, that D. Berrien & Co., merchants, residing in the city of New York, sold [**14]  and delivered at New York to Rogers & Frick, merchants, residing in the city of Baltimore, goods amounting to the sum of one thousand and seventy-one dollars and seventy three cents; that D. Berrien, Jr. visited Baltimore at the instance of Rogers & Frick, for the purpose of settling his account; that on the 12th May, 1841, the promissory note set out in the bill of exceptions was given by Rogers & Frick to D. Berrien, Jr. & Co., on account of their said indebtedness to them, and that on the same day the merchandise, and promissory notes and bills receivable, mentioned in the declaration, were delivered by Rogers & Frick to D. Berrien & Co., or to the defendant, as their agent, in payment of their promissory note; and that the note was cancelled and surrendered by Berrien & Co. into the possession of Rogers & Frick.
It further appears from the record, that Rogers & Frick applied for the benefit of the insolvent laws of Maryland, and obtained their personal discharge on the 30th August, 1841; and that the appellee was appointed their provisional trustee on the 30th August, and their permanent trustee on the 20th December, 1841.  [**15]  
It also appears from the bill of exceptions, that the plaintiff at the trial of the cause, introduced evidence to show that on 

 [*435]  the 12th May, 1841, Rogers & Frick were actually insolvent, and that this condition of insolvency was known to D. Berrien Jr. & Co., and that Rogers & Frick intended at that time to apply for the benefit of the insolvent laws. And offered testimony to prove that the property mentioned in the declaration came into the possession of the defendant, as the agent of D. Berrien, Jr. & Co., and that a demand was made by the plaintiff upon the defendant for the delivery of this property on the 20th January, 1842, and was by him refused.
With respect to this portion of the case, there was conflicting testimony offered by the defendant, with the exception of the demand and refusal: that was conceded, and in this condition of the cause, the plaintiff asked the court to give to the jury the following instructions:
1. If the jury shall find from the evidence, that at the time Rogers & Frick assigned and delivered the merchandise and notes in question to Berrien or Larrabee, they had no reasonable expectation of being exempted from [**16]  liability or execution, for or on account of their debts, without applying for the benefit of the insolvent laws, then the said transfer was made with a view, or under an expectation on the part of Rogers & Frick, of being or becoming insolvent debtors, and said transfer is void; and shall further believe, that Rogers & Frick did afterwards apply for the benefit of the insolvent laws of the State of Maryland, the plaintiff is entitled to recover, provided the jury shall believe that Berrien had notice of the condition of insolvency of said Rogers & Frick. Notwithstanding, they shall also believe that Larrabee acted as the agent of Berrien in the receipt of the property, and had shipped the goods to Gilbert, before the demand of the plaintiff.
2. Although the jury should believe that Rogers & Frick had reasonable expectations of being exempted from liability or execution, for or on account of their debts, at the time of the assignment and delivery, as referred to in the first instruction, yet if the jury find the said assignment and delivery, and that the same was made with the view of being or becoming insolvent debtors, and with intent thereby [**17]  to give an undue and 

 [*436]  improper preference, and that they afterwards applied for the benefit of the insolvent laws, that then said assignment is void, although the jury should believe that said assignment was made in satisfaction of a bona fide debt due from said Rogers & Frick, and although they should find that Berrien had no notice of the condition of insolvency of said Rogers & Frick, if such insolvent condition existed at the time of said assignment; and the plaintiff is entitled to recover, although the defendant acted as mere agent of Berrien, if the jury shall find that the defendant shipped the goods before action brought, to Gilbert of New York.
These prayers were granted by the court below, and exceptions having been taken to the ruling of the court, the question presented for our consideration is, whether they erred in the instructions which they appear to have given to the jury, with respect to the law of the case.
It is apparent from the statement we have given of this case, that the material and prominent question raised by the record, is that which respects the validity of the transfer of the 12th May, 1841.
And upon this point,  [**18]  the counsel for the appellant have contended, that as Berrien & Co. were citizens of New York, the insolvent laws of Maryland could not prevent Rogers & Frick from discharging their bona fide indebtedness to them by a delivery of the property mentioned in the declaration; and that as the contract by which they were so indebted to Berrien & Co. was made in New York, such insolvent laws could not prevent the debt being discharged, in the mode and manner stated in the bill of exceptions.
We did not understand the counsel for the appellee as controverting the proposition advanced by the counsel for the appellant, that the contract between Berrien & Co. and Rogers & Frick was to be considered as a New York contract. The goods were purchased by Rogers & Frick in New York, and there is no doubt that in legal contemplation, the contract was to be performed there, and to be governed by the laws of that State. The fact that a promissory note was subsequently 

 [*437]  drawn at Baltimore by Rogers & Frick, in favor of Berrien & Co., as evidence of their indebtedness, cannot be treated as altering the locality of the contract. The [**19]  original cause of action is never considered as extinguished by the mere taking of the promissory note of the debtor, and therefore, if the note is not paid, and is surrendered, it has always been held, that an action may be maintained on the common courts for the sale and delivery of the goods.
We have then before us a contract made and to be performed in New York, between citizens of Maryland and citizens of New York, and it is now settled by the adjudications of the Supreme Court, that the discharge obtained by Rogers & Frick under the insolvent laws of Maryland, could not affect the right of Berrien & Co. to obtain against them in the Maryland courts, an absolute and unqualified judgment, and to place their execution upon any property of the insolvent debtors, to be found undistributed in the hands of their trustee.
In the case of Cook vs. Moffat & Curtis, 46 U.S. 295, 5 How. 295, 12 L. Ed. 159, it appeared that Moffat & Curtis, merchants of New York, sold goods to Cook, who was a merchant and resident of Baltimore; that on a settlement of their accounts, Cook transmitted his promissory notes to his attorney in [**20]  New York, who delivered them to Moffat & Curtis, and that after the notes became due, Cook applied for and obtained the benefit of the insolvent laws of Maryland. An action was instituted against Cook in the Circuit Court for the District of Maryland on the common money courts. Cook pleaded his discharge under the Maryland insolvent laws, insisting that the contract was to be performed in Maryland, and governed by the laws of Maryland in existence at the time it was made, and that therefore his discharge under her laws was a good defence to the action.
The case was presented to the Circuit Court, upon an agreed statement of facts, and the court overruled the plea and gave an absolute judgment for the plaintiff. This judgment was affirmed by the Supreme Court at the January term, 1847. This case in its leading facts is strikingly similar to the one under consideration, and we refer to the opinion of the court, as containing 

 [*438]  what must now be regarded as the final adjudication of the Supreme Court, upon a question, which has produced since it was first agitated, much conflict of opinion, and has given rise to many perplexing doubts.  [**21]  
Mr. Justice Grier, who delivered the opinion of the court, when speaking of the locality of the contract, at page 307 says--
"That the contract declared on in this case was to be performed in Maryland, and to be governed by her laws, is a position that cannot be successfully maintained, and was therefore very properly abandoned on the argument here. For although the notes purport to have been made in Baltimore, they were delivered in New York, in payment of goods purchased there, and of course, were payable there, and governed by the laws of that place." He says--
"That the question to be decided is, whether the bankrupt law of Maryland can operate to discharge the plaintiff in error from a contract made by him in New York, with citizens of that State?" He controverts the proposition that the opinion in Ogden vs. Saunders is liable to the imputation of having established the doctrine, that a State court would be justifiable in giving effect to a bankrupt discharge, which the courts of the United States would declare invalid, and affirms that such a decision has never been made by this court. Upon this subject his language is--
"The Constitution of [**22]  the United States is the supreme law of the land, and binds every forum, whether it derives its authority from a State, or from the United States. When this court has declared State legislation to be in conflict with the Constitution of the United States, and therefore void, the State tribunals are bound to conform to such decision. A bankrupt law which comes within this category, cannot be pleaded as a discharge, even in the forums of the State which enacted it.
"It is true, that as between the several States of this Union, their respective bankrupt laws, like those of foreign States, can have no effect in any forum beyond their respective limits, unless by comity. But it is not a necessary consequence, that State courts can treat this subject as if the States were wholly 

 [*439]  foreign to each other, and inflict her bankrupt laws on contracts and persons not within their limits." Again he says--
"Accordingly, we find that when in the case of Sturgis vs. Crowninshield, this court decided that a State has authority to pass a bankrupt law, provided there be no act of Congress in force to establish a uniform system of bankruptcy, it was nevertheless considered [**23]  to be subject to the further condition, that such law should not impair the obligation of contracts within the meaning of the Constitution of the United States, art. 1, sec. 10. It followed as a corollary from this modification and restraint of the power of the State to pass such laws, that they could have no effect on contracts made before their enactment, or beyond their territory."
We have quoted largely from the opinion of the learned Judge in this case, because it contains the views of a court whose decisions upon all questions of constitutional law, are to be received as conclusive; and it appears to us, that the principles enunciated in that opinion clearly establish, that the provisions of the insolvent laws relied on by the counsel for the appellee as invalidating this transfer, can have no effect upon the rights of these creditors. In other words, to use the language of the court, in Cook vs. Moffat, the State of Maryland has no constitutional power to inflict her insolvent laws on contracts and persons not within her limits.
The counsel for the appellee have however contended, that the provisions of the Maryland insolvent laws, as contained in the sixth [**24]  section of the act of 1816, ch. 221, and the first section of the act of 1834, ch. 293, are not open to the constitutional objection that has been urged against them, because they leave unimpaired the obligations of this contract. But it is impossible to maintain this proposition. What is the obligation of the contract in the sense in which this term is used, in the eighth section of the first article of the Constitution of the United States?
This question is to be answered by referring to the exposition which has been given to this clause of the Constitution, by the Supreme Court.

 [*440]  In Sturges vs. Crowninshield, 17 U.S. 122, 4 Wheat. 122, 4 L. Ed. 529, the court said--
"It would seem difficult to substitute words, which are more intelligible, or less liable to misconstruction, than those which are to be explained. A contract is an agreement in which a party undertakes to do, or not to do a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds [**25]  him to pay that sum on that day; and this is its obligation. Any law which releases a part of this obligation, must, in the literal sense of the word, impair it. Much more must a law impair it which makes it totally invalid, and entirely discharges it."
In McCracken vs. Hayward, 43 U.S. 608, 2 How. 608, 11 L. Ed. 397, Mr. Justice Baldwin said--
"In placing the obligation of contracts under the protection of the Constitution, its framers looked to the essentials of the contract more than to the forms and modes of proceeding, by which it was to be carried into execution; annulling all State legislation which impairs its obligation, it was left to the States to prescribe and shape the remedy to enforce it. The obligation of the contract consists in its binding force on the party who makes it."
Mr. Justice Story, in his Conflict of Laws, section 226, says:
"The obligation of a contract is the duty to perform it whatever may be its nature. It may be a moral obligation, or a legal obligation, or both. But when we speak of obligation generally, we mean legal obligation--that is, the right to performance, which the law confers on one party, and the corresponding [**26]  duty of performance, to which it binds the other."
What was the obligation of this contract? It was the duty imposed by law upon Rogers & Frick to pay Berrien & Co. for the merchandise they had purchased, in money, or in goods, if goods were accepted by the creditors as an equivalent for money. It was decided in Gregory vs. Mack, 3 Hill, N. Y. Rep. 384,--"That when the parties have agreed on a particular thing as a medium of payment, whether it be lands, goods 

 [*441]  or labor, and the agreement has been carried into execution, it is the same thing in legal effect, as though the like sum had been paid in money." Smith on Mercantile Law, 530.
Now we find that Rogers & Frick, in fulfilment of this obligation, transferred to Berrien & Co. on the 12th of May, 1841, the property sought to be recovered, in payment of their indebtment, and that it was so received and accepted by Berrien & Co. And can it be maintained, that a law which invalidates this transfer, annuls this payment, takes from the creditors the property which they had fairly acquired in the exercise of a right conferred upon them by the common law, and places it in the hands of the trustee,  [**27]  to be distributed exclusively among the domestic creditors of the insolvent debtors, unless the foreign creditors will take their divident upon the humiliating condition of surrendering their acknowledged constitutional privilege to object to the insolvent's discharge,--is not a law impairing the obligation of the contract? We think not. A proposition of this kind cannot be maintained.
The true view of the case is, that the right of these creditors to obtain a preference over the other creditors of the insolvent, and the privilege of the debtors to give this preference, stands precisely as if these insolvent laws were not to be found among the statutes of the state. And under circumstances, no exception could be taken to the validity of this transfer. In the case of Hickley vs. The Farmers & Merchants Bank, 5 G. & John. 380, the Court of Appeals recognize the principle:--
"That by the common law, and apart from the provisions of the insolvent laws of this state, the debtor may secure one creditor to the exclusion of others, either by payment, or by a bona fide transfer of his property."
The late bankrupt law of the United States was passed on the 19th of August,  [**28]  1841; but it was expressly provided by the seventeenth section of the statute, that it should take effect only from and after the first day of February, 1842. This is equivalent to declaring that the act should have no effect until that day; and therefore, there is no foundation for the point made by the counsel for the appellant: that the insolvent laws 

 [*442]  of Maryland were suspended in their operation by the bankrupt act of the United States, at the period when the proceedings of Rogers & Frick under those laws were commenced, and consummated. At that time, the bankrupt act was not in force, and there could have been no conflict between the national and state legislation upon this subject.
In Ex Parte, Eames, 2 Story 325, Mr. Justice Story said:
"That as soon as the bankrupt act went into operation, in February, 1842, it ipso facto suspended all action on future cases, arising under the state insolvent laws, where the insolvent persons were within the purview of the Bankrupt Act. I say future cases, because very different considerations would or might apply, where proceedings under any state insolvent laws were commenced, and were in [**29]  progress before the bankrupt act went into operation. It appears to me, that both systems cannot be in operation, or apply at the same time to the same persons; and where the state and national legislation, upon the same subject, and the same persons, come in conflict, the national laws must prevail, and suspend the operation of the state laws. This as far as I know has been the uniform doctrine maintained in all the courts of the United States."
In the argument of this cause various other points were raised and discussed by the counsel, upon which it has become unnecessary to express an opinion, as the views we have taken of the insolvent laws of Maryland dispose of the whole case.
We think the court below erred in the instructions given by them to the jury, and that their judgment must be reversed.
JUDGMENT REVERSED.  

7 of 33 DOCUMENTS 

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

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 1; 1847 Md. LEXIS 44 

December, 1847, Decided 

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

This cause was before the court at December term, 1843, and is reported in 1 Gill, 127. It was an action of assumpsit brought on the 9th October, 1840, by the present appellants against the present appellee.

The bill of exchange on which the action was founded is as follows:

Baltimore, 1st January, 1840.

$ 1,500. W. B.

Ninety days after date please pay to the order of David Whiteford, fifteen hundred dollars, which charge, as advised, to account of     Your ob't serv't,

NICHOLAS U. CHAFEE.

To Messrs. Blum & Cobia, merchants, Charleston, S. C.

Endorsed--D. Whiteford. Pay to the order of Messrs. C. Burckmyer & Co.     TH. PHENIX.

The protest of this bill for non-acceptance was dated 6th January, 1840. The answer to the notary was "we decline accepting for want of advice." The notices of protest were certified to have been enclosed by the notary to Th. Phenix, cashier Western Bank of Baltimore.

1ST EXCEPTION.--At the trial of this cause, the plaintiffs read in evidence the bill of exchange, and proved the signature of N. U. C. the drawer, and of the defendant, as endorser, by the [**2]  name of D. Whiteford; the protest of the bill; and the affidavit of the notary public who made the protest, viz.

"Personally appeared on this 16th day of July, 1841, before me, Henry Morris, N. P. duly commissioned and sworn, A. C. Smith, N. P. and made oath that he did, on the 6th of January, 1840, protest a draft for non-acceptance drawn by N. U. C. on B. & C. endorsed by D. W. for $ 1,500. The said draft was dated 1st January, 1840, at 90 days, protested by order of Messrs. C. Burckmyer & Co. The said A. C. S. further testifies that he forwarded a written notice addressed to N. U. C. drawer, and also a written notice addressed to D. W. endorser, informing them of the protest of said draft, and that the holders thereof looked to them for the payment of the same, by mail, under cover to Tho. Phenix, Esq. cashier of the W. Bank, B. and which were placed in the post office here on the 6th January, 1840, the date of protest.

A. C. SMITH, Notary Public.

Witness my hand and seal at Charleston the day and year above written.     HENRY MORRIS, Notary Public."

The plaintiffs then proved that by the course of the mail in January, 1840, letters mailed in Charleston, S.  [**3]  C. on 6th January, 1840, would be received in Baltimore on the morning of the 11th January, 1840; and that in January, 1840, Thomas Phenix was the cashier of the W. B. of B. which bank had discounted said draft for the use of the drawer, and on the 2d January, 1840, had remitted the same to the plaintiffs at C. as its agents, for collection.

The plaintiffs then read in evidence the agreement of counsel for both parties, viz.

"It is admitted on the part of defendant that the plaintiffs were in partnership as alleged in the declaration, and that their christian names are truly set forth. It is also admitted that the affidavit by the notary public read on the former trial shall be used on the next trial; and the plaintiffs agree on their part to produce the original letters (or copies of them) from the cashier of W. B. to plaintiffs, enclosing the draft in suit originally to plaintiffs, and the letter of plaintiffs returning the same to W. B. previous to suit--the copies to be used as originals. It being understood that each party reserves all exception to the materiality of the matters above specified, and that this agreement shall not affect the order of proof, or relieve [**4]  either party from the necessity of offering the above matters as his evidence."

The defendant then proved by said T. Phenix that said draft was returned to him in a letter of plaintiffs dated 26th Sept. 1840, and that after receiving it he struck out the special endorsement thereon, signed "Th. Phenix, Cashier."

Whereupon the plaintiffs' counsel proposed to ask said Phenix to state the reasons which induced him to strike out said endorsement, but the court (LE GRAND, A. J.) refused to allow said question to be put to the witness. The plaintiffs excepted.

2D EXCEPTION.--After the evidence stated in the aforegoing exception, made a part hereof, the plaintiffs further proved by said P. that he left the city of B. on business of the bank, on the afternoon of the 9th January, 1840, and did not return for several days; and then further proved by James Hall that in January, 1840, he was the corresponding clerk of the W. B. and as such, it was his business to examine and attend to the correspondence addressed to said Phenix, the cashier.

The plaintiffs then produced to said witness, Hall, a book marked "bill book," which the witness verified as a book regularly kept by [**5]  him in the Western Bank, as its corresponding clerk, and which was kept in said bank as a bank book, to which its officers had access. And the said Hall further stated, that said book shews by the entries therein the date of each draft discounted by said bank, the amount thereof, the time when due, the time when sent by mail for collection, and how charged, and that the entries therein were made by said Hall, as such clerk, in the regular and daily course of his business as such clerk.

The plaintiffs' counsel, for the purpose of showing when the notices referred to in the aforegoing affidavit of the notary were received at the Western Bank, then proved by said Hall that the entries in said book in relation to the draft now in suit were made by him in the course of his business, and that it was his uniform practice to make all his entries truly and at the time of each transaction; and that the words "N. A. 11th January, 1840," written against the entries relating to the draft in suit, in said bill book, are in the proper hand-writing of said Hall, and that they mean and are intended to signify that notice of the non-acceptance of said draft on that day received by him as such corresponding [**6]  clerk, and that the said Hall has no doubt of the accuracy and verity of said entry, although he has no recollection of the fact of such notice being received at any time. And the said plaintiffs at the same time read to the jury the original entries in said book, including the words "N. A. 11th January, 1840."

The plaintiffs then further proved by Taylor, that in January, 1840, he was runner of the W. B. and as such it was his business to serve all notices placed in his hands by the officers of said bank, to be served on residents in the city of B. and that it was his invariable practice to serve said notices on the day they were delivered to him. That the said witness recollects having called some time in January, 1840, at the place of business of the defendant with a notice of protest for him, and another for N. U. C. That he read enough of said notices to see who were the parties to be notified, and that they were notices of protest, but he did not read every word or the date of said notices. That he handed the notice made out for the defendant to him, remarking that it was a protest for him and Chafee, who returned it to him with a request that he would give it to said C.  [**7]  and said witness accordingly left the same at the dwelling house of said C. on same day. That said witness, Taylor, has no recollection of the day of the month on which he delivered said notice to said defendant, but he recollects that the ground was then covered with a very deep snow, the heaviest snow in that winter, and that he recollects no other notice to defendant in said month.

The plaintiffs then further proved by Th. Phenix, that when he left Baltimore on the afternoon of the 9th January, 1840, and for several days before, there was a very deep snow on the ground, so deep that some days before said 9th January the travelling had been obstructed. That said Phenix was compelled to travel in a sleigh from Harpers Ferry in Virginia, to Winchester, on the 10th January, and from thence to Woodstock, in a sleigh, on the 11th and 12th January, 1840, and that said snow was the heaviest of the winter, according to the recollection of said Phenix. The plaintiffs then further proved by said Phenix that before this suit was commenced, and early in October, 1840, and after the bill in suit was returned to him by the aforesaid letter of 26th September, 1840, he took the bill and protest [**8]  to Whiteford, the defendant, and asked him for payment. That defendant expressed great surprise, and said he had no notice of protest for non-payment. Witness replied the bank had none either, but you had notice of non-acceptance, to which Whiteford replied, "yes I might have had that," and objected to payment for want of notice of protest for non-payment. The plaintiffs further proved by said Phenix, that said draft had been retained in Charleston aforesaid, by plaintiffs, from January, 1840, until the 26th September, 1840, and that the said Phenix never received any notice of its protest for non-payment, or any communication from plaintiffs relating thereto, after the month of January, 1840, until by said letter of 26th September, 1840.

And the plaintiffs further proved by said James Hall, that he was corresponding clerk of the W. B. until the 26th September, 1840, and he never received or saw any notice relating to said draft, shewing a protest for non-payment, or of presentment at maturity for payment thereof. The plaintiffs then further proved that this suit was brought on the 9th November, 1840, as appears by the original docket entries, and that by a clerical misprision [**9]  the writ was stated as having been issued on the 9th October, 1840.

Thereupon, the plaintiffs, for the purpose of shewing that the plaintiffs had a right to maintain this suit, and to shew possession and right of possession in them, of the draft now in suit, at the institution of this suit, offered to prove by Thomas Phenix that on the 2d October, 1840, he wrote to the plaintiffs the original letter, post-marked at Baltimore, of that date, now shewn him by plaintiffs' attorneys.

W. B. Baltimore, Oct. 2, 1840.

MESSRS. C. B. & Co.

Dear Sirs:--I regret to inform you that the endorser on the bill, returned to me a few days since, on Blum & Cobia, inclines to take advantage of the absence of protest for non-payment. By reference to my letter of 2d January last, you will perceive the importance attached to the name of the endorser, and having lost all remedy against him by your omitting to protest, your knowledge of commercial affairs must admit the justness of my claim against your house for the bill. I have therefore charged your account, and expect a credit for it. Messrs. Caldwell & Sons and Blum & Cobia, being consignees of N. U. C. I am in hopes you can find property [**10]  enough in their hands to protect you from loss.

Very respectfully,

TH. PHENIX, Cashier.

Post-marked--"Baltimore, Md. October 2d," and addressed, "Messrs. C. B. & Co. Charleston, S. C."

That in point of fact he enclosed in said letter the draft now in suit, and sent it in said letter, and then offered to read said letter to the jury to be considered by them with the aforesaid statements of said Phenix in relation to the said draft having been enclosed therein, but the court (LE GRAND, A. J.) refused to allow said letter and said evidence of said Phenix so offered to be given to the jury, and excluded the same as inadmissible, and the plaintiffs excepted.

3D EXCEPTION.--After the evidence stated in the aforegoing bill of exceptions as having been given and offered, (which bill of exception is made a part hereof) the plaintiffs, further to prove by said Phenix, that on the 2d October, 1840, he enclosed the draft in suit in the letter aforesaid, of that date, now produced by plaintiffs' counsel, and sent the same by mail to the plaintiffs; and the plaintiffs then offered to give in evidence, by said Phenix, the fact of said letter having enclosed said draft at [**11]  the time of its being mailed for transmission to the plaintiffs. The plaintiffs' counsel stating at the same time that he offered said fact with a view to, and for the purpose of shewing possession of said draft in suit, in the plaintiffs at the institution of this suit, but the court refused to allow said fact so offered in evidence to be given to the jury, and excluded the same, together with the statements of said Phenix in relation thereto, and the plaintiffs excepted.

4TH EXCEPTION.--After the evidence stated in the aforegoing bills of exceptions, (made a part hereof) the plaintiffs further offered to prove by said Phenix that he received, in January, 1840, the original letter of plaintiffs, now produced, dated 6th January, 1840, and post-marked at Charleston, S. C. same day.

Charleston, January 6th, 1840.

MR. T. PHENIX, Balt.

Dear Sir:--Your valued favor of the 2d is at hand with Chafee's draft on Blum & Cobia for $ 1,500, which we are sorry to say is under protest for non-acceptance, and the other on them is not yet accepted, but they express an opinion that it will be paid.

We now hand you, enclosed, Hopkins & Stocklor's dft. accpt. for $ 2,000, protested [**12]  for non-payment, and charge you the same with protests.     Yours, in haste,

C. B. & Co.

Post-marked--"Charleston, Jan. 6th," and addressed to "T. P., Esq. Cashier W. B., B."

That on the 30th September, 1840, he wrote to plaintiffs the letter of that date, post-marked on same day at B. the original of which is now produced to said witness by plaintiffs' counsel.

WESTERN BANK OF BALTIMORE, Baltimore, Sept. 30, 1840.

MESSRS. C. B. & Co.

Dear Sirs:--I have received your favor of the 26th inst. with enclosures as stated. The draft on Blum & Cobia ought to have been protested for non-payment, to hold the endorser the most responsible name on it. I have sent notices to the parties, and should the endorser demur, I will advise you forthwith.     Very respectfully,

T. P., Cashier.

Post-marked--"B., Md." and directed to "Messrs. C. B. & Co., C., S. C."

And that on the 2d October, 1840, he wrote to plaintiffs the aforesaid letter of that date, and that the same enclosed the draft in suit, and that the said P. as cashier of the W. B. received, in due course of mail, the original letter of the plaintiffs, dated 7th October, 1840, and post-marked [**13]  at C., S. C. on same date, and that the draft in suit was enclosed in said letter.

C., October 7th, 1840.

MR. T. P., Balto.

Dear Sir:--Your favor of the 30th ult. and 2d inst. are at hand, returning C's dft. on Blum & Cobia, $ 1,500. This dft. was regularly noted for non-acceptance, and the drawer and endorser furnished with notice of same. Our young man laid it away in our chest where it was overlooked, but as Messrs. Blum & Cobia had not, nor has since had, any funds of the drawer, we do not think much of the honor of the endorser who would take advantage of an oversight when no loss has accrued to him thereby. We presume, according to strict mercantile usage, we are responsible to you, but only when you have proceeded against the draft, and obtained from the parties all you can; the balance, if any, we will have to make up. We, therefore, return you the draft with protest for non-acceptance. For the purpose, however, of settling this unfortunate business, if you can make a compromise with them at once, and yield up a part, we will make up the deficiency at once.

We remain yours, respectfully,

C. B. & Co.

Neither Messrs. Blum & Cobia, or Messrs. Caldwell [**14]  & Sons, have any property of Mr. Chafee's.

N. B. We charge C. B. & Co. with the above this day, 12th October.

Post-marked--"C., S. C., Oct. 7," and directed to "Mr. T. P., Cashier W. B., B."

That immediately on the receipt of that letter the said P. as cashier of said bank, caused said draft to be charged on the books of the said bank to account of the plaintiffs, and at the same time offered to read said entry making said charge, which it is agreed is made in the proper book of said bank, and shews the entry of such charge on the 12th October, 1840, both parties agreeing to dispense with a copy of said entry in this exception.

And the plaintiffs, at the same time, offered to prove by said P. that he wrote the original letter to plaintiffs, dated 31st October, 1840, and post-marked same day at Baltimore, which is now shown him by plaintiffs' counsel.

W. B., Baltimore, Oct. 31, 1840.

MESSRS. C. B. & Co.

Dear Sirs:--A favorable opinion of the attorney to whom I have entrusted the case against the drawer and endorser on the bill of $ 1,500, not accepted by Messrs. Blum & Cobia, induces me to suggest to you that a discretionary power be left us in regard [**15]  to a compromise. In your last favor, the order seemed to be peremptory on us to offer a settlement with the parties, and that at a heavy sacrifice.

By your permission we will defer this for the present, believing that a little delay will be to your interest, and by holding out, better terms can be made.

Please advise by return mail.

Very resp'y,     T. P., Cashier.

Post-marked--"B., Md., Oct. 31," and directed to "Messrs. C. B. & Co., Charleston, S. C.

And that he received, in due course of mail, plaintiffs' original letter in reply thereto, dated Charleston, Nov. 5, 1840.

C., Nov. 5, 1840.

T. P., ESQ., Baltimore.

Dear Sir:--Your valued favor of 31st reached us this day. We authorize you to take any course you may deem for your interest in the settlement of the dft. on Blum & Cobia, observing to you, however, that we should prefer a reasonable sacrifice to get the business settled at once, and, if agreeable to you, we would be glad if you would name what sum you would take from us to relieve us from all responsibility in this business. We understand that the endorser on the draft is quite an honorable man, and if so, we are satisfied that [**16]  no honest man would take advantage of an unintentional omission to relieve himself from responsibility when no loss could eventuate to him. You will, of course, consider this letter as confidential, and not let the parties be acquainted with any anxiety on our part to compromise.

Yours truly,

C. B. & Co.

And that it was received before the suit was brought.

The plaintiffs further offered to prove by said Phenix, that before this suit was brought, he handed the enclosed note to Mr. J. V. L. McMahon, one of the plaintiffs' attorneys, and requested him to bring suit thereon in the name of the plaintiffs.

And the plaintiffs further offered to prove by Wm. H. Collins, Esq., that at the time this suit was brought he was in possession of the draft in suit, and had been for several weeks before, and that he is the same counsel whose name is signed to the declaration in this cause. The plaintiffs' counsel stating at the same time, that he offered the whole of said offered evidence for the purpose of showing such an interest or possession in the draft or bill in suit, by the plaintiffs, at the institution of this suit, as would enable them to maintain this action in [**17]  their names. But the court refused to allow the said offered evidence, or any part thereof, to be given to the jury, and excluded the same and every part thereof, to which action and refusal of the court, the plaintiffs excepted.

5TH EXCEPTION.--After the evidence stated in the aforegoing exceptions, (made a part hereof) and the evidence being closed, the plaintiffs, by their counsel, prayed the court to instruct the jury that there is evidence in this cause from which the jury may find a sufficient interest in the plaintiffs to maintain this suit, and that the defendant had notice of the protest for non-acceptance of the draft or bill in suit, on the 11th or 13th January, 1840, but the court refused to grant said instruction, and plaintiffs excepted.

The verdict and judgment of the court below being in favor of the defendant, the plaintiffs appealed to the Court of Appeals.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

HEADNOTES:

C. drew a bill of exchange on B. payable ninety days after date, endorsed by W. in blank. It was negotiated with P. who endorsed it specially to D. On presentation for acceptance, it was refused, protested, and returned by D. to P. when the latter erased his special endorsement, and re-transmitted the bill to D. who sued W. upon his endorsement. The defendant, in support of his defence, had proved by P. the erasure of his endorsement; and the plaintiff then proposed to ask him to state the reasons which induced him to strike it out. This the County Court refused to sanction. Held, there was no good reason for the refusal, unless it be that the fact of the erasure, as proved by the defendant, could not prejudice the plaintiffs. If it had been of any importance to know why the erasure had been made, it must have been reasonable to permit the witness to state when, why, and under what circumstances, it was made.

Upon the return of a bill of exchange, drawn at Baltimore, upon a house at Charleston, S. C. protested for non-acceptance, which had been endorsed generally by the payee, the holder in Baltimore struck out his special endorsement, and by letter transmitted it to the plaintiffs, residents in Charleston, and claimed the amount of the bill from them, informing them it had been charged to their account, and he expected a credit for it. Held, that in an action by the house at Charleston, against the payee and endorser of the bill, this letter, in connection with parol proof in the cause, was evidence to show the right of the plaintiffs to institute the action.

This letter was evidence as a part of what passed between the holder of the bill and the house at C. in relation to its transfer to them. It is a part of the res gesta of the surrounding and cotemporaneous circumstances of the transaction.

The admissibility in evidence, of the surrounding circumstances of a case, is to be determined by the court, according to the degree of their relation to the principal fact in controversy, and in the exercise of its sound discretion.

In a case where the plaintiff's right to sue upon a bill of exchange was denied, he may prove its delivery to counsel, and the fact of his counsel's possession, for the purpose of the suit, when the action was commenced.

Where the attorney of the plaintiff is in possession of a bill of exchange at the time of the action brought, the presumption is that he is rightfully in possession.

When the day on which notice of protest ought to have been given, is Sunday, it is sufficient to serve it on the next day.  

COUNSEL:
By HORSEY and BRENT for the appellants, and

By RICHARDSON, Attorney General, for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*12]  MAGRUDER, J., delivered the [**18]  opinion of this court.
This is an appeal from Baltimore County Court.
The suit was brought by the appellant upon a bill of exchange, in the following words:
Baltimore, 1st January, 1840.
Ninety days after date please pay to the order of David Whiteford, fifteen hundred dollars, which charge, as advised, to account of     Your ob't servant,
NICHOLAS U. CHAFEE.

TO MESSRS. BLUM & COBIA, Merchants, Charleston, S. C.
This bill of exchange was endorsed by the payee, the defendant in this suit, in blank, and under this blank endorsement was written, "Pay to order of Messrs. C. Burckmyer 

 [*13]  & Co., Th. Phenix." This latter endorsement appears was erased before its second transmission to South Carolina.
The action then was brought by the appellants claiming to be the owner and holder of the bill against the payee, who had endorsed the same in blank. It was incumbent upon the plaintiffs to prove, in addition to the signature, a presentment of the bill to the drawers, and notice to the defendant in due time of the non-acceptance; the same, it being alleged, was not accepted when presented. Besides the liability of the defendant, the plaintiffs [**19]  were also to show that a suit against the endorser could be sustained in their name. In the attempt to prove all this, the bills of exception were taken, which give rise to the questions which the court is now to decide.
It appears by the first exception, that after the plaintiffs had offered the proof which it is supposed give them a right to recover, the defendant proved by the cashier of the Western Bank, (by which institution this bill had been negotiated) that the bill was returned to him in a letter of plaintiffs', dated 26th September, 1840; and that after receiving it, he (the witness) struck out the special endorsement thereon, signed Thomas Phenix, Cashier: and thereupon the plaintiffs' counsel proposed to ask Phenix to state the reasons which induced him to strike out said endorsement. The court refused to permit this enquiry to be made. For this refusal, the first exception was taken.
It is not perceived by this court that there could be any good reason for refusing to permit the enquiry to be made, unless it be, that the act proved on the part of the defendant was one which could not prejudice the plaintiffs. If it was of any importance in the cause [**20]  to know who erased the special endorsement spoken of, surely it was but reasonable that the witness should be allowed to state when, why, and under what circumstances, the erasure was made. It might have been done by mistake; it might have been an unauthorized act.
In regard to the second, third, and fourth exceptions, it is to be observed, that they relate either to the liability of the defendant on this bill of exchange, or to the right of the plaintiffs 

 [*14]  to institute the action in their own name. During a portion of the time between the non-acceptance of the bill, and the institution of this suit, the Western Bank was unquestionably the owner of this instrument, and the proper plaintiff in any action to be instituted upon it. Much of the testimony to be found in these bills of exceptions was offered in order to show when, and under what circumstances, the bank made a transfer of this bill of exchange to the plaintiffs. For this purpose, all that passed between the bank and the plaintiffs relative to the transfer by the former to the latter of this bill of exchange, may be offered in proof, and thus only, is the plaintiffs' title to it to be shown. Much of [**21]  the testimony, and of the documents, are connected with the plaintiffs' chain of title, and is no more obnoxious to objection than other title papers equally res inter alios acta would be. Barney vs. Patterson's lessee, 6 H. & J. 204. And much testimony is admissible as part of the res gesta, in thus deriving title to the bill of exchange from a person who is no party to this suit.
It will here be noticed that objections found to exist to some of the correspondence which was declared to be inadmissible on a former appeal in this case, (1 Gill 146,) were upon the second trial removed. A letter or other paper, offered in proof of title from one person to another, though admissible for that purpose, may be utterly inadmissible for others. It may contain statements which, if objected to by the party, who alone can insist that the whole paper be read, ought to be excluded. In the former case, each and every part of the letter was in despite of objection admitted. In this case, the whole and every part of it was rejected. For this, the plaintiffs took the three several exceptions--and of this have they not a right to complain.
It is [**22]  thought that they have, and that much of this testimony was admissible to prove the title of the plaintiffs to this bill of exchange. These are "surrounding circumstances," constituting a part of the res gesta, which were cotemporaneous with the principal fact under consideration. The transfer of this bill by the owner of it, at a particular period, to the plaintiffs, 

 [*15]  or to some other person from whom they derive title, and the admissibility of them is to be determined by the judge, according to the degree of their relation to that fact, in the exercise of his sound discretion. 2 Greenleaf on Evidence, sect. 108.
Much, indeed, of the testimony to be found in the bill of exceptions might have been omitted, if the defendant did not require it to be read in connection with the rest; but, in this case, the defendant selected no part or sentences as inadmissible,--but the court excluded especially in the fourth exception the whole testimony, even that of Phenix, in relation to the delivery of the bill of exchange to Mr. McMahon, and that of Mr. Collins, in relation to his being in possession of the bill as counsel for the plaintiffs. Such evidence this [**23]  court thinks, was admissible for the purpose for which it was offered. That last spoken of was produced in order to show that the plaintiffs, by their counsel, were in possession of the bill of exchange at the time of instituting the suit; and if believed by the jury, it is thought, proved the plaintiffs to have been rightfully in possession of it.
The holder of a bill of exchange still has such a possession of it as will enable him to sustain an action in his own name, although he, or his agent, has left with the attorney of the plaintiffs the note, in order to bring suit thereon. Phenix, in delivering this instrument to Mr. McMahon, was the agent of the plaintiffs, and had the same in his possession, in order to make, if it could be made, a settlement with the defendant. The power to compromise, which he had, was given him by the plaintiffs, and could be derived from no other person. "If the note, after being endorsed in blank, is delivered in pledge by the payee, this will not prevent the payee from suing upon it in his own name, or again transferring it." 2 Greenleaf on Evidence, sect. 168. And see 7 Greenleaf's Reports, 28.
It appears by the last exception, that [**24]  the plaintiffs next prayed the court to instruct the jury that there is evidence in this cause from which the jury may find a sufficient interest in the plaintiffs to maintain this suit; and that the defendant had 

 [*16]  notice of the protest for non-acceptance of the draft or bill in suit on the eleventh or thirteenth day of January. This instruction, also, the court refused to give.
Upon the former appeal, 1 Gill 146, the court said--not only that a bill payable to bearer, or payable to order, and endorsed in blank, will pass by delivery, but that the bare possession is prima facia evidence of title, and that possession of such a bill will entitle the holder to sue.
Again, possession of a note endorsed in blank, will enable the party having it to maintain the action, unless mala fides be proved. Courts of law will never enquire whether the plaintiff sues for himself, or as trustee for another, nor into the right of possession, unless on an allegation of mala fides. There is, in the opinion of the court, proof that the plaintiffs had an interest in this bill, which authorized them to demand the amount sued thereon, and to maintain a suit therefor.  [**25]  
With respect to the second branch of the prayer, it might have been that the jury might infer from the proof that due notice was given of the non-acceptance--but it is that notice was received on the 11th or 13th January. It appears, however, that the 12th was on Sunday--and therefore, notice on the 13th of non-acceptance was in time.
We think that the jury might have inferred that the defendant had due notice of the non-acceptance: of course, the court below erred in refusing to give the instruction.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

8 of 33 DOCUMENTS 

DAVID CARSON, SEN. AND DAVID CARSON, JR. vs. A. A. WHITE, CLAIMANT, &C.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 17; 1847 Md. LEXIS 45 

December, 1847, Decided 

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

On the 21st September, 1844, David Carson, Sen. and Jr., prosecuted, out of the County Court, a writ of scire facias, reciting:

"Whereas, D. C. Sen. and D. C. Jr., carpenters, carrying on trade under the firm of D. C. & Son, have filed a claim in our court, for the county of Baltimore, against John Carson of D., for the sum of $ 357 50, with interest from, &c., for work done by them as carpenters, and for painting, plastering, glazing and materials furnished, and for grading, digging and brick work done, in the erection and construction of a brick dwelling house, being two stories and an attic high, with a basement covering the whole front of the following lot. Beginning for the same at, &c., as a lien as well against said lot of ground and dwelling thereon as against said Carson, owner or reputed owner thereof. And whereas, it is alleged that the said sum still remains due to the said D. C. Sen. and D. C. Jr., partners as aforesaid, now we command you, that you make known to the said John Carson of D., and to all such persons as may hold or occupy the said building, that they be and appear before the judges of our said court, at a court [**2]  to be held at Baltimore city, on the first day of January next, to show if any thing they know or have to say, why the said sum of, &c. should not be levied of the said building, to the use of the said D. C. Sen. and D. C. Jr., partners as aforesaid, &c."

This writ was made known by copy left with tenant in possession, 25th September, 1844, also advertised according to law.     "N. TRACY, Sheriff."

John Carson of D. appeared and pleaded that D. C. & Son did not do and perform upon, in or about the said building, the work and labor in the said claim, in the said writ mentioned, or any part thereof, &c.

And for further plea in this behalf, &c., the said defendant says, that the said plaintiffs did not furnish the materials, in their said claim charged, in and about the building of the said house, upon the said lot, &c. And of this he puts himself upon the country, &c.     T. P. SCOTT, Attorney Defendant.

Ambrose A. White, at January term, 1846, filed his petition, alleging that before the filing of the claim of lien in this case by the said plaintiffs, to wit: on 14th July, 1844, the said defendant, by deed of that date duly mortgaged the said lot of ground,  [**3]  in the said case mentioned to him, the said Ambrose; and that afterwards, to wit: on the fifth day of August, 1844, and before the filing of the said claim, the said defendant applied to the commissioners of insolvent debtors of the city and county of Baltimore, for the benefit of the insolvent laws of Maryland. And the said Ambrose says that he is the party in interest, in the matter of this suit, against the said property as above stated. Wherefore he prays the court here to permit him to defend the said suit, &c.

Leave was granted to the said Ambrose A. White, to appear as claimant, and defend the said suit as prayed; and he accordingly appeared.

At the trial of this cause, the plaintiffs to prove the issue on their part, offered in evidence, the claim on which the writ issued in this case, a general statement of the claim as set forth in the scire facias and the following account:

John Carson of D.     To David Carson & Son.

To amount of work done as per verbal contract for carpentering, painting, plastering and glazing, and materials for the same, in and upon the dwelling-house on East Baltimore

________________________________________________________________________________
  street, described above,	$ 335 00	
To extra framing of cupboard,	10 00	
 " grading yard, digging, &c.	10 00	
 " brick work, viz. paving yard and hearth and	
   cutting up for slating,	2 50	
	
	$ 357 50	
________________________________________________________________________________

 [**4]  

Said work having been commenced on the 1st May, 1844, and finished on the 14th September, 1844. Filed to be recorded, the 20th September, 1844, same day recorded and examined     Per THOMAS KELL, Clerk.

21st September, 1844, sci. fa. issued, No. 48, to January term, 1845.

True copy. Test,     A. W. BRADFORD, Clerk.

Also, a written admission of John Carson of D., the original defendant in this cause, as to the correctness of the plaintiffs' claim, as follows:

Mr. John Carson,     To David Carson & Son, Dr.

________________________________________________________________________________
  1844,	   To amount of contract work,	
 May 1st,	carpentering, painting, plastering, and	
(in pencil.)	materials for the same,	$ 335 00	
	   To extra framing cupboard, &c.	10 00	
To grading yard, digging, &c.	10 00	
" brick work, viz. [in pencil,] paving hearths and	
   yard, and cutting up for slating,	2 50	
	
		$ 357 50	
________________________________________________________________________________

Int.

Baltimore, 1844, 20th September. I admit this bill for $ 357 50, to be correct as above stated, per contract (verbal) between us, and for extras.     JOHN CARSON of D.

To the admissibility of this evidence, the defendant's counsel objected, because the [**5]  said John Carson of D. having acquired the house and lot on which the lien in this case is claimed, on the 6th April, 1844, had mortgaged the same on the 11th July, 1844, to Ambrose A. White, and on the 5th August, 1844, had filed his petition as an applicant for the benefit of the insolvent laws of Maryland, and the said admission was made thereafter, viz. on the 20th September, 1844, which objection the court (PURVIANCE and LEGRAND, A. J.) sustained, the said John Carson of D. being then the defendant on the record, and said mortgage and application being admitted. The plaintiffs excepted.

The plaintiffs excepted also to the leave granted to A. White to appear and defend this cause.

It was then agreed between the counsel that the pleas theretofore filed, should be considered as filed by said White, errors waived: and that he, White, be responsible for all the costs as defendant.

The plaintiffs then offered in evidence the claim on which the writ issued, deposition to maintain the same, and proof of a particular measurement bill of the work done, and its value.

The defendant, on his part, offered in evidence, a deed of mortgage from John Carson of D. to Ambrose [**6]  A. White, of 11th July, 1844, it being admitted to have been on the house in question, which said John had bought in April, 1844.

The defendant prayed the court to instruct the jury that the plaintiffs are not entitled to recover in this suit:

1st. Because there is no evidence of any special contract between the plaintiffs and the defendant for the work and materials, said to have been done and performed, in and upon the buildings, &c. and furnished therefor, &c. as stated by the said plaintiffs in the paper filed by them, with the clerk of this court, upon which the said writ issued.

2d. Because there is no evidence of any such contract between the parties as that set forth in the said claim filed, &c.

3d. Because the said pretended claim, upon which the said writ issued, and which pretended claim was filed in the office of the clerk of this court, before the issuing of said writ, does not set forth the amount or sum claimed to be due for the work and labor said to have been done and performed in and upon the said lot of ground in the said claim mentioned and described.

4th. Because the said pretended claim upon which, &c. and which was filed, &c. does not [**7]  set forth the amount or sum claimed to be due for materials said to have been furnished, &c. or the nature and kind of such materials so said to have been furnished, &c.

Which prayers the court granted. The plaintiffs excepted.

The trial of the cause having been commenced on the 4th, the prayers of defendant were considered, and decision thereupon delivered on the morning of the 5th February. Whereupon on said 5th, before the final decision of the case, the plaintiffs by their counsel filed the following motion and affidavits.

The plaintiffs asked leave of the court, and at this stage of the cause, (when the plaintiffs and defendant had concluded their respective evidence, and defendant had submitted three several prayers to the court, who had decided thereon) to offer evidence of the special contract set forth in the claim for lien filed in this cause, and the leave is prayed because of the discovery of such evidence (to establish the making of said special contract,) since the adjournment of this court on the 4th instant, when the trial was, so far as above stated, concluded, the existence of which evidence was previously unknown to plaintiffs or their counsel, and [**8]  not by any of them discovered until the evening of the 4th, after the adjournment of the court. That George Gelbach is the witness by whom the plaintiffs expect to establish the existence of said special contract. This motion was sustained by the affidavit of one of the plaintiffs.

This prayer was submitted, notwithstanding the 25th rule of said court, viz.:

"25th. The court will require, in all cases, that the whole testimony intended to be produced by both plaintiff and defendant shall be offered before any question of law is raised, except objections to the competency of testimony, which must be made when it is offered, or as soon thereafter as the party shall be apprised of the grounds of such objection. After the whole evidence is concluded, the court, when required, will instruct the jury on the law of the case, and the verdict shall be taken, or a non-suit entered, with leave to either party to move the court in bank to set aside the verdict, or non-suit for mis-instruction at the trial."

This motion the court overruled, and declared the evidence offered, at that stage of the cause, because of said rule, inadmissible; although discovered since the submission of [**9]  the cause on the preceding day: and before its final decision. To which decision of the court, overruling said motion and excluding said evidence, the plaintiffs excepted.

The verdict and judgment in this case being against the plaintiffs, they prosecuted the present appeal.  

DISPOSITION:
JUDGMENT AFFIRMED WITH COSTS.  

HEADNOTES:

The plaintiffs, on the 21st September, 1844, filed proceedings in Baltimore County Court, under the act of 1838, ch. 205, to establish a lien for work and labor done upon a house in the city of Baltimore, at the request of J. The claim filed showed that the work had been done between May and September, 1844, and the proof offered in support of it was the written admission of J. made in September, 1844, that the claim was correct. It appeared that in July, 1844, he had mortgaged this property to W. Held: That a mortgage would afford very little security for the debt intended to be secured thereby, if, after its execution, the mortgagor could by admissions create liens on the mortgaged premises; and thereby lessen or destroy the value of the mortgage.

The mortgagor can by no acknowledgment subsequent to the mortgage, prejudice the interest of the mortgagee; and hence the admission in this case ought not to have been received.

A mortgagee, in such a case, claiming the property sought to be affected by the plaintiffs, may appear to and defend the action.

This proceeding was in rem.

The trustees of the debtor-mortgagor, under the insolvent laws, might have appeared to defend the equity of redemption.

Our attachment laws do not expressly authorize a claimant of property to appear to an attachment; yet claimants are permitted to interpose their claim against a judgment of condemnation.

No mechanic, in virtue of the act of 1838, has a lien on the house which he has built or repaired, unless he has filed in the office of the Clerk of Baltimore County Court, a statement of his demand, and in that statement has given, not only the sum due, but also the nature and kind of work done, and the kind and amount of materials furnished, and the time when the work was done and materials furnished.

To obtain such a lien, the statement filed must state the particulars of his demand, the items, whereby all who may be interested can ascertain not only the amount demanded, but the correctness and reasonableness of the demand itself.

These statements, when filed, must be explicit and comprehensive, to protect strangers to the contract, who may have other contracts relating to the same property or liens thereon, from fraud, and may be required by the party at whose request the work is performed.  

COUNSEL:
By W. J. WARD, for the appellants, and

By T. P. SCOTT, for the appellee claimant.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*23]  MAGRUDER, J., delivered the opinion of this court.
This is a proceeding by scire facias, grounded upon the act of 1838, chap. 205. The plaintiffs' claim is for work done, for carpentering, painting, glazing, and materials for the same, in and upon the dwelling-house in East Baltimore street, of which a description is given. The scire facias directs the sheriff to make known to said John Carson of David, and to all such persons as may hold, or occupy, said building, "to appear in Baltimore County Court, on the first day of January, 1845, to show if any thing they know or have to say, why the sum claimed should not be levied of the said building [**10]  to the use of said David Carson, Sen. and David Carson, Jr. partners as aforesaid, if to them it shall seem expedient."
The sheriff's return is "made known by copy left with the tenant in possession 25th September, 1844, and also advertised according to law."
Who was the tenant in possession is not stated, but at the same term, John Carson of David appeared, and by plea, denied that the plaintiffs did "do, or perform upon, in or about the said building the work and labor in the said claim in the said writ mentioned, or any part thereof. And for further plea said that the said plaintiffs did not furnish the materials in their said claim charged, in or about the building of the said house upon the lot aforesaid."
At January term, 1846, the appellee appeared in court, and suggested that before the filing of the claim of lien, 4th July, 1844, the defendant mortgaged the said ground to him, and on the 5th August, 1844, (before the filing of the said claim of lien by the plaintiffs) the defendant applied for the benefit of the insolvent laws of Maryland, and the appellee suggested that he is the "party in interest in the matter of this suit against 

 [*24]  the said [**11]  property," and prayed the court to be permitted to defend the said suit.
The record states that the leave was granted, and the appellee accordingly appeared to said suit by his counsel. Immediately following this is an agreement signed by counsel, that the pleas shall be considered as filed by the appellee, errors waived, and the said appellee (White) is individually responsible for all the costs as defendant.
There was a verdict for the defendant, several bills of exception having been taken by the plaintiffs in the course of the trial, which are now to be examined.
In the first exception, it is stated that the plaintiffs to support their claim, offered in evidence their statement of the work alleged to have been done by them in and about the house on the lot there described, and at the foot of it this acknowledgment:
"Baltimore, 1844, 12th September.
"I admit this bill for $ 357 50 to be correct as above stated, per contract (verbal) between us, and for extras.
Signed,     JOHN CARSON of D."
To the admission of this evidence the defendant objected, because the said John had, before the said admission, executed the mortgage and made the application for the benefit [**12]  of the insolvent laws--which facts were admitted by the plaintiffs.
Because of the rejection by the court of this testimony offered by the plaintiffs, the first exception to be found in the record is taken. Did the court err, in refusing to admit this testimony?
A mortgage would afford very little security for the debt intended to be secured thereby, if, after its execution, the mortgagor could, by admissions, create liens on the mortgaged premises, and thereby lessen, or it might be, destroy the value of the mortgage. The mortgagor can, by no acknowledgment subsequently to the mortgage, prejudice the interest of the mortgagee. The admission made in this case by the mortgagor ought not to have been admitted in the trial of those issues.
Immediately following the first exception it is stated--the 

 [*25]  defendant's counsel then made a written motion as follows: referring to the statement before given, and praying that the appellee for the reasons therein stated, have leave to defend, which is granted by the court, and to this there is an exception by the plaintiffs.
This part of the record, taken in connection with what has been previously stated, relative to an application [**13]  by the appellee to the court, is not very easily to be understood. It will be assumed, however, that the design of the exception was to question the authority of the court below, to permit an appearance in the case by the appellee.
Why should he not be permitted to appear? This is a proceeding in rem, and is designed to charge, with the claim of the appellants, property conveyed to the appellee, and the legal title to which we must assume was in him. Who was the proper person to appear, and resist this claim, as a claim against the mortgagee's interest? It cannot be that the mortgagor was the only person to decide whether the claim should be resisted or admitted.
It is suggested that John Carson's trustee, appointed upon his application for the benefit of the insolvent laws, was the proper person, and no doubt he was a fit person to defend the equity of redemption, which had been conveyed to him, if he thought it of any value; but it is equally clear, that the appellee was not bound to abandon his title to the protection of the trustee, over whom he had no control, and who, by his acts, admissions and omissions, might prejudice the rights of the appellee. If the appellee,  [**14]  claiming the property as he did, could not defend the suit, surely the plaintiffs ought not to be permitted to obtain a judgment, by which his interest was to be affected.
If the appellee could not be made a party, why is the sheriff to give notice to all such persons as may hold or occupy the building? Why are all such persons to appear before the judges of the court, to show if any thing they know, or have, to say why the sum of money claimed should not be levied of the said building, "if to them it shall seem expedient?" The appellee here 

 [*26]  was one of the persons, to whom the sheriff, it would seem, was to give notice. Why is he to be warned to appear, if although he "have to say," why the money is not to be levied on his property, he is not to be permitted to say it? He could only say it by being permitted to be made a party to the suit.
Our attachment laws do not expressly authorize the claimant of the property attached to appear to the suit; yet claimants are permitted to interpose their claim, and the cases of Campbell vs. Morris, 3 H. & McH. 535, and Ranahan vs. O'Neale, 6 G. & J. 298, tell us that they have the right to [**15]  appear. If then the act of 1838 did not expressly authorize the appellee to appear; yet this being a proceeding in rem, his right to appear and defend his interest cannot be questioned. There are, however, many clauses in this Act of Assembly which would be without meaning, if they leave the owner of the property designated to be condemned without liberty to show cause why his property should not be made to pay a debt for which he never was answerable. See clauses 16, 17, &c.
After excepting to the two above mentioned decisions by the court, the plaintiff then offered other testimony designed to prove the amount and value of the work done, and of the materials furnished about the said house; when the testimony was offered, the defendant prayed the court to instruct the jury that the plaintiff was not entitled to recover for the several reasons set forth in the exception. This instruction the court gave, and thereto also an exception was taken.
In examining the question thus brought before the court, it is proper to bear in mind that the court is not to inquire how much of this testimony ought to have been admitted, or the value of any portion of it; if this had been an action [**16]  brought for the value of this work, and of the materials furnished against the person, at whose request the materials were furnished, and the work done. The plaintiffs claim a right to a judgment, the effect of which would be to charge one man's property with the payment of a debt contracted by another, 

 [*27]  without the request, and perhaps without the knowledge, of the owner of the property. Grounding this proceeding upon the act of 1838, they are, of course, to prove that this act gives the remedy which they seek by this proceeding; and if the proof adduced is not such as the law requires of them, they have no cause to complain of the judgment of the court below.
The act of 1838 does not deprive any creditors of the remedies which the law gives to other creditors having claims of the same description. This additional or extraordinary remedy is allowed to mechanics and some others, if they comply with the conditions in the law prescribed, and the creditors who think proper to proceed under this law must show substantial compliance by himself with its requisites. No mechanic has, in virtue of the Act of Assembly, a lien on the house which he has built or repaired, unless he [**17]  has filed in the office of the Clerk of Baltimore County Court a statement of his demand, and in that statement has given not only the sum due, but also the nature or kind of the work done, and the kind and amount of the materials furnished, and the time when the materials were furnished, and the work done.
The mechanic, or other person then, who would claim a lien in virtue of this Act of Assembly, in his statement, to be filed in the office of Baltimore County Court, must not only state the sum claimed, but must also, in the statement to be filed there, for the inspection and scrutiny of all persons who are or may become interested in the premises, give a bill of particulars, where by all who may be interested can ascertain not only the amount demanded, but the correctness and reasonableness of the demand. The items must be furnished, in order that other creditors and persons interested may know for what services, and what materials, the sum alleged to be due is claimed, and thus have an opportunity of proving the injustice or extravagance of the demand. All this must be done in terms sufficiently explicit and comprehensive, in order to prevent the frauds which otherwise [**18]  might be practised upon others-- 

 [*28]  strangers to the contract, by the claimant and the reputed owner.
That the Act of Assembly was not in this case complied with, will be made obvious by a comparison of the statement of the demand furnished by the plaintiffs, with that which makes a part of the deposition of Samuel Harris, to be found in the exception. The statement filed in the office is not such a statement as the law requires, and must be supposed to require, for wise reasons. Indeed, it gives only the information which is afforded, in a declaration upon a quantum meruit, for work done, and materials found. Yet, with that information, the defendant, although alleged to be the party at whose request the work is done, and the materials are furnished, is not bound to be satisfied, but may insist upon being furnished with the particulars before he can be required to plead; whereas, in a proceeding of this description, to affect the interests of entire strangers to the contract, if the particulars cannot be required in the statement to be filed in the office, it cannot be required by them at all.
Having failed themselves to comply with the requisites of the act of 1838,  [**19]  the plaintiffs cannot avail themselves of that law, but must have recourse to the remedies before existing for the recovery of their claim. There is, then, no error in the instruction given by the court in the last exception.
The act of 1845, to which we have been referred, has no application to this case.
JUDGMENT AFFIRMED WITH COSTS.  

9 of 33 DOCUMENTS 

ELIZABETH BAYNARD vs. WILLIAM NORRIS AND MARY ANN, HIS WIFE, RACHEL HEIDE, J. P. JONES AND J. MORRIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 468; 1847 Md. LEXIS 41 

December, 1847, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Equity side of Baltimore County Court.

The will of George Heide devised to his wife Rachel, one equal third part of

"My real estate, for and during the term of her natural life, to be laid off and fixed in that part of my real estate, devised absolutely to my residuary legatees, by three judicious men, to be appointed by the Orphans court of Baltimore county, or the same may be made up in whole or in part of the annuities or yearly ground rents owned by me.

"All the rest, residue and remainder of my estate, real, personal and mixed, I give and devise as follows:

"The dwelling-house and warehouse and lots of ground on Cheapside, in the city of Baltimore; the lot of ground and premises on the south side of Baltimore street, between Paca and Green streets, and extending to German street; the lot of ground and premises purchased of Samuel Chase; all my annuities or yearly ground rents, with the fee and reversion of and in the ground from which they arise, &c. &c., shall be allotted to and equally divided among my three daughters, Eliza Baynard, Caroline Ferguson and Mary Ann Norris, in manner and by the persons hereinafter directed, to hold absolutely [**2]  as tenants in common, without any limitation or restriction, in part and on account nevertheless of their shares of the whole residue of my estate."

The general residue of his estate the testator devised in trust for his three daughters, to be allotted by the five persons who might be appointed as aforesaid. The award of any three, &c., to be final and conclusive.

The five commissioners allotted to Eliza Baynard, among other matters:

"All that lot of ground and appurtenances conveyed by James Hutchings to the aforesaid George Heide, by deed dated 2d August 1792, and recorded, &c., valued at $ 1,400, marked C."

To Mary Ann Norris they allotted all the estate of which George Heide died seized and possessed of, under a certain deed from Benjamin Griffith to him dated 9th February, 1792, marked B., to commence upon the death of Rachel Heide.

And a certain other deed from Richard Jones to the said G. H., dated 21st January, 1805, marked A., to commence upon the death of Rachel Heide.

The three commissioners appointed to allot Rachel Heide her life estate, allotted her the two lots conveyed by Griffith and Jones, B and C, with other property.

The three [**3]  lots were comprised within the description of lots on Cheapside.

The bill of the appellant, E. B., alleged that G. H. was seized and possessed among other lots, of three lots in the city of Baltimore, described in an exhibit filed with the bill, as A, B and C; that lot A he acquired from Richard Jones on 21st January, 1805; lot B from Benjamin Griffith, and lot C from James Hutchings, and that he devised the same according to his aforesaid will; that the Orphans court, on the petition of R. H., on the 22d February, 1831, appointed three commissioners, &c. to lay off one-third of the real estate of the said G. H. to the said R. H., who returned their assignment on the 11th March, 1831; that they appraised lot A at $ 1,800, and lot B and C at $ 3,000, but they erroneously designated said lots, to wit: lot A as that conveyed to said G. H. by James Hutchings, and lots B and C as lots conveyed by Benjamin Griffith and Rachel Jones; that the said commissioners erroneously assigned to said R. H. the lots A and B, but intended to assign, as the parties interested desired, to said R. H., the lots B and C as one lot, and did not intend to assign her the lots B and A, as by mistake has been [**4]  done; that said R. H. since said assignment has hitherto been in possession of the houses and lots B and C, and collected the rents due therefor.

The bill further alleged, that upon the petition of the appellant and her sisters, Caroline and Mary Ann, and their husbands, the Orphans Court appointed five commissioners to allot the said estate to the three residuary legatees; that the said commissioners intended to allot the said thirds in such manner as the parties in interest desired; that the said E. B. was unwilling to take lot A at $ 1,800, the valuation of the three commissioners aforesaid, who laid off the dower of R. H. and refused to take it in her third at said appraisement; that the said five commissioners, intending to conform as far as possible to the views of the parties, proceeded to make their appraisement and allotment, and did thereby intend to assign, as the parties interested desired, the lot A to the said E. B., and the lots B and C to Mary Ann Norris as one lot, and did not intend to assign to M. A. N. the lots A and B, as has erroneously been done; that the said E. B. since said assignment, hitherto has been in possession of lot A, and collected the rents [**5]  thereof.

The bill further alleged that W. Norris, Jr. and M. A. N. his wife, to secure the loan of $ 6,000 to R. H., executed on the 29 June, 1832, a mortgage of the estate devised, and allotted to said M. A. N., by the said five commissioners, and in said mortgage said lots B and C are erroneously mentioned as they are in said allotment, as the lots conveyed by G. and J. to G. H., and are in said mortgage described as being occupied by one tenement; that on the 16 June, 1842, the said Norris and wife, and Rachel Heide, executed a mortgage to Jacob Paul Jones and Israel Morris, purporting to convey such parts of the property allotted by said five commissioners to said M. A. N. in reversion, and said R. H. for life, as are in said mortgage mentioned; that the said R. H. united in said mortgage voluntarily for the purpose of pledging her life estate, and all her other estate and interest in the property described in said mortgage to secure the said debt to J. P. J. and J. M. That the aforesaid alleged error of description, applies also to the said mortgage; that the said mortgage debt not being paid, the mortgagees obtained a decree for the sale of the property therein described;  [**6]  that on the 27 March, 1844, the said J. P. J. purchased the lots under said decree, and at which said sale, notice of the claim of the said E. B. was publicly given; that the said Jones, Morris, Norris and wife, and Rachel Heide, all knew it was the purpose of the said dower commissioners, and of the said five commissioners to assign said lot A to the said E. B., and that the said E. B. was put in possession thereof when said allotment was made, and that she continued in possession thereof at the time of executing said mortgage as before. Prayer that the errors aforesaid may be corrected, that the said mortgage may be declared as of no effect as to lot A, that the legal title thereto may be conveyed to her by a trustee of this court, and for further and other relief, &c.

The answer of Rachel Heide, neither admitted nor denied the bill; but submitted to such decree as might be passed in the premises.

The answer of Morris vs. Jones admitted the seizin, will, death, and sources of the title, of G. H. It also admitted the proceedings in the Orphans court of Baltimore county as they there appeared; that they have no knowledge of any error or mistake therein, or either of them;  [**7]  but on the contrary, are informed that although said proceedings took place in 1831, yet it does not appear that any such error or mistake, was ever suggested to said court, or that any measures were ever taken to correct said alleged error; that in the year 1842, it was proposed to give these defendants, a mortgage on certain property situate in the city of Baltimore, represented to belong to the said R. H., and M. A. N., and W. N.; that these defendants being then and still residents of Philadelphia, knowing nothing of said property employed conveyancers to examine the title to all the lots composing the property so proposed to be mortgaged to them; that on examination, it was reported to them as satisfactory and good, and in consequence thereof, the defendants agreed to accept said mortgage, and in pursuance thereof, said mortgage was drawn; that these defendants acting in perfectly good faith without any suspicion or intimation that the complainant had any pretence of claim on any of said lots and property, accepted the same and complied with all the terms and conditions to be performed on their part as set forth in said mortgage. These defendants agreed to accept said mortgage,  [**8]  and enter into the contract therein set forth on the faith, and under the belief, that the grantors therein had a good title and right to convey the several lots aforesaid. The answer denied notice of the alleged mistake previous to or at the time the mortgage was taken; or that Eliza Baynard had possession of the lot conveyed by Richard Jones to G. H., or received the rents as charged in his bill; that they never heard of any objection to said mortgage, until the autumn of 1843, long after said mortgage was forfeited; that the defendants gave value for said mortgage as therein alleged; that they are purchasers of said conveyed lot by Richard Jones to G. H., as aforesaid for valuable consideration bona fide, and without notice of any right or claim of said complainant or any one else in said lot, except the grantors in said mortgage, who thereby conveyed all their right. The answer then admitted the filing of their bill under said mortgage; the decree for a sale; that at the sale under such decree, it is true that the complainant gave notice of her claim to said lot conveyed by R. J. to G. H.; that J. P. J. became the purchaser thereof, being the highest bidder therefor for account [**9]  of himself and partner J. M., and after ratification paid the purchase money, and the trustee conveyed to them; that there is still a large balance due them.

By the exhibit filed with the answer furnished by the defendants' conveyancer, on 21st June, 1842, it appeared that lot A fronted on Exchange Place, and B and C on Cheapside.

The defendants, Norris and wife, did not answer the bill. There was a decree pro confesso against them as non-residents.

There was proof that the legatees agreed among themselves upon a division of the residuary estate. They were three daughters of G. H.; the whole residuum was easily divided by the residuary legatees, until they came to lot A, or complainant's exhibit No. 1; G. H. had estimated said lot A at $ 1,800. The choice to take or reject that lot was between Mrs. B. and Mrs. Ferguson. The choice fell to Mrs. F., and Mrs. B. finding she had to take lot A, objected to the valuation. The legatees agreed the valuation should be reduced before the award was made. The commissioners were only called on, so far as the division went, to say what lot A should be valued at, compared with the other property. Lot A was known among the residuary [**10]  legatees. Mrs. B. agreed to take it upon condition, that it was reduced in value, and it was then awarded to her. The whole residuum was divided by the residuary legatees, and it was understood the commissioners were to follow the division made by them. The lot on Market and German streets, and lot A were the last to be divided. Mrs. B. was put in possession of lot A, has so continued ever since, and has drawn the rents.

The deeds from Richard Jones, Benjamin Griffith, and James Hutchings to George Heide, were also proven, and showed the errors of the commissioners in their reference to such deeds, in relation to the lots A and C. The mortgages from Norris and wife to R. H., and from both to Morris and Jones, were also in proof.

At February term, 1846, Baltimore county court (LEGRAND, A. J.) delivered the following opinion:

It appears from the proceedings in this cause, that a certain George Heide, now deceased, being seized in fee of several lots of ground in the city of Baltimore, made his last will and testament on the 14th March, 1829, which said last will and testament was never revoked, but admitted to probate after the death of said Heide; that by said will, (after [**11]  making certain appropriations of a portion of his estate,) he provided for the distribution of the residuum of it among his children, according to the award of five commissioners: the clause in the will having relation to this subject, being in these words:

"I do hereby order and direct that the same shall be done by five persons, who shall be disinterested, and of respectable standing, to be appointed by the Orphans court of Baltimore county, or any other court of record in the State of Maryland, of which appointment my executors, Zebulon Cooch and Alexander Fridge, if living, shall be two. And the award, decision or allotment of any three of them shall, when made, be returned to and recorded among the records of the Orphans court aforesaid, or among the records of Baltimore county court, and shall be final and conclusive, on all and each of my residuary devisees, and each of their legal representatives."

That on the petition of the heirs of Heide, the Orphans court appointed the commissioners, who, on the 9th June, 1831, made return of their appointment and allotment, which was recorded among the records both of the Orphans court and of Baltimore county court; that according [**12]  to such appointment and allotment, Mary Ann Norris, (one of the children of Heide) had allotted and appointed to her, two lots of ground on Cheapside; one of which the aforesaid Heide obtained, by deed dated 21st January, 1805, from a certain R. Jones; and the other by deed dated 9th February, 1792, from a certain B. Griffith; that the complainant had allotted and appointed to her a lot of ground, fronting on Franklin lane, and running back to the lot of ground mentioned in the deed from Griffith to Heide, already referred to; that the said Mary Ann Norris and her husband, subsequently, on the 29th June, 1832, mortgaged the two lots of ground which had been apportioned to the said Mary, to Rachel Heide, to secure the payment of $ 6,000; that afterwards, on the 16th June, 1842, the said Mary and her husband mortgaged the same lots of ground to secure the payment of a debt due to Israel Norris and Jacob Paul Jones of Pennsylvania; Rachel Heide united in said instrument for the purpose of releasing any claim as dowress she might have on said property, in favor of the mortgagees; that the debt due Messrs. Morris and Jones not being paid, the mortgage was foreclosed, and a decree passed [**13]  by this court for its sale on the 27th March, 1844; that at said sale, Jacob Paul Jones became the purchaser of two lots, which sale was reported to this court and finally ratified.

The bill alleges, that in the allotment to Mary Ann Norris, by the commissioners of the lot mentioned in the deed of Jones to Heide, a mistake was committed; that instead of this lot, the one mentioned in the deed from Hutchings to Heide, should have been allotted to her; and that it was the intention of the commissioners to have done so, and their belief at the time of the apportionment that such was done; that the lot mentioned in the deed from Jones should have been allotted to the complainant, and that the commissioners intended to have done so; that the said complainant, believing that the last mentioned lot had been apportioned to her, received the rents and profits of the same; that at the time of the sale, her counsel gave notice of her claim to said property.

The defendants, Morris and Jones, admit the notice given at the time of sale, of complainant's claim to the lot mentioned in the deed from Jones to Heide, but deny they had any notice of such claim until long after the execution [**14]  of the mortgage to them by Mary Ann Norris and her husband; that the proceeds of the sale are wholly inadequate to pay the debt intended to be secured by the mortgage, and that there remains still a considerable sum due to the said Morris and Jones.

From the testimony of Thomas Ferguson it appears, that it was intended by the devisees, that the particular lot in question should have been allotted to the complainant, instead of to Mrs. Norris; and by the testimony of Z. H. Cooch and Joseph Wilkins, that there were conversations had on the subject, as to the complainant taking the lot at a less valuation than that which had been made by Mr. Heide in his lifetime, &c. &c.

On this state of facts, the complainant asks that this court by its decree, shall empower some trustee to convey to her the lot in question, and by the same decree to declare the mortgage executed by Mary Ann Norris and her husband, void and of no effect, so far as this particular lot is concerned.

Admitting that there are circumstances in the cause, which show it to have been the intention of the devisees of George Heide, and of the commissioners appointed in pursuance of the authority to that effect [**15]  contained in his will, to have had the lot in controversy allotted to complainant, instead of to Mrs. Norris, the question is, how does this state of the case affect the defendants, Morris and Jones?

They were non-residents of Maryland at the time, and have been ever since the execution of the mortgage to them. When they agreed to receive the mortgage, they applied to an experienced conveyancer, Mr. Spurrier, to have the proper examination made; which, as Mr. Nelson Spurrier swears, was done to the best of the ability of the firm of which he was one.

Mr. Heide by his will had provided that the award and allotment of the commissioners, or that of any three of them, should "be final and conclusive, on all and each of my (his) residuary devisees, and each of their legal representatives." The award and allotment of the commissioners was made and returned for record on the 9th June, 1831. The mortgage from Mary Ann Norris and her husband, bears date 16th June, 1842, nearly eleven years after. During the whole of the intermediate time, the records both of the Orphans court, and of the clerks of Baltimore county court, shew the title of the lot to be in the mortgagor, Mrs. Norris.  [**16]  

During the whole of this time, no steps were taken to have corrected any error which may have existed; but the records were there left to evidence to the world, that the commissioners having discharged the duty assigned to them, the parties interested were content with the manner in which it had been performed. With this evidence of the title being in the grantors, the defendants, Morris and Jones, accepted of the mortgage to them; without notice of any kind, as they declare in their answer, of the claim of the complainant, with the assurance of Mr. Spurrier, that the title was all right. Now the question is, how are these defendants situated? What is their position in the eye of a court of equity?

After a thorough examination of the leading cases on the subject, Mr. Justice Story, in 1 Equity Jurisprudence, sec. 109, thus announces the general principle by which cases of accident are governed:

"Perhaps," says he, "upon a general survey of the grounds of equitable jurisdiction in cases of accident, it will be found that they resolve themselves into the following; that the party seeking relief has a clear right, which cannot otherwise be enforced in a suitable manner;  [**17]  or that he will be subjected to an unjustifiable loss, without blame or misconduct on his part, or that he has a superior equity to the party from whom he seeks relief."

If it were conceded that the complainant has acted without blame on her part, yet the evidence in the cause falls far short in my judgment of shewing that she has a superior equity to the party from whom she seeks relief. But can it be successfully contended, that the complainant is not justly chargeable with negligence? If in point of fact it was the intention of the commissioners to have allotted the lot in question to her, it was her duty, growing out of her obligations to the rest of the community, to have carefully examined the award of the commissioners within a proper time, and had such errors corrected in it as might have been the result of accident or mistake; but instead of doing this, the award and decision of the commissioners is permitted to remain of record, to deceive the public.

The latter in tracing the title to the property, would naturally have recourse to the will of George Heide, and by that, it would be found, the award and decision of the commissioners, was final and conclusive on the [**18]  devisees of said Heide. This being so, how is it competent for the complainant, without ever having made an effort to correct the error in the record, if any such in point of fact existed, to have a superior equity to a third party, who, without notice of any error, acted on the faith of the public records? But it is said on the part of the complainant, that the defendants, Morris and Jones, had notice of the claim of the complainant, and this averment is sought to be sustained by the testimony of Thomas Ferguson, who proves that soon after the award, she was put in possession of the premises, and continued to take the rents and profits.

In answer to this view, it need but be observed that the defendants most positively deny any knowledge of the claim of complainant, until the time of the sale directed to be made by this court. But it is further urged, that inasmuch as it is proved in the bill, that complainant did receive the rent of the lot, such receipt of the rent was a circumstance sufficient in itself to put the defendants on the look out; and in support of this view, the case of Moale vs. Buchanan, 11 Gill & John. 314, is relied upon. According to my apprehension [**19]  of that case, it is wholly insufficient for the purpose for which it is invoked. The question there, as it is here, was, in whom resided the superior equity? But the facts there, were different from what they are here. There the creditors acquired a specific lien in virtue of the contract and the delivery of the possession: here there was no specific lien acquired by the complainant, her right depending entirely on the award and decision of the commissioners; and at least so far as third parties are concerned to be ascertained only by a reference to that award which by the express language of the will under which complainant claims, is made final and conclusive on her and her legal representatives.

To this award, the defendants, Morris and Jones had recourse, and they acted in conformity with its resolutions. The defendants having procured a good title under the mortgage the question presents itself, whether the notice which was given by complainant's counsel at the time of the sale, affected the title which the purchaser then obtained?

It has long since been settled, that a party having notice, is protected in his title, provided he derives it from one who had none. "Thus,  [**20]  " says Story, in his Equity Jurisprudence, vol. 1, sec. 409, "a purchaser with notice may protect himself, by purchasing the title of another bona fide purchaser for a valuable consideration without notice, for, otherwise, such bona fide purchaser would not enjoy the full benefit of his own unexceptionable title. Indeed, he would be deprived of the marketable value of such a title, since it would only be necessary to have public notoriety given to the existence of a prior incumbrance, and no buyer could be found, or none, except at a depreciation equal to the value of the incumbrance."

Without noticing other questions which might be considered in connection with this case, such as competency of commissioners to affect their award as against third parties by subsequent testimony on the subject, I see nothing in the cause which induces the opinion, that the equity of the complainant is superior to that of the defendants, Morris and Jones, for, to say the least, she certainly has been equally negligent with them, if any negligence can be imputable to them; and as that negligence on her part occasioned the error, if any they have committed, she cannot be entitled to relief as against [**21]  them. When presented, I will sign a decree in conformity with these views.

Accordingly on the 6th day of February, 1846, Baltimore county court, sitting as a court of equity, decreed, that the bill of complaint be dismissed so far as respects the said defendants, Morris and Jones, and each of them, with costs. And so far as respects the said defendants, William Norris and Mary Ann his wife, the order of publication heretofore passed in this cause, having been duly published, and the said defendants having failed to appear and answer the bill of complaint, it is decreed, that the said bill be and the same is hereby taken pro confesso against said defendants, Norris and wife. And so far as respects the defendant, Rachel Heide, it is decreed, that the complainant is entitled to relief as against her in the premises. And in order to enable this court to decide what relief the said complainant is entitled to as against said defendants, Norris and wife, and Rachel Heide, it is ordered that this cause, so far as relates to said defendants, be and the same is hereby referred to the auditor of this court, with directions to ascertain the value of said lots of ground and premises distinguished [**22]  in the proceedings as lots A and C, and the difference of the values of the same, and also, the rents and profits which said complainant and said defendants, respectively have received from said lots respectively, or either of them, and to state an account thereof between all said parties, ascertaining and showing therein the proportion of the amount coming to complainant, which is to be paid by said Rachel Heide, the tenant for life, and the proportion to be paid by said Norris and wife, or either of them from the pleadings and proofs now in the cause and such other proofs (if any) as said parties or any of them may produce before him. And the said parties are hereby allowed to take testimony, &c.

From this decree, the complainant appealed to this court.  

DISPOSITION:
DECREE REVERSED IN PART AND CAUSE REMANDED.  

HEADNOTES:

A testator directed, that out of a certain portion of his real estate absolutely devised to his three children, his widow's life estate of one-third of his whole property should be allotted by certain commissioners, to be appointed by the Orphans court, and the other portion so devised to be divided among said children. The commissioners intending, under their apportionment, to carry into effect the directions and wishes of the widow and children, erroneously and contrary to such directions and wishes, made one lot subject to the widow's life estate, and assigned a lot intended by the parties, for one, to another of the devisees. Held, that the Court of Chancery might correct the error, reform the award, and make it conform to the directions of the parties, the tenants for life, and in remainder in fee; and, also, decree that the parties should account for rent and profits received under the erroneous award.

The widow and one of the children claiming under the erroneous award, according to its description of the property, mortgaged the same to third parties, while in fact, the children and widow were in possession and enjoyment, according to their actual understanding, and not according to the award. The mortgagees claimed the property as bona fide purchasers, but omitted to state in their answer that their grantor or mortgagor was at the time of the conveyance, seized or pretended to be seized, and was possessed of the mortgaged estate. Held, that the mortgage constituted no objection to reforming the award of the commissioners.

The fact of the possession of a party, whose rights are involved in a purchase, is a sufficient intimation of those rights, to put the purchaser upon an inquiry into their nature, and failing to make it, he is in equity visited with all the consequences of the knowledge of the title.

Where a testator devises a certain portion of his real estate to his daughters absolutely, with provision for the appointment of commissioners to divide the same among them by the allotment of such commissioners, the legatees take legal estates, under and by virtue of the testator's will, in the portions of the realty, severally, and to them respectively assigned; their title is not created by the allotment. 

COUNSEL:
By MCCULLOH and MCMAHON for the appellants, and

By J. J. LLOYD for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*480]  DORSEY, J., delivered the opinion of this court.
Believing that the testimony in this cause fully establishes the fact of the mistake made by the commissioners in their return, to the Orphans Court [**23]  for Baltimore County, of the allotment by them made, under the last will and testament of George Heide deceased, by the assignment of lot C on Franklin lane to Eliza 

 [*481]  Baynard, instead of lot A on Cheapside street; and in the assignment of lot A on Cheapside street, as part of the dower of Rachel Heide, with remainder over to Mary Ann Norris, instead of lot C on Franklin lane; the inquiry arises, are the defences set up by the answer, according to the proofs in the case, sufficient to prevent a court of equity from rectifying this mistake, and giving to the complainant the relief sought by her bill of complaint?
As a bar to such relief the defendants, Morris and Jones, assert in their answer, that they are bona fide mortgagees, for a valuable consideration, without notice of the claim of the appellant. In answer to this defence, the appellant insists that the allotment made by the commissioners created only an equitable estate in the real property to them respectively allotted, and that to consummate the legal title thereto in the parties to whom it was in severalty, respectively assigned, deeds of conveyance inter se duly [**24]  executed, acknowledged and recorded, were necessary; and that to a bona fide purchaser of such an interest in realty, no protection is given against a prior equity. That this answer of the appellant would have been a conclusive answer to the defence set up by the appellees, Morris and Jones, could not be denied, if the fact upon which it is based had been true, viz: that by the allotment of the real estate made by the commissioners under the last will and testament of George Heide, the residuary legatees took nothing more than equitable estates in the portions severally assigned to them. But such was not the effect of the allotment and return thereof made by the commissioners. By it the residuary legatees took legal estates in the portions of the realty, severally, and to them respectively, assigned, under and by virtue of the last will and testament of George Heide.
At the present day, it cannot be doubted, that a defendant being a bona fide purchaser, &c., can by way of answer as effectually defend himself against a complainant, asserting a prior equitable claim, as he could by interposing the usual plea in bar founded on such a purchase. But to render such [**25]  a defence available at the trial, the answer must contain an averment 

 [*482]  of every material fact requisite to sustain such a plea if demurred to. Does the answer of Morris and Jones, contain all such material averments, is, therefore the obvious inquiry to be made in this case? It does sufficiently state some of the facts indispensable to such a plea, to wit: the transfer of the legal title, the mortgage to the defendants, Morris and Jones, the bona fides of the transaction, and valuable consideration paid; and the payment of this consideration before they had any notice of the claim of the appellant. But the answer has altogether omitted to state one fact, which is essential to the validity of a plea, that the defendant is a bona fide purchaser, &c. Wherever the estate conveyed is one to which possession is incident, and is not a mere dry remainder or reversion, it is indispensably requisite to the validity of such a plea, that it should state that the grantor or mortgagor was, at the time of the conveyance, seized, or pretended to be seized, and was possessed of the premises conveyed; as authorities for which, see Equity Draftsman, 449. 3 Sugden  [**26]   Vendors 345-346. Daniels vs. Davison, 16 Ves. 249. Boone vs. Chiles, 35 U.S. 177, 10 Peters 177, 9 L. Ed. 388.
If to the validity of such a plea, the statement as to the possession of the grantor be essential, it is equally necessary, when such a defence is relied on at the final hearing, that a like averment, as to such possession, should be made by the answer; and had such an averment appeared in the answer of the defendants, Morris and Jones, it is conclusively disproved by the testimony in the cause. They cannot therefore protect themselves against the prior equity of the appellant, by the defence relied on in their answer, that they were bona fide purchasers without notice, &c. The defendants, however, must fail in protecting themselves as such bona fide purchasers without notice upon another ground. The fact averred in the answer (and without which the defence cannot for a moment be sustained,) is legally disproved by the testimony in the cause, which demonstrates that not only at the date of the mortgage, but for more than ten years before, the appellant had, through her tenants, been in the undisturbed possession [**27]  and enjoyment of lot A, conveyed by Jones to Heide the testator.

 [*483]  In Hardy & Talburt vs. Summers and wife, 10 G. & J. 324, this court have said that the fact of the possession of a party, whose rights are involved in a purchase, is a sufficient intimation of those rights, to put the purchaser upon an inquiry into their nature; and failing to make it, he is in equity visited with all the consequence of a knowledge of his title.
In Graff, &c. vs. Castleman, &c. 5 Randolph 207, the Court of Appeals of Virginia say: thus in any purchase, if there be circumstances, which, in the exercise of common reason and prudence ought to put a man upon particular inquiry, he will be presumed to have made that inquiry, and will be charged with notice of every fact, which that inquiry would give him.
In Pendleton vs. Fay, 2 Paige 202, it was decided that a purchaser, whenever he has sufficient information to put him on inquiry, in equity, is considered as having notice; and in such case he will not be deemed a bona fide purchaser.
For the establishment of so well settled a principle, a reference to further authorities cannot [**28]  be necessary.
This court will sign a decree, reversing with costs, to the appellant, in both courts, the decree of the county court, passed in this cause, except that part thereof which decrees that the bill be taken pro confesso against the absent defendants, which is affirmed, and will sign the usual order remanding the cause to the county court, that a decree may be passed appointing a trustee to convey lot A to the appellant, her heirs and assigns; and that an account may be taken of the rents and profits received by the appellees, from lot A, and the amount thus found to be due, be decreed to be paid by them to the appellant; and that said lot C may be conveyed by said trustee to the appellees, their heirs and assigns, by way of mortgage, to be held by them, as mortgagees, in the same manner as if it had been a part of the property conveyed to them by the mortgage of Rachel Heide, and William Norris and Mary Ann, his wife.
DECREE REVERSED IN PART AND CAUSE REMANDED.  

10 of 33 DOCUMENTS 

JOHN B. EMERY AND CYRUS GAULT vs. CORNELIUS H. AND CALEB D. OWINGS, ADMINISTRATORS OF BEALE OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 191; 1847 Md. LEXIS 60 

December, 1847, Decided 

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

This was an action of debt, brought by the appellees against the appellants, to recover the sum of $ 750 debt. The plaintiffs counted upon a lease made by Nicholas Owings, deceased, to the defendants, of a granite quarry in Baltimore County, as owner in fee, dated 11th June, 1840, for the term of six years from the 10th November following. The lessees were to quarry forty thousand cubic feet in each year, and pay one and one-fourth cents for each cubic foot rent, quarterly, and alleged that they entered upon the demised premises; that N. O. on the 7th July, 1841, devised the reversion of the leased premises to Beale Owings, for his natural life; that on the 30th December, 1841, N. O. died seized of the reversion. The declaration then proceeded to show the amount of rent up to the commencement of this action, and the periods at which the same accrued, &c.

The defendants pleaded nil debet with leave to give in evidence any special matter which might be pleaded in bar of the action upon notice, &c.

1st EXCEPTION.--Upon the trial the plaintiffs proved the lease declared upon, for the granite quarries known as the Fox Rock or Fox Quarry,  [**2]  with the right of quarrying the same in such quantities from time to time as the lessees' co-partners may have occasion in their business or may choose, not less than 40 M. cubic feet in each year during the demised term, yielding and paying to the lessor, &c. It was stipulated in the lease that it should not be construed to impair or affect the right or interest of, &c. under or by virtue of a mortgage theretofore executed by the said lessor, Nicholas Owings.

It was admitted that N. O. was dead, having first duly made and published his last will and testament, containing, amongst others, the following clause:

"It is my will and desire, that the rents arising from the quarry, known by the name of the Fox Rock Quarry, be applied to discharge the incumbrances on the same."

It was also in proof that the Fox Rock Quarry was a part of the real property which Nicholas Owings devised to his son, Beale Owings, the intestate of the plaintiffs in this action; that Cornelius H. Owings and Francis R. Griffith were appointed executors by the will of Nicholas Owings, and Beale Owings was in possession of the lands and premises devised to him; and that the defendants were in possession [**3]  of the quarries and demised premises in 1841, 1842 and 1843. Beale Owings died on the 26th July, 1844, intestate, and that letters were granted to the appellees on his estate.

The defendants, after notice to the plaintiffs, and to show that the plaintiffs had no right to any of the rent claimed, which fell due after the 10th August, 1842, proved an assignment of the quarry from B. O. to Edward Green, dated 7th Oct. 1842.

The defendants further gave in evidence by Matthew G. Emery, that he was employed in cutting stone at the Fox Rock Quarry, in the year 1840; that in the summer of the year after Noah Worthington had torn up the rail-road running across his land, (being a part of the rail-road leading from said quarry to the Baltimore and Ohio Road.) and before said rail-road, thus torn up, had been laid down again--being on a visit at the house of Nicholas Owings--had a conversation with him respecting the said rail-road that had been torn up, and as to the prospect of its being laid down again; that in this conversation, N. O. said that he was very sorry it had been torn up, and that he did not know what he should do to get it put down again, as he had no money to pay to [**4]  Noah Worthington the sum he demanded, that is, $ 866, the amount he had expended in law suits about said road, and that he, Nicholas, did not know what he should do, unless Emery & Gault would advance to him that sum; that on his next visit to N. O. he, N. O. said that Emery & Gault had advanced to him the said sum of $ 866, to be taken out in rent of said quarry; and that he, N. O. had sent the money over to Mr. Worthington, and that in consequence of said advance, he, the said Nicholas, would not receive any thing for two years, as it would take nearly that time to pay off said advance. The said witness, then upon examination by the plaintiffs, proved the following receipt:

"Baltimore County, June 5th, 1840.

"Received of Emery & Gault $ 866, to be returned them in granite stone, to the amount of sixty-nine thousand three hundred feet, without interest, between the 10th November, 1840, and the 10th November, 1846, they being at the expense of quarrying and transporting the same from my quarry, known as the Fox Rock Quarry.     NICHOLAS OWINGS."

The defendants further gave in evidence by Matthew G. Emery, that he was present when Gault, one of the defendants, paid [**5]  to said N. O. the sum of $ 101 85, and that the following receipt was given therefor.

"Rec'd, Balt. County, Feb. 19th, 1841, of Emery & Gault, $ 101 85, on account of quarry rent.

"NICHOLAS OWINGS."

The defendants also proved the following receipt:

Rec'd, Balto. Octo. 13th, 1841, of M. G. Emery for E. N. Gault, $ 20, on account of Nicholas Owings.

"C. H. OWINGS."

That he, the witness, did not pay the sum of $ 20 on account of rent due, but on account of rent to become due. It was to go on account of the lease.

The plaintiffs gave proof to rebut the parol evidence offered by the defendants, as to the application of the money advanced by them to Nicholas Owings, as an offset to the rent claimed in this action, and that it was paid on a different account.

The plaintiffs further gave in evidence by Peter Gorman, a competent witness, duly sworn, that he knows the Fox Rock Quarry, and knows what is called Rubble slone. There is a large amount of that kind of stone, including offal and dirt at the Fox Rock Quarry, that has been accumulating since the quarry was opened; that dimension stone are used in building warehouses, and for columns, &c. The dimension [**6]  stone are the main object in opening a quarry; they are worth from 40 to 50 cents per cubic foot in Baltimore; that Rubble stone, if a man wants it, is worth from 50 to 75 cents, perhaps $ 1 per perch; that the witness, within five years past, received from the Fox Rock Quarry a few car loads of Rubble stone, which he used in building a house; that he purchased them of Emery & Gault, who delivered them on cars near to the house of the witness; that he paid $ 1 a car load, each containing about a perch and a half, equal to about thirty-seven cubic feet. There has been a good deal of Rubble stone used in constructing the Baltimore and Ohio Rail-road. Dont know of any other sale or use by Emery & Gault of Rubble stone from the Fox Rock Quarry, except what he, the witness, took; that there is at the Fox Rock Quarry an immense heap of offal stone and rubbish, three-fourths of which is sand, and good for nothing; that forty thousand feet, or $ 500 worth, at the rate of one cent and a quarter per foot, might be got out in a year at the Fox Rock Quarry. It has always been considered that the expense of getting stone from that quarry was less than at other quarries.

The plaintiffs, further [**7]  to support the issue on their part, and to rebut the evidence given on the part of the defendants, gave in evidence by William Clary, that he had been a stone-cutter for three years; that he considers the Fox Rock Quarry more advantageous for furnishing stone to the Baltimore market, by several cents in the foot, than other quarries. There is a descent from the quarry to the Baltimore and Ohio Rail-road, except for the distance of two hundred yards; that he, the witness, never knew any custom, at any of the quarries, to pay for the Rubble stone, neither at Worthington, which was worked in 1833, but not since, nor at the Watersville Fox Rock, or Meadow Field Quarry.

The plaintiffs and defendants offered testimony in relation to the value of dimension and rubble stone; the comparative facility of procuring them at the leased quarry; the facilities for transporting them to market,--which proofs are not deemed material to be published.

The defendants then prayed the direction of the court to the jury:--

1. "That under the will of Nicholas Owings, the rents of the Fox Rock Quarry did not pass to Beale Owings, the plaintiff intestate, and that the plaintiffs are therefore [**8]  not entitled to recover in this action:" which direction the court (PURVIANCE and LE GRAND, A. J.,) refused to give.

2. That if the jury find from the evidence that the receipt offered in evidence by the plaintiffs, of the 5th June, 1840, was given by N. O. under an agreement that the same should be applied to the payment of rents thereafter to become due from the defendants to said Nicholas Owings, from the Fox Rock Quarry, under the lease of the 11th June, 1840, and that the sum of eight hundred and sixty-six dollars has not been returned to said defendants by the said Nicholas Owings, to those claiming under him, or in any way satisfied, that then they must allow said receipt, or so much thereof as may be now due as an offset to the plaintiffs' demand, which instruction the court gave as prayed.

The plaintiffs then prayed the following additional instruction to the jury, to wit:--

"But if the jury find from the evidence, that the defendants are chargeable with the Rubble or offal stone, taken by them from said Fox Rock Quarry, and that they have taken out the amount of said receipt for $ 866, in said Rubble or offal stone, then the said $ 866 is not to be received [**9]  in bar of this action. Notwithstanding, the jury may find that said $ 866 was agreed to be applied to extinguish the rents of said quarry:" which the court granted.

The defendants excepted to the instruction of the court, as well in refusing to grant the defendants' first prayer aforesaid, as in granting the additional instruction prayed by the plaintiffs.

The verdict and judgment of the court below being in favor of plaintiffs, the defendants appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The owner of the fee on which a stone quarry was situate, having mortgaged and leased the quarry, devised it to his son, and directed "that the rents arising from the quarry be applied to discharge the incumbrances on the same." Held, that the rents due at the testator's death passed to the son of the deceased, for the purpose of paying the incumbrances.

That the clause of the will did not separate the rents from the reversion.

If the application of the rents had been directed to the payment of the testator's debts, irrespective of the lands out of which they issued, the implication of a devise of the rents to the testator's executor could not have been repelled.

To executors only are confided the ascertainment and payment of testator's debts.

The construction of written contracts is to be declared by the court, and not submitted to the finding of the jury.

A lease granting the license, right and privilege of quarrying, getting out, working and carrying away granite stone, does not confer the right of carrying away rubble stone.

Granite stone is a known article of commerce, sold by the cubic foot, and is called dimension stone; while rubble stone is sold in the mass, or by the perch.

Where, as between lessor and lessee, the right existed to quarry and take away granite stone, and a payment was made under an agreement, that the same should be applied to the quarry rents thereafter to become due, and the lessor retained the money, he cannot set up, in opposition to the application of such payment to the rent, another claim, as for rubble stone, though connected with the quarry, due from the lessee to him.

The court will not issue a procedendo on reversal of a judgment, where they perceive from written evidence, as a receipt, that the plaintiffs cannot ultimately recover.  

COUNSEL:
By HINKLEY and NELSON for the appellants, and

By R. J. BRENT for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*196]  DORSEY, J., delivered the opinion of this court.
The defendants, by their first prayer, prayed the opinion of the court to the jury: that, under the will of Nicholas Owings, the rents of the Fox Rock Quarry did not pass to Beale 

 [*197]  Owings, the plaintiff intestate, and that the plaintiffs are therefore not entitled to recover in this action: which opinion and direction the court refused to give. Whether the County Court were right or not in refusing this prayer, [**10]  depends upon the true construction of that part of the testator's will, which relates to those rents. After devising to his son, Beale Owings, the Fox Rock Quarry, out of which the rents issue, the will proceeds as follows:
"And it is my will and desire that the rents arising from the quarry known by the name of the Fox Rock Quarry, be applied to discharge the incumbrances on the same."
This clause of the will, it is insisted, separates the rents from the reversion devised to Beale Owings; and by necessary implication, gives them to the executors of the testator. If the application of the rents had been directed to the payment of the debts of the testator, irrespective of the lands out of which the rents issue, it might have been somewhat difficult to repel the implication of a devise of the rents to the executors of the testator; because to the executors only is confided the ascertainment and payment of the debts of the testator. But by this clause in the will, the rents are not directed to the payment of debts generally, but to the discharge of the incumbrances on the Fox Rock Quarry. To whom then could the rents more appropriately be given to effectuate the [**11]  design of the testator, than to him to whom the reversion was devised? He was as competent to make the application of them, directed by the will, as the executors of the testator; and much more deeply interested in their being faithfully applied. And further, it is not to be presumed to have been the intention of the testator to diminish the means of collecting the rents, and the certainty of their application to the object by him enjoined, which certainly would be the result of the implication contended for. Had the testator, by his will, have separated the rents from the reversion, and given them to his executors, the only means of their recovery would have been by an action of debt; but if suffered to pass to the devisee, according to the legal import of the devise, the rents could be recovered 

 [*198]  not only by an action of debt, but by distress, which is justly regarded as much the more speedy, certain and efficient remedy for the recovery of rents. Of the rents when collected, the devisee becomes, as it were, a quasi trustee for their faithful application according to the will. So far from its being necessary to imply a devise of the rents to his executors, to effectuate [**12]  the intent of the testator, there is every reason to presume his intent to have been the reverse of that, which, by such an implication, it is assumed to have been. There is, therefore, no error in the County Court's refusing the opinion and direction to the jury, sought by the appellants' first prayer.
The appellants' second prayer was upon the whole evidence. The defendants, by their counsel, prayed the court to instruct the jury, that if they find from the evidence that the receipt offered in evidence by the plaintiffs, of the 5th June, 1840, for the sum of $ 866, was given by Nicholas Owings, under an agreement that the same should be applied to the payment of rents thereafter to become due from the defendants to said Nicholas Owings, from the Fox Rock Quarry, under the lease of the 11th June, 1840, and the said sum of $ 866 has not been returned to said defendant by the said Nicholas Owings, or those claiming under him, or in any way satisfied, that then they must allow said receipt, or so much thereof as may be now due as an offset to the plaintiffs' demand, which instruction the court refused to give to the jury, but gave to them the following instruction, to [**13]  wit: "But if the jury find from the evidence, that the defendants are chargeable with the Rubble or offal stone, taken by them from said Fox Rock Quarry, and that they have taken out the amount of said receipt for $ 866 in said Rubble or offal stone, then the said $ 866 is not to be received in bar of this action, notwithstanding the jury may find that said $ 866 was agreed to be applied to extinguish the rents of said quarry."
The testimony in this case being all received without objection, unless it be on the ground assumed in the court's instruction to the jury, it does not appear that any other reason existed for the court's refusal to grant the defendants' second prayer. 

 [*199]  It becomes our duty, then, to inquire into the legality of the court's instruction, as regards the liability of the appellants to pay for Rubble stone. This liability the court referred to the decision of the jury; and in this we think the County Court erred.
It is a wise and well-established rule of law, that the true construction of written contracts is to be declared by the court, and not submitted to the finding of the jury. In the lease in question before the court, sufficient appears upon [**14]  its face to show what was its true intent and meaning; what was the intention of the parties in entering into the contract. The lease describes the appellants, (the party of the second part,) as residents of the City of Baltimore, and partners in the trade and business of quarrying, cutting and selling granite stone, and carrying on the same under their co-partnership name and firm of Emery & Gault, and transfers to the appellants "the license, right and privilege of quarrying, getting out, working and carrying away granite stone from said quarry or quarries, to the use and benefit of said Emery & Gault, or the survivor of them, and the executors, administrators and assigns of such survivor, for the term of six years, they paying for the stone 1 1/4 cent per cubic foot." The very fact of the stone being sold by the cubic foot, in the absence of all other confirmatory parts of the lease, demonstrates that the stone sold and sought to be obtained under the lease, were dimension, not Rubble stone,--the former being always bought and sold by the cubic foot,--whilst it is believed, and may be safely asserted, that in Maryland no instance exists, or ever did exist, of Rubble [**15]  stone being sold by the cubic foot. Such a rule of admeasurement is wholly inapplicable to Rubble stone, and is applicable to sales of dimension stone only, which are never sold by that species of measurement, if to be measured at all;--whilst Rubble stone is universally sold in the mass, or by the perch. This interpretation of the contract between the parties is strongly corroborated by the fact, that the appellants are stone-cutters in the City of Baltimore, and consequently use dimension stone only. Had they been stone-masons, there would have been 

 [*200]  some plausibility in the argument that their contract embraced Rubble, as well as dimension stone.
The County Court did not err in rejecting the first prayer of the defendants below; but there is error in its refusal of the second prayer, and in the instruction which it gave in relation to the Rubble stone, and therefore its judgment should be reversed. But no procedendo should issue; because there appears to be but three-quarters of a year's rent due on the lease, for which any action could have been sustained by the plaintiffs below, and the set-off, to which the said defendants have shewn themselves entitled, far [**16]  exceeds that amount.
JUDGMENT REVERSED.  

11 of 33 DOCUMENTS 

PRISCILLA BUCHANAN vs. ARTHUR PUE, JUNR. Executor of EDWARD BUCHANAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 112; 1847 Md. LEXIS 55 

December, 1847, Decided 

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

The bill in this case was filed on the 24th February, 1845, by the appellee against the appellant, and alleged that Edward Buchanan, on the 16th June, 1843, made his will, containing the devisees hereinafter set forth, including certain leasehold property, to the appellant, and died in the month of August following; that, supposing the testator's personal property and a farm in Baltimore County would be sufficient to pay his debts, he agreed with P. B. that she should take into her possession the chattels, real and personal, bequeathed to her, and hold the same, subject to any demand of the appellee, for the payment of the debts of his testator; that P. B. declared and agreed at the time thereof, that in case she sold the same, the proceeds thereof should be by her deposited in bank--there to remain untouched, until the estate of E. B. should be settled; that the said P. B. took possession of her legacies, disposed of the same, except the chattels real, and deposited the proceeds of sales in bank, where they now remain, the amount of such proceeds and place of deposite being unknown to the appellee; that she still holds the chattels real, as [**2]  aforesaid; that after sale of testator's property, and payment away of assets, his estate is still in debt to the appellee and others; that it will require all the personal estate delivered to the appellant to pay debts still due, in order to save the real estate left by him from being sold; and that the said P. B. is bound, both according to the agreement entered into with the appellant, and by reason of a deficiency of other assets, to pay debts--to return the property received by her, which she refuses to do.

PRAYER for specific performance of her agreement, &c.

The will of Edward Buchanan, after ordering payment of his debts, and liberating a certain negro man slave, devised:

1. Certain real property in fee, to his nephew, Arthur Pue, Jr., in trust to pay annuities and for life, with remainder to the children of said A. P. Jr.

2. A farm in Baltimore County, and all the residue of his real and leasehold estate and chattels, to his executor, with power to sell the same; and the proceeds thereof, after payment of debts, &c. he devised to the trustees of the Male Free School of Baltimore, and others, in proportions specified.

A codicil to this will declared:  [**3]  

"In consideration of the particular care and attention shown me by my sister, Priscilla Buchanan, during my protracted sickness, I give and devise to her, her executors and administrators and assigns, all my household and kitchen furniture, and likewise my stock of horses, cattle, grain, provender, farming utensils and other chattels personal, belonging to me, that may be on my said farm in Baltimore County, at the time of my decease. I also give to my said sister, Priscilla, her heirs, executors, administrators and assigns, my house and lot of ground and premises, fronting on Fleet Street, Fells Point, in the said city of Baltimore."

All the property devised to P. B. was delivered to her by the appellee--and for which she executed a full and formal release, dated 29th August, 1843.

The answer of the appellant admitted, that she had sold a portion of the property devised to her, for $ 649 92; that she deposited the same in the Savings Bank of Baltimore, and is ready to account for the same, under the orders of this court; and that before the property, bequeathed to her by E. B., was delivered to her, she did agree with the appellee to restore the same, or the proceeds [**4]  thereof, if under the will of her deceased brother, and all the facts of the case, she was bound by law so to do. She denied any other agreement.

It was admitted that the unpaid debts amounted to a larger sum than the chattels, real and personal, devised to P. B., and there was nothing to sell for payment of debts under the control of the executor, except the real property devised in trust as aforesaid.

The other material facts will be found in the opinion of this court.

On the 11th June, 1846, the Chancellor (BLAND) decreed that P. B. pay to the complainant, &c. the sum of $ 649 92, and transfer and deliver the house and lot on Fells Point in the proceedings mentioned.

From this decree, the defendant in Chancery appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

Although a testator may, as between the devisees of his real and personal estate, prescribe the mode in which his debts shall be discharged; and the dispositions made by his will, will be obligatory upon those who accept it; yet he has no power to withdraw from his creditors the personal estate--the primary fund for the satisfaction of their claims.

In a contest between an executor and a specific legatee, it appeared that the former, before the settlement of his accounts, had delivered to the latter the personal property, devised to her upon an agreement on her part to refund, if it should turn out that there was a deficiency of other assets to pay debts. The personal assets and some real estate, devised to be sold for payment of debts, proved insufficient, when the legatee was decreed to refund. As between such parties, the court refused to entertain the question--whether the testator intended to charge other portions of his real estate, which he had also devised to other parties, with the payment of his debts.

If it were the intention of the testator to exempt his personal estate from the payment of debts, the specific legatee of such estate might be subrogated to the rights of creditors, and claim to be reimbursed by the devisees of the realty. A bill for that object might still be filed by the legatee, when the interpretation of the will, as to that question, would be determined.

A legacy, delivered by an executor to a legatee, upon the entire confidence, sincerely entertained, that the assets of his testator would be sufficient for the payment of debts, but which proved to be inadequate, without default in the executor, may be recovered in equity.

A mere agreement to refund does not, in such a case, affect the rights of the parties.

Payment of a legacy, voluntarily made on a mistaken ground of fact, may be reclaimed.

Gratuitous services of great merit, rendered by a legatee to his testator, do not constitute the legatee a purchaser of his legacy.

A general legacy, given in consideration of a debt due the legatee, or relinquishment of any right or interest since the bequest, is not made as a bounty, but as purchase money, and will be entitled to a preference of payment over other general voluntary legacies. 

COUNSEL:
By J. M. BUCHANAN and C. F. MAYER for the appellant, and

By E. HAMMOND and G. W. DOBBIN for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*115]  MARTIN, J., delivered the opinion of this court.
This is an appeal from a decree of the Chancellor, of the 1st June, 1846, by which it was ordered, that the specific legacy which [**5]  had been delivered to the defendant by the complainant, should be returned to the complainant, to be applied by him as the executor of Edward Buchanan, in satisfaction of the testator's debts.
From this decree, the present appeal has been taken; and the counsel of the appellant in the argument in the cause have contended, that the decision of the Chancellor was erroneous, and ought to be reversed, mainly, upon two grounds:
First, because it plainly appears from the will of Edward Buchanan, executed on the 16th June, 1843, and the codicil to the will, which was executed on the 25th July, 1843, that the testator intended to charge his real estate with the payment of his debts, in exoneration of his personal estate, the whole of which he had specifically bequeathed to the appellant, by the codicil of the 25th July, 1843.
And secondly, that inasmuch as the legacy thus specifically bequeathed has been voluntarily delivered by the appellee to the appellant, and was accepted by her, the appellant is now precluded under the circumstances of this case from demanding a return of it.
In the case of Walker vs. Jackson, 2 Atk. 624, the Lord Chancellor said:  [**6]  
"That the personal estate is to be applied for the payment of debts in the first place, is the general rule, and it is as certain that a testator cannot, as against his creditors, exempt his personal estate.
"But against his heir at law, or the devisee of his real estate, he may substitute the real, in the room of the personal estate, 

 [*116]  and charge his debts upon another fund not in its nature primarily liable."
This is the acknowledged doctrine on this subject, and it is to be received as an established principle, that although a testator may, as between the devisees of his real and personal estate, prescribe the mode in which his debts shall be discharged, and the dispositions made by the will, will be obligatory upon those who accept it; yet he has no power to withdraw from the creditors the personal estate, to which by the law they are authorized to resort, as the natural and primary fund for the satisfaction of their claims.
In the case of The State of Maryland vs. The Bank of Maryland, 6 G. & J. 205, the Court of Appeals said:
"An executor or administrator takes the funds of the deceased, to be distributed according to law, subject to such preferences [**7]  as the law allows. The moment the debtor dies, the law asserts the rights of the creditors, and takes the property into its hands, and makes or directs a distribution of it, according to their priority. That being the law of the deceased persons' estates, which a testator cannot by his will defeat."
In the case now under consideration, a bill was filed by the complainant, as the executor of Edward Buchanan, for the purpose of reclaiming from the defendant, the legacy which he had delivered to her, that it might be appropriated as the personal assets of the testator to the payment of his debts; and it must be obvious, that in a controversy of this kind, the question agitated by the counsel for the appellant, with respect to the estate which the testator intended to be charged with the payment of his debts, does not arise, and cannot be properly adjudicated.
If the construction placed by the counsel for the appellant upon the will of Edward Buchanan is correct, and they can maintain the proposition, that it was the intention of the testator to exempt his personal estate from the payment of his debts, there is no doubt that the appellant, as the specific legatee of the personal [**8]  estate, would be subrogated to the rights of the 

 [*117]  creditors, and might claim to be reimbursed by the devisees of the real estate. But the devisees of the land are not before us, and we forbear, therefore, to intimate any opinion with respect to the true interpretation of this will. The position taken by the counsel for the appellant, on this branch of the case, certainly interposes no obstacle to the successful prosecution of the complainant's bill.
With respect to the second point made by the counsel for the appellant, we are of opinion there is no circumstance in this case which precludes the appellee from reclaiming this legacy in a court of equity.
It has not been pretended, that the insufficiency of the assets to satisfy the debts of the testator has been caused by the fraud or misconduct of the executor. The fund created by the sale of the farm in Baltimore County has been faithfully applied to the purposes designated by the will of Edward Buchanan; and after having been exhausted in the payment of his debts, there still remains outstanding debts amounting to the sum of nineteen hundred dollars, in addition to the sum of three hundred and forty-five dollars [**9]  and thirty-eight cents, due to the executor for disbursements made, and debts paid by him, on account of the estate. And, we think, that as it is evident in this case that the legacy was delivered by the appellee to the appellant upon the entire confidence, sincerely entertained, that the assets would be sufficient for the payments of the debts of the testator, but have proved to be inadequate, without the fault of the appellee, he was entitled to coerce a return of it, through the instrumentality of a court of equity. Upon this subject, there appears to have been some contrariety of opinion in the early cases, but the principle we have announced will be found to be sustained by the weight of authority, both in England and in this country.
In the case of Davis vs. Davis, reported in 8 Viner Abrgt. 423, it was held:
"That an executor may institute a suit against a legatee, to refund a legacy voluntarily paid, as well as a creditor; and for this reason, an executor paying a debt of the testator out of 

 [*118]  his own pocket, stands in the creditor's place, and has the same equity against the legatee to compel him to refund."
In Hawkins vs. Day, decided in 1753,  [**10]  Ambler's Rep. 160, Lord Hardwicke said:
"The rule in this court, to grant prohibitions in case legatees sue in the spiritual courts, and refuse to give security, is out of use; but the court will decree a legatee to refund."
In Edwards vs. Freeman, 2 P. Wil. 446, Lord Chief Justice Raymond declared:
"That if an executor pays a legacy on supposition that there are assets to pay all the other legacies, and there happens a deficiency, the court will make the legatee, who is paid his full legacy, refund."
The principle thus announced in the cases to which we have referred was recognized by Lord Alvanley, in the case of Johnson vs. Johnson, 3 Boss. & Pul. 169; by Chief Justice Marshall, in Riddle vs. Mandeville, 9 U.S. 322, 5 Cranch 322, 3 L. Ed. 114; and has been directly adjudicated by the Supreme Court of New Jersey, in the case of Harris vs. White, 2 Southard 425, and by the presiding judge of the Court of Appeals of Virginia, in Gallego's Exec'rs vs. The Attorney General, 30 Va. 450, 3 Leigh 450. And Judge Story, when treating of this subject in the 1st vol. of his Equity Jurisprudence,  [**11]   sec. 90, says:
"In the course of the administration of estates, executors and administrators may often pay debts and legacies upon the entire confidence, that the assets are sufficient for all purposes. It may turn out from unexpected circumstances, or from debts and claims made known at a subsequent time, that there is a deficiency of assets. Under such circumstances, they may be entitled to no relief at law. But in a court of equity, if they have acted with good faith, and with due caution, they will be clearly entitled to it, upon the ground that they will be otherwise innocently subject to an unjust loss, from what the law itself deems an accident."
The same doctrine is maintained in Walker vs. Hill, 17 Mass. 380.

 [*119]  It is proper to state, that the view we have taken of this question is entirely unaffected by the agreement, said to have been entered into between the appellant and appellee, at the time this legacy was delivered. That agreement cannot be regarded as changing, in any respect, the rights of the parties. They stand precisely where they remained before the contract was made; because we understand the appellant only to have stipulated that [**12]  she would refund the legacy, provided, she was under a legal or equitable obligation to do so. We place the right of the appellee to maintain this suit, upon the plain and acknowledged principle, "That the payment of the legacy was made on a mistaken ground, with respect to the facts of the case, and that therefore it would be unjust and inequitable in the legatee to withhold it." Hutchins vs. Hope, 12 G. & John. 256.
The codicil executed by Edward Buchanan on the 25th July, 1843, contains the following bequest:
"In consideration of the particular care and attention shown me by my sister, Priscilla Buchanan, during my protracted sickness, I give and devise to her, her executors and administrators and assigns, all my household and kitchen furniture, and likewise my stock of horses, cattle, grain, provender, farming utensils, and other chattels personal, belonging to me, that may be on my said farm in Baltimore County, at the time of my decease. I also give to my said sister Priscilla, her heirs, executors, administrators and assigns, my house and lot of ground and premises fronting on Fleet Street, Fells Point, in the said city of Baltimore."
The counsel [**13]  for the appellant have relied on the expressions, "in consideration of the particular care and attention," &c. as indicating that the testator treated the appellant as his creditor; and that the property in controversy was bequeathed to her--not as a mere matter of testamentary bounty, but in payment of what he considered to be a debt, founded upon a valuable consideration, and justly due from him to the legatee.
But an insuperable answer to this argument is, that no claim has as at any time been preferred by the appellant against the 

 [*120]  estate of the testator for these services; and her counsel have repudiated the supposition, that she was influenced by sordid motives in the care and attention which she bestowed upon her brother during his protracted illness.
The services rendered on this occasion by the appellant, were in the highest degree meritorious, but they were confessedly gratuitous; and it is impossible to place the appellant in the position of a creditor, or to impart to the legacy the character of a purchase, in a case where it is perfectly plain, and has indeed been conceded that there was no legal claim.
The rule upon this subject is thus laid down by Roper [**14]  , in his Treatise on Legacies, 1 vol. 297:
"When a general legacy is given in consideration of a debt owing to the legatee, or of his relinquishing any right or interest since the bequest, is not made as a bounty like other general bequests, but as purchase money for the collateral right or interest, it will be entitled to a preference of payment, to other general legacies, which are merely voluntary." And the author says:
"It must be remarked, that, as it is the surrender of existing rights or claims which gives the preference to the legatee, it is necessary that those rights or claims should be subsisting at the testator's death."
It is not pretended that there was any debt or claim due and subsisting, or account of these services, from the testator to the appellant, at the time of his death; and it is clear upon all the cases, that she cannot be treated as a purchaser of this legacy. But as this is a contest between the executor and the legatee, and not between co-legatees, we desire to be understood as not meaning to intimate, that this fact, even if had been established, would have changed, in any respect, the aspect of this controversy.
DECREE AFFIRMED.  

12 of 33 DOCUMENTS 

JAMES WILSON, CHRISTOPHER RABORG AND PETER EISENBURY, SURVIVORS OF THOMAS WILSON, vs. WILLIAM INLOES, JOSHUA INLOES, JAMES HOOPER, AND JOHN L. CHAPMAN AND WIFE, HEIRS-AT-LAW OF JONATHAN CHAPMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 121; 1847 Md. LEXIS 56 

December, 1847, Decided 

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

This was an action of ejectment, and was before this court in 1840.--11 G. & J. 354. It was brought by the appellants against the appellees, for all that piece or lot of ground, situate on Fell's Point, in the City of Baltimore;--beginning for the same at the south-west intersection of Wilks and Eden streets, and running westerly on Wilks street eighty feet; thence southerly, parallel with Eden street, crossing Lancaster street, to the water; then easterly with the water, and parallel with Wilks street, eighty feet, to Eden street; and thence northerly with Eden street, to the beginning, containing six acres, with the appurtenances, situate and being in Baltimore County aforesaid, which James Wilson, and Thomas Wilson, and Christopher Raborg, and Peter Eisenbury had demised, &c.

The defendants pleaded not guilty, and took defence on warrant, and upon return of the plats "for all the land lying between the south side of Alice Anna street, and the north side of Lancaster street, and the west side of Eden street and Canal street."

1st EXCEPTION. At the trial of this cause the plaintiff, to support the issue on his part,  [**2]  offered in evidence the plats and the explanations thereof, in this cause; and the following papers, to wit:

A patent to Alexander Mountenay of Mountenay's Neck, dated the 30th June, 1663.

An escheat patent of the same tract to William Fell, dated the 12th July, 1737.

A deed from Edward Fell, heir-at-law of William Fell, to Thomas Sligh, dated 17th August, 1758.

Deeds from Sligh to Wiesenthal; from Wiesenthal to Cornthwaite; from Cornthwaite to David Brown; from Matthews, attorney of John Brown, to David Brown; and, also, read in evidence the following agreement between the parties in this cause.

"We hereby agree that the present plaintiffs are the fee simple proprietors of the lot on the south side of Wilks street, as described in the deed from William Matthews, att'y for John Brown, according to its true location, and the defendants are the fee simple proprietors of the lots on west side of Bond street, between Alice Anna and Lancaster streets, the leases of which they have located, and that the above admitted facts shall have the same effect, as if regularly proved before the jury."

The grant to Alexander Mountenay, from the Lord Proprietary for two [**3]  hundred acres, in Patapsco river, "Mountenay's Neck," described a parcel of land, called "Mountenay's Neck," lying in Chesapeake bay, and on the north side of a river, Patapsco; and on the north side of the north-west branch of the said river: beginning at a marked red oak, by a little branch, and running up along the north-west branch for breadth, west north-west one hundred perches, over a cove unto a marked white oak, by a line drawn north north-east; running into the woods for length three hundred and twenty perches, by a line drawn from the said north north-east line; running east south-east one hundred perches, by a line from the said east south-east line; running south south-west unto the first marked red oak, three hundred and twenty perches, laid out for two hundred acres, more or less.

The escheat patent to William Fell, for Mountenay's Neck, dated 12th July, 1737, contained the following recitals and description of the land, viz:

"Whereas, William Fell of Baltimore County, by his petition to our agents for management of our affairs within this province, did heretofore set forth that there was escheat unto us a certain tract or parcel of land called Mountenay's [**4]  Neck, lying and being in the county aforesaid, originally, on the 30th June, 1663, granted unto a certain Alexander Mountenay, for two hundred acres, under old rent; that afterwards, on the 22d March, 1685, a certain Samuel Wheeler, and Ann, his wife, by their indenture of bargain and sale, conveyed the said land to a certain David Jones, who died thereof possessed, intestate, and without heirs, by which means, or for want of heirs of the said Alexander Mountenay, or regular conveyances from the first taking up the same, is become escheat unto us as aforesaid; and the petitioner being the first discoverer thereof, humbly prayed to be admitted to its purchase, be the same escheat by the means aforesaid, or by any other ways or means whatsoever, and a special warrant to resurvey the same, with liberty of adding any vacant land that could be found thereto contiguous, and that upon return of a certificate of such resurvey, he paying our agent such reasonable price as should be agreed upon for the purchase of said escheat, and making good rights to the vacancy added, might have our letters patent of confirmation issue unto him thereon, which was granted him,--and accordingly, a warrant [**5]  on the 14th April, 1737, to him for that purpose did issue. In pursuance whereof, it is certified into our Land Office, that the said tract is resurveyed, by which it appears that the same contains the exact quantity of two hundred acres of escheat land, for which the said William Fell has paid and satisfied unto Benjamin Tasher, Esq., our present agent and receiver general, for our use, the sum of £  20 sterling, being the purchase money agreed upon for the said escheat, according to our instructions, bearing date at Annapolis, the 14th June, 1733, and registered in our Land Office of our said province. We do, therefore, in consideration thereof and other the premises, hereby give, grant and confirm unto him, the said William Fell, all that, the aforesaid tract or parcel of escheat land, now resurveyed and called Mountenay's Neck, lying and being in the county aforesaid: beginning at a bounded white oak, standing on the north side of the north-west branch of Patapsco river, and near the mouth of a small branch, descending into the north-west branch, which tree was bounded by Commissioners appointed to examine evidences concerning the bounds of the same tract of land, at the place [**6]  where the original beginning tree did stand, and running thence up the said north-west branch, and over the mouth of a cove west north-west one hundred perches to a bounded red oak, at or near the place whereat the second bounded tree did stand, thence north north-east three hundred and twenty perches, east south-east one hundred perches, and thence south south-west, (as expressed in the grant,) unto the beginning, containing and laid out for two hundred acres, more or less, according to the certificate of resurvey thereof, taken and returned into our Land Office, &c.

The deed from Edward Fell to Thomas Sligh, dated 17th August, 1758, described him as son and heir-at-law of William Fell, and was for Mountenay's Neck, in fee.

The deed from Thomas Sligh to Charles Weisenthal, of 25th July, 1760, was in fee, for all that part of a tract or parcel of land called Mountenay's Neck, contained within the following metes and bounds, courses and distances, namely: beginning for the part hereby bargained and sold at the beginning of that part of said tract of land, hereby conveyed by the said Thomas Sligh unto a certain Peter Lettick, and running thence bounding on the said part north [**7]  twenty degrees and thirty minutes, east forty perches and three-quarters of a perch, then north sixty-one degrees and fifteen minutes, east fifty-eight perches, unto the end of the north thirty-six degrees, west eighteen perches line of four acres, part of the aforesaid tract of land heretofore conveyed by the aforesaid Thomas Sligh unto a certain Brian Philpot, then bounding on that part, another part of said tract of land conveyed by the said Sligh to the said Philpot, until it intersects the first line of the whole tract called Mountenay's Neck, then bounding on that line east south-east sixty-four perches, unto the end of the south thirty-two degrees, east twenty-two perches and half a perch line of that part of said tract of land now in possession of a certain Captain Thomas Hammond, and then bounding on that part and the aforesaid part sold by the said Thomas Sligh to the aforesaid Peter Lettick, according to the several courses thereof unto the beginning aforesaid, containing eleven acres, more or less; together with, &c.

The deed from C. Weisenthal to John Cornthwaite of 7th December, 1775, was similar to that from T. Sligh to C. W.

The deed from John Cornthwaite [**8]  to David Brown, of 8th July, 1782, was for all that piece or parcel of ground on Fell's Point, being a part of a tract of land called and known by the name of Mountenay's Neck, and lately annexed to Baltimore Town, and now called the South-east Addition: beginning at the intersection of Wilks street and Eden street, and running and bounding on Wilks street, west eighty feet; thence south, parallel with Eden street to the first line of Mountenay's Neck, thence bounding on said line reverse, east south-east to Eden street, thence bounding on Eden street north to the beginning; together, &c. for ninety years renewable forever.

The deed from William Matthews, attorney in fact for John Brown, of Philadelphia, to David Brown, dated 23d December, 1793, was for the land described in the deed from Cornthwaite to David Brown, and was in fee.

And the plaintiffs further read in evidence the ordinance of the Mayor and City Council of Baltimore, passed the 11th March, 1823, entitled "An Ordinance for the improvement of the Cove," (and which ordinance and all the acts of Assembly in these exceptions referred to, it is admitted, may be read from the printed collections of ordinances and [**9]  of acts of Assembly;) and also the following acts of Assembly, to wit: the act of 1745, (August session,) ch. 9; the act of 1773, ch. 4, (June session;) the act of 1784, ch. 39, (November session;) and further gave evidence, by Alexander J. Bouldin, the surveyor of Baltimore County, and by James W. Collins, James Tracy and     Aler, that the piece of ground claimed by the plaintiffs in this cause, together with nearly all the ground between, that is designated on the plat, between Wilks street and Lancaster street, and between Caroline street and Harford street, was filled up, and made fast land, under the before-mentioned ordinance of 1823; and that the piece of ground, claimed in this suit by the plaintiffs, was fast land, and enclosed in March, 1837; and also proved by said Collins and said Bouldin, that the water of the City Dock, as laid down on the plat is, and so far as they can remember for a number of years, has been deep and navigable; and the said Bouldin, in answer to a question on part of the defendants, whether he had ever heard of any other place as the beginning of "Mountenay's Neck," than that located for it on the plats? The said Bouldin said that he had heard [**10]  that "Mountenay's Neck" was supposed to begin at H, or thereabouts; and the said plaintiffs also gave in evidence the plat of the addition to Baltimore Town, made under said act of 1773, ch. 4, and proved that the same embraced "Mountenay's Neck," so far as the same was then fast land, and the ground, (northward of Wilks street, and of the improvement now claimed,) then in those under whom the plaintiffs claim.

And thereupon, the defendants, to prove the issue on their part, offered in evidence the following patents, to wit: of "Bold Venture," granted to John Oulton on the 20th March, 1695; of "Long Island Point," granted to William Poultney, 10th July, 1671; of "Island Point," granted to William Fell on the 5th June, 1734.

The patent to John Oulton, granted 20th March, 1695, was for all that tract or parcel of land called "Bold Venture," lying on the north side of Patapsco river, and on the north side of Whetstone Branch, beginning at a bounded white oak, standing by the branch side--it being a bound tree of Poultney's Point, and running thence north north-east fifty-eight perches, to a bound red oak of Mountenay's Neck; then with Mountenay's land, west north-west one hundred [**11]  perches, to a bound white oak of Mountenay's; then with Mountenay's long line north north-east three hundred and twenty perches; then west north-west fifty-four perches; then south south-west three hundred and twenty perches, to a bound ash; then south south-west two degrees, southerly twenty-four perches, to the river side; then down the river, south south-east two degrees easterly, eleven perches; then south south-west two degrees, southerly twenty-four perches; then with a direct line to the first tree, containing, and now laid out for one hundred and sixty-one acres of land, more or less, according to the certificate of survey thereof, taken and returned into our Land Office, bearing date the 23d December, 1695, and there remaining, together, &c.

The patent to William Poultney was dated 10th July, 1671, and was for all that parcel of land, called "Long Island Point," lying in Baltimore County, on the north side of Patapsco river, and on the north-west branch of the river--beginning at a bounded locust, standing at the head of a round bay, and running down the said bay south south-west eighty perches, to a bounded Spanish oak at the mouth of the said bay, and from the said [**12]  oak, up the said branch north-west thirty-six perches; then west south-west one hundred perches; then west north-west seventy-two perches, to the bottom of "Long Island Point;" then north north-east sixteen perches; then east and by south sixty perches; then north and by east eighty perches, to a bounded red oak of a parcel of land, laid out for Alexander Mountenay; then north north-east by Mountenay's land seventy-six perches, and then to the first bounded tree, containing, and now laid out for one hundred acres of land, more or less, together, &c.

The patent to William Fell was as follows:

CHARLES, &c. Know ye, that whereas Charles Carroll, of the City of Annapolis, in Anne Arundel County, Chirurgeon, by his humble petition to our agent for management of land affairs within this province, did heretofore set forth, that a certain William Poultney, of Baltimore County, deceased, was possessed of a tract of land, called "Island Point," situate on a branch of Patapsco river, granted unto the said Poultney, for one hundred acres, by patent, bearing date 10th July, Anno Domini, 1671, and died thereof possessed, Anno 1674; and although an alien, made a will, and devised the same [**13]  to Edward Monfrett, likewise an alien, in the words:

Item. "I give and bequeath unto Edward Monfrett, of Patapsco, all my lands, goods and chattels," whereby the said Monfrett, as the petitioners conceived, had but an estate for life; although that he, the said Poultney, was capable of devising the said land,--and that after the decease of the said Monfrett, the said land would come to the heirs of the said Poultney; but so it was, that no heirs of the said Poultney or Monfrett had since appeared to claim the said land; by means whereof, or some other causes before set forth, the petitioner conceived the same become escheat unto us as aforesaid; and inasmuch as the petitioner had been the first discoverer, prayed to be admitted to its purchase, and a special warrant to resurvey the same, with liberty of adding what vacant land could be found to the same contiguous; and that upon return of a certificate of such resurvey, he paying our agent such reasonable price as should be agreed upon for the purchase of said escheat, and complying with all other requisites, according to our conditions of plantation then in force, might have our letters patent for the whole, be the said "Island [**14]  Point," escheat by means aforesaid, or any other, which was granted him. And accordingly, a warrant on the 12th September, 1733, to him, for that purpose, did issue. In pursuance whereof, it is certified into our Land Office, that the said tract is resurveyed, by which it appears that the whole now contains the quantity of eighty-five acres; whereof fourteen acres is vacant land added, for which said escheat and vacancy, the said Charles Carroll has, according to our instructions to Edmund Jennings, Esq., our present Judge of our Land Office, bearing date at Annapolis, 14th June, 1733, paid and satisfied unto Daniel Dulany, Esq., our present agent and Receiver General, for our use, as well as the sum of £  7 sterling, being one-third part of the value set on the said escheat, as also the sum of 6 shillings sterling, for the rights to the vacancy added; but before our grant thereon to him did issue, he, the said Charles Carroll, did, on the 4th June, 1734, for a valuable consideration, assign, sell, transfer and make over unto Wm. Fell, of Baltimore, his heirs and assigns forever, all his right, title and interest of, in and to the said land, and the certificate thereof, who has supplicated [**15]  us that our letters patent of confirmation may now issue unto him, which we have thought fit to condescend unto; and we do, in consideration thereof, and other the premises, hereby give, grant and confirm unto him, the said Wm. Fell, all that, the aforesaid tract or parcel of escheat land, with its vacancy added, now resurveyed, and still called "Island Point," lying and being in Baltimore County, beginning at a bounded white oak, standing at the head of a round bay, on the north-west branch of Patapsco river, said oak standing by the spot where it is supposed stood a bounded locust, the ancient beginning tree of the said land: same white oak being north four degrees, east sixty-six perches from the mouth of the said bay, and running from the aforesaid white oak, south four degrees, west sixty-six perches, thence south sixty-three degrees, west fourteen perches, thence north forty degrees, west thirty perches, thence north eighty-seven degrees, west forty-two perches, thence south fifty degrees, west fifty-six perches, thence south seventy-three degrees, west twenty-four perches, thence north forty-five degrees, east sixteen perches, thence south eighty degrees, east sixty-four perches,  [**16]  thence north three degrees, east eighty perches, thence north north-east seventy-six perches, and thence by a straight line to the said beginning, containing and now laid out for eighty-five acres of land, more or less, according to the certificate of resurvey, thereof taken and returned into our Land Office, bearing date the 20th February, 1733, and there remaining, together, &c.

And proved, that they were truly located on the plats; and further proved by said Bouldin, surveyor of Baltimore County, that the beginning tree of "Bold Venture," could not be found; that he had never heard of any such tree, and that he found the beginning of "Bold Venture" in the defendant's location, by reversing the first line from the admitted beginning at M, of "Mountenay's Neck." And also proved by said Bouldin, that the lot to which the improvement in the case is claimed as an appurtenance or extension, was not included within the lines of the addition to Baltimore Town, as laid out under the act of Assembly aforesaid, of 1773--said addition extending only to the lands on the banks of the river, as located on the plats in this cause, from black A to Z. And that witness had been surveyor of the [**17]  county for sixteen years, and was his father's assistant for many years, who was also for some twenty years the surveyor of Baltimore County. And the defendant also proved, that in 1783, the water ran as marked on the plats with blue shaded lines, from A to B to C to D, and in 1801, by the shaded line from G to H to I to J and to K. And the defendant further read in evidence the ordinance of the Mayor and City Council of Baltimore, passed the 4th May, 1841, entitled "An Ordinance to grant permission to certain persons to extend their lots from Wilks street and Bond street, unto the water."

The plaintiffs thereupon further to support the issue on their part, and to prove the death of John Oulton before the year 1745, without heirs and intestate, offered in evidence the warrant of resurvey to Edward Fell, granted in the year 1725, and the certificate thereon and in connection therewith, for the purpose of proving the death of said Oulton, without heirs and intestate, as aforesaid, offered to read in evidence the warrant, certificate and patent of "Rogers' Inspection;" which warrant, certificate and patent are as follows, to wit:

"January 8th, 1725. Whereas, Mr. Edward Fell,  [**18]  of Baltimore County, by his humble petition to his Lordship's agent for the management of land affairs within this province, has set forth, that there is escheat unto his Lordship, a small tract or parcel of land, lying and being in Whetstone Branch, now called North-west Branch, in Baltimore County aforesaid, called the "Adventure," containing one hundred and sixty one acres, originally, on the 20th March, Anno Dom. 1695, granted to John Oulton, who died thereof possessed, intestate and without heirs, by which means the same became escheat as aforesaid; and the petitioner, being the first discoverer thereof, prayed to be admitted to its purchase, and a special warrant to resurvey the same; and that upon return of a certificate of such resurvey, he might have his Lordship's letters patent of confirmation issue unto him for the same, which is granted him; provided he pay unto his Lordship's agent such reasonable price as shall be agreed upon for the purchase thereof; comply with all requisites, and finally sue out his Lordship's letters patent of confirmation thereon, within two years after date hereof.

"Lay out therefore, for, and carefully resurvey, and in the name of him, the [**19]  said Edward Fell, the aforesaid tract of escheat land, according to its ancient metes and bounds, including surplus; and by your outlines, adding what vacancy you can find to the same contiguous, whether cultivated or otherwise, not running your lines, &c."

BALTIMORE COUNTY. By virtue of a special warrant of escheat, granted unto Edward Fell, of Baltimore County, out of his Lordship's Land Office, bearing date January 8th, 1725, as appears, &c. These are therefore to certify, that I, Richard Gist, deputy surveyor under Thomas Addison, Esq., surveyor general of the Western Shore of this province, have resurveyed for him, the said Edward Fell, a parcel of land formerly called, "Bold Adventor," and now called "Fell's Footing," lying in Baltimore County, on the north side of Patapsco river: beginning at a bounded red oak, standing at the end of the west north-west line of the land formerly laid out for Alexander Mountenay; it being the beginning boundary of the land called "Folly," and "Cole's Harbor;" this day surveyed for Mr. Edward Fell of this county; and runs thence south sixty-seven degrees, thirty minutes, east nineteen perches; thence south thirty-seven degrees, west six perches;  [**20]  thence north fifty-six degrees, west twenty-eight perches; then west twenty-three perches; thence north forty-five degrees, west six perches; thence north thirty-two degrees, west thirteen perches; thence north fifteen degres, east nineteen perches; thence by a direct line to the first boundary, containing and now laid out for four and three-quarters acres of land, more or less; to be holden of the manor of Baltimore.

Surveyed, September 21, 1726.

Per RICHARD GIST, Dep'ty Surv'r.

"Fell's Footing" contains four and three-quarter acres, pr scale thirty ps in an inch. This tract is all cleared and worne out, and without any improvement, except about thirty auld fence loggs.     J. ROSS, Ex'r.

Examined and passed.

April 27, 1759. Whereas, William Rogers, of Baltimore County, by his humble petition to his Lordship's agents for management of land affairs within this province, did set forth, that a certain John Boreing had, on the 20th April, 1742, surveyed and laid out for him a tract or parcel of land, called "Boreing's Convenience," lying and being in the county aforesaid, containing seventy-five acres, by virtue of an assignment for that quantity from Thomas [**21]  Sheredine, being part of a warrant for four hundred acres, granted said Sheredine the 24th Oct., 1741, as per the certificate thereof returned into the Land Office, might appear. The petitioner further showed, that the said certificate had laid ever since in the office postponed, and no patent had ever yet issued thereon; and as the two years for suing out such grant was expired, the petitioner was advised, that by sundry of his Lordship's proclamations published, the certificate aforesaid was become null and void; and the land and premises therein mentioned subjected to the benefit of the first discoverer, &c. Inasmuch as the petitioner was the first discoverer, and desired to take up and pay for the same, humbly prayed a special warrant to resurvey the aforesaid tract, with liberty of adding any contiguous vacancy; and that on return of a certificate of such resurvey, he paying the caution money and complying with all other requisites usual in such cases, might have his Lordship's grant issue unto him thereon, which was granted him; provided, he sues out such grant within two years from the date hereof. Lay out therefore, and carefully resurvey, for, and in the name of him, the said [**22]  William Rogers, the aforesaid tract or parcel of land, according to its ancient metes and bounds; nevertheless, correcting and amending any errors in the original survey; and by your outlines, adding any vacant land you can find thereon contiguous, whether cultivated or otherwise, not running your lines, &c. Renewed in folio 240. 18th June, 1759. Whereas, William Rogers, of Baltimore County, had on the 27th April last, granted him a special warrant on the proclamation for the effecting and securing a tract of land, called "Boreing's Convenience," as in folio 175 appears; but the said warrant, not being yet executed, it is this day renewed and continued in force for six months longer from the date hereof, with liberty of including an escheat tract, called "Bold Venture," contiguous to the former tract, originally granted unto a certain John Oulton, for one hundred and sixty-one acres, who died seized thereof, intestate, and without heirs, by which means the same became escheat to his Lordship; and forasmuch as the petitioner was the first discoverer, and desired to purchase the aforesaid tract, be it escheat by the means aforesaid, or by any other ways or means whatsoever.

Signed [**23]  per order,     THOS. JENNINGS, Cl'k.

BALTIMORE COUNTY, ss. By virtue of a special warrant granted out of his Lordship's Land Office, on the 27th April, 1759, to resurvey for William Rogers, of Baltimore County, a tract or parcel of land called "Boreing's Convenience;" on the 20th April, 1742, surveyed and laid out for a certain John Boreing, for seventy-five acres, who never sued out a grant thereon; and by outlines, to add any vacant land thereto contiguous, whether cultivated or otherwise; which warrant not being executed, it was on the 18th June, 1759, renewed, and continued in force for six months longer from that day, with liberty of including an escheat tract, called "Bold Venture," lying and being contiguous to the above mentioned tract, originally, on the 20th March, 1695, granted unto a certain John Oulton, for one hundred and sixty-one acres; who died seized thereof, intestate, and without heirs, by which means the same became escheat. I, Nicholas Ruxton Gay, deputy surveyor of Baltimore County, have carefully resurveyed and laid out for, and in the name of him, the said William Rogers, the two aforesaid tracts or parcels of land, according to their ancient metes [**24]  and bounds: beginning for "Boreing's Convenience," at, &c. Beginning for "Bold Venture," south south-west fifty-eight perches, distant from a bounded post, set in the ground, where it was formerly proved a bounded red oak, the beginning tree of a tract of land called "Mountenay's Neck," did originally stand; and running thence north north-east fifty-eight perches, unto the said beginning post of Mountenay's Neck; then with that land, as expressed in the original certificate of "Bold Venture," west north-west one hundred and thirty-two perches, unto a bounded white oak of said land; then still with said land, (as likewise expressed in the certificate of Bold Venture,) north north-east three hundred and twenty perches; then west north-west fifty-four perches; south south-west three hundred and twenty perches; south twenty degrees and thirty minutes, west twenty-four perches; south twenty-four degrees and thirty minutes, east eleven perches; south twenty degrees and thirty minutes, west twenty-four perches; and then with a straight line to the place of beginning, containing and laid out for one hundred and seventy-three acres and the fourth part of an acre, more or less; one hundred and [**25]  fifty-two acres and the fourth part of an acre, part whereof lyeth in elder surveys and navigable water.

I also certify, that I have excluded such part of Boreing's Convenience, as lyeth in elder surveys, and such part of Bold Venture, as lyeth in elder surveys and navigable water; and have added to the residue of said tracts of land, the quantity of five acres of other vacant land; but forasmuch as elder surveys and navigable water cut the tract called "Bold Venture" into two parts, I cannot reduce the whole into one entire tract, as by the warrant I am commanded; for which reason I have reduced all the part of the tract of land called "Boreing's Convenience," clear of elder surveys, with five acres of other vacant land, and eighteen acres and one-fourth part of an acre, part of the escheat tract thereto contiguous, into one entire tract; and the remaining two acres and three-quarters of an acre, part of the aforesaid escheat tract, which lies clear of elder surveys and navigable water, into another separated tract, both bounded as follows, viz: lying in Baltimore County, on the north-east side of the north-west branch of Patapsco river: beginning for the first mentioned part [**26]  in the east line of a tract of land called "Todd's Range," and where the said east line of "Todd's Range" intersects the west side of "Jones' Falls;" and running thence, bounding on and with the said east line of "Todd's Range," east one hundred and ninety-eight perches, until it intersects the south south-west three hundred and twenty perches line of the original escheat tract called "Bold Venture;" then bounding on and with that line south south-west twenty-nine perches, until it intersects the east line of a tract of land called "Cole's Harbor; then bounding on and with that line of "Cole's Harbor," east sixty perches, until it intersects the north north-east three-hundred and twenty perches line of a tract of land, called "Mountenay's Neck;" thence bounding on that line to the end thereof, north north-east forty-four perches; then west north-west fifty-four perches, unto the end of the west north-west fifty-four perches line of the original escheat tract, called "Bold Venture;" then south south-west twenty perches, until it intersects the east one hundred and eighty-one perches line of a tract of land called "Garron Barrow;" then bounding on that line reverse of the same, west [**27]  one hundred and twenty-two perches, unto the end of the south six degrees, west thirty-seven perches line of the said land; then bounding on that line reverse of the same, north six degrees, east twenty-nine perches and three-quarters of a perch, until it intersects the east line of a tract of land called "Hanson's Wood Lot;" then bounding on that line reverse of the same, west twenty-one perches and half a perch, until it intersects the south by west line of a tract of land called "Salisbury Plains;" then bounding on and with that line to the end thereof, south by west thirty-nine perches; then bounding on and with the given line of "Salisbury Plains," north forty-one degrees and thirty minutes, west ninety-one perches and half a perch, until it intersects the given line of a tract of land called "Lunn's Lot;" and then with a straight line to the place of beginning, containing and laid out for fifty acres and the fourth part of an acre, more or less. Beginning for the other part at a bounded white oak, standing near the side of the north-west branch of Patapsco, it being the second bounded tree of a tract of land called "Mountenay's Neck;" and running thence bounding on the said land [**28]  east south-east seventy-one perches, unto a creek of the said north-west branch; then bounding down with the said creek south twenty degrees, west seven perches, unto the mouth of said creek; then bounding upward on said north-west branch the four following courses, viz: north fifty-eight degrees, west thirty-five perches; south eighty degrees, west sixteen perches; north seventy-four degrees, west ten perches; north thirty-three degrees, west twenty perches, and then with a straight line to the beginning, containing and laid out for two acres and three-quarters of an acre, more or less, and containing and laid out in the whole in both the aforesaid parts for fifty-three acres, more or less, to be held of the manor of Baltimore, by the name of "Rogers' Inspection." June 30, 1759.

N. RUXTON GAY, D. S. B. C.

A is the beginning of "Boreing's Convenience."

B is the beginning of "Bold Venture."

C is the beginning of one of the parts of the resurvey, containing 50 1/4 acres.

D is the beginning of the other part of the resurvey, containing 2 3/4 acres.

"Boreing's Convenience" was originally surveyed for 75 a.

________________________________________________________________________________
   Deficit in measure,		1 1/4	
	
		73 3/4	
Loses in "Bold Venture," and other elder surveys,	46 3/4	
	
		27    	
"Bold Venture" was originally granted for	161   	
   Contains surplus,	12 1/4	
		173 1/4	
Loses in elder surveys and water,		152 1/4	
	
		21    	
	
   Vacant land added,		5    	
	
"Rogers' Inspection,"		53    	
________________________________________________________________________________

 [**29]  

N. B. About three acres of "Boreing's Convenience," is cleared and cultivated; there is thereon forty-eight young apple trees, and about one hundred and fifty panels of old fence, most of the rails quite rotten. The escheat land is of a middling quality, without any cultivations or improvements; has no rail or clapboard timber on it, and but little other sort of wood. N. RUXTON GAY, D. S. B. C.

On the back of the aforegoing certificate was the following endorsements and receipt, viz:

20th October, 1759: Examined and passed,

J. ROSS, Exam'r.

I have received the sum of two pounds two shillings for the within escheat land, one pound twelve shillings for the within vacancy, and one pound ten shillings for the improvements. Patent may therefore issue with his Excellency's approbation.

28th September, 1759.     Approved, EDWARD LLOYD.

Patented 28th September, 1759. H. SHARPE.

In testimony that the aforegoing is a true copy from the original certificate and plat belonging to and remaining in the Western Shore Land Office of Maryland,

[SEAL.]     I have hereunto set my hand and affixed my official seal this 17th October, 1842.

GEORGE [**30]  G. BREWER, Reg. Ld. Off. W. S. Md.

Mr. William Rogers' pat. 53 as Rogers' Inspection.

FREDERICK, &c. Know ye, that whereas William Rogers, of Baltimore County, by his humble petition to our agent for management of land affairs within this province, did set forth, that a certain John Boreing had, on the 20th April, 1742, surveyed and laid out for him a tract or parcel of land called "Boreing's Convenience," lying and being in the county aforesaid, containing seventy-five acres, by virtue of an assignment for that quantity from Thomas Sheredine, being part of a warrant for four hundred acres, granted said Sheredine the 24th October, 1741, as per the certificate thereof taken and returned in the Land Office might appear. The petitioner further shewed that the said certificate had laid over since in the office postponed, and no patent had ever yet issued thereon, and as the two years for sueing out such grant was expired, the petitioner was advised that by sundry of our proclamations published, the certificate aforesaid was become null and void, and the land and premises thereon mentioned subjected to the benefit of the first discoverer; and inasmuch as the petitioner was the [**31]  first discoverer, and desired to take up and pay for the same, humbly prayed a special warrant to resurvey the aforesaid tract, with the liberty of adding any contiguous vacancy, and return of a certificate of such resurvey, he paying the caution money and complying with all other requisites usual in such cases, might have our grant issue unto him thereon, which was granted him, and accordingly a warrant on the 27th April, 1759, unto him for that purpose did issue; but the said warrant, not being yet executed, it was, on the 18th June, 1759, renewed and continued in force for six months longer from that date, with liberty therein given to include a certain tract of escheat land called "Bold Venture," contiguous to the former tract originally granted unto a certain John Oulton for one hundred and sixty-one acres, died seized thereof intestate and without heirs, by which means the same became escheat to us, humbly prayed to be admitted to the purchase of the said escheat, being it escheat by the means aforesaid for any other ways or means whatsoever: In pursuance whereof, it is certified in our Land Office that the aforesaid tracts or parcels of land are surveyed, by which it appears [**32]  that that tract called "Boreing's Venture," clear of elder surveys, contains no more than the quantity of twenty-seven acres; and that parcel of escheat land called "Bold Venture," also clear of elder surveys, contains no more than the quantity of twenty-one acres; and that there is the quantity of five acres of vacant land added, for which he has paid and satisfied unto Edward Lloyd, Esq., our present agent and receiver general, as well the sum of one pound twelve shillings for said vacancy, as the sum of two pounds two shillings, being the purchase money agreed upon for the said escheat: In consideration whereof, and other, the premises, we do therefore hereby grant and confirm unto him, the said William Rogers, all them the aforesaid two tracts or parcels of land now resurveyed and called "Rogers' Inspection," beginning for the first mentioned part in the east line of a tract of land called "Todd's Range," and where the said east line of "Todd's Range" intersects the west side of "Jones' Falls," and running thence bounding on and with the said east line of "Todd's Range," east one hundred and ninety-eight perches, until it intersects the south south-west three hundred and twenty [**33]  perches line of the original escheat tract called "Bold Venture;" then bounding on and with that line south south-west twenty-nine perches, until it intersects the east line of a tract of land called "Cole's Harbor;" then bounding on and with that line of Cole's Harbor east sixty perches, until it intersects the north north-east three hundred and twenty perches line of a tract of land called "Mountenay's Neck;" then bounding on that line to the end thereof north north-east forty-four perches, then west north-west fifty-four perches, unto the end of the west north-west fifty-four perches line of the original escheat tract called "Bold Venture;" then south south-west twenty perches, until it intersects the east one hundred and eighty-one perches line of a tract of land called "Garron Barrow;" then bounding on that line, reverst of the same, west one hundred and twenty-two perches, unto the end of the south six degrees, west thirty-seven perches line of said land; then bounding on that line reverse of the same, north six degrees, east twenty-nine perches and three-quarters of a perch, until it intersects the east line of a tract of land called "Hanson's Wood Lot;" then bounding on that [**34]  line, reverse of the same, west twenty-one perches and half a perch, until it intersects the south by west line of a tract of land called "Salisbury Plains;" then bounding on and with that line to the end thereof south by west thirty-nine perches; then bounding and with the given line of "Salisbury Plains," north forty-one degrees and thirty minutes, west ninety-one perches and half a perch, until it intersects the given line of a tract of land called "Lunn's Lot;" and then with a strait line to the place of beginning--containing and laid out for fifty acres and the fourth part of an acre more or less: beginning, for the other part, at a bounded white oak standing near the side of the north-west branch of Patapsco, it being the second bounded tree of a tract of land called "Mountenay's Neck," and running thence, bounding on the said land east south-east seventy-one perches, unto a creek of the said north-west branch; then bounding down with the said creek south twenty degrees, west seven perches, unto the mouth of said creek; then bounding upward on said north-west branch the four following courses, viz: north fifty-eight degrees, west thirty-five perches, south eighty degrees, west [**35]  sixteen perches, north seventy-four degrees, west ten perches, north thirty-three degrees, west twenty perches, and then with a straight line to the beginning--containing and now laid out for two acres and three-quarters of an acre, more or less, and containing and laid out in the whole in both the aforesaid parts for fifty-three acres, more or less, according to the certificate of survey thereof, taken and returned into our Land Office, bearing date the 30th June, 1759, and there remaining, together, &c. Given, &c. this 28th September, 1759.

The defendants objected to the admissibility of said warrant to Edward Fell, and the certificate thereon, as evidence to prove the death of said Oulton, intestate and without heirs, before the year 1745, either alone or in connection as aforesaid with said certificate, warrant and patent of Rogers' Inspection; and the Court (ARCHER, C. J. and LE GRAND, A. J.) refused to admit said warrant to Edward Fell, and the certificate thereon, to be read in evidence for the purpose aforesaid. The plaintiff excepted.

2D EXCEPTION.--The plaintiffs and defendants having respectively offered the testimony stated in the aforegoing bill of exceptions,  [**36]  and which is made part of this, the plaintiff further offered to read in evidence, for showing (alone, or in connection with the evidence already offered in this case) that "Bold Venture" is not correctly located by the defendants, the following record of resurvey in the matter of "Bold Venture," the finding of the jury, under which it is admitted is located by the plaintiffs on the plats as follows, to wit: from M to H, to Bold Adventure, one hundred and sixty-one acres.

By virtue of a warrant granted out of Baltimore County Court, to Capt. John Oulton, to ascertain the ancient metes and bounds of a tract of land called the "Bold Adventure," I, Richard Colegate, Queens" surveyor of the said county, have, in the presence of the sheriff of the said county, and by the directions of a jury, whose verdict is hereunto annexed, laid out the said land: beginning at a bounded white oak, standing on the north side of a branch called Jones', which white oak is judged by the said jury to be the first bounds of the Bold Venture; and running thence north north-east fifty-eight perches, near a bounded red oak; then west north-west one hundred perches, into a small run; then north north-east [**37]  three hundred and twenty perches; then west north-west fifty-four perches; then south south-west three hundred and twenty perches, near to a bound ash; then south south-west two degrees, southerly twenty-four perches, to the river side; then down the river, south south-east two degrees, easterly, eleven perches; then south south-west two degrees, southerly twenty-four perches; then with a direct line to the first bounds, containing, and now laid out for one hundred and sixty-one acres, more or less.     Per RICHARD COLEGATE,

May 10th, 1707. Queen's Surveyor, Baltimore County.

The deposition of John Cole, aged about thirty-eight years or thereabouts, did declare, that about fourteen years ago, the said John Oulton did take up this said land called Bold Venture, and did begin at this tree and run to a red oak, and from thence to a white oak; for he sayeth that he can very well remember it, for he carried the one end of the chain; and further sayeth not.

May 10th, 1707.     S. FRA DALLAHIDE, Sheriff.

The deposition of Richard Miller, aged about forty-one or thereabouts, did declare, that about fourteen years past, the said John Oulton did take up this said land [**38]  called Bould Adventure, and did begin at this tree and run to a red oak, and from thence to a white oak; for he sayeth that he can very well remember it, for he carried the one end of the chain; and further sayeth not.

May 10th, 1707.     S. FRA DALLAHIDE, Sheriff.

May 10th, 1707. By virtue of a warrant of resurvey, granted out of Baltimore County Court, bearing date the 4th March, Anno 1706-7, unto Capt. John Oulton, for the same county, for to resurvey a certain tract of land called the Bold Adventure, containing one hundred sixty-six acres. Now we of the jury, having heard the oaths of John Cole and Richard Miller, being sworn upon the Holy Evangelist, do say that the said land must begin with a bounded white oak, standing on the north side of a branch called Jones' Branch, being the first tree named in the patent; and from thence north north-east fifty-eight perches to a bounded red oak, it being a bounded tree of Mountenay's land; and from thence with Mountenay's land west north-west one hundred perches, to a bounded white oak of Mountenay's land; then with the said Mountenay's long line north north-east three hundred and twenty perches; then north-west fifty-four [**39]  perches; then south south-west three hundred and twenty perches to a bounded ash; and so according to all the ancient metes and bounds else that belongs to the said land. In witness whereof, we, whose names are under written, have set our hands and fixed our seals the day and year above written.

S. FRA DALLAHIDE, Sheriff.

JOHN THOMAS, [Seal, &c.]

BALTIMORE COUNTY, to wit: I hereby certify that the foregoing is a true copy from the Land Records of Baltimore County, Liber H. W., No. 5.

[SEAL.]

In testimony whereof, I have hereto subscribed my name and affixed the seal of Baltimore County Court this 17th September, 1846.

A. W. BRADFORD, Clerk Balt. Co. Court.

And it being further admitted and agreed that said location is to be considered as located by the defendants by the location as relied on by them made by them of Bold Venture. And the plaintiffs further offered to prove the truth of their said location; but the defendants objected to the admission in evidence of said record of resurvey, as inadmissible as evidence in this cause for any purpose; and secondly, if admissible at all, as inadmissible for the purpose of altering or controlling the [**40]  calls of the said patent of "Bold Venture," or varying the true construction of said patent; and the Court (ARCHER, C. J. and LE GRAND, A. J.) was of opinion that the said record of resurvey was inadmissible in evidence and refused to admit the same.

The plaintiffs excepted.

3D EXCEPTION.--The plaintiffs and defendants having respectively given the testimony stated in the aforegoing bills of exceptions, and which is made part of this, the plaintiffs, for the purpose of proving that John Oulton, the patentee of "Bold Venture," was, at the date of the patent for "Rogers' Inspection," dead, without heirs and intestate, offered in evidence said patent for "Rogers' Inspection," set forth in the first bill of exceptions: and thereupon, the plaintiffs prayed the Court to direct the jury as follows:--

1st. If the jury shall find from the evidence, that a patent was granted by the State of Maryland to Alexander Mountenay, on the 30th June, 1663, the escheat patent granted to William Fell, on the 12th July, 1737, and that Edward Fell, was heir-at-law to said William, and the deed from Edward Fell to Thomas Sligh, dated the 17th August, 1758, and that said Fell was the owner of [**41]  Island Point and Fell's Prospect; and if the jury also find the deed of the 25th July, 1760, from said Thomas Sligh, to Charles Weisenthal; the deed from said Weisenthal to John Cornthwaite, of the 7th December, 1775; the deed from John Cornthwaite to David Brown, of the 8th July, 1782; and the deed from William Matthews, attorney in fact of John Brown, to David Brown of the 13th December, 1793; and also the agreement between the attorneys for the plaintiffs and defendants in this cause; and the ordinance of the City of Baltimore, given in evidence of the year 1823; and shall also find from the evidence, that under said ordinance the ground was filled up by the city authorities, and that the land in dispute in this cause was made fast land, and raised above high-water mark, and was fenced in by the defendants before the impetration of the writ in this cause; and if the jury shall find that the beginning of Bold Venture is not truly located on the plats by the defendants, or if truly located, they shall find that the title to said tract became vested in the State by escheat in 1759, then the plaintiffs are entitled to recover.

2d. That before the plaintiffs in this cause can be [**42]  barred from their recovery by reason of the patent of Bold Venture, the defendants must shew title in the State, or such outstanding title in some third person to said tract, as would enable him to recover in ejectment against both the contending parties in this case.

3d. That the jury must find that the tract of Bold Venture has been truly located by the defendants, and that they cannot so find, unless they find that the beginning of said tract is properly located, and in order to that conclusion, must find that the same is located on the north side of Patapsco river.

4th. That the beginning cannot be found for "Bold Venture" by reversal of the line from the first established boundary, unless the jury be satisfied that the beginning tree could have stood at the point to which the reversal would carry the line, to wit, at the point red A on the plat; and that if the jury believe that at and about the point A, at the period of the survey for the patent of "Bold Venture," the water of the Patapsco river flowed, and the water line of said river was as laid down for the several periods on the plat, then the jury cannot find that the tree could have stood at said point A.

5th.  [**43]  That the defendants have offered no sufficient evidence of the location of "Bold Venture;" because they have offered no testimony of any endeavor being made to find the beginning of the tract, and because they have not located Whetstone Branch, that being the place on which said beginning is described in the patent to be, and where said beginning tree should have been sought for.

6th. That the defendants have not truly located "Bold Venture," if the jury shall find from the testimony that the line from M to A should have been run with allowance for variation, and has not been run so, and that they must so find if they believe the testimony of Mr. Bouldin.

7th. That the defendants have not truly located "Bold Venture," inasmuch as they cannot run the fifth line of that tract, as they have located it on the plats, further than to the river side, as designated on the plat by a black broken line, shaded blue, a little distant from Z, and south-westerly thereof.

8th. If the jury find from the evidence that the first bound or beginning tree of Mountenay's Neck was a red oak, and stood at the spot marked on the plats as black M; and if the jury believe that said tree was a [**44]  bound tree of "Long Island Point," and the only red oak which was among the bound trees of said tract; and if the jury find from the evidence in this cause, that said red oak was destroyed, and a white oak standing at the same spot was then made the beginning bound tree of Mountenay's Neck, and a bound tree of "Long Island Point," as a substitute for said red oak; and if the jury believe that said white oak was the tree referred to in the patent of Bold Venture as a bound tree of "Poultney's Point;" and if the jury believe from the evidence that "Poultney's Point" and Long Island Point" are the same tract under different names, then they are bound to find the beginning tree of "Bold Venture" at M.

9th. That the jury must find that the red oak called for at the termination of the seventh line of Long Island Point, in the patent of that tract, (as a bounded red oak of a parcel of land laid out for Alexander Mountenay,) stood as it is located on the plats at M.

10th. That if the jury believed a white oak was substituted in the place of the red oak mentioned in the preceding prayer, as a boundary of Long Island Point, and that it was so substituted at, or before the year 1695,  [**45]  and that said last mentioned oak was a bounded tree of Bold Venture, then they must find that it was the beginning tree of said tract.

11th. If the jury believe from the evidence that Oulton was under a mistake as to the true location of the patent of Mountenay's Neck, and supposed that its beginning tree was at H, and accordingly called for his first line to terminate at a red oak at that spot, then said call of itself does not establish that at that time a red oak stood as the first boundary of Mountenay's Neck, according to its true location.

12th. That there is evidence from the recitals of the patents offered in this cause, and from the undisputed locations on the plats, and the verdict of the jury and certificate of the surveyor, and the depositions accompanying the same, from which the jury may find that the red oak, the original beginning tree of Mountenay's Neck, was destroyed in 1695, and that a white oak at, or before that time, was substituted in its place.

13th. That whether the beginning tree of Bold Venture originally stood at M, is a question of fact to be ascertained by the jury, and not a question of law, to be authoritatively decided by the court.  [**46]  

14th. That there is evidence in this cause from which the jury may find that the true beginning of Bold Venture, as originally located by John Oulton, was at black M, as marked on the plats.

15th. That if the jury find the location of the tract of Bold Venture, as made by the defendants, particularly the beginning at A, even with such degrees of allowance for variation of the compass as they may think it right to allow, is not true, but false, then they cannot give their verdict for the defendants in support of such false locations.

16th. If the jury find from the evidence that the location of Bold Venture by the defendants is correct, and from the warrant, certificate and patent thereof, that no intimation or statement was given to the Lord Proprietary, that so much of the said tract as they may find, was covered by navigable water, was in fact so covered, and if the jury find that the said John Oulton purposely kept back and fraudulently concealed the fact that so much of the said tract was covered by navigable water, and that it was in front of the elder tract binding on or in the water, granted to Alexander Mountenay, then the patent to said Oulton was void, at least [**47]  so far as it extended into navigable water.

17th. That it was not competent to the Lord Proprietary to grant to John Oulton the soil covered by navigable water, in front of and with the water line of Mountenay's Neck, that such grant was in derogation of the patent to Mountenay, and void.

18th. That the fifth line of Bold Venture should, as defendants have located it, be shortened above, or at the river side near Z, so as to gratify the call of the sixth line of that tract, which is to terminate at the river side, and that so much of the sixth line as is necessary for the same purpose should be stricken out.

And the defendants prayed the court to direct the jury as follows:

1st. That the location of Mountenay's Neck on the plats in the case, not having been counter-located, the jury must find such location of that tract to be the correct one.

2d. If the jury find that the tract of land called Bold Venture was granted as given in evidence by the defendants, and that the defendants' location of the second and third lines of that tract on the plats in the case is the correct location, that then the patent of Mountenay's Neck gives no title to the lessors of the [**48]  plaintiffs to the lot of ground for which the defendants have taken issue on the plats.

3d. That the second and third lines of the said tract, called Bold Venture, if the jury find said tract was granted as given in evidence by the defendants, must run with two lines of the tract of land called Mountenay's Neck, as that latter tract is located on the plats, and if the jury find that the said two lines are those on the plats running from black M to black N, and from black N to red figures 320, that then the patent of the tract, Mountenay's Neck, gives no title to the lessors of the plaintiffs, to the lot of ground for which the defendants have taken defence on the plats in the case.

But the court, (ARCHER, C. J., LE GRAND, A. J.) granted only the second and ninth of the plaintiffs' prayers, and rejected the others, and in respect of the prayers of the defendants, gave the same to the jury. To which rejection and direction by the court, the plaintiffs excepted.

The plaintiffs below prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

If a tract of land call to begin at a bounded tree by the side of a branch, and to run then course and distance to a known boundary, and the beginning tree be lost, to find the commencement of the first line of the tract, you must reverse the course and distance from the known boundary, and not elongate nor shorten the line to the branch. The expression as to the branch being merely descriptive of the general locality of the tree, and not an imperative call, locating the spot where the tree stood; and it is no objection to this rule, that by the reversal of the line, the beginning is shown to be in deep navigable water, at a great distance from the shore, or where the lost begining could not have stood.

The leading object in the gratification of all calls is certainty in the location of grants of land.

It is a general rule, that if there be a peremptory call to an object of length by a course and distance line, and the object can be reached by gratifying the distance, but violating the course; or by conforming to the course, and disregarding the distance--the course must control the distance.

The word "by," when descriptively used in a grant, as in this case, does not mean "in immediate contact with," but "near" to the object to which it relates; and "near" is a relative term, meaning, when used in land patents, very unequal and different distances.

The reason assigned for running lines of lands to the boundaries called for at their terminations, instead of terminating them according to their courses and distances, is not exclusively, that greater certainty, as to the termini of such lines, is thereby attained; but also, because, thus locating grants, is more beneficial to grantees; and because, it is a rule of construction in expounding grants, to give them that interpretation, which operates most strongly against grantors, and in favor of the grantees.

A deed or patent for a tract of land passes nothing, unless the land described therein is susceptible of location; or, in other words, unless the survey thereof can be made to close, either as to the whole conveyed, or some definite part thereof.

If a tract of land be granted by boundaries only, without courses and distances, if the beginning or any subsequent boundary be lost, and its original situs cannot be proved, the entire tract is lost, and the grant thereby becomes inoperative.

If a tract be granted by courses and distances only, without calling for any boundary or object, save that, at the commencement of the first line, and it be lost, and no proof can be adduced of the beginning or ending of any of its lines, the tract becomes a non-entity--the grant a nullity.

If a grant be made, not only with courses and distances, but with calls, it has a principle of self-sustentation, not possessed by grants with course and distance only, or with calls only.

Where a grant is by course and distance and calls, if the beginning, and any, or all the boundaries, save one, are lost and incapable of proof, the vitality of the grant still continues. This is the natural import of the express words of the grant.

It cannot be denied, that a valid survey or grant may be made without stating any natural object as being the beginning of its first line, if there be a boundary at the termination thereof.

It is no objection to the validity of a grant, that the place of its beginning is covered with water, whether navigable or otherwise; or that any of its lines run across such water.

In cases of grants of land, describing it by courses and distances and calls, the courts of this State have determined that, in locating them, they shall first be run by the calls; but if that be impracticable, they shall then be located by course and distance.

In an action of ejectment, the plaintiff, to prove the death of O. before the year 1745, without heirs, and intestate, offered in evidence a warrant of resurvey to E. F., issued in 1725, a certificate of survey returned under such warrant, dated 21st September, 1726, but upon which no patent appeared to have been issued; and also an escheat patent relating to the same lands, granted 28th September, 1759, founded upon a special warrant of resurvey, dated 18th June, 1759, returned on the 30th of that month. The defendant objected to the admissibility of the warrant of resurvey to E. F. and certificate returned thereon, either with, or independent of the escheat patent of 1759, and proceedings, on which the same were founded. Held, the proceedings on that warrant not having been prosecuted, no purchase money being paid by E. F. nor patent accepted by him, neither the warrant nor certificate were proof of the facts recited in them, as to the death of O. at the time specified. Such statements were discredited, by the refusal of E. F. to consummate his title, and his omission or refusal to pay for the lands was evidence that he had discovered, that no title by escheat had devolved on the Lord Proprietary.

An exemplification of the return of the surveyor to a warrant of resurvey, dated 1707, with the depositions of witnesses, and inquisition of a jury called under the warrant of resurvey, executed on the 4th March, 1706-7--finding the beginning of a tract of land with its courses and distances, and other boundaries, recorded among the land records of Baltimore County, and certified under the seal of that County Court to be a true copy, is not evidence--because there existed, at the date of those proceedings, no law which authorized such proceedings to be recorded.

The proceedings in question were also inadmissible in evidence, because they purported to locate the tract of land described in them, in a way wholly inconsistent with the calls and expressions contained in its original patent.

Where a prayer called for an instruction to the jury, "that if they should find that the beginning of B. V. is not truly located on the plats by the defendant, then the plaintiffs are entitled to recover;" and it appeared that the beginning of the tract claimed by them was admitted by the locations of both parties; and that the patent for B. V. declared such beginning to be the end of its first line; and the bounded tree called for at the beginning of B. V. being lost, was to be found, as a matter of law, by reversing the course and distance of the first line of B. V., the jury cannot find to the contrary,--and consequently the refusal to grant the prayer is not error.

By the act of 1745, ch. 9, the State granted no right which accrued to it subsequently to its passage.

An escheat grant by the State is no evidence of the existence of the facts constituting the escheat, anterior to the date of the warrant.

An escheat title accruing in 1759, will not entitle plaintiffs to recover, under the act of 1745.

A jury has no discretionary power to find, as matter of fact, that which is matter of law.

Expressions in a grant, intended merely as generally descriptive of locality, have not a conclusive and restrictive import.

By the grant of a tract of land, lying in Chesapeake bay, and on the north side of a river, called P., and on the north side of the north-west branch of said river, beginning at a marked red oak, by a little branch, and running up along the north-west branch for breadth; it is not required that a tract--the end of whose first line was the beginning of the tract above described--should be located on the north side of the river P.

Where the witness had been surveyor of the county, (where land claimed is situated,) for sixteen years, and assistant of the county surveyor for many years previous, and testified that the beginning tree of a tract of land could not be found, that he had never heard of it, and had found the begining, by reversing the course and distance of the patent from another boundary--this is sufficient evidence of an endeavor, on the part of the party seeking to establish the lost beginning, to find the position of the same.

The jury is the proper tribunal to decide whether any and what variation ought to be allowed in the location of lands.

Whether any and what degree of allowance for variation should be made, are questions of fact to be determined by the jury on testimony upon that subject adduced to them in the trial of the cause.

If no such testimony be offered, the jury are not authorized to depart from the courses and distances expressed in the conveyances, by making any allowance for variation.

Where there is a total absence of the testimony in relation to variation, the court ought not to instruct the jury on that subject.

Where the court reverses the judgment of the County Court for error in instruction as to a question of variation of the compass, and perceives that by no allowance for such variation which the jury could rationally have made, the merits of the controversy could be affected, it will not award a procedendo.

Where a line calls to terminate at a bounded tree without any other reference, and the tree is lost, and there is no location or evidence to prove that where such line, run course and distance, terminates, is not and always has been high and fast land, the court will not instruct the jury that the line cannot be run into the water of a navigable stream. The court will not presume that the bounded tree may not have stood in navigable water.

Where the beginning tree of a tract is admitted upon the plats, both parties are estopped from denying its location.

Where the termination of a line of one tract imperatively calls for the beginning tree of another, and the tree so called for is admitted as the beginning tree, it is equally admitted as the terminus called for.

Where there is error in a patent, either in the description of the tree alleged to stand at the beginning of the first line of the tract, or in the boundary stated to stand at the end of that line, where these descriptions are irreconcilable, and one or the other must be rejected,--under such circumstances, the court will enquire into the probabilities of mistake, as to the boundaries called for, and look at the consequences which would result from rejecting the one or the other.

There is no difference between the weight to be ascribed to a call for a boundary, or matter of description thereof, when referred to as the beginning of a tract, or as the terminus of one of its lines.

In determining upon such probabilities, the court will examine the courses, descriptions, calls and boundaries of the title papers, to ascertain if the surveyor made any mistake therein--what evidence he had before him, and what he designed to do.

An error of description in a survey, adopted in a patent, manifestly founded in mistake or falsehood, is insufficient to control other calls and expressions inconsistent therewith.

Where the assumption of mistake in a single description, harmonizes all the rest of a patent, the court will make such assumption.

The designed non-disclosure of the fact of the Lord Proprietary or his agents, that a warrant of resurvey as executed was covered by navigable water, is not a fraud, and will not vacate a patent issued thereon.

The rights of piscary and navigation remain unimpaired by the grant of land covered by navigable water.

For a fraud practised on the Lord Proprietary, he only, or those subsequently claiming under him, have a right to complain. It is not a matter on which his patentees may claim to expand their rights.

To produce accordance between a line and its call, the running of the next preceding line cannot be changed; such changes would be in conflict with the grant.  

COUNSEL:
By MAYER and DULANY for the appellants, and

By W. F. GILES, MCMAHON and REVERDY JOHNSON for the appellees.  

JUDGES:
The cause was argued before [**49]  DORSEY, CHAMBERS, SPENCE, and MAGRUDER, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*152]  DORSEY, J., delivered the opinion of this court.
The point in this cause, most strenuously urged and relied on by the plaintiffs, is, that the beginning of the tract of land called Bold Venture, cannot be found by reversing the course and distance of its first line from the boundary called for at its termination, as expressed in the patent; because, by such reversal of the line, the beginning thereof is shown to be in deep navigable water, a great distance from the shore, and where the beginning tree called for, as at the commencement of the first line, could not possibly have stood at the date of the grant. As the decision of this question, if in favor of the plaintiffs, would be decisive of the present controversy under a decision of this court upon the appeal from the first trial of the case in the County Court, it appropriately, from its importance, is first entitled to our consideration. And to aid in its determination it may not be amiss to lay down some propositions, and make some suggestions in elucidation of the question before us.
If a tract of land call to begin at a bounded tree by the side [**50]  of the branch, and to run thence course and distance to a known boundary, and the beginning tree be lost, to find the commencement of the first line of the tract you must reverse the course and distance from the known boundary, called for at the end of the first line, and not elongate, nor shorten, the line to the branch; the expression as to the branch being merely descriptive of the general locality of the tree, not an imperative call locating the spot where the tree stood. The words "by the side of a branch," thus used, are no identification of a particular spot where the tree must have stood. The commencement of the line at any one of ten thousand different spots by the branch side, at great distances from each other, would comply with such a description of the beginning. Instead then of obtaining what is the leading object in the gratification of all calls, certainty in the location of grants of land, by adopting the principle contended for, that the line must be made to terminate at the branch, you establish a rule productive of the greatest uncertainty. If the words "standing by the side of a branch," be regarded as an imperative call fixing the termination of the 

 [*153]   [**51]  line where the boundary is lost, both course and distance may be disregarded to reach it; it controls them both. Suppose neither course nor distance will strike the side of the branch; by whom is the particular spot on the branch side for the termination of the line to be determined? by the court or by the jury? And by what principles of law or fact is the determination to be governed? Suppose there be a point on the branch side which might be reached by the distance, but is wholly inconsistent with the course, in accordance with which the extension of the line to the branch side would expend ten times the number of perches, and include ten times the quantity of land expressed in the patent: which would you gratify, the course, or the distance? The general rule is, that if there be a peremptory call to an object of length by a course and distance line, and the object can be reached by gratifying the distance, but violating the course, or by conforming to the course and disregarding the distance, the course must control the distance; the termination of the line being thereby fixed with greater certainty. As the termination of the line is at the point where the course first strikes the [**52]  object called for; whereas, there might be various points in the object called for, equidistant from the beginning of the line to be run.
The word "by," when descriptively used in a grant as in the case before us, does not mean "in immediate contact with," but "near" to the object to which it relates. And "near," is a relative term, meaning, when used in land patents, very unequal and different distances.
Suppose the boundary sought to be established, instead of being expressed as standing at the beginning of the first line of the tract of land sought to be located, was described as a boundary standing at the end of the first line, and consequently the beginning of the second line of the survey; and the boundary not being known, by running course and distance the line would terminate in navigable water, as deep, and quite as far from the shore, as the first line of Bold Venture reversed, does in the case before us. Would the patentee lose all benefit from his grant by such an occurrence? or would not the 

 [*154]  court, in accordance with the dictates of justice, ut res magis valeat quam pereat, rather say, we will disregard what is said of the bounded tree as a means [**53]  of showing the terminus of the first line, and will ascertain it by the course and distance, which by the patent, the line is expressed to run. The reason assigned for running the lines of lands to the boundaries called for at their terminations, instead of terminating them according to their courses and distances, is not exclusively that greater certainty as to the termini of such lines is thereby attained, but also because thus locating their grants is more beneficial to the grantees, and because it is rule of construction in expounding grants, to give them that interpretation which operates most strongly against the grantors, and in favor of the grantees. There is not the shadow of a reason for giving validity and operation to a patent whose second or subsequent boundary being unknown, the expressed course and distance thereto shall terminate in like circumstances to the alleged beginning of Bold Venture, that would not apply with equal force to a similar termination of the first line of a tract of land, reversed, to find its first beginning.
A deed or patent for a tract of land passes nothing unless the land described therein is susceptible of location, or in other words,  [**54]  unless the survey thereof can be made to close. And it is perfectly immaterial whether the impediment to location arise from an inability to ascertain the beginning of the first line of the land granted, or the end thereof; or the beginning or end of any other of its lines. In either case, no title to the land is transferred under the deed or patent, unless it be in the rare case of the lines of a tract of land crossing each other, or coming in contact, so as entirely to enclose a separate part of the tract, before the occurrence of the insurmountable obstacle to the enclosure of the entirety.
If a tract of land be granted by boundaries only, without courses and distances, as beginning at A, and running thence a straight line to B, thence to C, thence to D, and so on to the beginning. If the beginning or any subsequent boundary be lost, and its original situs be insusceptible of establishment by proof, 

 [*155]  the entire tract of land is lost, and the grant thereby becomes inoperative and void. So, if a tract of land be granted by courses and distances only, without calling for any boundary or object save that described as standing at the commencement of its first line, and that [**55]  boundary or object be lost and no legitimate proof can be adduced of the beginning or ending of any of its lines, the tract of land, thenceforth, becomes a nonentity: the grant for its conveyance, a nullity. But if a grant be made not only with courses and distances, but with calls for objects or boundaries at the ends of some of its lines, it has a principle of self-sustentation imparted to it, not possessed by either of the two first mentioned grants. And, therefore, if the beginning, and any, or all the boundaries, save one, are lost and incapable of being proved, the vitality of the grant still continues, its legal validity is as fully recognized, as if all its boundaries were still known and in being. And this principle of self-preservation does not owe its existence to any implied construction of the grants resulting from the dictates of justice, public policy, or expediency, but is the natural import of the express words of the grant, which declares not only that the lines are to be run to the specified calls, but that each line is to be run a specified course and distance. Prima facie then the terms and expressions of the grant are as fully complied with, by running the [**56]  tract of land by course and distance, as if it were run in conformity to the calls. In the contemplation of the grant, both modes of running were to lead to the same points; the same results. Where a line of a tract calls for a boundary at its beginning, and a boundary at its end, and one of the boundaries be lost, the beginning or end of the line where it is alleged to have stood, is found with equal facility. And the same mathematical certainty is obtained whether you run the course and distance progressively to the end of the line, or retrogressively--that is reversely--to its beginning. With equal truth and precision, the desired object is accomplished in both modes of proceeding.
But suppose it were conceded that the words "by the side of the branch" create an imperative call, and that the reversed 

 [*156]  line must be elongated to reach it, or shortened to stop at it, what benefit would such a construction ultimately confer on the plaintiffs? Unquestionably none. Because then the reversed first line of Bold Venture, instead of terminating at red A, would be elongated to Long Island Point, at the water line of the north-west branch; and as effectually accomplish the [**57]  objects of the defendants, as it would do in terminating at the red letter A.
It cannot be denied that a valid survey or grant of a tract of land may be made, without stating any natural object as being at the beginning of its first line, if there be boundary at the termination thereof, for example, the beginning of Bold Venture, as described in the patent of Rogers' Inspection. Such, indeed, is the true import and condition of the grant of Bold Venture, rejecting the statement as to the bounded tree, alleged to stand at its beginning. And it is equally clear, that it forms no objection to the validity of a grant of land, that the place of its beginning is covered with water, whether navigable or otherwise, or that any of its lines run across such water. It is also undeniably established by authority, that if the beginning tree of a tract of land be lost, and the lines thereof have courses and distances, and one of them also a known boundary, that the beginning of the tract may be found by reversing the courses, and expending the number of perches on the anterior lines. But it is alleged by the appellants' counsel, that the beginning of a tract cannot be thus established,  [**58]  where it appears that the lost beginning could not have stood, at the time of the survey, at the point, thus ascertained by the reversed course and distance running. If there be such an exception to the general rule so well established, as to the mode of finding the beginning of tracts of land, whose beginning trees have been lost, it is incumbent upon him to produce the authority by which the exception is sustained. This he has wholly failed to do. And he is equally in default in not having shown, that upon reason, or the analogies of the law, such an exception ought to prevail.
Why is it that a plaintiff in ejectment in any case is unable to recover, by reason of his inability to prove his beginning tree? 

 [*157]  It is because, not having proved the beginning of his tract, he has lost all means of making or sustaining his location thereof, and consequently fails in his action. In reference to any other question, the inquiry rarely, if ever, would have been entered into, as to the truth or falsehood, possibility or impossibility, of the statements in the grant relating to the trees, alleged to be standing at the commencement of the first line of the tract. Conceding the whole [**59]  statement, as to the beginning trees of Bold Venture to be false and impossible, what would it avail the plaintiffs below? Nothing. The grant of the land is uncontroverted. By its course and distance lines, and remaining boundary, a location thereof can be established. Land so granted, when the boundaries are all known, is capable of two modes of location. The one by running the lines to the boundaries called for, without regard to the courses and distances; the other is to run the land according to its courses and distances, without reference to its boundaries. Both these modes of running are in perfect consistency with every thing appearing upon the face of the grant. But lest there should be a diversity in the results, thus obtained by different means, and, in order, as is supposed, to give greater certainty to the locations of grants of land, and to give them that operation which shall be most beneficial to grantees, the courts of this State have determined that in all locations of lands the first mentioned mode of running shall, if practicable, be conformed to; but if that be impracticable by reason of an inability, from any cause to prove the boundaries, the land shall be [**60]  located by running its lines according to their courses and distances. It is no unusual thing for old surveys of land in this State, where boundaries are called for at the end of its lines, to contain an excess in quantity, sometimes twice, three times, or four times, as much land when run by its boundaries, as when located according to its courses and distances. The quantity, in such cases expressed in the patents, being always the same, with that ascertained by a course and distance running. That such discrepancies were the result of mistakes, nobody can believe; nay, it is a matter of history, and of notoriety, that they were 

 [*158]  matters of design, and our courts might well say that running lands, (granted by the Lord Proprietary) according to their boundaries and calls, was more beneficial to the grantees than a course and distance running. It would thence follow, as clear as mathematical demonstration can show any thing, that the lines of such surveys, when run course and distance, could not terminate at the points, where stood the boundaries called for as the termini of those lines. And hence, it is apparent, that if a boundary or beginning of such a survey were lost,  [**61]  no course and distance running, whether progressive, or retrogressive, could possibly conduct you to the point, where the lost boundary or beginning originally stood. According then to the doctrine contended for by the appellants as to Bold Venture, if in any of the surveys mentioned, a beginning or boundary thereof be lost, the whole tract of land is utterly lost, being incapable of true location, by any running of the course and distance lines, reversely, or progressively. To such a discovery the case before us certainly has given birth. Of it the venerated founders and expounders of the land law of Maryland, never appear to have caught a glimpse; or so many thousands, tens of thousands, or perhaps hundreds of thousands of acres of land, would not have been held for perhaps a century in opposition to such a principle by citizens of this State, who never dreamed of a taint or defect in their titles. In finding the beginning where, as is alleged, stood a bounded tree of a tract of land, or the terminus of one of its lines, which calls for a boundary that may have been lost, properly speaking, you do not resort to a course and distance running, either direct, or reverse, for [**62]  the purpose of finding the spot where the lost tree or boundary in point of fact stood; but to find the beginning or end of the line, as the case may be, where it is stated to have stood. And such running, in contemplation of law, establishes the beginning of the tract or termination of its lines, whether in truth or in fact the beginning tree or bounded tree did stand or could have stood there or not: and this legal conclusion is wholly unaffected by the belief or disbelief of the court or jury upon that subject.

 [*159]  If proof were required to show that course and distance lines are elongated when run from boundary to boundary, it is furnished by the first line of Mountenay's Neck, which, by the patent, is expressed to run one hundred perches, but measures one hundred and thirty-three perches, when run from the boundary at M to that at N.
A great variety of other points have been mooted in the argument of this cause, on which it is not deemed necessary to express any opinion, as many of them are settled by this court, in the case of Casey's lessee vs. Inloes et al., reported in 1 Gill 430; and they are not presented for our adjudication by the record [**63]  before us. It is deemed expedient, therefore, to proceed to the examination of the exceptions separately, and of each of the parties' prayers, as stated in the last bill of exceptions.
In rejecting, (as appears by the first bill of exceptions,) the escheat warrant and certificate of Edward Fell for Bold Venture, when offered as proof that John Oulton died intestate, and without heirs, before the year 1745, the County Court committed no error. In Casey's lessee vs. Inloes et al., this court decided, that an escheat grant is prima facie evidence that the land granted is liable to escheat at the date of issuing the escheat warrant, and not antecedently; "the court regarding the statement of that fact in the warrant, upon the representation of the grantee, as being so avouched and verified by his payment of the purchase money, and acceptance of the patent, as to entitle it to the character of prima facie evidence. But in the case before us, the statement in the warrant was sustained by no such avouchment and verification; on the contrary, the County Court very properly regarded the statement as discredited, if not falsified, by the omission or refusal of the [**64]  person to whom the warrant issued to consummate his title, and pay the required portion of the value of the land escheated, as evidence of his having discovered that there devolved upon the Lord Proprietary no title by escheat,--and, therefore, rejected the proffered testimony for the purpose for which it was offered.

 [*160]  In rejecting the testimony offered by the plaintiffs in the second bill of exceptions, there is no error; there being at the date of the proceedings offered in evidence, no law authorizing or directing the same, or the recording thereof--the court below could not do otherwise than reject a paper, purporting to be a copy of the record, which, in the eye of the law, was no record at all. The court also rightly rejected the testimony, because it sought to establish the true location of Bold Venture, by running it in a way wholly inconsistent with the calls and expressions contained in its patent.
Of the County Court's refusal to grant the first prayer of the plaintiffs, they have no reason to complain. It called for an instruction to the jury, that if they "shall find that the beginning of Bold Venture is not truly located on the plats by the defendants;  [**65]  or, if truly located, they shall find that the title to said tract became vested in the State, by escheat, in 1759, then the plaintiffs are entitled to recover." To the first branch of the prayer, the plaintiffs were not entitled; because M, the beginning of Mountenay's Neck, being admitted by the locations of both parties--and the patent of Bold Venture having declared it to be the end of its first line, the jury were precluded from any finding to the contrary. And the bounded tree called for at the beginning of the first line of Bold Venture being lost, it is matter of law, to be pronounced by the court--not a matter of fact, to be found by the jury, that the beginning of the tract of land was to be found by expending the number of perches expressed in the patent, as the length of the first line on the reversed course and distance thereof. In conformity to this principle of law, the beginning of Bold Venture had been ascertained and located on the plats by the surveyor; and there was not the shadow of proof, or of suspicion, that such ascertainment had not been correctly made: under such circumstances, to have permitted the jury to pass upon the correctness of such [**66]  a location of Bold Venture would, in effect, have submitted to the finding of the jury the soundness of the principle of law, under which the location had been 

 [*161]  made;--or, in other words, it would have authorized the jury to determine a matter of law, not of fact.
In refusing the first alternative of the plaintiffs' prayer, no error is perceived; and the principles settled by this court, in Casey vs. Inloes, 1 Gill 430, show that the County Court were clearly right, in refusing the prayer upon its second alternative.
By the act of 1745, ch. 9, the State granted no right which accrued to it, subsequently to the passage of that act of Assembly. An escheat grant, by the State, is no evidence of the existence of the facts constituting the escheat, anterior to the date of the warrant. Of course, if these principles are adhered to, the court below could not do otherwise than refuse to instruct the jury, that an escheat title accruing to the State in 1759, would entitle the plaintiffs to recover under the operation of the act of 1745.
The second and ninth prayers of the plaintiffs having been granted by the court below, they form no subject for revision [**67]  under the present appeal.
The third prayer of the plaintiffs was rightfully rejected by the County Court, for a reason heretofore assigned in support of its rejection of their first prayer. The granting of it would, in fact, have conferred on the jury a discretionary power of finding the principle of law by which the beginning of Bold Venture was established, which principle it was the province of the court to declare--not of the jury to find as a matter of fact. And by granting the prayer, the jury might well have understood it to be (as in effect it would have been) an instruction to them, that there could be no true location of Bold Venture which did not locate its beginning entirely on the north side, of the northern water line, of the Patapsco river--thus giving to expressions in a grant, intended merely as generally descriptive of locality, a conclusive and restrictive import, which is clearly denied to them by the unquestioned decisions of the highest judicial tribunals of Maryland. In proof whereof, it is deemed sufficient to refer to the case of Hammond vs. Ridgely, 5 H. & J. 245.

 [*162]  That the County Court, in refusing the plaintiffs'  [**68]  fourth prayer, were right, is sufficiently shown by the positions asserted in the previous part of this opinion.
The court below did not err in refusing to instruct the jury, as required by the fifth prayer of the plaintiffs, that the defendants had offered no sufficient evidence of the location of Bold Venture; "because they have offered no testimony of any endeavor being made to find the beginning of the tract; and because they have not located Whetstone Branch--that being the place on which said beginning is described in the patent to be, and where said beginning tree is sought for." The first reason is insufficient, because the testimony, given by the defendants through the surveyor, in the absence of all impugning proof, relieves them from the obligation supposed to rest upon them; and had no such evidence been given by the surveyor, the plaintiffs, themselves, had offered all the requisite testimony upon the subject, by their location of the escheat grant of Bold Venture, called Rogers' Inspection, which shows that in 1759, the beginning tree of Bold Venture was lost, and could not be found; and that, at that time, the beginning of the tract was ascertained [**69]  in the same manner, and was located at the same place, that the defendants have done on the plats before us. The second reason is also insufficient, because it was understood as being admitted by the parties in the cause, that Whetstone Branch was located. But suppose no such admission was made, or intended to be made, it interposes no objection to the defendants' location of Bold Venture. The tree being lost for reasons hereinbefore stated, the spot where it stood is not so indentified by the description in the patent, as to enable the surveyor to locate it with any reasonable degree of certainty. It must, therefore, be rejected, as forming a less certain mode of finding the beginning of the tract of land, than by reversing course and distance from the first known boundary.
The sixth prayer of the plaintiffs is "that the defendants have not truly located Bold Venture, if the jury shall find from the testimony, that the line from M to A should have been run with allowance for variation, and has not been run so, and 

 [*163]  that they must so find if they believe the testimony of Mr. Bouldin."
It cannot be denied, but that the jury are the proper tribunal to decide [**70]  whether any, and what, variation ought to be allowed in the location of lands. But whether any, and what, degree of allowance for variation, ought to be made, are questions of fact, to be determined by the jury on the testimony upon that subject, adduced to them in the trial of the cause. If no such testimony be offered, the jury are not authorized to depart from the courses and distances expressed in the conveyances, by making any allowance for variation. In the case under consideration there was a total absence of all testimony in relation to variation, and consequently, the court could not have done otherwise than refuse the sixth prayer of the plaintiffs. But suppose it had been otherwise, and that there had been evidence before the jury which would have warranted them in making an allowance for variation, and that for the court's error in this respect its judgment were reversed, this court would not send it back to the County Court, to be tried anew, because by no allowance for variation, which the jury could rationally have made, could the merits of the present controversy be in any wise affected.
From the views already expressed, it is apparent that the County Court were right [**71]  in denying to the plaintiffs the instruction prayed for in their seventh prayer: which was "that the defendants have not truly located Bold Venture, inasmuch as they cannot run the fifth line of that tract, as they have located it on the plats further than to the river side, as designated on the plats by a black broken line, shaded blue, a little distant from Z, and south-westerly thereof." The ground upon which only this instruction could have been claimed, must be that the fifth line of Bold Venture calls for a bounded oak as its terminus, which could not have stood in the navigable water where the fifth line is made to terminate, according to the defendants course and distance running thereof. Assuming the truth of the facts, on which the plaintiffs base their prayer, it is evident that upon the views hereinbefore expressed upon the 

 [*164]  plaintiffs' first prayer, that the instruction prayed for by the seventh prayer could not have been granted. But the same result is equally manifest upon another ground. The fifth line of Bold Venture simply calls for a bounded ash, without any reference or call to the river side or water. And there is no location or evidence [**72]  in the cause to prove that where the said fifth line terminates, as run course and distance by the defendants, is not, and always has been, high and fast land, on the north side of the north-west branch of the Patapsco river; or, in other words, of "Whetstone Branch," where the bounded ash may well be presumed to have stood.
The County Court's refusal to grant the plaintiffs' eighth prayer is equally sustainable. There is no controversy as to the true location of the tract of land called Mountenay's Neck. It is a fact admitted by the pleadings in the cause, and which both parties are estopped from denying, that the beginning tree of Mountenay's Neck, is truly located at the letter M; and that the bounded tree called for as standing at the end of the first line of that tract, is truly located at the letter N. The patent of Bold Venture, in terms as explicit and positive as language can make them, calls for the bounded red oak, (which is the beginning tree of Mountenay's Neck,) as the terminus of its first line, and to run thence, bounding on Mountenay's land, the same course and distance as its first, to the bounded white oak (which stands at the end of [**73]  its first line) of Mountenay's land. These two bounded trees are the only boundaries called for in the patent of Mountenay's Neck. Looking, then, to the unquestioned boundaries and locations of the first line of Mountenay's Neck, and the clear and imperative call for the termination of the first line of Bold Venture, it appears most difficult to conceive how a question or doubt could arise as to the place where the first line of Bold Venture must terminate. But the patent of Bold Venture states its beginning to be at a bounded white oak, standing by the branch side, it being a bounding tree of Poultney's Point: and the plaintiffs insist that Poultney's Point and Long Island Point were one and the same tract of land; and that the only bounded 

 [*165]  oak called for by Long Island Point, was the oak located at M, the beginning of Mountenay's Neck. And they pray the court to instruct the jury, that if they believe these facts, and that the said last mentioned oak was the tree referred to in the patent of Bold Venture, as a bounding tree of Poultney's Point--then they are bound to find the beginning tree at M. Now, let us concede [**74]  the truth of all the facts, which the jury are required to believe as the basis of the finding, claimed at their hands by the plaintiffs. What do these facts, when taken in connection with the admission as to the location of the first line and boundaries of Mountenay's Neck, and the positive, unequivocal expressions of the patent of Bold Venture prove; what the irresistible inference; what the conclusive demonstration? It is that there is an error in the patent of Bold Venture; either in the description of the tree alleged to stand at the beginning of the first line of that tract of land, or in the boundary stated to stand at the end of that line. These descriptions are utterly irreconcilable: they cannot both be gratified or stand together; the one or the other must be rejected. It is impossible that both the beginning and end of the first line of Bold Venture should be at the same point, at the letter M. Under such circumstances, the court is invoked to declare that M is the beginning of Bold Venture; that the peremptory call of the first line of Bold Venture to terminate at the boundary at M, is to be, in effect, expunged from the patent. To justify the gratification [**75]  of such an invocation to the court, not the semblance of an authority has been adduced. There is not a shade of difference between the weight to be ascribed to a call for a boundary, or matter of description thereof, when referred to as the beginning of a tract of land, or as the terminus of one of its lines. Under like circumstances, the obligation to gratify the same is equally imperative in both cases; there is, in this respect, no priority or preference between them. As the ground then, upon which, in the decision of the question raised by this prayer, the opinion of the court below must have been governed, let us enquire what are the probabilities of mistake as to the boundary called 

 [*166]  for, or described as standing at the beginning or the end of the first line of Bold Venture? What consequences would result from the rejection of the one or the other?
It is most obvious, from an inspection of the patents of Bold Venture and Mountenay's Neck, that the first line of the former of those tracts calls for the beginning tree of the latter as its terminus; and that the second line of Bold Venture was to run with and bind on the first line of Mountenay's Neck [**76]  to its boundary at N; and that the third line of the former tract was to run with and bind on the second line of the latter tract to its termination. And it is a necessary presumption that, in making the survey of Bold Venture, on which its patent is founded, those boundaries and lines of Mountenay's Neck were known to the surveyor. In his calls for them, therefore, there could have been no mistake; they could have been no other lines and boundaries than they are represented to be in the patent of Bold Venture--none others could have been referred to by the surveyor.
But what is the evidence that the surveyor, in describing the beginning tree of Bold Venture, referred to, or meant to refer to, the beginning tree of Mountenay's Neck? When looking only to the patent of Bold Venture, no such reference could possibly be inferred. He describes the tract of land, called Bold Venture, as beginning at a bounded white oak, standing by the branch side--it being a bounded tree of Poultney's Point. If he had known it to have been a boundary of Mountenay's Neck, in all human probability, he would have added to the words Poultney's Point, the words "and of [**77]  Mountenay's Neck, or of Mountenay's Land." This omission to do so, is strong evidence that he had no design, belief or knowledge, that he was describing the beginning tree of Mountenay's Neck as the beginning tree of Bold Venture. The only evidence that he did so, is a call for the beginning of Mountenay's Neck, in the fifth line, of Long Island Point--the patent or certificate of which, for aught that appears, may never have been seen by the surveyor who executed the warrant under which Bold Venture was granted. But let it be conceded 

 [*167]  that the patent of Bold Venture does describe, as its beginning tree, the beginning tree of Mountenay's Neck, is it not obvious that such description is founded in mistake or falsehood; and is, therefore, insufficient to overrule and control other calls and expressions in the patent of Bold Venture, inconsistent therewith? Assume but the single fact of falsehood or mistake in the description of the beginning tree of Bold Venture, as being "a bound tree of Poultney's Point," and every other word and expression in the patent may be harmoniously gratified, in perfect consistency with such an assumption.  [**78]  But assume the fact to be as contended for by the plaintiffs, that the beginning of Bold Venture is at the letter M, the beginning tree of Mountenay's Neck, and see the consequences which would flow from it. You virtually expunge from the patent that clause in it, which directs that the first line of Bold Venture shall be run north, north-east fifty-eight perches, and terminate at the beginning tree of Mountenay's Neck; and that clause, which calls to run the second line of Bold Venture with the first line of Mountenay's Neck, to the bounded tree at the letter N; and also that clause, which directs the third line of Bold Venture to run with and bind on the second line of Mountenay's Neck, three hundred and twenty perches to the end thereof. And although it is apparent from the reading of the patent of Bold Venture, that it was intended to bind on and lie wholly clear of Mountenay's Neck, you cause a large portion of the former to lie foul of the latter. Under such circumstances, it cannot be a matter of doubt that the court below were right--not only in refusing the plaintiffs' eighth prayer, but would have been justified in giving an instruction [**79]  to the jury that, according to the true construction of the patent of Bold Venture, its beginning could not be at the letter M.
That the tenth and eleventh prayers of the plaintiffs were properly rejected by the County Court, follows from what has been said in relation to their eighth prayer.
The court below were warranted in refusing to grant the plaintiffs' twelfth prayer; because, after the refusal of the court 

 [*168]  to grant the eighth prayer, for the reasons hereinbefore stated, there was no matter of fact in issue before the jury, to which the instruction sought could apply, or was material.
And were also warranted in refusing the plaintiffs' thirteenth prayer; because, upon the pleadings and admissions on the plats in the cause, whether the beginning tree of Bold Venture originally stood at the letter M, was not a question of fact, but a matter of law, dependent upon the true construction of the patent thereof--as is hereinbefore asserted when examining the eighth: and, it is evident, that it was so regarded by the counsel of the plaintiffs, when he presented the eighth prayer for the court's determination.
The refusal of the County Court to grant the plaintiffs'  [**80]  fourteenth prayer has necessarily been sustained, by what has been said in relation to the eighth and thirteenth prayers.
There is no error in the County Court's refusal to grant the plaintiffs' fifteenth prayer. Whether any, and what allowance for the variation of the magnetic needle, ought to be made when locating ancient surveys with course and distance lines, is undeniably a question of fact, to be determined by the jury, when testimony, legally sufficient to enable them to form an opinion thereon, has been adduced before them. And like all other matters of fact, the finding of the jury must be founded upon the proof in the cause. If there be no proof upon the subject, the jury are bound to find the locations, according to the courses and distances expressed in the grant, and can make no allowance for variation. It would be productive of great injustice and ruinous consequences to land-holders, if juries were authorized to make whatever allowance for variation their crude notions upon the subject might suggest--unaided and uncontrolled by experience, or the lights of science. In the case before us, no testimony whatever had been offered to the jury in relation to it;--and, consequently,  [**81]  a rejection was the inevitable fate of the fifteenth prayer of the plaintiffs.
The court below correctly refused to grant the plaintiffs' sixteenth prayer, viz: "That if the jury find from the evidence, that the location of Bold Venture by the defendants is 

 [*169]  correct, and from the warrant, certificate and patent thereof, that no intimation or statement was given to the Lord Proprietary that so much of the said tract, as they may find was covered by navigable water, was in fact so covered; and if the jury find that the said John Oulton purposely kept back, and fraudulently concealed the fact that so much of the said tract was covered by navigable water, and that it was in front of the elder tract, binding on or in the water, granted to Alexander Mountenay--then the patent to said Oulton was void, at least so far as it extended into navigable water. On whom the alleged fraud was perpetrated, or designed to be perpetrated, the prayer does not assert, but leaves that question as a subject of amusing speculation and investigation for the court. From the first part of the prayers making it an indispensable ingredient to the fraud--the failure to communicate to [**82]  the Lord Proprietary the condition of the land granted, as regards navigable water--it might be inferred that the alleged fraud was supposed to have been committed upon the rights and interests of the Lord Proprietary;--because, if it were a fraud upon the proprietor of Mountenay's Neck, or of the community at large, the communication to the Lord Proprietary could not purge the grant of its fraudulent impurity; its only effect could be to render him a particeps criminis. But the grant of Bold Venture did not perpetrate the semblance of a fraud upon any body. The only rights which the proprietor of Mountenay's Neck or the public had, in that which was granted by the patent of Bold Venture, are those of piscary and navigation, which remain unimpaired, and as perfect after the grant as they were before. If by the grant a fraud were practised upon the Lord Proprietary, he only, or those subsequently claiming under him, have a right to complain; it lies not in the mouth of the present plaintiffs to set up such a defence. It surely cannot be contended that a fair, bona fide, valid grant of 1695 is rendered fraudulent and void by the passage of the act of 1745, ch.  [**83]  9; and so far from any fraud being perpetrated upon the Lord Proprietary by the grant of Bold Venture at the time it was made, it conferred upon him an essential benefit, 

 [*170]  by giving to him the full price of valuable land, for that which, at the time, was of little or no value.
There is quite as little ground for the plaintiffs' complaint, that the County Court refused to give their seventeenth prayer. The Lord Proprietary had an indubitable right to make the grant of Bold Venture as he did. The rights of navigation and fishing being fully preserved, no existing just right of the grantee of Mountenay's Neck was lessened or destroyed thereby; and thereof, therefore, the proprietor of Mountenay's Neck had no right to complain.
The refusal of the County Court to give the instruction sought by the eighteenth prayer, is entirely approved of. The first objection to the prayer is, that the expediency or necessity for granting it is not sufficiently shown; non constat, but that, by continuing the location of the water line of the north-west branch, with its sinuosities, beyond the letter Z, the sixth line of Bold Venture running its course and distance, [**84]  might terminate at the river side, according to its calls; or that it might be made to do so, by elongating or shortening the same. But there is another objection to the instruction, which should have caused its rejection by the court. It introduces a novel and extraordinary principle in the ejectment law of Maryland, which might lead to endless confusion, uncertainty, and litigation, as to the locations of lands. If to produce accordance between a line and its call, you can change the running of the next preceding line, you may, upon the same principle, change the running of every antecedent line of the tract; and such changes will be in direct conflict with the express terms of the grant, and without any settled rule of law to govern them; but according to the notions of each person interested as to the best or most expedient changes, by which the accordance, he desires, may be effected. Such an innovation upon the sound, safe, principles of the ejectment law of Maryland has never received the sanction of this court; nor, it is believed, of any of the judicial tribunals of this State;--nor is it hazarding too much to say, that it is confidently expected that it never will.  [**85]  

 [*171]  In granting the three prayers made by the defendants, the court below merely carried out some of the undeniable rules of our ejectment law, and sustained the principles decided by this court in the case of Casey's lessee vs. Inloes et al.
Concurring in the propriety of all that has been done by the County Court in its last trial of this cause, its judgment should be affirmed.
JUDGMENT AFFIRMED.  

13 of 33 DOCUMENTS 

THE SWATARA RAIL-ROAD COMPANY vs. F. W. AND J. C. BRUNE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 41; 1847 Md. LEXIS 47 

December, 1847, Decided 

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

This was an action of assumpsit, filed by consent to September term, 1844, by the appellants against the appellees. The case was tried upon the general issue.

The plaintiffs, at the trial of the above cause, read in evidence the Act of Assembly of the State of Pennsylvania, incorporating the plaintiffs, approved the 2d April, 1831, and also the supplements thereto, severally approved the 8th April, 1833, the 1st April, 1836, and the 20th March, 1838, subject, however, to the defendants' exception to their admissibility, for the purpose of making them liable under the subscription of the 10th November, 1840, if they were not legally liable, by reason of said subscription, at the time it was made.

The plaintiff's likewise proved that the charter and several supplements thereto, given in evidence, were accepted by them.

The plaintiffs then read in evidence, from their minute book, certain resolutions, viz:

Resolved, That the secretary be authorized to call in the first and second instalments on each share of the capital stock of this Company, on or before the last day of July next.

Resolved, That the secretary be hereby [**2]  required to give public notice to the stockholders of this Company, that the third instalment of five dollars on each share will be required to be paid on the 1st September next. The fourth instalment of five dollars on each share, will be required to be paid on the 20th September next. The fifth instalment will be required to be paid on the 20th October next, payable to either of the officers of the Company.

Resolved, That the secretary be required to give public notice to the stockholders of this Company, that the sixth instalment of five dollars on each share, will be required to be paid on the 20th March, 1842. The seventh instalment of five dollars on each share, will be required to be paid on the 1st May next. The eighth instalment of five dollars on each share, will be required to be paid in June next. The ninth instalment of five dollars on each share, will be required to be paid on the 1st July next; and the tenth and last instalment of five dollars on each share, will be required to be paid on the 1st August next, payable to the president or treasurer.

It was agreed that the aforegoing are the resolutions referred to in the case stated as found in the book of minutes,  [**3]  in which it is stated, that said resolutions were passed at regular meetings of the plaintiffs, their president and managers; the first, at a meeting on 23d June, 1841; the second, on 2d August, 1841, and the third, on 2d March, 1842: and to show that calls for the instalments upon the subscriptions of stock were made, and entered on the minutes.

The plaintiffs, then, also read in evidence from a subscription book of the plaintiff, the following writing and signatures thereto:

"Swatara and Good Spring Creek Rail-road Company,

Subscription Book, Nov. 10, 1840."

"We, whose names are hereunto subscribed, do promise to pay to the president and managers of the Swatara and Good Spring Creek Rail-road Company, the sum of fifty dollars for every share of stock set opposite to our respective names, in such manner and proportions, and at such times as shall be determined by the president and managers of the said Company, in pursuance of an Act of the General Assembly of this Commonwealth, entitled an Act to incorporate "The Swatara and Good Spring Creek Rail-road Company."

"Witness our hands and seals, this 10th day of November, in the year, 1840."

The style of [**4]  the Company, was changed by an act from the S. & G. S. C. Rail-road Co., to that of the S. Rail-road Co.

And also proved the signatures of the defendants thereto, by their co-partnership name of F. W. Brune & Sons.

The defendants then read in evidence, the following admissions and agreement:

It is admitted as part of the evidence in the above case, that the subscription of the defendants for stock of the plaintiffs, was procured by William Donaldson, then and still the president of the plaintiff, and J. Wagenseller, then and still the treasurer thereof, who came to Baltimore for the purpose of procuring subscriptions to said stock, after having been appointed by the plaintiffs a committee for that purpose. And at the time the defendants subscription was procured, the said committee represented to the defendants, that Tide Water Canal Stock could be made available by the plaintiffs, and would be taken at par by it in payment of any subscriptions to the stock of the plaintiffs. And that the defendants made their said subscription, relying upon said representation and promise, they having previously refused subscribing to said D. and W., when no such representation and [**5]  promise were made.

It is also admitted, that the defendants have always had and still have Tide Water Canal Stock, which at its par value, is much more than sufficient to pay the amount of the defendants subscription to the plaintiffs, and of which Tide Water Canal Stock, they have always been ready and willing, to transfer to the plaintiffs a sufficient quantity at its par value, to pay the amount of the defendants said subscription, and have so stated to the plaintiff's attorney, whenever called upon for the said subscription; but their application and tender to pay their said subscription in Tide Water Canal Stock, which were made by them before suit was brought in this case, have been refused by the plaintiffs.

It is also admitted, that the first personal notice which the defendants had of the claim of the plaintiffs, was the letter of the plaintiffs' attorney, of the 29th of May, 1844, which may be read in evidence.

Baltimore, May 29th, 1844.

MESSRS. F. W. BRUNE & SON.

Gentlemen:--I am directed by the Swatara Rail-road Company, to collect from you, the amount of your subscription to their capital stock for five shares, at $ 50 each, $ 250; to which I beg [**6]  leave to call your attention.

Very respectfully, your obedient serv't,

H. P. HEPBURN.

It is admitted in this case, that it appears from the minute book given in evidence, that the first election for officers, took place on the 2d of November, 1840, and that upon the same day the first meeting of the Company was held, when it was resolved, that the president appoint a committee, to prepare by-laws to be submitted to the next meeting; and that at the next meeting, which took place upon the 18th December, 1840, it was resolved, not to accept the by-laws reported by the committee until a future meeting, when a greater number of the board should be present.

That upon the 30th December following, at a meeting of the board, it was resolved to re-commit the by-laws to the committee, to report at the next meeting, and that it does not appear from the minutes that said committee ever reported upon the by-laws re-committed to them, nor does it appear by said book of minutes, that any by-laws were ever adopted by the Company.

And it is admitted, that it appears from the minutes that no other resolutions bearing upon this controversy were passed by the plaintiffs.

And [**7]  proved that the plaintiffs had passed no other by-laws, and had no other minutes of their proceedings, having relation to this controversy, than those contained on the minute book, given in evidence by the plaintiffs.

It was also agreed, that only such parts of such minute book should be inserted in the record to be sent to the Court of Appeals, as should be agreed upon by the counsel of the parties.

The defendants proved that no notice of the calls for instalments upon the stock was given by advertisement, as required by the charter of the plaintiffs. The defendants also proved that the names subscribed in the subscription book given in evidence by the plaintiffs, from the name of James Hepburn to the end of said list of names, and including that of the defendants, were of persons residing in the city of Baltimore, who all subscribed their names therein in the city of Baltimore.

The testimony being closed, a verdict was taken by consent for the plaintiffs, subject to the opinion of the court as to the admissibility of the Act of Assembly, objected to by the defendants, for the reason stated in their objection, and with leave to either party to except to the opinion [**8]  of the court, on admitting or rejecting the evidence thus objected to, and subject to the opinion of the court upon the whole evidence in the cause as above set forth, (including or rejecting the evidence excepted to, according as the court shall deem it admissible or not) and with power to the court to make such inferences from the facts given in evidence, as a jury would be authorized to make. And if the opinion of the court should be in favor of the plaintiffs, they should enter judgment on the verdict; but if for the defendants, they should set aside said verdict and enter judgment for defendants, with the privilege to either party to appeal from the opinion and judgment of the court, if it should be against him.

The County Court rendered judgment for the defendants, and the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The defendant, with others, signed an instrument of writing, promising to pay the President and Managers of the S. and G. S. Rail-road Co. the sum of $ 50 for every share of stock set opposite to their respective names, in such manner, &c. as should be determined by the said P. and M., pursuant to an act of the General Assembly of Pennsylvania. A verdict was taken for the plaintiff for the value of shares subscribed for by the defendant, subject to the opinion of the Court, upon a statement of facts, with an agreement that the court might make such inferences from the facts, as a jury might. At the time of the subscription it was admitted by the statement, that the committee, who obtained it, represented to the defendant that T. W. Canal stock would be taken at par for any subscriptions to the Rail-road Co. The defendants resided in Maryland, and were ready to pay in Canal stock. Held, that an action for money had and received could not be maintained.

A party cannot agree upon a case stated which admits a certain fact, and then insist that the proof of the fact is not competent, as that it was not in writing.

A plaintiff cannot recover in assumpsit against his own representation, upon a promise, the inducement to make which was founded upon such representation.

When a fact is admitted, of which written evidence alone was competent, and the admission is silent as to the nature of the proof, the court will not infer that it was verbal, nor that it was not within some one of the exceptions to the general rule.

A plaintiff ought not to disavow the act of his agent, in an action brought to enforce the contract made by such agent.

The courts of the States are the best expounders of the acts of their respective Legislatures.  

COUNSEL:
By BRENT and WILKINS for the appellants,

By BRUNE for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*46]  MAGRUDER, J., delivered the opinion of this court.
This is an action of assumpsit brought in Baltimore County Court by the appellants, and to recover the amount of [**9]  the subscriptions 

 [*47]  by the defendants to the company. Upon a verdict taken for the plaintiffs, subject to the opinion of the court, upon a statement of facts, and with an agreement that the court should make such inferences from the facts as the jury might, it was the decision of the court that the plaintiffs were not entitled to recover. We are called upon to decide whether this was a correct decision.
The claim of the plaintiffs is resisted upon various grounds, any of which, if sustained, will justify the judgment of the court below.
The subscription paper, which is the foundation of the action, is in these words: "We whose names are hereunto subscribed, do promise to pay to the president and managers of the Swatara and Good Spring Rail-road Company, the sum of $ 50 for every share of stock set opposite to our respective names, in such manner and proportions, and at such times as shall be determined by the president and managers of the said Company, in pursuance of an act of the General Assembly of this Commonwealth, entitled, an act," &c.
This paper has the signature of the defendants, and opposite to it is written "five shares," to recover the whole amount ($ 250,)  [**10]  claimed to be due in virtue of their subscription, this suit was instituted.
Among the admissions in the statements of the case, are the following: "The individuals who, at the time of obtaining the said subscriptions, were and still are the president and treasurer of the Company, came to Baltimore for the purpose of obtaining subscriptions to the stock, having been appointed a committee for that purpose. At the time the subscription of the defendants was obtained, this committee represented to them that Tide Water Canal stock could be made available by the plaintiffs, and would be taken at par in payment of any subscriptions to this Company. It is also admitted that the defendants made their subscription relying on said representation and promise, and further that they had refused to subscribe when no such representation and promise were made." The plaintiffs insist that they are entitled to demand payment of the amount 

 [*48]  of subscription and money, and are not bound by the representation and promise of the committee. The defendants insist that they are not bound to pay, except in Tide Water Canal stock, and the suit is brought, not because of any refusal by the [**11]  defendants to pay the canal stock, (which, it would seem, they were always ready to pay,) but to recover $ 250, due by them and recoverable in an action for money had and received, or upon an insimul computassent.
If the representation and promise which led to this subscription, which induced the defendants to agree to take five shares of this stock, (to be paid "in the manner, as well as in the proportions and at the times" to be determined by the president and managers of this Company,) had been made by an individual plaintiff in any suit, it would scarcely be contended that notwithstanding, and indeed, in violation of the promise and representation, parties making them could recover in any such form of action.
It has been said, indeed, that the promise by the defendants is in writing, and this is an attempt by parol proof to contradict and vary the contract. But it does not appear that if the defendants had been compelled to prove the undertaking and representation, they would have been obliged to resort to parol testimony. The fact, then, to be proved, is admitted, and admitted, perhaps, because of a knowledge that the defendants could have produced, if it was required,  [**12]  proof to which no such objection could be made. The evils to be apprehended from the admission of oral testimony to add or vary the written instrument, cannot be urged in this case. It is a part of the case stated not to be denied, that such representation and promise were made, and the court might legitimately infer, from the admission, that this promise and representation were the only inducements to (the consideration for) the promise by the defendants. A plaintiff cannot admit a fact, and then insist that there must be written proof of it, or it is not fact in the case.
No doubt it is a rule that written contracts are not to be added to or varied by oral proof; but it is well settled that 

 [*49]  there are exceptions to this rule, and if this had been a controversy between two individuals, and the plaintiff admitted that he made this representation and promise, can it be questioned that those, who had to decide the controversy, might legitimately conclude, that such a case was within one or more of these exceptions, and that parol testimony was admissible to contradict or to avoid such a contract.
This misrepresentation and promise, however, was made by individuals, officers [**13]  of the Company indeed, but who, in taking and procuring these subscriptions, were but agents of the plaintiffs, and non constat that they had any authority to make any such representation, or to enter into any contract in regard to the manner in which the subscriptions to the stock were to be paid. All of this would be entitled to consideration, if these subscribers were the plaintiffs, suing the Company for refusing to them the shares of stock, to which their subscriptions entitled them upon tendering in payment Tide Water Canal stock.
We are now to assume that this was a part of the contract. It may have been made a part of the contract without authority, and because of this the plaintiffs may not be bound to fulfil that contract; but surely the plaintiff ought not to disavow the act of its agent in a suit brought to enforce the contract made by that agent. The defendant is not bound to pay in gold and silver that which, it was the understanding of the parties actually contracting, should be paid in Tide Water Canal stock. So long, then, as the defendants are passive, do not claim a fulfilment of this contract, so long the plaintiffs ought not to complain while unwilling [**14]  that the contract should be executed, as those who made it, must have understood it.
It will not be denied, that arguments entitled to consideration may be urged in opposition to this reasoning. We ought not, however, to forget, that the charter before us is the charter of a sister State, and its own courts are to be deemed the soundest expounders of its own charters and laws. No one can read the case of James McConahy vs. The Centre and Kishacoquillas Turnpike Road Company, 1 Pa. 426, without 

 [*50]  the most entire conviction that in that State, this would be a defence in this action. Those then, who are supposed to have a right to complain, became interested in this work with a knowledge of the charter, and of the interpretation of it in their State; that of such a defence they might have availed themselves, and therefore they have no right to complain that others who have been deceived by the representations and promises of the "committee," should claim the benefit of the decisions of the Supreme Court of Pennsylvania.
Without then examining other objections to the plaintiffs' recovery in this case, this judgment is affirmed.
JUDGMENT AFFIRMED.  

14 of 33 DOCUMENTS 

CORNELIUS H. OWINGS AND FRANCIS R. GRIFFITH, EXECUTORS OF NICHOLAS OWINGS, vs. JOHN B. EMERY AND CYRUS GAULT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 260; 1847 Md. LEXIS 66 

December, 1847, Decided 

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

This was an action of debt, brought by the appellants against the appellees, to recover $ 500 rent on a lease, made by Nicholas Owings on the 11th June, 1840, to the appellees, for the term of six years. The lessees were to enter the demised premises on the 11th November, 1840, and the rent claimed was for the first year. The defendants pleaded nil debet, with leave to give any special matter in evidence which might be pleaded in bar, upon notice, &c.

1ST EXCEPTION.--At the trial, the plaintiffs read in evidence the lease, as follows:

"This indenture, made this 11th June, 1840, between Nicholas Owings, of, &c. and John B. Emery and Cyrus Gault, witnesseth, that the said N. O. in consideration of, &c. hath demised, &c. and by, &c. doth demise, &c. unto the said E. & G. the granite quarry and quarries, situate in Baltimore Co. near the Patapsco river or falls, on land of said Owings, called and known by the name of 'Fox Rock, or Fox Rock Quarry,' being the same which was, or were lately possessed and worked by Wood & Co. and now by Joseph Yager & Co. and which are more particularly described, &c.; and also the leave, license, right [**2]  and privilege of quarrying, getting out, working and carrying away granite stone from said quarry or quarries, to the use and benefit of said E. & G. &c. for the term of six years, from and immediately after the 10th November next ensuing the date hereof, in such quantities, from time to time, as the said E. & G. may have occasion to use in their business, or may choose to quarry--not less than forty thousand cubic feet in each year of the said term--together with, &c. the use of so much, &c. yielding and paying to the said N. O. his, &c. for the use of the premises and the stone to be quarried and go out of said quarry or quarries, during said term of six years, one cent and one quarter of a cent for each and every cubic foot of stone which shall or may be so quarried and got out therefrom by the said E. & G.--they hereby binding themselves to quarry and get out at least forty thousand cubic feet in each and every year during said term, or to pay for that quantity at the rate aforesaid, if they fail to quarry and get out that quantity, and all over to be paid for, &c. And the said N. O. for, &c. doth hereby covenant with the said E. & G. that they, the said E. & G. upon the payment [**3]  of the said rent or quarry leave, and performance of the covenants above reserved and mentioned, on their part to be paid and performed, shall and may quietly possess, use, occupy and enjoy the said Fox Rock Quarry and premises, included within the following lines, viz: commencing at, &c. a stone marked No. 1, and running east to a white oak tree, marked with three notches; then north-east to a stone marked No. 2; then north to a stone marked No. 3; then west to a stone marked No. 4, and then to the place of beginning, for the purpose of freely quarrying, getting out, working and carrying away stone therefrom, at their discretion as aforesaid, during," &c.

The plaintiffs further proved that the defendants were in possession of the demised premises during the years 1840 and 1841, &c.; that the plaintiffs were executors of N. O. before the bringing of this suit,--and that he died in December, 1841.

The defendants then read in evidence the notice served on plaintiffs counsel under the leave in this cause, of the matters of defence relied on by them, and a lease dated 25th July, 1836, from Beale Owings and Cornelius H. Owings, who it is admitted had title at said date to make [**4]  such lease, to Caleb D. Owings, for all their estate and interest--being two-third parts of and in, all that piece or lot of ground within the limits of the farm of Nicholas Owings, being in Baltimore Co. which lot of ground is called Fox Rock, and which was granted and conveyed by said Nicholas Owings to the said Beale, Cornelius H. and Caleb D. Owings, by indenture, bearing date on the 20th November last past, and recorded, &c. and which is contained within the description following--that is to say: beginning for the same at a stone marked No. 1, standing on the outline of a tract of land, called "Wells and Howard's First and Second Adventure," being a division line between the lands of the said Nicholas Owings and a certain Noah Worthington, and being south of Swett & Co's rail-road, and running thence east to a stone marked No. 2; then running north to a stone marked No. 3, planted in an old field, known by the name of Frogs' Field; then west to said division line, between the lands of the said Nicholas Owings and Noah Worthington, running to a stone marked No. 4,--and then south, running with said division line, to the place of beginning; containing six acres, more or less--to [**5]  have, &c. the two-thirds of the piece or parcel of ground hereby intended to be demised unto the said C. D. O. his, &c. for the term of five years, accounting from the 25th July, 1836, and thence next ensuing, yielding and paying therefor yearly, and every year during said term, to the said B. O. and C. H. O. &c. the rent or sum of six cents, if demanded, and no more.

The defendants also read in evidence the assignment of said lease, dated the same day, from said Caleb D. Owings to Charles Wood, Joseph Yager, John D. Stewart and Edward Green. And offered to prove by said Yager, that said Caleb was a partner with said Wood, Yager and Stewart, but withdrew from said firm about 1839; that on 11th June, 1840, the defendants were the owners of one undivided half part in interest in said lease, dated 25th July, 1836, and said Yager of the other half part; and that the defendants and said Yager remained possessed of said demised premises, under and by virtue of said lease of 25th July, 1836, until its expiration in July, 1841. The defendants offered all said evidence for the purpose of showing that the lease now sued on did not take effect until 25th July, 1841.

Whereupon the plaintiffs,  [**6]  by their counsel, objected to said offered evidence, and every part thereof; but the court, (PURVIANCE, A. J.) overruled said objection, and admitted the said offered evidence, and every part thereof, to be given to the jury, in reduction of the amount claimed in this action. The plaintiffs excepted.

The other exceptions are sufficiently stated in the opinion of this court.

The verdict and judgment of the County Court being against the plaintiffs below, they appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED--PROCEDENDO AWARDED.  

HEADNOTES:

On the 11th June, 1840, N. O. leased to E. & G. a granite quarry, known by the name of F. R. with the license of quarrying and getting away stone, for the term of six years, from 10th November following, and the lessees went into possession. On the 25th July, 1836, B. & C. who had title, leased to D. all their estate and interest, being two-third parts of all that lot, within the farm of N. O. called F. R., for the term of five years, which before the action brought, came to E. & G. by assignment, as to one-half. The metes and bounds in both leases were the same. In an action by N. O. for the rent due 1st Nov. 1841, under the lease of June, 1840. Held:

1st. That the lease of 1836 was a grant of the superficies of the soil, and did not pass a right to the quarry, as it was not opened at the date of that lease.

2d. That this case is not one of conflicting leases; the deed of 1836 being a lease of the surface of the soil; that of 1840 a lease or license to quarry stone.

3d. If a man hath land, in part of which there is a mine open, and he leases the land, the lessee may dig the mine; as the mine is open, and he leases all the land, it shall be intended that his interest is as general as his lease.

4th. Making of new mines is waste, unless the lease is of all mines on the land.

5th. A declaration in a lease dated in 1840, that a quarry "had been recently or a short time ago, possessed and worked by W." cannot be understood as meaning that the quarry was opened four years previously.  

COUNSEL:
By PARRAN and BRENT for the appellant, and

By HINKLEY and NELSON for the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*264]  MARTIN, J., delivered the opinion of this court.
In this case an action of debt was instituted in Baltimore County Court, by the appellants against the appellees, to recover the sum of $ 500, the amount alleged to be due on the 10th November, 1841, for one year's rent of stone quarry called the Fox Rock Quarry, which had been demised to the appellees by Nicholas Owings, in an indenture bearing date the 11th June, 1840, for the period of [**7]  six years, to take effect from the 10th November, 1840.
The defendants pleaded to this action nil debet, and under the leave granted to rely upon any defence that could be specially pleaded, gave notice that they would offer in evidence a lease of the 25th July, 1836, for the Fox Rock Quarry, made by Beale Owings and Cornelius Owings to Caleb D. Owings, and the assignment of two-thirds parts thereof by Caleb D. Owings to Wood & Yager, and which was outstanding, unexpired, and in full force, at the date of the lease on which this action was brought, so that the lease of the 11th June, 1840, could not commence until the lease of the 25th July, 1836, had terminated or expired.
At the trial below, the plaintiffs offered in evidence the lease of the 11th June, 1840, and proved generally that the defendants were in the occupation of the demised premises in 1840 and 1841, and in this posture of the case, and in the absence of all explanatory or defensive testimony, the defendants were to be regarded in legal contemplation, as in the possession and enjoyment of the quarry in question, under the lease of the 11th June, 1840, and were therefore disabled from impugning [**8]  or 

 [*265]  controverting the title of their lessor, Nicholas Owings, the appellants' testator.
At this stage of the cause, the defendants, for the purpose of showing that they had been evicted or interrupted in their right of possession as lessees of the Fox Rock Quarry, under the lease of the 11th June, 1840, and that they were not responsible for rent prior to the expiration of the lease of the 25th July, 1836, offered in evidence the lease of the 25th July, 1836, in connection with the oral testimony of Yager, who proved that on the 11th June, 1840, the defendants were the owners of the undivided half part in interest in the lease of the 25th July, 1836, and that the said Yager was the owner of the other half part, and that the defendants and said Yager remained possessed of the said demised premises under and by virtue of the lease of the 25th July, 1836, until its expiration in July, 1841. The plaintiffs below objected to the admissibility of this evidence, but the objection was overruled and the evidence received. And the testimony offered by the plaintiffs, as exhibited in the second, third and fourth bills of exceptions, having been rejected, upon the [**9]  application of the defendants, the court instructed the jury, that upon the evidence aforesaid the plaintiffs could not recover any rent stipulated to be paid anterior to the 25th July, 1841, because the evidence, if believed by the jury, shows such an interruption of the possession by the defendants under the lease now in suit, as precludes the plaintiffs from recovering any rent anterior to the 25th July, 1841.
The counsel for the plaintiffs excepted to the ruling of the court with respect to the admissibility of the testimony offered by the defendants in the first exception, and to the instruction given by the court to the jury as exhibited in the fifth exception. Both the exceptions raised substantially the same question. The exposition of the law of the case, to be found in the opinion of the court, as expressed in the fifth exception, was predicated upon the evidence introduced under the first exception, and if the court erred in admitting the testimony presented by the plaintiffs in the first exception, their instruction to the 

 [*266]  jury was necessarily erroneous, as under such circumstances there would be no evidence to sustain it.
It is apparent [**10]  from the statement we have thus given of the pleadings in this cause, that the claim interposed by the defendants for a reduction and apportionment of the rent can only be maintained upon the ground that a case was presented of conflicting leases, and the point made by the counsel for the plaintiffs on this branch of the argument was, that there was no incompatibility between the lease of the 25th July, 1836, and the lease of the 11th June, 1840, because the first lease operated only as a grant of the superficies or surface of the soil, and did not pass a right to the quarry, which was for the first time demised to the defendants by the lease of the 11th June, 1840.
In Saunders' case, reported in 5 Coke 22, it was adjudged:--
1st. If a man hath land in part of which there is a coal mine open, and he leases the land to one for life, or for years, the lessee may dig for it; forasmuch as the mine is open at the time, and he leases all the land, it shall be intended that his interest is as general as his lease is; that is, that he shall take the profit of the land, and by consequence, of the mine in it.
2d. If the mine were not open, but included in the bowels of the earth at [**11]  the time of the lease made in such case by leasing of the land, the lessee cannot make new mines, for that shall be waste.
3d. If a man hath mines hid within his land, and leases his land and all the mines therein, then the lessee may dig for them, and therewith agrees 9 E. 4, 8, where it is said, that if a man leases his land to another, and in the same there is a mine, (which is to be intended of a hidden mine) he cannot dig for it; but if he leases his land and all mines on it, then although the mines be hidden, the lessee may dig for them.
By an examination of the lease of the 25th July, 1836, it will be found that there is no grant of the Stone Quarry; the expressions in the lease are: all their estate and interest, being two-thirds part of and in all that piece or lot of ground within the limits of the farm of Nicholas Owings, being in Baltimore 

 [*267]  County, which lot of ground is called Fox Rock; and it is perfectly clear, that the quarry demised to the defendants by the lease of the 11th June, 1840, was not covered by the lease of the 25th July, 1836, unless the quarry was opened at the date of the lease.
The lease of the 11th June, 1840, contains [**12]  the following description of the quarry granted by Nicholas Owings to the defendants; "the granite quarry and quarries situated in Baltimore County, near the Patapsco river or falls, on land of said Owings, called and known by the name of Fox Rock or Fox Rock Quarry, being the same which was or were lately possessed and worked by Wood & Co. and now by Yager & Co.;" and these expressions were relied on by the counsel for the appellees, as showing that the quarry was open on the 25th July, 1836. But certainly no such deduction can be drawn from the use of these descriptive expressions. When the lessor, on the 11th June, 1840, said, that the quarry which he was describing had been recently, or a short time ago, possessed and worked by Wood & Co. he cannot be understood as meaning that the quarry was opened, and in the occupation of the persons to whom he referred, as long back as the 25th July, 1836, a period of nearly four years.
We have examined the testimony delivered by Yager, for the purpose of ascertaining if there was any fact stated by the witness, from which the jury could infer that the quarry in question was open at the date of the lease [**13]  of 25th July, 1836. But no such fact is supplied by the testimony of this witness. He says, that on the 11th June, 1840, the defendants were the owners of one undivided half part in interest in the lease dated the 25th July, 1836, and he, the witness, of the other half part, and that he and the defendants remained possessed of the demised premises under and by virtue of the lease of the 25th July, 1836, until its expiration in July, 1841; and when the witness speaks of being possessed of the demised premises, we understand him as referring to the lot called the Fox Rock, granted by the lease of the 25th July, 1836, and if he could be regarded as alluding to the quarry demised by the lease 

 [*268]  upon which this suit is brought, it could not be relied on as indicating that the quarry was open on the 25th July, 1836, as his evidence does not profess to carry the possession of himself and the defendants further back than the 11th June, 1840.
We think that upon the circumstances of the case, as presented by the first bill of exceptions, the lease of the 25th July, 1836, must be treated as granting only the superficies or surface of the soil, and conferred upon the lessee [**14]  no authority to dig for or work the quarry mentioned in the proceedings, and that there was, therefore, no incompatibility between the rights demised by the first lease, and those granted by the lease of the 11th June, 1840. And this being so, it follows that the defendants, as the lessees of the Fox Rock Quarry, could not have been impeded or interrupted in the use and enjoyment of that quarry by the lease of the 25th July, 1836.
The pretension of the defendants that they were entitled to a reduction and apportionment of the rent which had become due on the 11th November, 1841, was not sustained by the evidence in the cause, and the court below erred in admitting the testimony offered by the appellees to the first exception, and in the instruction which they gave to the jury in the fifth exception.
The testimony offered by the plaintiffs below, in the second, third and fourth bill of exceptions, was proposed to be introduced for the purpose of repelling the evidence which had been produced by the defendants, as exhibited in the first bill of exceptions; and as according to the view we have taken of that evidence, it ought not to have been received by the court,  [**15]  and is to be treated as not in the cause. The questions decided by the County Court with respect to the admissibility of the testimony offered by the appellants, have become mere abstract propositions, upon which it is not necessary for this court to express an opinion. Practically, the testimony was properly rejected, for it results from the opinion we have expressed upon this case, that the right of the appellants to recover the sum of $ 500, as the amount of rent due to them at the period of the institution of this action, was not affected by the lease of the 25th July, 1836.

 [*269]  The judgment of the County Court is reversed on the first and fifth bill of exceptions, and affirmed upon the second, third and fourth bills of exceptions.
JUDGMENT REVERSED--PROCEDENDO AWARDED.  

15 of 33 DOCUMENTS 

MENDEZ I. COHEN vs. JAMES V. WAGNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 236; 1847 Md. LEXIS 64 

December, 1847, Decided 

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

This cause was before this court at this term (ante 97) in another form; the statements there reported constitute a part of this, and with the additional statements contained in the opinion of the judge of this court, show the grounds upon which the appellant excepted to the final ratification of the sale to the appellee.

In support and denial of the exceptions to the ratification of the reported sale, the following depositions were taken--much of the proof not being considered material by the reporter, is however omitted.

Jabez M. Gill, on the part of the exceptant, deposes: that he knows the property called the Holliday Street Theatre--has known it for some years; several years ago he was in it, frequently did repairs for four years; deponent is a carpenter, a master builder, a competent judge of property in Baltimore. The ground on which the Theatre is built, is worth $ 150 per foot, independently of the buildings erected on it; the structures on it are worth from $ 17,000 to $ 18,000, including the scenery and fixtures.

(Cross-examined.) He does not know the present condition of the Theatre.

Francis Meyer, on the part [**2]  of exceptant, says: that he knows the Holliday Street Theatre--believes that $ 20,000 is a fair price for it; it would bring the interest of that amount if the affairs were well administered; deponent was at the sale of the property at the Exchange, on June 20th, 1846; he heard $ 13,000 cried by the auctioneer; there was no advance on that--the auctioneer cried it a long time at that amount, and there was no further bid.

(Cross-examined.) Deponent is a large stockholder in Front Street Theatre--he has not received one cent of interest on his investment since 1837.

Joseph Green, on the part of the exceptant, deposes: that he knows the Holliday Street Theatre--has known it since 1830; deponent has confidence in his judgment of the value of property in Baltimore; thinks the value of the Holliday Street Theatre, excepting scenery and decorations, is $ 15,000; the value of the scenery and decorations in connection with the Theatre, if the present manager conducts the Theatre, is $ 1,000; if he should not conduct it, the value would be about $ 50; knows nothing of the value of property on Holliday Street; it is the prettiest little Theatre in the United States; it is the best Theatre [**3]  for sound; it is one of the very best Theatres for its size in the United States; it has a good location--the building is not in good order; deponent was treasurer of the Theatre from 1834 to 1837; during that time the Theatre was respectively under the management of the following persons, &c. Theatrical property has been very much depressed every where for the last ten years. Deponent was present at the sale of the Holliday Street Theatre; he did not see Mr. Cohen there--he might have been there; the auctioneer cried the bid for some length of time before he struck the property off; when the deponent went to the sale he had no idea of bidding, but if he had seen two friends, whom he has since seen, he would have bid for the property.

George W. Porter, on the part of the exceptant, deposes: that he is the superintendent of the Reading Room at the Exchange--was present at the sale of the Holliday Street Theatre, on June 20th, 1846. It was deponent's place to be present at the sale, and ascertain whether a sale had been made--deponent derived his information as to sales from the auctioneer--deponent doubted from what had transpired at the sale, whether the sale was a bona fide one.  [**4]  The property was set up in a formal manner, as is usual on real sales. Cannon, Bennett & Co. acted as auctioneers--Mr. Bennett was crier. Mr. Cannon made a bid of $ 13,000, which was the only bid made--the bid was dwelt on for several minutes; in consequence of the manner of the sale, deponent doubted whether it was a real sale; it is not usual for auctioneers to make the first bid. When the property was knocked down, supposing that it was not a real sale, deponent applied to Mr. Cannon for information on the subject. Mr. Cannon stated that he was not certain, but that deponent should make the charge for the use of the room, and if it turned out otherwise, the matter would be corrected. Mr. Cannon further stated, that he was instructed to bid $ 13,000--to dwell upon it, and if no advance was made, to knock it down to Mr. James V. Wagner.

(Cross-examined.) Mr. Cohen was present at the sale. If any person had chosen to bid above $ 13,000, they had ample time to do so. The moment the property was struck off, Mr. Wagner's name was announced as the purchaser.

George Brown, produced on the part of the exceptant, deposes and says: that he knows the Holliday Street Theatre; he has [**5]  known that property since 1805; his dwelling is in the same street, nearly opposite. The value of the property is difficult to ascertain, the location not being desirable to some persons. Deponent was present at the sale of the Theatre--he went from curiosity--supposed that the property might bring $ 15,000.

(Cross-examined.) When the property was knocked off, deponent took it for granted that it was a sale--he did not know who made the bid. Deponent was asked by a friend why he did not purchase the property, as the price was a low one; deponent answered, that if he had known it was going at $ 13,000, he might have bought it.

Robert Carey Long, on the part of the exceptant, deposes: that his profession is that of an architect. He knows the Holliday Street Theatre--has been in it and examined it professionally. From the size of the lot, and the character of the buildings, deponent's impression was, that the property was worth at least $ 20,000. That impression was founded on the size of the lot and the condition of the buildings. When deponent saw the property advertised, his expectation was that it would bring at least $ 20,000.

William C. Conine, produced on the part [**6]  of the exceptant, affirmed: that he was present at the sale of the Holliday Street Theatre, in June, 1846, from the time the bidding commenced until the property was knocked down. Deponent heard Mr. Cannon say that he was authorized to make a bid of $ 13,000. Deponent does not mean to say, that he is certain that he heard Mr. Cannon say he was authorized to bid $ 13,000, but that Mr. Cannon bid $ 13,000, and deponent inferred that he, Mr. Cannon, was authorized to make the bid. It is a common case for auctioneers to start property by making a bid. His idea was that the bid was for the purpose of settling up the matter among the proprietors. Deponent thinks he saw Mr. Wagner at the sale--did not see him bid or authorize a bid. The property was cried for a short time, deponent does not know how long, but for a few minutes. Before Mr. Wagner left the room, it was understood that Mr. Wagner was the purchaser. The property was not cried the usual length of time, for property of the value of the Holliday Street Theatre; there was no competition--the property was knocked down very soon. Deponent does not know the value of such property--he cannot say that it was cheap--thought at the time [**7]  it was cheap.

John B. Cannon, produced on the part of James V. Wagner, deposes and says: that Cannon, Bennett & Co. were the auctioneers of the sale of the Holliday Street Theatre, at the sale of June 20th, at the Exchange. Deponent was not employed by Mr. Wagner in any manner or shape to purchase the Theatre. Previously to the sale, deponent was walking about listening to the conversation between the by-standers, in the course of which either Mr. Wagner or the trustee, remarked that Mr. Wagner would give $ 13,000 for the property. Mr. Bennett announced the sale as a free and peremptory sale; read the advertisement, and asked for a bid several times: no one bid at first. Deponent, who was standing out, remarked "you have a bid of $ 13,000;" after that, Mr. Bennett cried the property as long as usual; deponent went to the stand; Mr. Bennett asked whose bid it was? Deponent privately stated to Mr. Bennett that it was Mr. Wagner's bid. Mr. Bennett dwelt upon the bid a long time, as long as if he had been selling Barnum's Hotel. Deponent has sold a very large amount of real estate in the City of Baltimore. Mr. Bennett dwelt longer on the bid than deponent would have done by some time.  [**8]  Deponent being asked by the solicitor for the exceptant, how long the property was cried, answers that he cannot specify the length of time;--being asked if it was ten minutes, answers that he cannot say;--being asked if it was five minutes, answers that he cannot say.

(Cross-examined.) Deponent was not authorized by any one to make a bid; he merely heard that Mr. Wagner would give $ 13,000, and made the offer himself. When he mentioned to Mr. Bennett that he had a bid of $ 13,000, he, deponent, did not say he was authorized to offer that sum. Prior to the sale, when deponent asked Mr. Latrobe what price was expected, he said he did not know--the highest price that could be got for it; that the property was to be sold.

Deter Barger, produced on the part of James V. Wagner, deposes: that he has been engaged in building and affairs connected with property in the City of Baltimore for thirty years; has considerable knowledge of the value of property in the City of Baltimore, and knows the Holliday Street Theatre and lot. If deponent could see his way clear, he would give $ 12,000 for the Holliday Street Theatre and lot.

(Cross-examined.) In estimating the Holliday Street [**9]  Theatre property, and expressing his willingness to give $ 12,000 for it, he predicates his opinion on the basis that real estate ought to yield ten per cent. on the amount of the investments.

The witness being asked by the solicitor for the exceptant what property would be worth, provided it would bring regularly an annual rent of $ 1,000, and besides that, a revenue of $ 1,260 for free tickets to be sold by the proprietors, and $ 340 as rent for the bars--received by the proprietors in addition to the above sums, and also the reserved right of an entire stage-box--what then would deponent consider the value of the property? To which he answered, that if he had a guarantee of such a revenue, his estimate of the value of the property would be accordingly. The value of the property where the Theatre stands--there being no alley in the rear--is not more than from $ 4 50 to $ 5 per front foot on lease. The walls of the Theatre building are substantial; the roof leaks, and is defective; the staging is also defective.

Joseph Robinson, produced on the part of the exceptant, deposes: that he knows the Holliday Street Theatre--has known it ever since it was built. In 1839 or 1840,  [**10]  it was offered for sale by Mr. Latrobe at the Exchange. Deponent was authorized by a chartered company to bid $ 25,000 for it; he did not bid, but authorized Mr. Joshua Dorsey, by written authority, to bid that amount. Mr. Dorsey bid $ 25,000, and a few hundred over by deponent's authority. The property was then bid in at a price beyond Mr. Dorsey's bid, and Mr. Latrobe informed defendant that it was bid in; that it did not go to the limits. Deponent thought that the Holliday Street Theatre would bring $ 15,000 at the sale; has sold a large mass of proprietor's tickets; the price depended on the season and the management. When Mr. Maywood was manager of the Holliday Street Theatre, he bought up eighty or ninety of the season tickets at $ 12 per annum; at that time the price of box tickets was $ 1--of pit tickets, fifty cents each; at present the price of box tickets is fifty cents--of pit tickets, twenty-five cents each; last fall deponent sold one season ticket for Randall H. Moale, Esq. for $ 8; he might have sold more, but does not recollect them; that season was from early in September to the 1st of January. Deponent always sold Mr. Benjamin I. Cohen's tickets for from $ 3 50 to [**11]  $ 10 per annum.

(Cross-examined.) Theatricals for the last fifteen years have been at a very low ebb in Baltimore--the managers generally failed. No rent was received from Burton, and but little from Ward. Even when the trustees received no rent, the proprietors nevertheless used their season tickets.

James Gifford, produced on the part of James V. Wagner, deposes: that he is well acquainted with the Holliday Street Theatre; he took charge of the house in the year 1840. The house is in a very bad condition, &c.; he thinks it will require from $ 6,000 to $ 7,000 to put the Theatre, within the four walls, in complete order. In making his estimate, when deponent speaks of the expense necessary to put the Theatre in order, he merely means what would be necessary to take out the part which is decayed and renew it. Deponent being asked by the solicitor for the exceptant for a specification of the items of his estimate, says that he has no estimate of the items. Deponent shored up the stage last winter, and believed at the time that if the stage had not been shored, it would have fallen; the side which was shored about four or five years ago is now settling; the stage cannot be [**12]  used to work the machinery without shoring; the machinery cannot be properly worked by shoring the stage.

(Cross-examined.) The Theatre is now is use; the stage is used--the machinery is used; as a make-shift, the scenery is used; the houses are tolerably fair; the last night was a fair night; the night previous the house was very well filled; the three nights preceding the injunction were all fair houses. Deponent has done all the carpenter's work of the Theatre; cannot tell the amount of his bill for any of the three years past.

Jacob I. Cohen, Jr. produced on the part of the exceptant, deposes: That he was present at the sale of the Holliday Street Theatre, on June 20th, 1844. Deponent answered that he did not suppose the property would be sold at that time, from what he had heard before the day of sale, and his observations after he entered the Exchange before the sale. By his expressions of what he had heard before the day of sale, he refers to a conversation which he had with Mr. Latrobe, the trustee.

Some days before the sale, deponent called on Mr. Latrobe, to obtain information in relation to a claim which deponent had as a stockholder. Among other matters,  [**13]  deponent inquired of Mr. Latrobe as to the probable price which the Theatre might bring, and whether he would limit the price; deponent and Mr. Latrobe spoke of the former occasion, when the Theatre had been knocked off for $ 20,000. It was a matter of doubt with both Mr. Latrobe and the deponent, whether the Theatre would bring $ 20,000 at this time. Deponent enquired of Mr. Latrobe if he intended to fix any limit under which the Theatre would not be sold? He, Mr. Latrobe, said no; that he had not fixed any price, but would be governed by that discretion which trustees generally exercise in relation to property in their hands; that he would make up his mind between that time and the time of sale, as to the price. He seemed to settle down, so far as deponent could judge, at $ 15,000 as the price which the Theatre should bring at the time. Mr. Latrobe remarked, that although it might not bring $ 15,000 at this time, at some future time it might bring a less amount; if so, he would consider himself justified in accepting a less sum than $ 15,000, after having exercised the discretion which he thought he might use in relation to the matter. Deponent parted from Mr. Latrobe under the conviction [**14]  that he would not sell the property for less than $ 15,000 on the day of sale; that conviction was produced by Mr. Latrobe's remarks during this conversation. Deponent attended the sale, which took place some twelve or fifteen days after the above conversation, under the conviction arising from this previous conversation with Mr. Latrobe, that the property would not be sold for a less sum than $ 15,000. From the small number of persons attending, the character of the persons attending, and the other circumstances, deponent supposed that there would be no sale. Deponent saw Mr. Wagner at the sale, did not suppose that he was interested in the sale, as he was not a stockholder. The crier read off the advertisement, and was then ready for a bid. Mr. Cannon then bid $ 13,000; the bid was cried the usual time and in the usual manner; there was no other bid given and the property was knocked off; the offering did not occupy a long time; about the time the bid was closed a few other persons came into the Rotunda; after the property was knocked down, deponent on retiring, enquired of Mr. Cannon if the property was sold, he said he did not know, that he had made the bid for Mr. Wagner. After [**15]  the conversation which deponent had with Mr. Latrobe, deponent was firmly under the impression that the Theatre would not be sold at a price under $ 15,000. Deponent and his brother, Mendez Cohen, went together to the Exchange to the sale. In going down he remarked to his brother that he did not think there would be any sale--not that he supposed the Theatre would not bring over $ 15,000, but that he thought some arrangement would have been made to supersede the necessity of a sale.

When the property was cried at $ 13,000, deponent did not suppose it was a real bid, but thought it was one such as auctioneers generally make to start property; he would have gone from the Exchange under the impression that the property was not sold, if he had not made the enquiry of Mr. Cannon, and received the answer which he has above stated.

The sale was on Saturday, a day on which neither deponent or his brother transacted any business. If Mr. Mendez Cohen had been disposed to purchase the property, his ability to purchase it at $ 15,000, or over, is ample.

Deponent knows the Holliday Street Theatre, he has known it for a long time; his estimate of its value would depend on circumstances;  [**16]  for instance, some persons might be disposed to purchase a Theatre, some might not. In the hands of a prudent person, capable of managing the property, it would be low at $ 15,000; deponent thinks that the trustee, under the circumstances of the case, would have been justified in selling at that price; deponent was formerly owner of a share in the stock of the Theatre; he was not in the habit of selling season tickets, but did so once or twice; he sold one some time last year for the season at $ 8; that season did not embrace a whole year, there are several seasons in the year.

On being interrogated by the solicitor for Mr. Wagner, deponent answered that he saw Mr. Wagner, Mr. Conine, Mr. Glenn, Mr. Brune, and Mr. George Brown at the sale; he supposes that either of those gentlemen was amply competent to purchase. Mr. Brown lives nearly opposite the Theatre, and is one of our wealthiest citizens.

(Cross-examined.) Deponent did not announce at the sale to any person that there was a limit put on the Theatre; he did not communicate to any of the above named persons that the property would not be sold under $ 15,000. On offering the property the auctioneer read the advertisement,  [**17]  which stated that the sale would be peremptory. The auctioneer did not say, so far as deponent heard, that he had a bid, and the sale would be positive. If deponent had heard any thing of that kind, he does not think that he would have asked Mr. Cannon if the property had been sold.

During the time that deponent and his brothers were engaged in banking, their bank was open on Saturday to receive deposits and pay checks. In any matter which concerns the public, and not himself, deponent feels it his duty to attend to business of that character.

Deponent does not know that his brother ever asked him to contribute towards the expenses of this proceeding. If his brother called on him, he would feel himself bound to contribute. Deponent does not know of any contributions of $ 2 towards defraying the expenses of these proceedings. His brother, Mendez Cohen, and himself reside together--but they have never had any conversation as to the manner in which the expenses of the exceptions are to be borne.

A great part of the shares of stock now held by Mr. Mendez Cohen, were formerly the property of J. I. Cohen, Jr. & Brothers. Mr. Mendez Cohen paid for them at the rate of $ 150 [**18]  per share. Deponent has now no interest in the Theatre, having disposed of the only share which he held, for the purpose of becoming a witness in this case--understanding that course was necessary for that purpose. He was not aware of any meeting of stockholders--nor was he aware that any meeting of the stockholders was held, at which it was resolved that the Theatre should be limited at $ 15,000; nor did he communicate such a fact to Mr. Latrobe. Deponent was not aware of any meeting of stockholders. Neither deponent, or his brother, instructed Mr. Latrobe to limit the price of the Theatre at $ 15,000.

John H. B. Latrobe, produced by James V. Wagner, deposes: That he had one or two conversations with Mr. Mendez Cohen, and one conversation with Mr. J. I. Cohen, Jr. prior to the day of sale, at the office of deponent. Both of these gentlemen enquired as to the limit of the price of the Theatre, and whether deponent had fixed one: and to both of these gentlemen, deponent said explicitly and emphatically that he had fixed no limit, but would make enquiries on the subject, and would fix a limit before the day of sale, &c. &c.

From the day of deponent's interview with Mr. Cohen [**19]  to the day of sale, deponent has no recollection of having seen him; saw him on the day of sale, but had no conversation with him. Deponent has no recollection of Mr. Cohen objecting, during the interview, to the sale having been fixed on Saturday. Deponent fixed on the day without reference to Mr. Cohen, and would have fixed on any other day if it had occurred to him, and Mr. Cohen had requested it, as a matter of courtesy to a gentlemen interested in the matter. On the day of sale, Mr. Mendez Cohen mentioned to deponent that it was the Jewish Sabbath, which was the first time that it occurred to him, as he now recollects.

On the day of the sale of June 20th, 1846, at the Exchange, deponent took a seat for a few moments at the side of Mr. Mendez Cohen. A very short time before the sale, he asked deponent what was the limit. Deponent replied $ 13,000. Mr. Mendez Cohen expressed his strong dissatisfaction. Deponent suggested to him that he should bid himself, as a mode of protecting his interests. He said that was his Sabbath, and he could not do so. Deponent then replied that there were persons present who would do it for him, which Mr. Cohen said he could not do it--deponent [**20]  understanding Mr. Cohen to decline doing by another what he could not personally do.

The auctioneer soon after commenced crying the property. Deponent's impression is that the auctioneer said that the property was fairly in the market; but does not recollect his saying that there was a real bid.

Deponent being asked by the solicitor for exceptants, what interviews he had with Mr. Mendez Cohen, referred to in his answer, says that he had a conversation with Mr. M. Cohen in the court-room--he being then on the jury--and is under the impression that he had another at his, deponent's office, although about this is not certain.

The purport of these conversations was to ascertain if deponent had fixed a limit for the price; in which he stated that he had fixed no limit, but would make enquiries, and do so before the day of sale. In the course of that conversation, deponent may have said that he would see some of the stockholders on the subject, but he has no recollection of having said so.

The only conversation deponent had with Mr. Glenn was on the day of sale at deponent's office, a few hours before the sale, and at the place of sale, as mentioned in deponent's answer [**21]  to the exceptions in this cause.

When Mr. Glenn called on deponent at his office, he asked him what was his limit of sale; deponent's answer was, as made in his answer to the exceptions, from $ 12,000 to $ 15,000. Mr. Glenn then said that he would give $ 13,000 for the property. Deponent is not certain whether Mr. Glenn said that he would give or find a purchaser at $ 13,000. This conversation was a brief one. And the next time deponent saw Mr. Glenn was at the place of sale. Deponent did not regard the price bid by Mr. Benjamin I. Cohen, at the sale in 1842, as fixing any value on the property. He thought it an arrangement among the parties interested.

Francis Bennett, produced on the part of James V. Wagner, deposes: that he is one of the firm of Cannon, Bennett & Co. Deponent is the auctioneer who sold the Holliday Street Theatre. At the sale of June 20th, 1846, there was a respectable company present. The property was set up, and announced to be a peremptory sale--read so from the advertisement, which was headed peremptory sale; deponent also named several different times before he knocked the property off, that it would be a peremptory sale; that he had an actual bid,  [**22]  and the property would be sold, without reserve, if there was not another dollar bid upon it.

Deponent dwelt on the bid longer than usual--much longer than he has frequently done in selling large pieces of property;--he was informed that the bid was Mr. Wagner's before he first cried it.

(Cross-examined.) Mr. Cannon informed him before he cried it that it was Mr. Wagner's bid. Mr. Cannon was standing in front of the stand--stated to deponent that Mr. Wagner bid $ 13,000; this was directly after deponent read the advertisement. Mr. Cannon said in a tone of voice, sufficiently loud for the auditory to hear him, that it was Mr. Wagner's bid. There being but one bid on the property, deponent cried it much longer than if there had been three or four bids. Mr. Wagner himself made no bid. Mr. Latrobe informed deponent that it was to be a peremptory sale. Deponent heard no bid, except Mr. Cannon's.

The estimate of necessary repairs on the Theatre was $ 4,331.

After these depositions had been taken, the appellant, by his petition, offered to take the property at $ 15,000,--and if the sale should be set aside, he offered to start the bidding at that sum,--and if the property [**23]  should be struck off to him at that price, to pay all expenses incident to a second sale,--and if a deposit is required, he is ready to make the same.

On the 9th November, 1846, the Chancellor (BLAND) overruled the exceptions and ratified the sale, with costs: from which order Mendez I. Cohen appealed to this court.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

If a party interested in real property, decreed to be sold by a trustee of the Court of Chancery, should apply to such trustee to know at what sum he intended limiting the sale, and was informed,--and if a few minutes before the sale, the trustee were to inform such party that his limit was several thousand dollars less, and in consequence thereof, the interest of such party had been prejudiced, the court would not ratify a sale at such lesser sum.

Where property was offered for sale under a decree on a Saturday, the Sabbath of a party interested, and who was prevented thereby from making arrangements to purchase the same, and he knew of the day fixed for sale several weeks before it took place, it was his duty to have applied to the trustee to change the day. Omitting to do this, his failure must be regarded as a waiver of all objection to the day of sale as being his Sabbath, and he must abide the consequences of his own omission.

The practice of opening the biddings upon a Chancery sale upon a mere offering of an advance upon the purchaser's bid, has not been adopted in this State.

Mere inadequacy of price in a Chancery sale correctly conducted, is not, of itself, sufficient ground for vacating the sale.

A fair sale of property for $ 13,000, alleged to be well worth $ 15,000 or $ 20,000, will be ratified. There was proof, however, in this case that extensive repairs were necessary to place the houses in good condition.

A sale made in conformity to the decree will not be set aside, or its ratification refused for mere inadequacy of price, unless the court believe that such inadequacy was the result of fraud, surprise, mistake, or unfairness in the sale.

Inadequacy of price is, for the most part, regarded as the inducement to the action of the court, after the establishment of a cause deemed sufficient to warrant its nullifying interposition.

Where a stranger called on the trustee of a court about to offer property at public sale, and inquired what was his limit of sale, and was informed from $ 12,000 to $ 15,000, and the stranger said he would give $ 13,000, or find a purchaser at that sum; and the auctioneer, the agent of the trustee, casually heard in a conversation between by-standers, that either W. or the trustee, remarked that W. would give $ 13,000 for the property. The auctioneer then said to his clerk, who was in fact conducting the biddings, "you have a bid of $ 13,000"--the purchaser's name not being announced--and the clerk, after crying the property for some time, receiving no advance upon the bid from the company assembled, struck off the property to W. who agreed thereto. Held, that whether the bid was made by W. or by some other person acting for him, was immaterial. It is not necessary or usual to announce the name of the bidder, nor is it necessary to be known.

A communication of the trustee's limit as to price, made by him to the auctioneer employed to make a sale, and if he got no bid above that, to strike it off to W. is no objection to a sale. It does not prevent any person from bidding a larger amount, and such a course does not make it a private sale--but in form and substance, it is a public sale.

Inadequacy of price may be so gross and inordinate as to furnish evidence of fraud or misconduct in a trustee, such as would vitiate his sale.  

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

By REVERDY JOHNSON and MCMAHON for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*250]  DORSEY, J., delivered the opinion of this court.
Had the proof sustained that part of the exceptant's first exception, which alleges that the said Mendez I. Cohen, being a stockholder, and interested in the proceeds of said property, after the sale was advertised by the said trustee, and about two or three weeks before the sale, applied to the said J. H. B. Latrobe to know at what sum he intended limiting the price of the sale of the said Theatre and property, and was informed $ 20,000; that a few minutes before the sale, the said Latrobe informed the said Cohen that his limit was $ 12,500, and that in consequence thereof [**24]  his interests in the sale had been prejudiced, such an objection to the ratification of the sale could not have been successfully resisted. But the allegations thus made, being wholly disproved by the testimony in the cause, the validity of the sale stands unaffected by it.
The second ground assigned in the first exception against the ratification of the sale is, "that the day of sale was Saturday, the Sabbath of the said Cohen, who was thereby prevented from making arrangements to purchase said property," as he could not make the purchase on his Sabbath day, or so endeavor as to prevent a sacrifice of said property. Conceding (for the mere purpose of considering it) the sufficiency of this objection, if made in the proper time and manner, let us enquire whether, under the circumstances in proof in this case, 

 [*251]  it ought to avail the exceptant. It can derive no support from the allegation preceding it, that two or three weeks before the sale, the trustee informed the exceptant that the limit at which he would sell the property at the approaching sale was $ 20,000, because the fact of such information has, as above stated, been disproved. Was it made at the proper time? [**25]  --is then the first inquiry. The exceptant knew the day fixed for the sale for weeks before it took place, and also, that the trustee would fix no limitation as to the price, until the day of sale. If then, the day of sale being his Sabbath, subjected him to the consequences he in his exception ascribes to it, he ought, with all convenient speed, after the day of sale became known to him, to have applied to the trustee to change the day, and apprised him of the grounds of his application. His failure to do this must be regarded as a waiver of all objection to the day of sale, as being a Jewish Sabbath; and he must abide the consequences of his own omission.
Under the first exception, a third ground is relied on for withholding the ratification of the sale for $ 13,000, of property alleged to be "well worth $ 15,000 or $ 20,000, or more."
From the views entertained of the effect which would result from the asserted inadequacy of the price, if it, in truth, existed, it is deemed unnecessary to enquire whether the assertion be sustained by proof? The practice of opening the biddings in chancery sales, upon the mere offering of an advance upon the purchaser's bid, has not been adopted [**26]  in Maryland; and its non-adoption is founded on cogent reasons of justice and policy. The doctrine that mere inadequacy of price in a chancery sale, where the sale has been made conformably to the powers and directions specified in the decree, is not of itself sufficient ground for vacating the sale, has been so frequently announced by the judicial tribunals of this State, that a special reference to authorities to sustain it is deemed unnecessary. A sale thus made will not be set aside, or its ratification refused for inadequacy of price, unless the court believe that such inadequacy was the result of fraud, surprise, mistake, or unfairness in the sale. And the inadequacy of 

 [*252]  price is for the most part regarded as the inducement to the action of the court, after the establishment of a cause deemed sufficient to warrant its nullifying interposition. The case of Tyson vs. Mickle et al. 2 Gill 376, which has been referred to as an authority in the case before us, cannot have the slightest weight on the question now to be determined.
The cases are wholly dissimilar; differing as widely in their facts as in the principles of law, by which they must be decided.  [**27]  In the case before us, the trustee made the sale in strict conformity to the powers and directions given to him by the decree of the Chancery Court; and, therefore, the purchaser having entered into the contract with a duly authorized agent, at a bona fide sale, fairly conducted, had a right to insist upon its validity--although at the time it was made, it operated prejudicially to those whose interests it was designed to pass.
But, in the case of Tyson vs. Mickle et al., the purchaser knew, or is presumed to have known, at the time of his purchase, that he entered into a contract with an unauthorized agent,--and that its affirmance, unless assented to by the parties concerned, depended upon the equitable circumstances, with which it appealed to the justice and conscience of the Chancellor; and that if any of the parties interested objected to the sale, and showed that the property was sold at less than its fair market value at the time of sale, or at less than it would have brought had the sale been made at public auction, according to the terms of the decree, that the sale would not be ratified. In the making of such an unauthorized sale, the trustee is the agent of the [**28]  Chancery Court, and not of the parties to the suit,--and, therefore, it is not to be set aside as a matter of course, if objected to by one of the parties. But it is to be vacated by the Chancellor, if it appear to him that the objectant was damnified by the sale; that its vacation is required as an act of justice to him. It was the absence of all proof of such damnification or injustice to the objectant, that induced this court to ratify the sale made in the case of Tyson vs. Mickle et al.
That the inadequacy of price alleged as existing in the sale 

 [*253]  before us would not, in the State of New York, be regarded as a sufficient ground for refusing to ratify or nullify such a sale, is abundantly shown by the cases of Williamson vs. Dale and others, 3 Johns. Ch. 290. Woodhull vs. Osborne, 2 Edwards' Ch. 614. American Insurance Company vs. Oakley, 9 Paige 259; and Tripp vs. Cook, 26 Wend. 143.
The second exception states that the exceptant was surprised and prejudiced in his rights by the sale. If it be true that he was surprised by the sale, it should, according to the proof in the cause,  [**29]  be attributed to his own want of foresight and caution. If he has been prejudiced in his rights, it is attributable to the same causes. He has nobody to complain of but himself. The trustee appears in all things faithfully to have discharged the duties of his trust.
The third exception is, that the sale was made by the said trustee through an auctioneer, who, by his crier, put up said property at $ 13,000; that said bid was by the auctioneer, and there was no bid in fact made at the sale above, or at that sum by any person. The proof in the cause clearly shows that there was a real bid of $ 13,000 made for Wagner, the purchaser, and that on that bid the property was struck off to him. Whether the bid was made by Wagner, or by some other person acting in his behalf, is wholly immaterial. Neither in practice, nor in principle, is it necessary or usual to announce at the time the bid is received the name of the bidder; nor is it at all necessary that it should be known to the bidders, or persons attending the sale, before the property is struck off. The third exception, therefore, cannot avail the exceptant.
The fourth exception is, that the said trustee, before the sale, told [**30]  the auctioneer that the limit was $ 13,000, and if he got no bid above that, to strike it off to Mr. Wagner. How this communication from the trustee to the auctioneer can form an objection to the sale, it is difficult to divine. It is not pretended that it prevented any other person from bidding a larger amount; nor does it appear how it could have had any such tendency. Such a communication was the natural, legitimate result of the circumstances under which the sale was about to 

 [*254]  take place. It forms not the shadow of an objection to the validity of the sale.
The fifth exception is, that in substance it was not a public sale, though so in form. There is nothing in the proof taken in the cause to sustain this exception. Both in form and substance, it was a valid public sale,--and the Chancellor's final order for the ratification thereof should be affirmed by this court, with costs.
From what has been stated in this opinion, we are not to be understood as deciding, that the inadequacy of price may not be so gross and inordinate as to furnish evidence of such misconduct or fraud in the trustee as would vitiate his sale.
ORDER AFFIRMED.  

16 of 33 DOCUMENTS 

JAMES V. WAGNER AND E. A. MARSHALL vs. MENDEZ I. COHEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 97; 1847 Md. LEXIS 53 

December, 1846, Argued 

December, 1847, Decided 

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

The bill in this cause was filed on the 28th May, 1839, for the sale of the Holliday Street Theatre, in the City of Baltimore. A decree was passed for its sale, and the trustee reported, that on the 20th June, 1846, at the Exchange, in the City of Baltimore, and at one o'clock, P. M., he sold said property to James V. Wagner, the highest bidder therefor, at the sum of $ 13,000, according to notice, &c.

The Chancellor passed the usual order for a confirmation nisi, &c., the 22d August, 1846.

On the 22d July, 1846, the appellee filed his exceptions to the ratification of the sale made by the trustee, which the trustee answered, denying the grounds thereof.

On the 9th September, 1846, Mendez I. Cohen filed his petition, alleging that on the 22d July, he filed certain exceptions to the final ratification of the report of J. H. B. Latrobe, Esq., trustee in this cause, and upon the filing of which petition, &c. on the 23d July, 1846, an order was passed that the said exceptions should stand for hearing on the 22d September, then next ensuing. He further states that a copy of said order and said exceptions was duly served, according [**2]  to the exigency of the said order, as by the admission of service will appear; that the said exceptions are yet pending and undecided; and that your petitioner has given notice of his intention to take evidence in support of the same, commencing on Thursday morning next; that on the evening of Monday, the 7th September, instant, according to previous announcement by handbills, and by advertisement in the Baltimore newspapers, the Theatre, in the said proceedings mentioned, was opened and a theatrical performance was had, under the authority and management of a certain E. A. Marshall, as professed lessee thereof; and your petitioner herewith exhibits, as a part of this petition, a copy of the advertisement of said performances; that upon diligent enquiry, he is satisfied that said Marshall claims to be lessee, in virtue of a contract and agreement, made by or on behalf of James V. Wagner, who is reported as the purchaser of said Theatre in the aforesaid report of said trustee--and to the ratification of which said sale, objection was made by the aforesaid exceptions, filed by your now petitioner. He therefore alleges and charges, that said Wagner (or some agent of his assuming to act [**3]  on his behalf, and whose act he has adopted,) has taken upon himself, pending the said exceptions, and without any application to the Court of Chancery for its sanction thereof, to rent said property, as if the said reported sale were ratified and confirmed, or as if he were the owner and actual proprietor of said property, thereby wholly disregarding the said exceptions, which were set down for hearing on the 22d September.

Your petitioner further states, that he is the owner of thirty-six shares of the stock, and as such, largely interested in the proceeds of the sale of said property; that said contract with said Marshall, was made without any conference, as far as he knows, with any of the stockholders--and certainly without conference with any number of the stockholders, and with no one, as he verily believes, in the capacity of a stockholder; and he is advised and respectfully insists, that pending said exceptions, and until it shall be decided whether or not the said reported sale shall stand, the said property is under the control of this court, and cannot lawfully be leased by any one, without its previous sanction. Your petitioner, on the foundation of his interest,  [**4]  objects to the leasing of said property, by or to any one, unless under the sanction of this court, and on such terms as may seem meet; and he exhibits this petition on behalf of himself, and of all other stockholders, and of other persons interested in the proceeds of the final sale, who shall come in and contribute to the expense of this suit.

Prayer for injunction to the said James V. Wagner and to said E. A. Marshall, commanding them, and each of them, to abstain from using said Theatre for theatrical performances or otherwise, by themselves or others, pending the questions which arise on the said exceptions, and to direct the manner in which notice shall be given to the said James V. Wagner and said E. A. Marshall, of the nature and object of this petition, &c.

The Chancellor (BLAND) ordered an injunction, as prayed.

This petition was answered by the appellants, who thereupon appealed to this court, from the order granting the injunction.  

DISPOSITION:
ORDER OF THE CHANCELLOR REVERSED, WITH COSTS, AND PETITION DISMISSED.  

HEADNOTES:

After decree for a sale of real property, a sale reported by the trustee, and exceptions filed to its ratification still pending, a party interested in the proceeds of sale applied to the Chancellor for an injunction, on the ground that the reported purchaser, without the sanction of the court or those interested, had assumed the power to rent the property--and that it was about to be used by his lessee. The object of the injunction was to restrain such use. Held, that as it was not alleged that the property was subject to waste in the hands of the purchaser, or his lessee, or that its preservation was endangered by the disposition which the reported purchaser had made of it--the injunction should not have been granted.

Upon an appeal under the act of 1835, ch. 380, from the granting of an injunction only, this court is confined to the case made by the bill or petition. It does not examine the answer.

The necessity of filing an answer is imposed upon the defendant, as one of the conditions on which his right to appeal depends. The object of the act, in such requisition, was to prevent delay.

A contract of sale, made between the court as the vendor of property, through the agency of a trustee, and the purchaser, is never regarded as consummated until it has received the sanction and ratification of the court.

If the purchaser has not assumed the responsibility of protecting the property, by taking possession of it, any loss that may be sustained by its injury or deterioration in the interval between the sale and final ratification, falls upon the vendor. Still it gives to the purchaser an inchoate and equitable title, which becomes complete by the ratification of the court.

A ratification retroacts, and the purchaser is regarded, by relation, as the owner from the period of sale. He is entitled to the intermediate rents and profits; cannot escape from the sale, because disadvantageous, and is bound to pay interest on the purchase money from its date.

Possession obtained by a purchaser from a trustee acting under a decree, though before ratification, is not unlawful.

Where a sale under a decree is vacated, the purchaser, having been let into possession by the trustee, and enjoyed the use, is responsible for rents and profits.

A party interested in the proceeds of property decreed to be sold, although his right in the property is merged in the decree, retains such an interest as will enable him to apply to the court, which rendered the decree, to protect and preserve the estate from injury and waste. 

COUNSEL:
By GLENN, JOHNSON and MCMAHON for the appellants, and

By MCLEAN and WILLIAM SCHLEY for the appellees.  

JUDGES:
The cause was argued before ARCHER, C.  [**5]  J., DORSEY, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
MARTIN 

OPINION:

 [*100]  MARTIN, J., delivered the opinion of this court.
It appears from the record in this case, that a decree was passed by the Chancellor on the 29th of May, 1839, for the sale of the premises on which is erected the Holliday Street Theatre, in Baltimore, and a trustee appointed to make the sale. On the 22d of June, 1846, the trustee reported that he had sold the property on the 20th of June, 1846, to J. V. Wagner, the appellant; and on the day on which this report was returned, an order nisi for its ratification was passed, limiting the time within which cause against its confirmation was to be shown to the 22d of August, 1846. Exceptions to the ratification of this sale were exhibited by the appellee, on the 22d of July, 1846, and were ordered to stand for hearing on the 22d of September, 1846. The trustee put in his answer to these exceptions on the 31st of July, and on the 9th of September, 1846, an order was obtained, authorizing the parties to take testimony in relation to this disputed sale.
On the 9th of September, 1846, the appellee filed his petition, in which, after stating the pendency [**6]  of the exceptions, he alleges, that theatrical performances had been advertised to take place in the Theatre, by E. A. Marshall, who claimed to be the lessee of the appellant, Wagner, and charges that the appellant had assumed, pending the exceptions, and without the sanction of the court, to rent the property to Marshall. The petition, then, after averring the appellee's interest in the property sold and its proceeds, as a stockholder, and that the lease to Marshall was made without the concurrence of any of 

 [*101]  the stockholders, prays that an injunction may be granted, restraining Wagner and Marshall from using the Theatre for theatrical or other purposes, until the exceptions are decided.
On the 9th of September, 1846, an injunction was granted, in conformity with the prayer of the petition, and the answer of the appellants having been filed on the 12th of September, an appeal was taken from the order of the Chancellor to this court.
As the appeal in this case has been taken by the appellants, in conformity with the provisions of the Act of Assembly, of 1835, ch. 380, the first question presented for our consideration, is, whether, in revising the [**7]  order of the Chancellor, we are confined to the case as made by the petition? or, are at liberty to examine the answer which was filed by the appellants, as preliminary to their right of appeal?
The third section of the Act of Assembly provides: "That where any injunction shall issue from the Court of Chancery, or any county court, as a court of equity, the defendant may appeal, the answer of such appellant being first filed, from the order of the Chancellor, granting the injunction or refusing to dissolve it, to the Court of Appeals of the Shore where such injunction shall have issued, and the said court, at the first term to which the case shall be transmitted, shall determine the said appeal, and shall pass such order in the premises as to it may seem right."
In the case of the Union Bank vs. Poultney & Ellicott, 8 G. & J. 324, an appeal was taken by the Union Bank from an order of the Chancellor, granting an injunction, under the third section of the act, to which we have adverted. The answer of the appellant having been filed, it was contended by his counsel, that it was the duty of the court to examine it. But the Court of Appeals placed their decision [**8]  upon the allegations of the bill alone, without referring to the answer, and, although the question was not directly determined, the implication from the opinion of the court is, that they considered the bill as the only paper in the cause which they were authorized to examine. This is, we think, the correct view of the power of 

 [*102]  the court, when acting upon a case brought before it, by an appeal under the provisions of the act of 1835, ch. 380. It must be apparent, that if this court, in reviewing the order passed by the Chancellor, and pronouncing upon its correctness, was influenced by a paper not exhibited below, it would become practically engaged in the exercise of original jurisdiction. The legislature intended to confer upon the court no such power, and the necessity of filing an answer was imposed upon the defendant, as one of the conditions on which his right of appeal depended, solely for the purpose of preventing unnecessary delay.
Putting aside then the answer of the appellants, as a paper to which the court cannot look in reviewing the order of the Chancellor, we turn to the petition, for the purpose of inquiring if a proper case was presented for the application [**9]  of the writ of injunction.
It is certainly true that a contract of sale made between the court as the vendor of the property, through the agency of a trustee, and the purchaser, is never regarded as consummated until it has received the sanction and ratification of the court. And, therefore, if the purchaser has not assumed the responsibility of protecting the property, by taking possession of it, any loss that may be sustained by its injury or deterioration, in the interval between the sale and the final ratification, falls upon the vendor. In the case of ex parte Minor, 11 Ves. 559, it was determined: "That a purchase before the master, is not complete before confirmation of the report. Therefore, a loss by fire after the report, but, before confirmation, falls upon the vendor."
Although this is the character of the imperfect right acquired by a purchaser at a sale of this kind; yet, it gives to him, an inchoate and equitable title which becomes complete by the ratification of the court. When this is accomplished, the ratification retroacts, and he is regarded by relation as the owner from the period of the sale. He is as such proprietor entitled to the intermediate [**10]  rents and profits of the estate; he cannot escape from the sale, because, he may believe it to be disadvantageous, 

 [*103]  and is bound to pay interest on the purchase money from its date; and has, therefore, a direct and strong interest in protecting the property from injury, and rendering it as productive as possible.
The petition is silent as to the mode in which this property was acquired by Wagner, the appellant; but the legitimate inference is, that he was placed there by the trustee; and, we think, a possession thus obtained with the consent of the trustee, as the agent of the court, cannot be characterized as unlawful. We can perceive no reason why possession should be withheld from a purchaser who had complied with the terms of sale, who has a large stake in the preservation of the property, and who is justly entitled to its use as an equivalent for the interest which he pays on the purchase money. It is to be remarked, that the appellee does not attempt to disturb the appellant in his possession of this property; but seeks only to restrain him from using it as a Theatre, or, for any other purpose. This is the act of which the petitioner complains, and which he endeavored [**11]  to redress by the interposition of the court. He has placed his case upon the single ground, that Wagner has assumed the control and direction of the property, as if it was his own, pending the controversy in relation to these exceptions.
We have already said, that by a decree for the sale of this property, it vested in the Court of Chancery, and was held for the benefit of those interested in the sale, and in the distribution of the fund. It was the unquestioned duty of the court, as the proprietor of this property, on the application of any of the parties interested, to have adopted such measures as might be necessary for its preservation in the interval between the sale and the action of the court in reference to the question of final ratification; and to have devoted it during that period to some profitable purpose. This object, the court would have accomplished, by directing a temporary lease of the Theatre. And as this had already been done by the purchaser, who was interested in the preservation of the property, and in making it available, we can discover no reason for disturbing the lease; 

 [*104]  and think, that the Chancellor in the exercise of a wise discretion,  [**12]  looking to the interests of those who were concerned in the proceeds of the property, should have refused the injunction. No injury could result to the creditors entitled to the fund, as upon the contingency of the sale being vacated, and the property re-sold, Wagner would have been clearly responsible in equity for its use and occupation.
The bill is instituted by the complainants for themselves, and such others as may come in and avail themselves of the proceedings, having claims of a like character, with those set forth in the bill against the property sought to be made liable; and although the right which the appellee, as a stockholder, held in this property was merged in the decree, he retained an interest in the proceeds of the sale, and was, of course, interested in the preservation of the estate, out of which the fund was to arise. We think, therefore, that the appellee occupied a position which entitled him to institute this proceeding; and if he had charged in his petition, that the property was subjected to waste in the hands of the appellants, as in Casamajor vs. Strode, 1 Sim. St. 381, or that its preservation was endangered by the disposition [**13]  which Wagner had made of it, a case would have been presented authorizing the interposition of the Chancellor. No such allegation is, however, to be found in the petition, and the Chancellor erred, we think, in granting the injunction.
THE ORDER OF THE CHANCELLOR IS REVERSED, WITH COSTS, AND A DECREE WILL BE SIGNED DISMISSING THE PETITION.  

17 of 33 DOCUMENTS 

REBECCA SOMERVILLE vs. DAVID U. BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 399; 1847 Md. LEXIS 35 

December, 1847, Decided 

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

This was an action of assumpsit docketed by consent to November term, 1844, by the appellee against the appellant. The declaration contained the common counts, to which the defendants pleaded the general issue. The verdict and judgment were for the plaintiff.

At the trial of the cause, the plaintiff proved the following note of the defendant.

"Baltimore, 1st Nov'r, 1841.

$ 822 19. Two years and six months after date, I promise to pay W. T. Somerville, or order, eight hundred and twenty-two dollars and nineteen cents, for value received.

R. Somerville."

And the endorsement thereon--

"Pay David U. Brown. W. T. Somerville."

The defendant then to support the issue on her part, proved the following attachment in Baltimore county court, and judgment therein.

The Bank of New Orleans vs. Rebecca Somerville and Tiernan Somerville, garnishees of Charles Tiernan, surviving partner of Luke Tiernan.

Att'd on judg't, 10th Jan. 1842, app. for garns, rule plea, 18th March, 1842, plea nulla bona and notice to reply filed, rule rep. same day service of copy and notice of rule admitted, same day gen. rep. fd. service

 [*2]  of copy admitted. Continued to May term. Continued to September term. Continued to January term, 1843.

27th January, 1843. Jury sworn. Verdict for plaintiff. Damages $ 10,000. Judgment of condemnation on verdict against garnishees for $ 10,000, with interest from 27th January, 1843, subject to agreement, filed. This judgment to be released on payment of $ 500 on 1st May, 1843, of $ 500 on 1st November, 1843, of $ 822 19 on 1st May, 1844, of $ 1,000 on 1st November, 1844, of $ 1,000 on 1st November, 1845, of $ 1,000 on the 1st November, 1846, and of $ 2,000 on 1st November, 1847, with a stay on the several amounts as they become due, terms filed.

The defendant also offered in evidence the application of the said Charles Tiernan as an insolvent debtor, for relief, to the commissioners of insolvent debtors for the city and county of Baltimore, on the 14th June, 1842, the proceedings thereunder, the appointment and binding of his permanent trustee, and his final discharge from his debts and creditors, dated 17th November, 1842, with a variety of schedules, showing said insolvent's debts and credits at the time of his aforesaid application.

The defendant also proved that

 [*3]  the debt now sought to be recovered was part of the debt stated in said schedule.

The plaintiff then offered Charles Tiernan as a witness, who was admitted subject to exceptions, and he proved that in October, 1841, he came to a settlement with Mrs. Somerville, the drawer of a note due to L. Tiernan & Sons, and then (in October) took her notes for five thousand dollars, payable annually from 1st November, 1841, for five years, in the sums of $ 1,000 each; that the first of these notes, sometime before, he transferred to his brother William to secure a debt of $ 453 due him, and a sum due Mr. Cooney, and $ 150 due by deponent to John Nelson, Esq. as a fee, which when said note fell due, was paid by Tiernan Somerville to said Nelson, and this note is a renewal in part of that $ 1,000 note, though dated 1st November, 1841, and that the other of said notes were passed to Thomas Penny.

The defendant then gave in evidence, that A. W. Bradford, Esq. appeared to said attachment by direction of Charles Tiernan, and did not remember being told by him that he had passed away said notes, although he might have said so. That he, Tiernan, did set up as a defence that the notes were given

 [*4]  to him in a different character from that in which the attachment was levied. Defendant also proved that Penny was agent of Luke Tiernan during his lifetime, and now has charge of the business of Tiernan, Cuddy & Co. and W. H. Tiernan, deponent's brother.

1. The defendant prayed the court that said Charles Tiernan was not a competent witness in this case.

2. If the jury believe that Charles Tiernan, at the time when the attachment was issued, and when he applied for the insolvent laws, was the holder of the note now in suit, then plaintiff is not entitled to recover in this cause. Which opinions and directions the court (ARCHER, C. J., PURVIANCE and LE GRAND, A. J.,) refused to give. The defendant excepted.

The defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In October, 1841, R. being indebted to a firm, of which C. was a partner, gave her notes, at his request, dated 1st November, 1841, payable in instalments at from one to five years, for the amount of the debt. One of those notes C. transferred to A. by way of security, and when it fell due R. gave her renewal note for a part of the same, also dated 1st November, payable in two years and six months, and due 1st May, 1844, to W., the brother of C., who endorsed it to the plaintiff. The time of that transfer did not appear. In an attachment commenced by a creditor of the firm, on the 10th January, 1842, against R. and T. as garnishees of C. survivor of such firm, judgment of condemnation was rendered in January, 1843, of said renewal note, in favor of the attaching creditor. On the 14th June, 1842, C. applied for the benefit of the insolvent laws of Maryland, and there was evidence tending to prove that he was then the holder of the said renewed note. Held, that if the jury believed that C., when the attachment was issued, or when he applied for relief under the insolvent laws, was the holder of the said renewed note, then the endorsee of W. was not entitled to recover its amount from R.

An attachment laid in the hands of the maker of a promissory note, as garnishee, for the debt of an endorsee then being the owner and holder of the note, followed by a judgment of condemnation on the attachment, will protect the maker, garnishee, in a subsequent action, brought on the same note, by a subsequent endorser receiving the note without notice.

In a case of first impression, depending on a statute, of which the language was capable of a construction which might avoid embarrassment to the commercial, or any other portion of the community, the argument of inconvenience would justly have controlling influence. The act of 1796, ch. 56, in terms declares that a creditor, on certain conditions, may attach the lands, tenements, goods, chattels and credits of his debtor, speaks also of the liability of "a garnishee who is indebted in any sum of money," and is in this respect but a repetition of the act of 1715, by which an attachment was authorized against all goods, chattels and credits in the hands of any person whatever, and consequently authorizes the attachment of a debt due on a promissory note before its maturity in the hands of the maker, while the debtor continued the owner and holder of the note.

Our whole system regulating the relation of debtor and creditor, is designed to subject every dollar's worth of property, real, personal and mixed, to the just claims of a creditor, and so exempt the honest debtor who does surrender all such property, from the grasp of a relentless creditor, who might desire to imprison his person, or weigh down his future energies by the impending burthen of his debt.

Inconvenience alone will not induce the court to construe an act, directly in violation of its plain language and apparent design.

If the debt due on a negotiable note could not properly be the subject of an attachment until after its maturity, still, if the maker of the note, in a contest, in such a case, fairly resisted, has been adjudged by a court of competent jurisdiction, to pay such a debt to an attaching creditor of the holder of the note, such maker would find a defence in such a judgment of condemnation, and not be adjudged to pay the same debt twice.

The insolvency of the holder of a note or bill of exchange, passes the title thereto to his trustee, and disables the insolvent from conveying an interest in the bill or note, after the date of his personal discharge, and before its maturity, even to an endorsee without notice of his insolvency. 

COUNSEL:
By MCMAHON for the appellant, and

By DAVID STEWART and C. F. MAYER for the appellee.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 CHAMBERS, J., delivered the opinion of this court.
This was an action of indebitatus assumpsit, with the usual money counts. The general issue, non assumpsit

 [*5]  , was pleaded.
There is no difficulty made in regard to the pleadings. At the trial the appellee, the plaintiff below, offered in evidence a promissory note, made by the appellant, the defendant, on the 1st November, 1841, for $ 822 19, payable in two years after date to W. T. Somerville, or order, and by him endorsed, payable to appellee, or order.
The defences set up were first: a verdict and judgment of condemnation in Baltimore county court, on the 27th January, 1843, against the appellant, and W. T. Somerville, as garnishees of Charles Tiernan, surviving partner of Luke Tiernan & Sons, in favor of the Bank of New Orleans, by which judgment it was alleged the money or debt sued for in this action was condemned in the hands of the appellant, and made liable to the Bank, the plaintiff in that action.
And secondly, the application of said Charles Tiernan for the benefit of the insolvent laws of the State, on the 14th June, 1842, and his subsequent discharge, pursuant to said insolvent laws.
At the trial the defendant offered the record of the verdict, and judgment of condemnation thereon, in the case of the Bank of New Orleans against

 [*6]  her, by which it appears the attachment was issued on the 10th January, 1842, to which she appeared, and in March, 1842, pleaded nulla bona, on which plea issue was joined, and verdict and judgment rendered 27th January, 1843, for plaintiff, for the following sums, to wit: $ 500 to be paid 1st May, 1843. $ 500 on the 1st November, 1843. $ 822 19 on the 1st May, 1844. $ 1,000 on the 1st November, 1844. $ 1,000 on the 1st November, 1845. $ 1,000 on the 1st November, 1846, and $ 2,000 on the 1st November, 1847: making an aggregate sum of $ 6,822 19.
In reference to this ground of defence, parol testimony was also taken.
Charles Tiernan was produced as a witness by the plaintiff, and objected to as incompetent; but that objection is understood  to be now waived and properly so. His testimony, as stated, is singularly cloudy. It is "that he came to a settlement with the appellant in October, 1841, of a debt due to Luke Tiernan & Sons, and then (in October,) took her notes for $ 5,000, payable annually from 1 November, 1841, in the sums of $ 1,000 each, that the first of these notes some time before" (before when not being stated) he transferred to his brother 

 [*7]  William, to secure a debt of $ 453 due him, and a sum due W. Cooney, and $ 100 due by deponent to J. Nelson, Esq. as a fee--which when said note fell due, was paid by Tiernan Somerville to said Nelson; and this note is a renewal in part of that $ 1000 note, though dated 1 November, 1841; and that the other of said notes were passed to Thomas Penny.
The defendant proved that counsel for the garnishee appeared in the attachment suit by direction of Charles Tiernan, and the counsel proved he had no recollection of being informed by Charles Tiernan that he had passed away the notes; but that Tiernan set up the defence that the notes were given to him in a different character from that in which the attachment was levied.
To sustain the second ground of defence, the defendant offered the record containing the petition of said C. T., and the schedule and other proceedings in insolvency, and proved "that the debt now sought to be recovered, was part of the debt stated in said schedule."
On this state of facts, the court below was asked to instruct the jury that if they should believe Charles Tiernan, at the time the attachment issued, and

 [*8]  when he applied for the benefit of the insolvent laws, was the holder of the note sued on, then the plaintiff was not entitled to recover; and it is the duty of this court to determine whether that court was in error for refusing to give such instructions.
The questions then are broadly presented, whether an attachment laid in the hands of the maker of a promissory note as garnishee, for the debt of an endorsee, then being the owner and holder of the note, and a judgment of condemnation on the attachment, will protect the maker garnishee in a subsequent  action brought on the same note, by a subsequent endorsee receiving the note without notice. A preliminary proposition was argued by the appellee's counsel, which cannot be sustained, to wit: that there was no evidence which the jury could respect to prove the fact of the notes being in the hands of Charles Tiernan at the time of the attachment. It is emphatically stated, "the defendant proved the debt now sought to be recovered was part of the debt stated in said schedule" of Charles Tiernan, and the testimony of Charles Tiernan and Mr. Bradford would seem to establish that the note was originally taken

 [*9]  by Charles Tiernan for himself or his firm. If in his possession at the moment it was made, and was found also in his possession 14th June, 1842, the date of his petition, more than six months after its date, being five months after the attachment, it would be not only sufficient to go to the jury, but appear to be conclusive in the absence of any clear and satisfactory account of the time and circumstances of its intermediate disposition, and this without reference to what has been proved by Mr. Bradford, as to his being engaged by Charles Tiernan to defend this suit of the attaching creditor, and the exclusive ground of resistance on which he relied.
The most alarming consequences to all commercial transactions, and all commercial men, have been presented in the most glowing terms, as the inevitable result of a decision by this court, that a negotiable instrument can be attached in the hands of the maker. In a case of first impression, depending on a statute, of which the language was capable of a construction, which might avoid embarrassment to the commercial or any other portion of the community, undoubtedly the argument of inconvenience would justly have controlling

 [*10]  influence. But this is neither a case primae impressionis, nor is the statute which governs it capable of a construction, such as is proposed. Its terms are, that a creditor in certain conditions may attach "the lands, tenements, goods, chattels and credits of his debtor." See act of 1796, ch. 56. And another part of the act speaks of the liability of a garnishee who "is indebted in any sum of money." It also requires the garnishee to answer upon oath  such interrogatories as may be propounded by the creditor, touching the particulars of his indebtedness, and on failure to answer, the court is to adjudge him indebted to an amount sufficient to pay the debt. And this was but a repetition in respect to the subject of the attachment of the act which had been in force since 1715, by which attachments were authorized against all goods, chattels and credits in the hands of any person whatsoever; yea, even in the plaintiff's own hand, "adding to goods, chattels and credits;" also "lands," which first by construction of the statute of 5 Geo. 2. ch. 7; and afterwards by our own legislation, had become liable to be seized, and sold by fieri facias

 [*11]  , in the same manner as personal property. Certainly the Legislature of this State in 1795, when they deliberately re-enacted these provisions, and made them apply to cases not within the act of 1715, were not uninformed of the general principles of commercial law, which governed negotiable paper. The statute of 3 and 4 Anne, ch. 9, making promissory notes negotiable, was introduced at an any early period into the Colony; and in a very few years after its enactment, we have on our own statute book the legislation which was had to aid and promote the law-merchant in respect to protested bills of exchange. See act of 1715, ch. 7. It is happily true that the commercial operations of our citizens have been greatly enlarged since that period; but still, the attachment law has remained without repeal or restriction: on the contrary, many other later, and some very recent statutes have extended the application of this remedy, specially provided the form of proceeding, and defined the parties for and against whom, and the authority or tribunals by which it may be used. In addition to this, it is found that as long since as in 1804, it was expressly decided in the General Court, where all

 [*12]  the distinguished members of the bar from all parts of the State assemble, that a creditor may attach a promissory note in the hands of the maker, whether before or after due, and arrest its negotiability. The decision thus made near half a century since, has been published in the reports of Maryland decisions since 1821. See 1 Har. & John. 536, Stewart & West. During this whole period, there is no  one item of complaint evidenced in either the legislative or judicial history of the State, or indeed in any other department.
This apparently long settled opinion on the plain words of a statute would require the court to hesitate much before it would be resisted, even if all the consequential inconvenience were to result from adherence to the rule, and none from abandoning it. But such is not the case. The result of a contrary doctrine would illy harmonize with all the legislation which has designed to place every species of property at the control of an honest creditor. Would it be no matter of just complaint that a debtor shall avowedly have thousands distributed in the hands of persons of undoubted ability, in the immediate vicinity of the creditor, who yet

 [*13]  is denied any legal means to procure any portion of these sums, because his debtor has his large means in the form of negotiable paper? Certainly such funds could not be be reached by any process of execution, and except by attachment, must be unavailing to the creditor. Our whole system regulating the relation of debtor and creditor is designed to subject every dollar's worth of property, real, personal and mixed, to the just claims of a creditor, and to exempt the honest debtor who does surrender all such property from the grasp of a relentless creditor, who might desire to imprison his person, or weigh down his future energies by the impending burden of his debt. It is not peculiar to our own State that the rule is not universal, which gives to the bona fide endorsee of a promissory note or bill of exchange, without notice, entire exemption from all defences which might be used against parties to the note, or subsequent holders, with notice. The English statutes of usury and gaming show their opinion that other considerations are quite as deserving of notice as the inviolability of the rule of the law-merchant in this respect, and sufficiently important to the community

 [*14]  to create certain exceptions to that rule. These exceptions arise under circumstances which are beyond the knowledge of the parties affected by them, and in no respect does the paper on its face indicate its liability to exception. It will not do to say remote parties may enquire of those immediately concerned in the paper at its inception.  That answer meets all the difficulty arising from the effect claimed for the attachment, precisely to the same extent as when the negotiability of the paper is arrested or destroyed by usury, gaming or any other cause. The facts are as open to inquiry in one case as in the other. Other States in the Union have found it very practicable to conduct their business operations with similar restrictions upon this commercial rule. We find that attachment process, or as it is termed in some of the States, "trustee process," has been adjudged available to secure the debt in the hands of the maker of the note as garnishee, and arrest the negotiability of the note.
The case of Chase & Haughton, 16 Vt. 594, is a strong case full to the point. That was a negotiable instrument due to a resident of Massachusetts, where, by the

 [*15]  express terms of a statute, negotiable paper is secured against such process. But as the contract was made in Vermont, and on its face required to be also executed there, the court held the maker liable to the process, and before the maturity of the note, on the words of their statute, which declared persons having the "goods, effects or credits" of the debtors, liable. It would seem from Kirby's Rep. 149, Coit & Bull, that such had long been the law of Connecticut.
The same doctrine seems to prevail in Georgia, Tennessee, Alabama and Missouri. See Hull v. Blake. 13 Mass. 153; Huff v. Mills, 7 Geiger 42; Dore v. Dawson, 6 Ala. 712; Scott and Hill, 3 Mo. 88.
It has been intimated that the statutes of these States, in terms, allow any equitable defence to be made against an endorsee, which could be made against the original party, the payee. But it must be seen, that this rather more strongly makes against the position we combat. The argument is, be it remembered, that the alarming consequences to the mercantile world must coerce us to construe our statute directly in violation of its plain language and

 [*16]  its apparent design. Not an authority is produced for the appellee, in the shape of a decision or dictum.
The entire derangement of all transactions by the medium of  negotiable instruments, is involved, it is said, in allowing their negotiability to be arrested by setting up their defence against an endorsee, without notice. It is no consistent answer then, when it is said such a defence can be made in Alabama, and no such derangement has been experienced, to reply that there they allow not only this, but any other equitable defence. It is calculated to prove that commercial operations will progress with even greater impediments than those imposed by our attachment laws.
It cannot be required the payee should insist on the production of the note, that its future negotiation might be restrained. The most usual case of attachment is where the holder of the note, the party whose credit is attached, is beyond the jurisdiction of the court--out of the State--of course, making any attempt to coerce an order upon him impotent. It is not, however, to be lost sight of, that in this case, the question is not made in the progress of the attachment cause, but the court having

 [*17]  competent jurisdiction, has, in opposition to the efforts of the party now appellant, recognized the right of the attaching creditor to recover, and he has recovered after every means of resistance. The appellant having been thus unwillingly coerced to pay the note once by the judgment of the court now, when sued for the same debt by a party claiming under the same individual, on whose account and as garnishee for whom she paid it before, is told that she must pay it again. To suffer such injustice under the sanction of judicial proceeding, would be more justly the subject of complaint, than the imputed derangement of mercantile securities. In Massachusetts, where, as before said, they forbid the attachment of negotiable instruments, they have yet decided that where a court of competent jurisdiction, even in another State, has condemned the debt in the hands of a garnishee, they must respect such decision and receive it as full defence to a subsequent action on the same instrument. 13 Mass. 153, Hull and Blake. Surely we should pay as much courtesy and respect to our own courts, as is due from those of different States to each other.
We think on each of the

 [*18]  grounds discussed, the court below  was in error in deciding the defence not tenable upon the record in the attachment case, entertaining the opinion, as we do, that a promissory note or bill of exchange is a credit in the view of the attachment laws, and that the former judgment was by a court of competent jurisdiction on the same matter, and conclusive between the parties.
With regard to the other ground of defence, the insolvency of the holder of the note, and the legal transfer thereby of his title to his trustee, it is deemed unnecessary to enter upon an argument in detail.
The general views taken in the case of Alexander vs. Ghiselin at the present term, as to the construction of the insolvent laws, and the devolution upon the trustee of the title of the insolvent to every species of property, will leave no room to except negotiable instruments, except the considerations of inconvenience, which have already been fully discussed. It is our opinion that the insolvency of the holder of a note or bill of exchange passes the title thereto to his trustee, and disables the insolvent from conveying an interest in the bill or note, after the date of his personal discharge, 

 [*19]  even to an endorsee, without notice of his insolvency.
In this opinion we are pleased to find ourselves sustained by the high authority of Chief Justice Parsons, and the other Justices of the Supreme Court of Massachusetts, in the case of Baker vs. Wheaton, 5 Mass. 509. The Chief Justice says, "where the note is discharged by the insolvent laws of the State," (both parties there being citizens, and bound by the operation of those laws,) "the contract no longer exists, and a subsequent endorsement is void, because there is nothing to pass by the assignment."
If, therefore, the defence upon the former recovery had been out of the way, the insolvency of the holder of the note should have availed.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

DISSENTBY:
DORSEY 

DISSENT:

 DORSEY, J., delivered the following dissenting opinion.
The correctness of the court's decision in overruling the appellant's objection to the testimony of Charles Tiernan, being conceded, the only remaining inquiry is, did the county court err in refusing to grant the appellant's second prayer, "that if the jury believe that Charles Tiernan at the time when this attachment was issued, 

 [*20]  and when he applied for the insolvent laws, was the holder of the note now in suit, then the plaintiff is not entitled to recover in this cause."
To prove the appellant's right to the instruction denied to him by the court, it has been broadly asserted, (and the assertion backed by an elaborate argument) that if an attachment be laid in the hands of the maker of a promissory note endorsed in  blank, and yet undue, to bind the interests of a holder thereof for a debt due by him to the plaintiff in the attachment, and the note be subsequently, and before its maturity, negotiated or sold by the holder to a third person in the due course of business, bona fide, for a valuable consideration, and without notice, that the plaintiff in the attachment is entitled under that proceeding to recover from the maker the amount of the note, and that by such transfer the third person thus holding the note, acquired no right of action against the maker thereof. And this doctrine, as I humbly conceive, so utterly inconsistent with all the principles of the law-merchant, as to bills of exchange and promissory notes, which law-merchant exists to as full an extent in Maryland as in 

 [*21]  England, is ascribed to the alleged true construction of the 1st section of the act of Assembly of 1795, chapter 56, which authorizes the levying of an attachment as well upon the the "credits of the debtor, as upon his lands, tenements, goods and chattels."
There is nothing in the language of this act of Assembly, or in the evils it was designed to remedy, or in the object sought to be accomplished by it, which should conduct us to the conclusion, that it was the intent of the Legislature to effect so impolitic and inconvenient an innovation upon the mercantile law and usages of the State; to interpose an obstacle to its commercial prosperity, so unwise and so uncalled for. Full import and meaning may be given to every word and expression in this act of Assembly, without imputing to the General Assembly that suicidal intent attempted to be imposed upon their act. If it were the design of the Legislature to change and repeal, to the extent ascribed to it, the law-merchant, as to the protection thrown around bona fide transferees for value of bills of exchange and promissory notes, no sound reason can be assigned, why all similar protection should not be wholly withdrawn from

 [*22]  them, and commerce be deprived of those facilities and safeguards which commercial wisdom and experience have for ages cast around it as essential and indispensable to its prosperity.
And why is it, that this construction of the act of 1795, so disastrous to commerce and the best interests of the State is to  be resorted to? Because the credits, as well as the goods and chattels of the debtor, are made liable to an attachment. Does the term "credits," as thus used in the act of Assembly, in any degree warrant the enlarged and forced construction attempted to be given to it? I humbly conceive that it does not. The term "credits," when applied to the case before us, means the right which the debtor-holder of the note had to recover its amount from the maker. What was the nature of that right? Was it an absolute, unqualified engagement of the maker to pay the amount of the note to Charles Tiernan, without reference to future events or contingencies? Unquestionably not. By the endorsement of the note in blank, though it might be held by Charles Tiernan, it was not an unqualified promise of the maker to pay the note to him, whether at its maturity, he should remain the

 [*23]  holder therefor or not; but undeniably the promise was, as well in fact, as in contemplation of law, to pay the note to the bearer; or to him, who, at its maturity should be the bona fide holder thereof. Can it then be contended for a moment that the service of the attachment in this case entirely changed the contract of the parties, and converted an agreement theretofore, contingent and conditional, into one, that was certain and unqualified? The act of 1795, applied as well to contracts existing at its date, as to those subsequently entered into: to give it then the construction insisted on by the appellant, would be to impute to the Legislature in its passage an intention to impair the obligation of contracts, and violate the Constitution of the United States. An imputation which no court of justice should make, but from cogent necessity; and according to the best consideration I have been enabled to give the subject, could not be otherwise than gratuitously made on the present occasion.
In rendering credits the subject of attachment, all that the Legislature designed to effect thereby, in a case like the present, was to substitute, as it were, the attaching creditor to

 [*24]  the rights of his debtor-creditor; and to enable the former to recover that which the latter would have been entitled to recover, had no attachment been issued. It did not mean to change the  nature of the credit, and to withdraw it from the operation of the law-merchant, the law of the land, and to give to the attaching creditor rights which would have been denied to the debtor-creditor, had no attachment have issued. It gave no higher or superior rights to the credit, to the attaching creditor, than those that would have belonged to the debtor-creditor, had no attachment intervened.
The design of the act of Assembly was simply to provide the means by which the attaching creditor could as effectually recover the credit as could the debtor-creditor, had no attachment been interposed. In conferring on the attaching creditor the power with which he was invested, by the act of Assembly, the Legislature never dreamed that they were repealing any part of the law-merchant in relation to bills of exchange or promissory notes; or that they were investing him with rights and powers superior to those which he would have possessed had a bona fide, absolute transfer and delivery

 [*25]  of the promissory note been made to him by his debtor-creditor. For such a discrimination by the Legislature, no conceivable motive or reason can be assigned. Nay, so far from greater or superior rights being transferred to the creditor, in the former, than in the latter case, he is clothed with diminished and inferior rights. In his recovery of the credit, he would be subject to all the discounts, sets off, pleas in bar, and defences of which the maker of the note could avail himself, if the action on the note were prosecuted by the debtor-creditor himself; whereas, in the latter case, he would be exempt from all such defences.
It may be said that such a construction of the attachment laws would leave it in the power of the creditor-debtor, the holder of a promissory note endorsed in blank, to evade the effect of the attachment by making, to a person not notified of the attachment, a bona fide transfer and delivery of the note. To such a contingent defeat of all benefit from his process is an attaching creditor exposed. But that exposure is nothing more than a qualification or restriction incident to the rights acquired under the attachment; and imposed upon them by the law-merchant

 [*26]  for the benefit of commerce, for the good of the  public. It does him no wrong; it deprives him of no right; it but qualifies the favors which the law confers upon him. It is an implied qualification of such favors that is indispensable or necessary to the prosperity of commerce and the interests of the community. Not to make such an implication would be to annihilate the negotiability of promissory notes and bills of exchange, or to authorize by legislation the practice of frauds upon the public. Neither of which results can, upon any principle of sound construction, be regarded as having entered into the contemplation of the Legislature in the passage of the act of 1795. The only mode by which the attaching creditor can protect himself against the transfer of the note by his creditor-debtor is through the auxiliary interposition of a court of equity in aid of his proceedings at law.
Of the effects of the law-merchant upon his rights the attaching creditor has infinitely less cause to complain than has the owner of a promissory note endorsed in blank, which being before its maturity withdrawn from his possession, forcibly, fraudulently, surreptitiously or feloniously, 

 [*27]  is passed as aforementioned to a bona fide transferree. In any such case the bona fide transferree becomes the absolute proprietor of the note, and holds it discharged of all claim by the original and rightful owner.
It has also been contended that the pendency in Baltimore county court of the attachment suit, by the Bank of New Orleans against Charles Tiernan, which was laid in the hands of Rebecca Somerville, is a lis pendens, of which the appellee was bound to take notice, and from which the law imputes to him a knowledge of the fact, that a condemnation of the amount due on the note in question was sought by that suit. Without relying upon the principles that according to the law-merchant to such a transferree no knowledge of a lis pendens is to be imputed, even though its examination would establish the knowledge imputed; let us see whether the lis pendens in this case, if known to the appellee, could form a sufficient basis for the alleged imputation of knowledge. The proceedings in the attachment by the Bank of New Orleans  against Charles Tiernan, as laid in the hands of his garnishees, Rebecca and Tiernan Somerville

 [*28]  , disclosed the facts that the plaintiff claimed of Charles Tiernan some $ 10,000, and that he sought a condemnation for that amount of the rights and credits of Charles Tiernan in the hands of his garnishees. But did that, if known to the appellee, communicate to him the fact, that the note in question constituted any part of such rights or credits, or that Charles Tiernan had ever owned, seen or heard of it? Against the claim of the appellee, therefore, the appellant in such a defence can obtain no protection.
Another ground upon which the appellant urges her right to have obtained from the county court the instruction required by her second prayer, is, that the note having been in the possession of Charles Tiernan at the time of his application for the benefit of the insolvent laws of this State, the title thereto passed to his trustee by operation of law, and that no interest in or title to the note could be acquired by any body but by a transfer from such trustee. There is nothing by which such a position can be sustained. In making the legislative transfer mentioned, there is nothing to induce a momentary belief that the Legislature contemplated any innovation

 [*29]  in the law-merchant, as to the means by which a title to negotiable paper might be acquired. The design of the law was simply to invest the trustee with the same title to the property of the petitioner that he would have acquired under a formal deed of conveyance. The property of the insolvent when thus cast upon the trustee had no peculiar safeguards around it for its especial protection; but in his hands was subject to all the casualties and incidents to which like property was exposed when owned by any other person.
Having thus far examined this case with reference to the general principles of law applicable to it, and to the true construction of the act of Assembly under which it arises, I shall now proceed to the consideration of the judicial determinations upon the subject, by which it is alleged, that it is conclusively shewn, that the county court erred in refusing to instruct the  jury that the plaintiff below was not entitled to recover. These adjudications, it is asserted, unanswerably prove, that the service of an attachment issued against the holder of a promissory note before it is due, endorsed in blank, upon the maker thereof, puts an end, as far as the

 [*30]  attachment is concerned, to the negotiability of the note: and that its subsequent transfer to a third person before it becomes due bona fide, for a valuable consideration in the due course of business, and without any notice of such attachment, passes no title to the note, but in subjection to the attachment. Before the court could have granted the prayer, it must have assumed the truth of all the above facts, as respects the transfer of the note to the appellee, because there was evidence before the jury, from which they were authorized to have found them.
The first authority cited, and which has been pressed upon this court as decisive, in favor of the appellant, of what is the law in Maryland on the question before us, is the case of Stewart vs. West, garnishee of Jenners, reported in 1 Har. & John: 536. But that case, when attentively considered, is entitled to no such effect as has been imputed to it; and is in perfect consistency with the judgment rendered in this case by the county court. That I may not be misconceived in the views I entertain, in the case presented by the record before us, I deem it necessary to state, that I fully concede, what I regard as

 [*31]  fully settled by, the case referred to 1 Har. & John. (and before that decision, I do not see how any doubt could have existed upon the subject) that by the attachment laws of Maryland, "where the garnishee is indebted to the defendant, by a promissory note, and an attachment is laid in his hands before such note is passed away by the defendant, whether it be before or after it is due, it is a lien on the amount of the note." This is all that was established by the case of Stewart vs. West, as stated by the reporter in his synopsis thereof. But in making that concession, I, by no means admit, that if subsequently to the service of the attachment, and before the note becomes due, it be endorsed in blank, or made payable to bearer, and be negotiated in the due course of business to a bona fide transferree for  value and without notice, that the lien is not thereby lost, and the title of the transferree, in virtue of the law-merchant, become absolute and indefeasible, and discharged from the lien. The facts in proof in the case of Stewart and West raised no such questions, and consequently by no legitimate inference can it be assumed, that the General Court

 [*32]  determined or designed to determine, any such question. The case of Stewart vs. West is most briefly reported, without any opinion of the court, or argument of the counsel, from which it can be inferred that the court did any thing more than decide the prayer in reference to that state of facts only, which were in proof in the cause. Let us examine what those facts were, and we at once perceive all that the General Court meant to decide.
Stewart vs. West was an appeal from Prince George's county court, in which it appeared, that the appellant, on the 14th of June, 1800, issued out of the said court, on a judgment therein, in which he was plaintiff, and Jenners defendant, an attachment, which on the 15th June, 1800, was laid in the hands of West, who appeared, and pleaded nulla bona.
At the trial, the defendant produced and read in evidence the following promissory note:
"Sixty days after date, I promise to pay Mr. Abiel Jenners, or order, one hundred dollars, negotiable at the Bank of Columbia, for value received.    Stephen West."
And proved the signature of Abiel Jenners to the following endorsement thereon, viz:
"For value received, 

 [*33]  I do hereby assign over all my right, title and interest to the within note, to Col. Solomon Simpson, this 18th of April, 1800.    Abiel Jenners."
There was also endorsed upon the note:
"Mr. West. Sir: Please to pay the within to the bearer.
Solomon Simpson."
But no evidence was adduced of the signature of Solomon Simpson: nor was there any proof by the defendant, except the said endorsement signed by Jenners, that the note had ever been negotiated to any person, or that he received any consideration or value for the said endorsement, or under what  circumstances it was made, or that it was ever delivered to Solomon Simpson or any other person other than West himself. And upon this proof of the defendant rested his case.
The plaintiff then proved by a witness that the note was passed to him by Abiel Jenners, as the owner thereof, whether before or after it became due he did not recollect; but if before it became due, it was but a few days; that it was after it became due that he presented it to West for payment; that he held said note from five to ten days before he presented it to West. Upon the proof thus offered, the

 [*34]  case was submitted to the jury, with the following prayer to the court by the plaintiff:
"That if they were of opinion from the evidence offered, that the above mentioned promissory note was in the hands of said Abiel Jenners, as the owner thereof, at or after the time when the attachment in this case was laid in the hands of West, the garnishee, that then the attachment was a lien, and bound whatever money was due on the note from West, in the hands of West."
The prayer being refused on an equal division of the court, on an appeal to the General Court, the judgment of the county court was reversed. And of the propriety of such reversal I can see nothing to induce me to entertain a momentary doubt. To transfer to an endorsee or transferree of the character hereinbefore described, such a paramount title to the note as will over-ride and defeat, according to the law-merchant, all prior equities, liens and rights of property in the note, the endorsement or transfer, must be supported by a delivery of the note.
In the case of Stewart vs. Jenners, there was not a particle of proof, direct or inferential, from which the jury could find the fact of such delivery, and, 

 [*35]  of consequence, the lien created by the attachment standing unaffected by the alleged endorsement to Col. Simpson, the prayer of the plaintiff ought to have been granted by the county court, and for its failure to do so, its judgment could not be otherwise than reversed by the General Court. So far from its appearing that the note, under the endorsement thereon, was ever delivered to, or put in possession of Col. Simpson, the alleged endorser, the testimony  on the part of the plaintiff clearly showed, either that the endorsement was a fabrication, or if bona fide, and the delivery of the note accompanied it, that it afterwards came into the possession of Abiel Jenners, "as the owner thereof," and was by him negotiated to the witness. But such negotiation being unsustained by any consideration therefor, the witness held the note subject to the same lien by the attachment, to which it was obnoxious in the hands of Abiel Jenners. The assertion then, that the principle has been settled by a judicial decision of the late General Court, that in a case like that now before us, the lien of the attachment has priority over the rights of a transferree of the note, 

 [*36]  in the condition of the present appellee, is not established by the authority relied on for that purpose.
And after a careful examination of all the cases from other of the United States, which in the argument of this cause, have been confidently relied on for the establishment of such a principle in Maryland, my mind has been irresistibly brought to the conclusion, that there is not one of them entitled to the weight of a feather for such a purpose.
The first of those cases was Coit against Hull, Kirby's Rep. 149. That case gave not the slightest colour to the principle now sought to be sustained by it. The question now before us does not appear to have been presented in that case. The plea that was demurred to did not show that the note was payable on time; that it was not due at the time of the subsequent transfer; that it was not overdue at the time the attachment was laid; and it was at that time, and in that case, denied that promissory notes were transferrable in that State.
The next case was that of Huff vs. Mills, 15 Tenn. 41, 7 Yer. 41, the principles of which decision rather militate against, than for the appellant here, as will appear by

 [*37]  the synopsis of the case, which is as follows:
"A debt secured by a negotiable paper, upon which suit has been brought, may be attached in the hands of a garnishee. The answer of the garnishee is conclusive as to his liability. If a garnishee state that he executed a negotiable note or bill  single, but did not know who holds it, or whether it be assigned or not, he does not state that he is indebted to the debtor of the attaching creditor, and no judgment can be given against him. But when the garnishee states he executed the note, that it has been sued on, and that there is no judgment on it, he is liable as a garnishee, and judgment must be entered against him as such."
In this case the note was already due, and suit brought thereon by the payee, before the attachment issued, and it was in reference to such cases that the court were speaking. Where a garnishee has not been called on to answer interrogatories, to entitle the attaching creditor to a judgment, he must prove the existence of the same facts, which would have secured him a judgment, had they appeared in the response of the garnishee.
The next case relied on by the appellant is that of Scott and Rule vs. Hill and McGunnegle, 3 Mo. 88,

 [*38]  which, if construed without reference to any other judicial decisions of that State, or the statutes thereof, would be a direct authority in favor of the doctrine contended for by the appellant. But it is only necessary to refer to the case of Bates vs. Martin in the same book, page 367, to discover that the law-merchant and the statute of 3 and 4 Anne, in regard to promissory notes, as adopted and prevailing in Maryland, have not been adopted and do not prevail in Missouri; but that, by the statutory enactments of that State, there exists there a peculiar law-merchant in relation to promissory notes, bonds, &c., (all of which stand on the same footing,) wholly dissimilar to that prevailing in England and in Maryland, and which has prevailed and been practised under, ever since the 3 and 4 of Anne.
In conformity to this peculiar and anomalous statute law of the State of Missouri, was the case of Scott and Rule vs. Hill and McGunnegle decided; and therefore, it has no application whatever to the case now before us. And if further authority on the subject were necessary, it is found in the case of Rector, &c. vs. Fornier, &c., 1 Mo. 204, where

 [*39]  it was expressly declared that the statute of Anne is not in force in Missouri.
 The next case referred to, and strongly relied on, in the argument of this case, as of controlling authority, is the case of Dore vs. Dawson, 6 Ala. 712, which certainly would be a decision, in favor of the appellant and directly in point, if it had been made under the same principles of commercial law, in reference to promissory notes, that have always prevailed in England and in this State, since the passage of the statute of 3 and 4 Anne. But that no such principles of commercial law exist in Alabama, is conclusively demonstrated in the same volume of the Alabama Reports, page 156, in the case of Beal and Bennett vs. Wainwright, Shields & Co., and therefore the case of Dore vs. Dawson has not the semblance of authority on the question to be adjudicated in the present appeal. The case of Dore vs. Dawson was determined upon the particular statute of Alabama, which may be found in 9 Porter's Rep. 447-8, Smith vs. Strader, Perine & Co., and gives a qualified negotiable character to promissory notes, and "all bonds, obligations, 

 [*40]  bills single, bills, and all other writings for the payment of money or any other thing." But this statute expressly provides, that "in all actions to be commenced and sued upon any such assigned bond, obligation, bill single, promissory note, or other writing as aforesaid, the defendant shall be allowed the benefit of all payments, discounts and sets-off, made, had or possessed as against the same, previous to notice of the assignment, in the same manner as if the same had been sued and prosecuted by the obligee or payee therein."
The next case on which the appellant relied, was that of Williamson et al. vs. Bowie, 6 Munford 176. This case has nothing to do with the principle now in question before us; and if any analogous question were there decided, it could be of no authority in this State, because the law-merchant, as to promissory notes, under the statute of Anne, is not recognized in Virginia. See the case of Stewart vs. Anders, 10 U.S. 203, 6 Cranch 203, 3 L. Ed. 199.
The case of Chase et al. vs. Haughton et al. 16 Vt. 594, was also relied on, in the argument for the appellant. But the slightest examination

 [*41]  of that case must satisfy  anybody that it can have no weight in the decision of the case now before us; because it appeared at the trial, on the trustee's process, not, as here, that the note, before its maturity, had been transferred to a bona fide holder for value; but that it was the property of the payee at the time it was due; and that a suit was then pending in his name against the garnishees for the recovery thereof.
The only remaining case which was referred to and relied on by the appellant in reference to the question now under consideration was the case of Hull vs. Blake, 13 Mass. 153, which cannot have the slightest influence upon the case before us, until all the principles of the law-merchant, in relation to promissory notes which have prevailed in Maryland from the time of the passage of the 3 and 4 of Anne to the present time, shall be annulled or repealed. All that was decided by the Supreme Court of Massachusetts in Hull vs. Blake was, that a court in Georgia, on promissory notes given in that State, having determined that in an action of debt by one of his creditors against the payee of the notes, by summoning

 [*42]  as garnishee the maker of the notes, a recovery could be had against him of the amount of such notes, although the notes, previous to the commencement of such action of debt, and before the notes became due, may have been bona fide, and for value transferred to an endorsee, the court in Massachusetts were bound to assume that the judgment of the court in Georgia was conformable to the laws of that State. The propriety of such a decision, it appears to me, cannot for a moment be doubted. The notes there in question being Georgia contracts, must, in their construction and operation be governed by the laws of Georgia, which laws in reference to those contracts, having been adjudicated by a court in Georgia of competent jurisdiction, upon every principle of judicial comity, was the court of Massachusetts bound to give efficacy to those contracts in subjection and conformity to the judicial proceedings of the court in Georgia. In other words, the court in Massachusetts in respect to the case before it, could not do otherwise than assume, that, in the State of Georgia,  promissory notes were not subject to the law-merchant, as established

 [*43]  by the statute of Anne. What possible relevancy or influence can the decision of the court in Massachusetts in the case of Hull vs. Blake have upon the case now submitted to our determination? Are we justified or required by it, in construing a Maryland contract, between Maryland parties litigant, contrary to our undoubted knowledge upon the subject, and the numerous decisions of this court, and indeed of every court of law and equity in the State, to assume that the law-merchant, as to promissory notes as established by the statute of Anne, has never been adopted in this State? If the decision of the Supreme Court of Massachusetts in the case of Hull and Blake, does not involve us in such an assumption, it has not the shadow of an analogy to the case before us, and cannot have the slightest bearing upon it. That the decision of the court in Georgia, could be for a moment sustained in Maryland, nobody would contend.
It has been suggested that in analogy to the court's decision in Hull vs. Blake, this court ought to regard the question now under our consideration, as correctly decided, and settled by the alleged decision of Baltimore

 [*44]  county court in the case of the Bank of New Orleans vs. Rebecca Somerville and Tiernan Somerville. This suggestion is unquestionably entitled to the merit of peculiar novelty. If an adjudication, at nisi prius, by the two Associate Judges of Baltimore county court (they only having sat in the case of the Bank of New Orleans vs. Somerville,) is to be forever conclusive in all future cases, as to all questions of law by them decided, it is difficult to assign a satisfactory reason, why a Court of Appeals should longer continue a part of the judicial system of the State; being thus rendered an useless burden upon the community. But it is somewhat remarkable, that it did not occur to the suggester of this innovation, that the principles of law, determined in the nisi prius case, to which such deferential submission is required, have been over-ruled by the judgment of Baltimore county court now for review before us. And that such overruling was not only the act of the two Associate Judges of that  court, but was the result of the unanimous opinion of the three Judges thereof; the chief of whom is also the Chief Judge of the Court of Appeals of Maryland

 [*45]  . But there is another reason why I cannot yield submission to the conclusiveness of this venerated nisi prius judgment; which is, that no such question as that now before us, was submitted in that case, to the decision of the county court, or was decided by it; on the contrary, the judgment was entered in pursuance of a written compromise or arrangement between the parties themselves, in relation to which the court had no agency.
It was urged that as promissory notes given in violation of the statute of gaming and usury, no matter into whose hands they may pass, are irrecoverable, and of no validity, that the same principle should be applied to the note before us. But I can discover no analogy between the two cases. The statutes against gaming and usury, declare all notes given for gaming or usurious transactions, to be absolutely null and void, without any reservation, either express or to be implied of the rights of any person, who, under any circumstances, may become the holder thereof. In conformity with the positive language of these enactments, and from motives of public policy, and with a view to restrain two great and increasing vices which threatened, as was believed, 

 [*46]  to overwhelm the morality and prosperity of the nation, it was decided by the courts of England (and those decisions have followed by the judicial tribunals of this State and elsewhere,) that it was the design of the Legislature that the statutes against gaming and usury should be paramount, and control the law-merchant as to promissory notes issued in violation of them, but even with such high motives for its adoption, this innovation upon the law-merchant has been regretted, if not condemned by many of the most distinguished jurists of England. Can ingenuity itself, upon any sound principle of construction, assimilate the cases which have been adjudicated under the statutes of usury and gaming, to the case before us, under the attachment law of Maryland? I respectfully believe that it cannot.
On the part of the appellee, but two authorities were referred  to. The first was Sergeant on Attachment, pages 85-86, which in the most explicit manner sustains the decision of Baltimore county court, on the identical question now before us.
The second authority is that of Ludlow vs. Bingham, 4 Dallas 47. This case, decided in the High Court of Errors

 [*47]  and Appeals of Pennsylvania, by the unanimous opinion of that court, delivered by that distinguished jurist, Thomas McKean, then the Chief Justice thereof, after a most thorough and elaborate argument by the most eminent lawyers of the State, (one of whom was E. Tilghman, the late Chief Justice of that State,) is to my mind conclusive upon the case before us. The principle there determined, was identical with that to be decided in this case, with this difference only, that in the case in Pennsylvania, it was conceded by the counsel sustaining the efficacy of the attachment, (of whom E. Tilghman was one,) that if the law-merchant of England, in relation to promissory notes (which is undeniably the law of Maryland,) had been the law of Pennsylvania, the attachment laid in that case could have interposed no barrier to the subsequent bona fide holder of the note for value. And the only ground upon which they resisted such holder's right of recovery was, that their statute law upon the subject was different from the commercial law of England and New York. In the argument of the case before us, the learned counsel for the appellant has not even

 [*48]  intimated that the law-merchant of England, as to promissory notes, is not the law of Maryland.
After a careful examination and mature consideration of all the cases referred to in the argument upon the case before us, I have not been able to discover even a dictum, when properly understood, much less an adjudication, in the slightest degree conflicting with the decision of the court below in this case; or with that of Ludlow vs. Bingham, as far as the present controversy is concerned.
Being unable to doubt for an instant, the correctness of the county court's refusal of the second prayer of the appellant, which is the only question before us on the present appeal, I think its judgment ought to be affirmed.  

18 of 33 DOCUMENTS 

CHARLES BROOKS vs. WILLIAM S. ELGIN AND JAMES H. ELGIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 254; 1847 Md. LEXIS 65 

December, 1847, Decided 

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

This was an action of assumpsit, brought on the 24th January, 1844, by the appellees against the appellants, Thomas H. Perdue and William Nichols, trading under the firm of Perdue, Nichols & Co. The appellant only appeared below, and pleaded non-assumpsit.

The plaintiffs, to support the issue on their part, proved the partnership of the plaintiffs and defendants, as laid in the declaration; and also proved, by competent testimony, the note and account following:

"Shannondale Furnace, April 21st, 1842.

"$ 441 35. Ninety days after date, we promise to pay J. H. Elgin & Co. or order, four hundred and forty-one dollars and thirty-five cents--negotiable and payable at the Bank of the Valley of Va. in Charlestown, without offset, for value received.     PERDUE, NICHOLS & CO."

"Endorsed, J. H. Elgin & Co."

Messrs. Perdue, Nichols & Co.     To J. H. Elgin & Co.

DR.--An account from 22d April to 24th November, 1842, in the aggregate $ 220 40.

The defendant then offered in evidence the following account and draft:

Messrs. Perdue, Nichols & Co.     To J. H. Elgin & Co.

DR.--An account from 14th April [**2]  to 20th September, 1842, in the aggregate $ 635 18, for the same items and the promissory note of the defendants.

CR.--A draft on the Balt. and Ohio R. R. Co. for $ 580, leaving a balance of $ 55 18 due J. H. E. & Co.

The draft was as follows:

Balt. and Ohio R. R. Co.

Will please pay to Hugh Gallace, or order, five hundred and eighty dollars, for castings used in re-constructing Harper's Ferry Viaduct, out of any monies due me on my final estimate.

J. P. SHANNON.

Harpers Ferry, February 14th, 1842.

Which said draft was endorsed:

April 4, 1842. The within order I transfer to Messrs. Perdue, Nichols & Co.     HUGH GALLACE.

Pay to the order J. H. Elgin & Co.

April 8th, 1842.     PERDUE, NICHOLS & CO.

The plaintiffs then proved by J. G. Cobbs, that on the day the above draft was received by the plaintiffs, he came as their clerk to Baltimore, and presented the same to the Balt. and Ohio R. R. Co. when he was informed by Mr. Atkinson, he thinks, the secretary of the Company, and if not by Mr. Cann, the clerk of the chief engineer, that the said draft could not be accepted, and that the Company had no funds belonging to Mr. Shannon;  [**3]  that he at once called on Shannon, the drawer, about the draft, who said that he had a dispute with the R. R. Co. about the settlement of the account, and did not pay the draft. Witness subsequently returned with the draft to Harpers Ferry, and saw Perdue, one of the defendants, on or about the 1st January, 1843, who asked whether the said draft had been sent to Mr. Latrobe, for suit against Shannon, which he told him had been done. Witness was here told that the draft was in truth sent on the 27th May, 1843, to Mr. Latrobe. He says, however, that he is confident that this conversation took place with Perdue at the time stated, which witness fixes; and he believed the draft had been sent at the time he spoke to Perdue, though he did not, in fact, know whether it had been sent or not.

The defendant offered in evidence the final statement appended hereto, and the papers connected therewith.

DR.--The Baltimore and Ohio R. R. Co. in account with Shannon & Scofield, (Contractors.) CR.

For the re-construction and new part of the wooden superstructure of the Harpers Ferry Viaduct, and the trestle work of Harpers Ferry.--Aggregate of debt,     $ 61,757 14

By credits [**4]  from 31st May, 1840, to the 13th September,

________________________________________________________________________________
1842, in cash,	$ 49,576 15	
  Balance due S. & S.	12,180 99	
	
	$ 61,757 14	
________________________________________________________________________________

Engineer's Office, Balt. and Ohio R. R. Co. Baltimore, September 14th, 1842.

TO JOSHUA I. ATKINSON, ESQ.

Sec. Balt. and Ohio R. R. Co.

Sir,--Messrs. Shannon & Scofield, contractors for the reconstruction and new part of the Harpers Ferry Viaduct and trestling, at Harpers Ferry, have completed their work under that contract, and are entitled to be paid in full the balance of $ 12,080 99, appearing to be due them in the above account current, on their signing the annexed final receipt and release.

BENJ. H. LATROBE, Chief Engineer.

To which was annexed the following power:

I hereby authorize and empower Mr. Joseph P. Shannon to sign any receipt in my name, that may be necessary to settle with the Balt. and Ohio R. R. Co.--the balance due from said Company to the firm of Joseph P. Shannon and Jesse Scofield--the said balance being, as per account furnished by said R. R. Co., $ 12,080 99.

Dated 14th September, 1842.     JESSE SCOFIELD.

To the said account current was annexed a receipt and release [**5]  to the Company of the balance above mentioned by Scofield, dated 6th February, 1843.

The plaintiffs proved that the sum of $ 12,084 was paid over by the R. R. Co. to Shannon on the presentation of said engineer's order, and before the 7th February, 1843, and further proved that on the 27th May, 1843, they sent the said draft or order to Mr. J. H. B. Latrobe for collection.

The defendant further proved, that no effort was ever made by plaintiffs to collect the amount of the draft from the R. R. Co. or Gallace, the party who assigned the same to defendant.

The plaintiffs also gave evidence that the draft was received as collateral security, and it was admitted that the plaintiffs did not send this draft for suit until 27th May, 1843, and never used any means to obtain payment of said order from the R. R. Co. except its presentation as aforesaid.

The defendant proved by J. I. Atkinson, the secretary of the R. R. Co. that he had no recollection that this order had ever been presented to him, but that he would not say that it had not been.

The plaintiffs then offered evidence by the secretary of the Company, that in no event would he have accepted or paid the draft [**6]  of one of the partners, like that in question, out of the partnership fund.

The defendant prayed the court to instruct the jury:

If the jury believe that on the 22d September, 1842, the defendant assigned to the plaintiffs the order given in evidence, which plaintiffs accepted, and gave the receipt given in evidence, that J. P. Shannon and Scofield were contractors on the Balt. and Ohio R. R. and that on the date of the order given in evidence, no final estimate had been made, but that on the 14th September, 1842, a final estimate was made, by which a balance of $ 12,080 94 was found to be due said Shannon and Scofield from the Balt. and Ohio R. R. Co. and that the plaintiffs in this cause never took any steps or used any legal diligence to recover the said order, or the amount thereof, from the Balt. and Ohio R. R. Co.; and if the jury further believe that such order was given on account of work done by Gallace in the re-construction of the Harpers Ferry Viaduct, that Shannon was one of the parties contracting for the re-construction of said Viaduct; and that the plaintiffs presented said draft to some person at the Balt. and Ohio R. R. Co. who said there were no funds;  [**7]  that said draft was never delivered back to the defendant by the plaintiffs; and that no notice of its non-acceptance or non-payment was given to the defendant, till January, 1843; that then the plaintiffs are not entitled to recover, but for the balance of their account, after deducting the said draft or order.

If the jury believe the facts stated in defendant's first prayer, and further find that the R. R. Co. at the time when such order was presented, had funds more than ample to pay such order, and continued to hold said funds till February, 1843; that the plaintiffs have not used any diligence to collect the sum from them; then the plaintiffs are not entitled to recover, for the amount of said order on the said R. R. Co.: which prayers the court, (ARCHER, C. J. and PURVIANCE, A. J.) refused to grant. The defendant excepted.

The testimony on both sides being closed, and which is to be taken as forming part of this exception, the plaintiffs, by their counsel, prayed the court to instruct the jury--that if the jury shall believe that after the refusal of the R. R. Company to pay, or accept the draft of J. P. Shannon, notice within a reasonable time--of which the jury are [**8]  the judges--was given to Nichols, Perdue & Co. of such non-payment or non-acceptance, then the defendant is not entitled to be credited with the amount of the said draft: which instruction the court, (ARCHER, C. J. and PURVIANCE, A. J.) gave. The defendant excepted and appealed.  

DISPOSITION:
PROCEDENDO AWARDED.  

HEADNOTES:

An unaccepted draft, drawn by a third party upon a fourth, was endorsed by a debtor to his creditor on account of a precedent debt;--acceptance was refused, and notice given to the drawer by the holder--but notice was not given to the debtor endorser for some months after such refusal. In an action by the creditor against the debtor to recover his precedent debt, the defendant cannot defeat the action to the amount of the draft, by insisting that the holder should have sued the drawee, who had funds of the drawer at the time of the presentation of the draft--the drawer being sued by the creditor, who still retained the draft.

Refusal to accept or pay a draft, established by oral proof, is a question of fact; whether notice of such refusal was given within a reasonable time, is a question of law.

Whether an assignee of a draft, delivered and received on account of a precedent debt, has or has not used due diligence in endeavoring to recover the sum assigned to him, from parties on the draft liable to the assignor, is a question of law. 

COUNSEL:
By MCMAHON for the appellant, and

By LATROBE for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*259]  MAGRUDER, J., delivered the opinion of this court.
We are of opinion that the court below did not err in refusing to give the instruction of the defendant, as stated in the first bill of exceptions. The facts stated in the prayer, even if admitted or proved to the satisfaction of the jury, would not have entitled the defendant to claim a deduction from the plaintiffs' claim, of the amount of the order offered in evidence.
We think that the court below erred in giving the instruction, which is to be found in the second exception. In that instruction, it is assumed that the Rail-road Company refused to pay or accept the order. The court also said the jury were 

 [*260]  the judges whether notice of such a refusal [**9]  was given within a reasonable time to the defendant below.
In a case like this, (Crawford vs. Berry, 6 G. & J.) this court said: "Active diligence is imposed upon the obligee in pursuing the obligor, for a recovery of the sum due on the bill assigned to him, so that nothing shall be lost by his laches; and the question is, whether he did use due diligence, which is a question for the decision of the court."
Affirm first exception, and second exception reversed.
PROCEDENDO AWARDED.  

19 of 33 DOCUMENTS 

THOMAS IRWIN, JR. vs. HARRIET G. C. SPRIGG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 200; 1847 Md. LEXIS 61 

December, 1847, Decided 

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

This was a special action on the case, brought by the appellee against the appellant, as the possessor and occupier of a certain house, near unto a common street, in which said street there was and is, a certain area before a certain basement window of, and belonging to the said house, for the purpose of admitting light into said window; that the defendant, &c. wrongfully permitted the said area to be and continue, without any fence, railing, cover or protection, by means whereof the plaintiff was injured and damaged, as stated in the proof. Plea, non cul.

The plaintiff, at the trial of this cause, offered in evidence by Mrs. Stewart, that on the evening of the 10th February, 1844, she, together with her sister, the plaintiff, were returning to witness' house, and in going down Perry street, (formerly called Peace alley,) on the footway, near defendant's house, the plaintiff fell or trod into an area made to light the cellar window of the defendant's house, and broke her leg, above the ankle, in two places; that said area is made by excavating the pavement leading along the north side of Perry street, designed for the convenience of foot [**2]  passengers; that there is no foot pavement on the south side of Perry street, nor on the north side, except along defendant's house to his gate; that when said accident occurred, witness was walking before, and plaintiff near behind her, and plaintiff exclaimed that she had fallen into said area, and broken her leg. Witness assisted her to get out of said area, but she could not rise, and a gentleman, named Banks, came and assisted them, and the plaintiff was carried to witness' house, where a physician was sent, who set her leg; that she supposes said area was a yard deep, and perhaps more; but witness could not tell the width of the opening; that it was protected neither by bars, nor covering of any sort, for the last twelve years, nor before that, as well as she could remember, and was, in the opinion of witness, dangerous; that witness has lived in said street, formerly Peace alley, for nineteen or twenty years, to the east of the house of the defendant, and of the area into which the plaintiff, (her sister,) fell; that the footway between said area and the curb-stone is narrow, so as that it will not admit of two persons, walking side by side; that the weather was cold on that [**3]  night, and there was snow on the ground, but this footway was cleared of snow. And said witness being cross-examined, further stated that she had lived in Perry street, a few steps east of defendant's house, for nineteen or twenty years; that the plaintiff, her sister, lived in a court running from Charles street, about two squares off, and to the north-east of witness' dwelling, which is east of the defendant's house; that plaintiff visited witness very often; that the opening is very large, and is nearly as wide as the whole of the rest of the pavement; that there is a great descent in the pavement, in the direction in which the plaintiff and witness were going; that the area and window were on their left hand as they went along, and the right leg of the plaintiff was the one broken; that plaintiff is fifty-five or fifty-six years old. The area was covered soon after the accident occurred. That Perry street was formerly called Peace alley, and is of the ordinary width of alleys; two carts could not pass each other in it. On her examination in chief, witness further stated that plaintiff was confined to the house of the witness for five or six weeks, during which she suffered great [**4]  pain and agony; and that although she can now use her limb, it is much impaired in strength.

The defendant proved that the house of the defendant had been built a great many years, forty or fifty years ago; that defendant purchased it twelve or thirteen years ago; that at that time the window and area were there, as they are now; that the area is a segment of a circle, whose widest part is twelve or thirteen inches; and that the footway left opposite to it is two feet six inches wide; that the whole footway is about three feet wide; and that a person using ordinary care and caution would not, in the opinion of the witness fall or step into said opening; that a person walking down said alley would be thrown off from the wall by the shoulder or arm, sufficiently far to prevent him from stepping into said area, and that it could hardly happen, unless the person rubbed against the wall; that such areas are very common in the streets and alleys of the City--particularly in houses built many years since; and that many of the areas before the houses of the City are much larger than this window, and no more protected.

The defendant prayed the court to instruct the jury:

1st.  [**5]  That if they find from the evidence that the plaintiff might, by the exercise of ordinary care and caution, have escaped the injury for which this action is brought, and did not exercise such care and caution at the time when the accident occurred, and that but for the want of such care and caution she would not have sustained the injury complained of, then the plaintiff is not entitled to recover, even if the jury shall believe that the injury was caused by falling into the window of the defendant.

2d. That the plaintiff is not entitled to recover for the injury complained of, unless the jury are satisfied from the evidence that the said injury was occasioned by the want of ordinary care and prudence on the part of the defendant, or some agent of his.

3d. That if, from the evidence in the cause, there is a reasonable doubt in the minds of the jury, whether said injury complained of by the plaintiff, was occasioned by the want of ordinary care and prudence on the part of the defendant, then the plaintiff is not entitled to recover.

4th. That the mere existence of the window, as proved in the cause, is not evidence of a want of ordinary care on the part of the defendant--there [**6]  being no ordinance of the city forbidding it. The court, (PURVIANCE and LE GRAND, A. J.,) granted the first prayer, but refused to grant the second, third and fourth prayers, and each of them.

The defendant excepted.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

When a plaintiff may, by the exercise of ordinary care and diligence, avoid an injury arising from a nuisance, erected or maintained upon a public street in a populous city by the defendant, and did not exercise such care and diligence, he cannot recover damages for a personal injury arising from such nuisance. Under such circumstances, he must bear the consequences of his own folly.

An area intended to furnish light to the basement of the defendant's house, opened in the pavement of a public street, in a populous city, is a public nuisance of a dangerous character, which the owner of the house, when it was erected, and all subsequent purchasers, are bound to render secure. It is an act of wrongful negligence not to protect it from persons passing through such public street, and renders the possessor of the house liable for the accidents which may result therefrom.

It is no defence in such a case that the area was open, or had been opened, before the defendant became the possessor of the property; when he took possession, he was bound to guard against the danger to which the public had been before exposed. 

COUNSEL:
By LLOYD for the appellant, and

By NELSON for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*203]  MARTIN, J., delivered the opinion of this court.
This was an action on the case instituted in Baltimore County Court, by the appellee against the appellant, to recover 

 [*204]  damages for an injury alleged to have been sustained by falling into an open area in front of the house of the appellant on Perry street, in the City of Baltimore. Issue was joined on the plea of not guilty, and it is only necessary to refer with particularity to that portion of the testimony which related to the size and character of this area.
Upon this subject, the plaintiff proved at the trial of the cause, that the area was made by excavating the pavement leading along the north side of Perry street, and it was designed to light the cellar window of the [**7]  defendant's house. That it was about a yard deep; that it was protected by neither bars nor covering of any sort for the last twelve years, and that it was, in the opinion of the witness, dangerous.
That the footway between the area and the curb-stone is so narrow that it will not admit two persons to walk side by side. The plaintiff also proved by a witness, that he had measured the area, and that it was fifteen inches wide at its widest projection into the pavement.
The defendant then proved by a competent witness, that the house of the defendant had been built forty or fifty years since, and that the defendant had purchased it twelve or thirteen years ago; that at the time the defendant purchased the house, the area and window were there, as they are now; that they have not been altered; that the area is a segment of a circle, whose widest part is twelve or thirteen inches, and that the footway left opposite is two feet six inches; that the whole footway is about three feet wide. And on his cross examination, this witness stated, that he remembered the area before the defendant bought the house, and was satisfied that the area is now as it was before the purchase, and that the [**8]  space left outside of the said opening, and between it and the curb-stone for a footway, is double the width of the opening. The plaintiff proved the nature and extent of the injury she received; and in this condition of the case, the counsel for the defendant asked the court to give to the jury the following instructions:
1st. That if the jury find from the evidence that the plaintiff 

 [*205]  might, by the exercise of ordinary care and caution, have escaped the injury for which this action is brought, and did not exercise such care and caution at the time when the accident occurred, and that but for the want of such care and caution she would not have sustained the injury complained of, then the plaintiff is not entitled to recover.
2d. That the plaintiff is not entitled to recover for the injury complained of, unless the jury are satisfied from the evidence that the said injury was occasioned by the want of ordinary care and prudence on the part of the defendant, or some agent of his.
3d. That if from the evidence in the cause there is a reasonable doubt in the minds of the jury, whether the said injury complained of by the plaintiff, was occasioned by the want of ordinary [**9]  care and prudence on the part of the defendant, then the plaintiff is not entitled to recover.
4th. That the mere existence of the window, as proved in the cause, is not evidence of a want of ordinary care on the part of the defendant, there being no ordinance of the city forbidding it.
The first instruction was granted, and no doubt can be entertained about the correctness of the legal proposition embodied in that prayer, and affirmed by the court.
The established doctrine now is, that although the defendant's misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly.
In the case of Batterfield vs. Forrester, 11 East 61, Lord Ellenborough said:--
"A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.

 [*206]  "Two things must concur to support this [**10]  action: an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." Flower vs. Adam, 2 Taunt. 314. Lane vs. Crombie, 29 Mass. 177, 12 Pick. 177.
It appears that under the law, as thus expounded by the court, the jury rendered a verdict in favor of the plaintiff, and have therefore negatived the idea that the injury she sustained was attributable to the want of ordinary care and caution on her part.
The second, third and fourth prayers addressed to the court, raised substantially the same question, and were intended to present this proposition: That under the circumstances of this case, the fact, that the defendant permitted this area to remain open, and unguarded, after he became the owner of the house to which it was appurtenant, could not be regarded, in legal contemplation, as constituting a public nuisance, particularly as this was the exact condition of the premises at the time he purchased them; and that therefore he was not responsible, unless the jury were satisfied that the injury was occasioned by the want of care and prudence on his part. This proposition [**11]  was over-ruled by the court, and we think correctly. The existence of an area, open and unprotected, like that described by the witnesses in this case, is an unauthorized and illegal obstruction of a public street in a populous city of a most aggravated and dangerous character, and is therefore a public nuisance; and although the defendant did not originate the nuisance, yet as he subsequently became the owner of the house to which it belonged, the law imposed upon him the obligation to render it secure.
In Coupland vs. Hardingham, 3 Campbell 398, an action was instituted against the defendant for negligence in not railing in or guarding an area before his house in Wood street, Westminster, whereby the plaintiff fell down into the area, and was severely hurt.
It appeared that before the defendant's house there was an area, which was descended to by three steps from the street, and from which there is a door leading into the basement story 

 [*207]  of the house; there is no railing or fence to guard the area from the street; the plaintiff passing by in a dark night, fell in, and had his arm broken.
The defence set up was that the premises had been exactly in the same [**12]  situation as far back as could be remembered, and many years before the defendant was in possession of them. But Lord Ellenborough held:
"That however long the premises might have been in this situation, as soon as the defendant took possession of them, he was bound to guard against the danger to which the public had been before exposed, and that he was liable for the consequences of having neglected to do so, in the same manner as if he himself had originated the nuisance. That the area belongs to the house, and it is a duty which the law casts upon the occupier of the house to render it secure."
The case of Coupland vs. Hardingham, which we have just cited from 3 Campb. 398, is similar in all its features to the one at bar, and we consider unnecessary to add a single word to the reasoning of Lord Ellenborough upon this subject. We think the ruling of the court below was correct upon all the points raised by the defendant's prayers, and that their judgment must be affirmed.
JUDGMENT AFFIRMED.  

20 of 33 DOCUMENTS 

ROBERT WHITE ET AL. vs. JOSEPH WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 359; 1847 Md. LEXIS 33 

December, 1847, Decided 

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

The bill in this cause was filed on the 21st September, 1844, by the appellee, Joseph White, and alleged that about the year 1814, he was taken into the partnership, then existing under the title of John C. White & Sons, in the city of Baltimore, and John White & Co. in the city of New York, both of which firms were composed of John Campbell White, Robert, John, and Campbell P. White, and engaged in the general business of merchants and in the business of distilling; that in addition to an interest or share of the profits, your orator was to be allowed the sum of $ 2000 a year, for the extra care, trouble and time he was to give to the business. That your orator accordingly took charge of the said business as the active and managing partner, and so continued, until on or about the 7th March, 1835, trusting that its results had been profitable, as indeed he now avers and charges them to have been, to all concerned; that the books of the said partnership were kept by Henry White of the city of Baltimore, who acted as the agent of the said firms, and so continued to act through all the changes hereinafter mentioned in the persons interested therein,  [**2]  both in buying and selling, and also in providing from time to time any additional funds that might be necessary for the continuance of its operations. That during all that time, your orator had never examined the books, or become aware from his own personal knowledge, of the profits of the business in which he had been engaged, although he had good reason to believe, and does now believe and charge, on the representations made to him, as well by the said Henry as by the said John White, who assumed to act, and did act for all the partners, and well knew of and directed all the operations of the said firm; and from the general nature of the business, which was conducted with skill, diligence and economy by your orator, that large profits had been made and the capital largely increased; that about the year 1825 or 1826, the said John White withdrew from the said firm, but on what terms and after what settlement with the other partners your orator does not know, and never has been informed--certainly without any settlement or consultation with your orator; that the said partnership and business were continued under the same name and style as before by the other partners, and your orator,  [**3]  the said John acting as the adviser of all the partners, and exercising the same control as when interested in their operations; that on the said 7th March, 1835, the said Robert White having also withdrawn from the said partnership, after what settlement, if any, or on what conditions your orator does not know. Your orator, the said John Cambpell White and Campbell P. White, agreed to carry on the said partnership and business in the city of Baltimore under the name and style of John C. White & Sons, and in the city of New York under the name and style of Campbell P. White, whereupon articles were prepared solely and exclusively for the purpose, as your orator was informed and believed, of settling the terms and conditions on which their future operations were to be conducted, which on being presented to your orator, with the assurance that such were their object and import, he signed without reading, and without having ever examined the books and accounts of the said partnership, or his private account, or any balance sheet, and without being aware of the state of the accounts of either of the partners, or of those who had retired as aforesaid from the firm; that the said partnership [**4]  continued under the said articles, to be conducted as before, until the 18th May, 1843, when it was dissolved by your orator, no business having been done at the distillery for some months before, and especially since the August preceding, when your orator discovered that his partner, Campbell P. White, who had no personal knowledge of the concerns of the firm, and resided in the city of New York, had signed the name of John C. White & Sons to a note in favor of the said Henry White, for the sum of $ 38,595 24, without consultation with or the knowledge of your orator; that during the whole time that the said Henry White acted as the agent of the firm, and up to the time when the said pretended indebtedness occurred, your orator had been as above mentioned the active partner, and as such alone authorized, and the only one of the partners who signed the name of the last mentioned firm, all of which was well known to the said Henry and the said Campbell P. White; that although the said Henry lived in the same city with your orator and the other partner, John Campbell White, and was in the habit of daily and friendly intercourse with them, he had never asked either your orator, or the [**5]  said John Campbell White, for a settlement, or in any way intimated that any such indebtedness existed, or was pretended to exist, but on the contrary, your orator had been a short time before informed by the said John White, who was well acquainted with the books and business of the firm, and who, if he did not obtain his information from the books, received it directly from the said Henry, that the firm owed no money: and when your orator called upon the said Campbell P. White in relation thereto, he acknowledged, as your orator well knew and now charges to be true, that he had signed the said note without having made any examination of the said books. And your orator verily believes and therefore charges, that no such indebtedness did in fact exist, and that the whole proceeding was the result of a confederacy between the said Campbell P., Henry, and the said John White, who assumed to act as the attorney of the said Campbell, and to control all the other partners as aforesaid, to defraud your orator; that about the month of March, 1842, and while the business of the said firm was prosperous and profitable, and your orator had good reason to believe, that all concerned were satisfied [**6]  with its results, he was surprised and astounded by the refusal of the agent, the said Henry, to furnish the necessary funds out of the proceeds of the said business, for the payment of the hands, and by his detention of the grain then in his custody; which proceeding your orator believes was at the instance and by the advice of the said John White and the other confederates, and was designed to operate, and did operate to the injury of your orator; that for the purpose of further injuring your orator and ruining his credit, the said John White gave out, that your orator was largely indebted to the said firm, that is to say, in the sum of about $ 15,000; that your orator becoming alarmed by the course thus pursued, and finding it necessary to attend to his own interest and guard his own rights more carefully than he had done before, demanded of the said Henry and the other partners, an examination of the books of the said partnership, and of the said Henry, and a settlement of the said business and firm, which request was, to his surprise, positively refused; that at the time the said demand was made by your orator, the said John White assuming, though in the presence of the said John [**7]  Campbell White and Henry White, to act for them and all the others, said that no person should ever see the said books, although your orator, in the spirit of conciliation and with an earnest wish to avoid all controversy, and bring his own affairs to a speedy settlement, offered to refer them to any three persons that he and his confederates, and the other partners might select; that in the spirit with which the said refusal was made, the books have been withheld to this time, and the said partners and confederates well knowing, that on a correct accounting a large sum of money would be due to your orator, have ever since refused, and still refuse to come to a settlement, so that your orator has been kept to this day in complete ignorance of the extent of his rights, while the said John White and the said partners have at various times given out and charged that he was indebted to them and the said firm in about the sum of $ 25,000, which allegation he avers to be unfounded; that the said John Campbell White, who is your orator's father, has never taken any active part in the said business, and knows nothing thereof, except as he hears it from the said Henry, Campbell P. and John [**8]  White, who, your orator charges have combined and confederated together, as well for the purpose of injuring your orator as the said John C. White, in the premises; that the said John C. White is old and infirm, and entirely incapable of attending to business, and by the fear of the said confederates, and by their undue and improper practices, directed at their will and pleasure, so as to be used to your orator's and his own injury, though your orator well knows that weak and decrepit as he is, he would neither injure him or any other person, if allowed, and capable of learning the true state of the facts connected with the said partnership, and all the proceedings of the said confederates. Your orator knows not what interest the said John White may now have, if any, in the affairs of the said partnership, other than as the attorney of the said Campbell P. White, but he charges that it has been by his advice, assistance and connivance, that your orator's reasonable requests for the books, or an examination thereof, have been refused, and all his endeavors for a speedy and amicable adjustment of the affairs of said partnership utterly frustrated; who, for that purpose, has combined [**9]  and confederated with the said Campbell P. and Henry White, although your orator has, as he charges, made various efforts for the purpose of adjusting all disputes on the most equitable terms and in the most speedy and economical manner.

But so far have your orator's advances from being properly met, that when he demanded the said books from the year 1814 to the close of the partnership, your orator was informed that he had already confirmed all the accounts, charges and books up to the year 1835, so as to preclude himself from making any examination prior to that time, or correcting any false or erroneous entries or charges that might have been made or committed by the partners, or their agent, or by the said John White, or by the said agent, at his suggestion, and under his direction; whereas your orator avers, that he never designed to enter into any such agreement, as he had never examined the said books and accounts; and if any such agreement or stipulation was included in the articles he signed, it was fraudulently inserted, with a view of deceiving your orator, and putting him at the mercy of the said confederates. What were the contents of the said agreement, your orator [**10]  does not know, as he has never seen it since its execution, but only what purports to be a copy, in the handwriting of the said Henry White; the said paper having ever since continued in the possession of one or other of the said confederates; that the said books do not, in many particulars, exhibit a correct account of the said partnership; and especially in this, that he has never been credited, as he ought to have been, with the sum of $ 3,000--the value of certain property adjoining the distillery, which in the year 1835, he conveyed to the said firm for its accommodation, and to enlarge the sphere of its operations; that soon after the said Henry obtained the note of the firm as above mentioned, he instituted proceedings at law for the recovery thereof; and having by the means and instrumentality of his confederates, obtained the consent of the said John Campbell White thereto, a judgment was entered thereon. That the said Henry, having on hand a large amount of spirits belonging to the firm, applied the same in part satisfaction of the said judgment, without the consent of your orator, and finally demanded a mortgage of all the partnership property to secure the residue. That [**11]  after practising on the fears of the said John Campbell White, the said confederates procured his assent thereto; and your orator to free his father from any further annoyance, but with a solemn protest against the whole proceeding, and against the justice of the said claim, joined in its execution; that the said confederates in further pursuance of their plans to injure your orator, and deprive him of his reasonable and just portion of the funds and property of the said partnership, procured a bill to be filed in your Honorable court by the said John Campbell White, for the appointment of a receiver, and the settlement of the affairs of the said firm; but that although your orator's answer was filed as far back as the 16th October last, and within three months after the filing of the said bill, no steps have been taken to obtain the voluntary answer of the said Campbell P. White, or to obtain an order of publication against him, so that the said cause may be brought to issue, and the matters of the controversy between your orator and the other parties, examined, adjusted and settled, according to the principles of equity and good conscience. In the meanwhile, the said partners have [**12]  procured a lease of the property of the firm, at a rate no more than sufficient to pay off the annual incumbrances thereon, and thus succeeded in accomplishing their purpose of obtaining possession of all the property, as they had previously had of the funds of the said partnership, and are now willing, as their proceedings show, that the said cause shall forever remain in its present position. But your orator, on the contrary, whose funds have been thus withheld from him, by the fraudulent contrivances of the said confederates, is deeply interested in closing all controversies by a full, fair and complete examination of all his acts and doings, in and about the said business, so that he may, at an early day, obtain what is justly due to him, and pay over to his co-partners, as he now offers himself ready to do whatever, on a just accounting, may be found due from him; that by reason of the partnership property being kept out of the market, when it ought to be sold, he is suffering grievous loss and injury, and the other partners and confederates are obtaining all the advantage thereof, and of the labor, diligence and skill of your orator given to the said business for nearly thirty [**13]  years, all which doings, &c.

Prayer, that the said John C., Campbell P., John and Robert White, (the said Campbell P. White, and the said Robert White being non-residents) account with your orator of and concerning the said partnerships, from the time your orator became a member thereof to their dissolution; and for that purpose, that they may be compelled to produce all the books of the said partnerships; that the said Henry White may also account with your orator of and concerning his agency, from the same period to the present time; that the said judgment and mortgage may stand security for no other or greater sum than on such accounting may be found justly and fairly due; and if nothing is due, may be set aside, vacated, and annulled; and that all the partnership property may be sold forthwith, and the proceeds applied as may be most equitable. And for further relief, &c., &c.

On the 30th September, 1844, an order of publication was obtained against the non-resident defendants, Campbell P. and Robert White, which was duly published. The other defendants were summoned and appeared.

At December term, 1844, attachments to answer were issued against the resident defendants.  [**14]  At March term, 1845, the attachments were returned, attached.

The defendant, J. C. White, demurred to the bill, because it was for several and distinct matters and causes which have no relation to, and are independent of each other; and wherein and in part whereof, this defendant is in no wise interested or concerned, and ought not to be implicated. For which, &c.

The defendant, John White, demurred separately on the same grounds, as also Henry White.

Upon petition of the complainant, the Chancellor (BLAND) ordered the demurrers to stand for hearing on the 8th July, 1845, provided, &c.

At July term, (16th July,) the Chancellor overruled the demurrers, ordered each of the demurring defendants to be taxed with the costs of the demurrer, including a solicitor's fee, and the sum of five pounds current money. And that they respectively be in contempt until the costs, &c. be paid; and that the cause stand over with leave to the said defendants to answer or plead to the said bill, on or before the 1st day of September next, 1845.

At September term, 1845, the Chancellor (BLAND) passed the following decree:

This cause having been set down for hearing on the demurrers [**15]  of John C. White, John White, and Henry White, and the said demurrers having been overruled by the order of the 16th July last, and the case having been thereby ordered to stand over, with leave to the said parties to answer or plead to the complainant's bill, on or before the first of September following; and the said parties having failed to answer or plead as allowed by the said order, and the order of publication heretofore passed in this cause having been duly published, and the said absent defendants having failed to appear and answer the bill of the complainant; it is thereupon, this 9th October, 1845, by, &c., adjudged, ordered and decreed, that the said bill of complaint be, and the same is hereby taken, pro confesso, against the said defendants.

And it is further adjudged, ordered and decreed, that the said parties account with each other, of and concerning the matters in the proceedings mentioned; and that the net proceeds of sale stand security for the mortgage and judgment claim of the said Henry White to such an extent only, as on accounting may appear justly due to him; and that this cause be referred to the auditor, with directions to take an account of and concerning [**16]  the said matters from the pleadings, and proofs, &c.

And it is further adjudged, ordered and decreed, that the real and personal partnership property in the proceedings mentioned be sold; that Henry Hardisty, Jun'r, of the city of Baltimore, be, and he is hereby appointed trustee to make such sale, and that the course and manner of his proceedings shall be as follows: He shall first, &c.

The resident defendants on the 27th September, 1845, petitioned for further time, and until about the 6th November, to answer the bill, on the ground of their solicitor being necessarily absent from the State ever since the overruling of the demurrer. This was objected to by the complainant, and therefore overruled by the Chancellor on the 1st October, 1845.

On the 20th October, the defendants John and Henry White renewed their petition for leave to answer the bill, enlarged the grounds on which their prayer was founded, and tendered answers with it. And at the same time, C. P. White preferred a similar petition as to the decree, pro confesso, against him, and also tendered his answers to the original bill.

On the 22d October, these petitions were severally dismissed with costs.  [**17]  

The said defendants then appealed from the decree of the 9th October, and the order of the 22nd October.

On the 28th November, 1845, John C. White preferred his petition, accompanied with an answer, for leave to file his answer, and rescind the decree against him, which was also dismissed, when he also appealed from the decree and order.

Similar proceedings were also had on the part of Robert White.

By agreement, these appeals were all tried upon the same transcript from the Court of Chancery.  

DISPOSITION:
DECREE REVERSED AND BILL DISMISSED.  

HEADNOTES:

In the year 1814, a partnership consisting of four persons, existed. In that year a fifth partner was added. In 1825, one of the original partners withdrew from the firm. In 1835, another of the original partners withdrew. In 1843, the fifth partner withdrew, and filed a bill requiring a settlement and account of the partnership concerns from 1814 to 1843, against all the four original partners. To this bill all the original parties demurred, upon the ground of multifariousness. Held,

1. That in deciding this question, the attention of the court is confined to the bill itself. It arises upon demurrer, which admits every thing in the bill, properly introduced into it, to be true.

2. The complainant, admitted into a partnership which had previously existed, as a partner, is not responsible for its previous debts.

3. A dissolution of a partnership may be brought about in various ways, and among others by a withdrawal of one of several partners from its business.

4. The partners, who retried in 1825 and 1835, may affirm that this bill is to burthen them with expenses which they are not bound to incur; to swell the pleadings with the state of the several claims, with which they cannot be said to have any connexion after they respectively withdrew.

5. Where an agent of a firm, against whom no decree can be obtained upon the allegations of the bill, is made a defendant with the members of the same, he may demur to the bill as multifarious.

6. A bill should not confound distinct matters, or blend several matters distinct and unconnected, nor demand several matters, of distinct natures, against several defendants.

7. So upon a bill against co-partners for a settlement and account of partnership concerns, a claim to impeach a judgment, and mortgage given by the firm to one of its agents, ought not be included, nor such agent made a party defendant. The agent has a right to have such claim decided alone.

8. When a bill is liable to be dismissed for multifariousness, it ought to be dismissed in toto.

9. Where a bill is demurred to, the demurrer overruled, the defendants ordered to answer over or plead by a given day, and failing to answer, a final decree was passed against them, which, among other things, decreed a sale. Under the act of 1841, ch. 11, sec. 1, they may prosecute an appeal.  

COUNSEL:
By J. M. CAMPBELL and T. S. ALEXANDER, for the appellants, who insisted:

1st. That the bill is multifarious in blending the matters of account of Henry White's agency with those of the partnership generally, with which Henry White had no connection, and in which he has no interest; and in blending the accounts of the partnership anterior to the year 1819, in which John White was interested, with those of the partnership subsequent to that date, in which he had no interest; and in blending the accounts of the partnership anterior to 1835, in which Robert White had an interest, with those subsequent to that date, in which he had [**18]  no interest. Sto. Eq. Pl. 271, 530. 1 Dan. C. Prac. 437. 3 Lib. Law & Eq. 259, 263. Campbell vs. Mackay, 13 Eng. Con. Ch. Rep. 550. Saxton vs. Davis, 18 Vesey, Jr. 72. Gaines et ux. vs. Chew, 2 Howard, 643. Harrison vs. Hogg, 2 Ves. J. 323. Stuart vs. Coalter, 4 Randolph, 85.

2d. That the bill ought not to have been taken pro confesso against John C. White, John White, and Henry White, on their failure to answer within the time limited by the order of the 16th July, 1845; but the complainant ought to have resorted to the usual processes of attachment, &c. to compel answers. Gas Light Co. vs Peale, Ms. Dec. 1826. Buckingham vs. Ped-dicord, 2 Bland, 447. Winter vs. Tiernan, Ms. Dec. 1836. Dan. C. P. 391, 661. 1799, ch. 79, sec. 2. Birch vs. Scott, 1 Bland, 114.

3d. That it is competent for the court to set aside a decree regularly entered, for the purpose of admitting an answer disclosing merits, where the application is made within a reasonable time after the decree. It will be insisted that the petitions of the above named defendants excuse their defaults; and that the answers tendered disclose merits which are proper to be admitted. Beames' Orders, 249, 1676. 2 P. Wms. 481.  [**19]  Hill vs. Turner, 2 Ves. & Bea. 372. 2 Bland, 447, 450, 458. 1785, sec. 19. Kemp vs. Squire, 1 Ves. Sr. 205. Benson vs. Vernon, 4 Bro. Par. Cas. 546. Williams vs. Thompson, 2 Bro. C. C. 279. Wooster vs. Woodhull, 1 Johns. Ch. 539. Birch et al. vs. Scott, 1 G. & J. 393. Oliver vs. Palmer & Hamilton, 11 G. & J. 147. Pinkney vs. Jay & Mason, 12 G. & J. 83. White vs. White, 7 G. & J. 209.

4th. That the non-resident defendants, Campbell P. White and Robert White, were entitled ex debito justitiae to file their answers at the time they were tendered; and were it otherwise, they have sufficiently excused their defaults.

5th. That the decree is erroneous in directing the partnership property to be sold clear, and discharged of the mortgage of Henry White, and especially on credits. As mortgagee, he had a right to retain his security until he should be redeemed fully; and to insist that the sum really due on his security should be ascertained before any decree whatever should be entered against him.

6th. That the decree is erroneous also in this, that it does not distinctly ascertain and declare the extent of the liabilities of the several parties; but leaves such liability to [**20]  be collected by inference from the averments in the bill itself.

7th. The appellants will further insist, that if the decree should be reversed on the first point, the bill ought to be dismissed absolutely; that upon the practice of this court, the same consequence should flow from a reversal on the second ground: that it is competent for the court on reversing a decree for any ground, in its discretion, to pass such decree as the court below ought to have passed, or to remand the cause to the court below for further proceedings, on such principles as equity may dictate; and that if the decree in this case should be reversed, the purpose of justice will be advanced by remanding this cause to the Court of Chancery, with authority to admit the answers of the defendants. Gibbs vs. Claggett et al. 2 G. & J. 27.

8th. There must be one month's time between the last publication of the order against a non-resident, and the time of taking a bill pro confesso.

By MCLEAN for the appellee.

The appellee in this case will contend first--that no appeal could properly be taken, or ought to be allowed from the decree below, or any of the orders subsequent thereto, because,--

1st.  [**21]  The proceedings shew that the decree is only for a settlement and winding up of a partnership, which the demurrers had admitted to exist, and upon the accounting thereby, directed it may be that the final decree would be against the complainant, in which event, there would be nothing to appeal from.

2d. The answers accompanying the several petitions, shew the decree to be correct in every necessary particular; the dispute about the true state of accounts not being thereby settled at all, and its object being to obtain by an account, the means of settling what was so disputed, in order to a final decree, in which the rights of the partners might be adjusted completely and definitively.

3d. The decree, for the sale of partnership property, does not in any way partake of the character of a final decree. A sale in partnership cases being usually ordered without waiting for a final hearing; a decree for that purpose is in no manner final. 1841, ch. 11.

4th. No appeal will lie from the orders refusing to receive the answers of the non-resident or resident defendants. 1830, ch. 185. 1 Swan, 506.

5th. If the decree appealed from is final, then the non-resident defendants [**22]  ought not to have been allowed to file their answers; and if it was not final, then the other defendants have no right of appeal.

And the appellee will further contend, that if the appeal should be allowed, the decree of the court below, and the several orders, ought to be affirmed, because,--

6th. The bill is not multifarious, includes no unnecessary parties or interests, and seeks relief against no party whatever, whom it does not show to be interested in the account and decree asked for. 1 Dan. Prac. 392. Dimmock vs. Bixby, 20 Pick, 377. Skepp vs. Harwood, 2 Swan, 622. Att'y Gen. vs. Young, 3 Vesey, 209.

7th. The decree, pro confesso, was, according to the equity and true intent and meaning of the acts of Assembly in this State, for saving delays in the Court of Chancery, in proceedings against obstinate and negligent defendants, and according to the practice of that court, the remedy to which the complainant was entitled. Leavitt vs. Cruger, 1 Paige, 422. Denison vs. Bassford, 7 Paige, 372. New York Chem. Co. vs. Flowers et ux. 6 Paige, 654. Trust & Fire Ins. Co. vs. Jenkins, 8 Paige, 593, 594. Wood vs. Strickland, 2 Ves. & Bea. 157. Nabob of Arcott vs. The East [**23]  I. Co. 3 Bro. C. C. 292. Griffith vs. Wood, 1 Ves. & Bea. 540. Alex. Md. Prac. 59.

8th. The petitions of the defendants do not in any manner excuse their default, and the answers accompanying the same, shew no defence that they could not have had the benefit of, before the auditor, or at the final hearing after the account; and especially no defence against the said decree for an account and sale of partnership property.

9th. The proceedings, as they now appear before the court, show, that a sale and a decree for an account are the true and proper remedies; and if the parties appellant are entitled to a reversal at all, it will only be for the purpose of allowing their answer to avail before the auditor, and at the final hearing, as if put in before the decree of the 9th day of October, 1845.

10th. The appellants are not entitled to a reversal as mentioned in the fourth point, because they were all in default; and although there may be more inconvenience in making their defence before the auditor, they will not be precluded therefrom, and the court will not reverse merely for the convenience of a defendant who is in default. Geary vs. Sheridan, 8 Ves. J. 192. Knight [**24]  vs. Young, 2 Ves. & Bea. 182.

11th. All the matters stated in the answers, appended to the several petitions, and offered to be filed as such, might be properly used as evidence before the auditor, whether an order to that effect had been passed or not: so that there was no need of opening the decree, as justice did not require it on the showing of the answers; and no need for an order to allow them to be used before the auditor, as the facts might be there shown without any order to that effect.

12th. If one month from time of passing the order of publication has elapsed, and the order be published once a week for three successive weeks, the decree pro confesso may pass at the end of the month.

By MEREDITH for the appellee.

I propose to argue a single proposition. The objects of the bill is to settle partnership transactions from 1814 to 1843, and for an account. The defendants are guilty of great delay, and only purposed to answer after their demurrers were overruled. There were three separate demurrers. Two defendants, Robert and Campbell did not demur. Two of the defendants who demurred had no cause of demurrer. They were partners from 1814 to 1843, and always [**25]  interested in the objects and subjects of the bill. Is multifariousness in regard to one defendant applicable to all? It is not so. Campbells vs. Mackay, 1 Mylne & Craig, 602, 603. Saxton vs. Davis, 18 Ves. 72.

The case in 2 G. & J. 14, does not touch this point. There it extended to all the defendants. The rule stands to prevent, as far as practicable, a multiplicity of suits. Chancery demands the presence of all parties in any way connected with the cause. Courts incline against multifariousness. It is only noticed when essential to the justice of a cause. Ward vs. Duke of Northumberland, 2 Anstreth, 469.

Harrison vs. Hogg, 2 Ves. 323. 1 Sim. & Stua. 561, are cases of misjoinder.

The claims here are not of a different character; they all relate to the same subject matter.

Where the claim is single, all interested must be parties though they differ in degree. 6 Jno. C. R. 157. A bill against several persons must relate to the same subject. Chancellor Kent lays down the true rule. Salvidge et al. vs. Hydge et al. 5 Maddox, 138, 145. 3 Lib. Law & Eq. 260. Dan. Prac. 439. Jacob C. R. 151. Campbell vs. Mackay, 1 Myln. & Craig, 620. 2 How. 169, adopts the opinion of [**26]  Sir John Leach. Fellows vs. Fellows, 4 Cowen, 698. Coop. Eq. 310.

John White was a necessary party. There was no settlement with him at the time of his withdrawal. The statement of this is not positive, but explicit enough. There was no settlement with the knowledge of Joseph. This is reasonably certain. Sto. Plea. in Eq. 355, No. 1.

John White has a common interest, centering in the partnership accounts. In their final adjustment, they are necessarily and intimately connected. They resemble two estates connected together. Lewis vs. Edmond, 6 Simon, 251. Whaley vs. Dawson, 2 Sch. & Lef. 370. 1 Atk. 282.

Henry White was a necessary party on the ground of fraud, and to vacate a judgment lien on the partnership effects.

By REVERDY JOHNSON for the appellants, in reply.

What is the test rule as to multifariousness? Chancery will avoid multiplicity of actions: but will not decide in one bill on cases which involve different principles of law, distinct grounds, and require the application of different rules of evidence between the parties.

From 1814 to 1825, John White was never called on to account. Henry was never a partner. He was merely an agent, to buy and [**27]  to sell, either a debtor or a creditor of the firms. Has nothing to do with the state of accounts between the partners--not concerned in their settlements. This bill cannot be amended. What part of the case, and which of the defendants, can the complainant amend, or retain? There is no alternative but to dismiss the bill.

The defendants asked for an enlargement of time to answer during September, 1845; the term at which the decree was passed. This was refused. The court will take judicial notice of the beginning and end of the terms of court. The September term commenced on the fourth Tuesday of September, and terminated on the first Tuesday of the following November. The decree passed on the 9th October. On the 20th October, at the same term, the first application was made to enlarge the time to answer. This was refused.

An order to take a bill pro confesso, is not to be confounded with a decree pro confesso. An order is for the purpose of notice. The order of July, 1845, gave the defendants time to answer until 1st day of September, 1845. Under it the defendants might plead or answer de novo.

A decree pro confesso, is final. Now look at the order in this cause. It [**28]  is upon the overruling the demurrer that the cause stand over with leave to answer on or before 1st September; and this was followed by a decree without any notice to the failing party--no notice of intent to ask for it or afford any opportunity to make an excuse. Now, I maintain, that all the process of contempt, according to our acts of Assembly, should have been resorted to and run out, before the bill was taken as confessed. Bland, 451.

Upon the cases cited by the opening counsel, the time for decree had not arrived in this case. The decree is not justified either by the English practice, or our legislation. Dan. Prac. 95.

The demurrer being overruled, the complainant is bound to proceed as if it had not been filed. It is like an insufficient answer, which is no answer.

As to Robert White, a non-resident, there must be a non-suit. The court had no jurisdiction to decree against him. In this case, to call him to an account, there must be jurisdiction over his person. There is no other ground of jurisdiction asserted in the bill.

All the partnership property of 1835 went into the new concern, in which Robert was not interested--no property in Maryland to affect [**29]  him--no interest in it. Jurisdiction as to Robert fails both as to person and property. He is protected by the Constitution of the United States. He could not be sued in New York, upon the decree here in Maryland. As to him, the decree is a nullity. He proposes by his answer tendered and refused to show he is released, has a meritorious defence. His answer would have protected all the other defendants; and he should have been permitted to appear and defend. Moreover, he may appear under the act of 1795, ch. 88, within eighteen months of date of decree, and file a bill of review. Pinkney vs. Jay & Mason, 12 G. & J. 69.

The defences were not opened before the auditor; after decree, pro confesso, he is bound to account. 2 J. C. Rep. 629. 1 Jacob, 49. 3 Myln. & Craig, 191. Oliver vs. Palmer & Hamilton, 11 G. & J. 426.

Under act of 1842, a month's notice, by publication, must be given to defendant to come in--a month must elapse. Here only three weeks notice given.

As to all these defendants, their answers should have been received. The refusal of the Chancellor to receive them was error. Birch vs. Scott, 1 G. & J. 393, 426. 2 Bro. C. R. 279. 12 G. & J. 83. Oliver vs. Palmer [**30]  & Hamilton, 11 G. & J. 137, 147.

A decree under the act of 1820, in respect to this error, is not distinguishable from other decrees.

Was the decree appealed from a discreet act? The facts are all one way. The decree does not depend on the consent of the opposing counsel. To pass such a decree is a matter of legal discretion. Consent in such case may be controlled by the Chancellor. He may decide against it. The answers of some of the defendants, and petitions filed within ten days of decree, and from the nature of the answers, the facts of the bill must be erroneously charged.

The acts of 1785, ch. 72, sec. 30; 1795, ch. 88, sec. 1; 1799, ch. 79, sec. 1, show that the Chancellor had a discretion in this cause: might have issued a commission for proof.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*376]  MAGRUDER, J., delivered the opinion of this court.
The very many points, which it is supposed arise on this appeal, have been argued by the counsel with great ability. If, however, one of the objections urged by the appellant to the relief which is sought, be well founded, it will be unnecessary [**31]  for us to intimate an opinion on other questions.
To the bill of complaint which was filed in the Court of Chancery by the appellee, some of the appellants demurred upon the ground that it is multifarious; and this court has said, (2 G. & J. 29) if the bill be liable to be dismissed for multifariousness, it ought to be dismissed in toto, and not made the foundation of partial relief.
We at once then come to the examination of this question, and in deciding it, our attention is to be confined to the bill 

 [*377]  itself, the demurrer admitting every thing therein to be true, which is properly introduced into it.
One and the leading object of this bill is to obtain a settlement of certain partnership concerns spoken of in it. What then do we learn from the complainant himself of them, and his connection with them?
In 1814, there existed (how long it had been in existence we are not told) a partnership, consisting of the defendants, John C. White, Robert White, John White, and Campbell P. White. In the course of that year the complainant became a partner, and associated with the defendants just named, in the same business, and in the same places--  [**32]  New York and Baltimore.
The enquiry here presents itself, did the complainant thereby become a member of the previously existing firm, or of one just formed? Story, in his commentary on the law of partnerships, 438, sec. 307, says, "every partnership being founded in the voluntary consent of all the parties thereto, and that consent being founded on a delectus personarum, no partner has any right whatsoever to introduce a new partner into the firm, without the consent of all the other partners; and if such consent be given, then it becomes to all intents and purposes, the substitution of a new partnership for the old one, and this is equally the doctrine of our law, and of the Roman law, and of the modern foreign law." Of course, the complainant, until he was admitted into the concern in 1814, was no partner, and was not at all responsible for the debts of any previous partnership. The partnership thenceforth, and until it was dissolved, consisted of five, to wit, the four partners just named, and the complainant; so long as that partnership existed, each was entitled to an account of its concerns, its profits, it effects, and its liabilities. How long did the partnership [**33]  formed in 1814 continue? No change took place until the year 1825 or 1826, when one of the defendants (John White) withdrew; and what was the effect of that withdrawal? The complainant in his bill tells us, that in 1825 or 1826, the defendant, John White, withdrew, whether with or without just cause--with or against the consent of the other partners, he does not 

 [*378]  explicitly state--but he charges that subsequently to his withdrawal, the business was carried on by a firm consisting of the other partners and himself. John, it is admitted, did withdraw, his right to withdraw is not questioned, and it would be difficult to maintain that a member of a partnership cannot withdraw from it, without a dissolution of it. A dissolution of a partnership may be brought about in various ways, and among others, "by a withdrawal of a partner from the business of the partnership." The business was afterwards carried on by the other partners: of course John was excluded from all participation in it. So things continued until March, 1835, when Robert withdrew, and thenceforth it was carried on by John C., Campbell P. and the complainant, until 1843, when, as he himself [**34]  informs us, the complainant retired from the partnership, and his retirement from it, he charges dissolved it.
Now no one can doubt, that either of these parties could demand a settlement of the partnership concerns during the whole time that he was a partner, provided, he demand that settlement from those, who, during the time were his co-partners. The defendant, John White, was entitled to demand a settlement, as well of the partnership which had existed before, as of that which was formed in 1814, but must take care to demand it of the proper persons. The complainant was a proper person to be made a party to the settlement of the concerns of the partnership formed in 1814, and which continued until 1825 or 1826. He was not a proper person to be made a party, and might have demurred to a bill, asking a settlement of the accounts of the firm, which was dissolved in 1814, because, says Mitford, "it would put him to the trouble and expense of a litigated question, with which he has nothing to do;" yet it would be very difficult to prove that he had not as much to do with the partnership which existed before he associated himself with its members, as the defendant, John [**35]  , had with a partnership carried on by men who had been indeed, but had ceased to be, connected with him in business.
Some of the cases which have been cited, and as illustrative of the doctrine of multifariousness, are rather exceptions to 

 [*379]  the general rule, which forbids multifariousness in a bill. Mention of those exceptions will be found in Story on Equity Pleading, 285th, and following sections. It is true that there are such exceptions, as there are to the rule which requires all persons interested to be made parties to a bill in Chancery. It can scarcely be pretended that this case can be brought within any of the exceptions.
The defendant, John White, may with great truth affirm, that this bill is to burthen him with expenses which he is not bound to incur, to swell the pleadings with the state of the several claims with which he cannot be considered to have any sort of connection, and by uniting in one suit a partnership, of which he was a member, with partnerships in which he had no interest, would delay the settlement of his own accounts. These, we are told by all the writers who treat of the subject, are valid objections. Cooper, in his Equity  [**36]   Pleadings, 183, states one other reason why multifariousness is discountenanced in equity. "It is also to prevent confusion, and to preserve some analogy to the comprehensive simplicity of declarations at common law, that this ground of demurrer has obtained." Is any thing like this tolerated in common law courts?
If the case before us had already been fully stated, there is abundant reason for saying that in the multifariousness of this bill, ample ground for the demurrer, which has been filed by the defendant, John White, may be found, seeking to enforce different demands against persons liable respectively, but not as connected with each other. "Even this (says Lord Eldon, in Saxton vs. Davis, 18 Ves. 72) is clearly multifarious."
A very large portion of the objectionable matter which the bill contains is yet to be noticed.
Henry White is also made a defendant, and is required to answer all the matters charged in the bill, although it is expressly stated that he was no partner, but only an agent during the several partnerships. He is required also to give an account of his agency. Why shall he not exempt himself from the expense of answering [**37]  in extenso, all the matters which the bill requires all the defendants to answer?

 [*380]  It is true that he is said to have been the financier and agent for many purposes of those various firms. Because of this, he may be a very important witness in the case. But why make him a defendant, when of his answer no possible use can be made by any of the other defendants?
It would seem that for his services as agent, he was to receive a salary, as all the persons in their service it may well be supposed were. It appears further, that he had made some efforts to secure the balance claimed by him to be due to him, and had obtained some security for it, without the consent or knowledge of the complainant, though it is admitted that he, the complainant, with the other partners, executed the mortgage, which is that security. It is not necessary here to enquire whether, as the other partners seem to have been able to settle with their agents, and to give him satisfactory security for the eventual payment of the balance admitted by them to be due to him, there was a contract between the parties, which was violated by such an adjustment as was made of the claim of Henry. It is also [**38]  unnecessary for us in disposing of this defence, to say that the judgment or mortgage given to the defendant, Henry, could be set aside, if impeached in a proper way. If the judgment or mortgage is to be impeached, such a case is not to be blended with this suit with the partners about the partnership concerns, all the other parties to which have the same interest that the complainant has in reducing or defeating his claim; and if thus blended, the connection of them might greatly delay the settlement of both, and have the effect of extending the credit which the defendant, Henry, agreed to give to his debtors.
No doubt it ought to be the wish of courts to prevent a multiplicity of suits, and to lessen, as much as possible, the expense of litigation. This, however, is not to be accomplished by a denial to any man of his just rights; and if Henry White is to be compelled to blend his claim with any controversy between the several members of these several partnerships, and to await the end of this controversy, over which he has no control, he may not only be loaded with 

 [*381]  enormous costs, which he is not bound to incur, but subjected to a delay, which is often more [**39]  injurious than a prompt denial of justice. This must be be pronounced to be "confounding distinct matters: this is a blending of several matters perfectly distinct and unconnected: this is to demand several matters of distinct natures, against several defendants." Surely the claims united in this bill are of "so different a character, that the court will not permit them to be liquidated in one record; a record with a large portion of which, and of the case made by which, he (the defendant, Henry) has no connection whatever." Surely, the defendant, Henry, has a right to insist, that even if the judgment and mortgage may be impeached, and his claim contested; yet this "is a perfectly distinct case" from that between the other parties to this bill, and he "has a right to have that case discussed and decided by itself, without being mixed up in a suit," for a settlement of all the partnership concerns.
The bill asks, among other things, a settlement of the concerns of three distinct partnerships, to compel the agent of these several partnerships to come to a settlement with each of them; to set aside the settlement which it is charged that the agent has made with some of the [**40]  partners. It also asks a decree, declaring that the judgment and mortgage shall stand as a security, for such sum only as it shall be ascertained is due to the agent, and to direct a sale forthwith of the mortgaged premises. This certainly is "a demand of several matters of a distinct and independent nature, against several defendants in the same bill," and in the language of Justice Story, (Equity Pleading, sec. 271) would be oppressive, because it would tend to load each defendant with an unnecessary burthen of costs, by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection. Of this case also it may be said, "the proofs applicable to each are apt to be confounded with each other, and great delays would be occasioned by waiting for the proof, respecting one of the matters, when the others might be fully ripe for hearing. Such proceedings are not to be permitted 

 [*382]  in courts of equity, which, in cases of this sort are apt to preserve some analogy to the comparative simplicity of proceedings at common law, and thus to prevent confusion in their own pleadings, as well as in their own decrees." Story's Equity  [**41]   Pleading, 3d edit., p. 296.
There are in this bill, charges, that some of the defendants confederated together for some purposes, and in 2d Vernon, 416, there is a case in which a demurrer for multifariousness was overruled, because the charge that the defendants had combined together was not expressly denied. The charges in this bill are not such, as it would seem the case in Vernon would require. But of the case in Vernon, Cooper, in his Treatise on Equity Pleadings, says, "is denied, and is contrary to the modern practice in settling demurrers." Indeed, it cannot be the law of England, as it appears by some recent decisions there; that although multifariousness cannot be objected to by the defendant at the hearing, unless he has demurred, yet the court may take the objection at the hearing sua sponte. See cases, Story, p. 295, note. Indeed, we are told by Lord Cottenham, in Campbell vs. Mackay, (13 Condensed Ch'y Reports, 543) "the court in deciding cases of this description, seem to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any absolute rule."
The act of 1841, ch.  [**42]  11, authorizes an appeal in this case, and the case being before us, all orders and decrees passed therein are to be reviewed.
DECREE REVERSED AND BILL DISMISSED.  

21 of 33 DOCUMENTS 

WILLIAM C. CUNNINGHAM AND OTHERS vs. GEORGE SCHLEY AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 207; 1847 Md. LEXIS 62 

December, 1847, Decided 

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

The bill was filed on the 6th December, 1842, by Robert M. Gibbes and others, creditors of James Cunningham, deceased, against his heirs-at-law and others, for a sale of his real estate for payment of his debts. It, amongst other things, stated that Cunningham, in his life-time, on the 21st October, 1835, conveyed to Henry Wayman, (one of the defendants,) certain of his lands in trust; but that said trustee has altogether neglected and refused to execute the trust, or sell the property conveyed to him.

Wayman, by his answer, admitted the conveyance to him in trust as stated; but averred "that he has not sold the land, because he was unable to obtain any thing like its value, and no one interested in the same has urged a sale, which would have been a sacrifice of it."

The answers of the other defendants are immaterial. A commission was issued to take testimony, under which the complainants proved their case. And a decree was passed on the 13th April, 1846, "that the real estate of James Cunningham, deceased, in the proceedings mentioned, or so much thereof as may be necessary for the payment of his debts, be sold; that George Schley,  [**2]  of Washington County, be appointed trustee to make such sale, whose course and manner of proceeding shall be as follows," &c. The trustee bonded accordingly.

On the 17th June, 1847, the trustee reported, after giving notice of the time, place, manner and terms of sale, "by advertisement in the 'Alleganian and Civilian'" newspapers, printed at Cumberland; the "Torchlight," a newspaper printed at Hagerstown, and the "Patriot," a newspaper printed at Baltimore, for more than three successive weeks before the day of sale; he did, pursuant to said notice, attend at Cumberland on Tuesday, the 8th September, 1846, and proceed to offer said real estate for sale; that he was notified of a claim of title to "Latent Worth," one of the tracts of land embraced by the decree, arising by virtue of a purchase of the same at collector's sale; that he then received, as a bid for the same, the sum of five cents per acre; and that all efforts, at an advance upon said bid, failing, your trustee refused to sell; that the sum of six cents per acre was offered for "Glen Eyry," and the sum of twenty-six cents per acre for another tract, called "Muddy Creek," and that no advance could be had upon said [**3]  bids; that your trustee refused to sell at the prices aforesaid, and shortly thereafter offered said lands for sale at private sale, by advertisement in the "Civilian and Alleganian," two papers printed at Cumberland; that although said advertisement has been continued in said papers from the period aforesaid to the date of this report, your trustee has received but one proposal for a purchase, which he has accepted by entering into a written contract, herewith filed, with the purchaser, from which it will appear that he has sold the right, title, interest and estate of James Cunningham, deceased, in and to the lands mentioned therein, to Jacob Markell, of Frederick, for the gross sum of $ 3,000--said sum to be paid in cash upon the purchaser being notified by the trustee of the final ratification of this sale; that said Markell is a man of means, and able to meet his engagement to pay at the time stipulated. The trustee reported briefly, the reasons that induced him to sell so large a number of acres for nominally so small a sum. "He found that he could not sell by the acre, unless he would undertake to have the land surveyed, as the present purchaser refused to be governed by the [**4]  number of acres expressed in the patents, he having been informed that the area of the said land had been ascertained by calculations based upon reference lines, and not from actual measurement of the land by a survey of the same. The expense of the survey of so large a body of land, in a county thinly settled, forbade this mode of ascertaining the true quantity of land--your trustee having been informed by a practical surveyor that it would cost $ 600 or $ 800. The claim of title to "Latent Worth" added another impediment to a sale by the acre. The rough and rugged character of these lands, embracing within their area, mountains--their distance from any market--their great length and poverty of breadth, winding for miles among elder tracts--their present trifling intrinsic, and their very doubtful prospective value, all combined to bring the mind of your trustee to the conclusion, that he could not effect a better sale, and he accordingly concluded the sale now reported. The trustee further reported, that at the time of advertising said sale, he gave notice to the creditors of said James Cunningham, deceased, to file their claims, with the vouchers thereof, in, &c. within four months [**5]  from the day of sale, and he exhibits, as part of this report, a copy of the first said notice of sale, marked T. R. No. 1; also a copy of the said second notice of sale, that with a view of placing all the facts which have come to his knowledge before the Chancellor, he reports that on the 22d December, 1846, a certain Henry Wayman, one of the parties to the bill filed in this cause, and a creditor, as he alleges, of said Cunningham, deceased, wrote to your trustee, stating that he had received a letter from Duff Green, of Washington City, inquiring about the lands embraced by the decree in this cause, as he wished to purchase them for a Northern Company, and to know the lowest price for them; that he, the said Wayman had answered his letter, and fixed the price at fifty cents, which he though had better be taken, if such a sale could be made by the trustee, or the writer. To this letter your trustee replied, expressing his readiness to receive and consider any proposition for a purchase from said Green, and desiring Mr. Wayman to so state to Mr. Green; from that time until the 24th May, 1847, nothing was heard from said Wayman or Green. On said day, your trustee received the letter,  [**6]  herewith exhibited, marked T. R. No. 3, and filed as part of this report; also subsequently the letter, herewith filed, marked T. R. No. 4; all which is respectfully submitted to the consideration, and for the further order of the Chancellor.

Contract of sale filed by Trustee.

"Articles of agreement made this 15th May, 1847, by and between George Schley, trustee for the sale of certain parts of the real estate of James Cunningham, deceased, of the one part, and Jacob Markell, of the other part. The said Schley hereby agrees to sell to the said Markell all the estate, right, title and interest of the said James Cunningham, deceased, of, in and to three tracts or parcels of land, viz: "Glen Eyry," "Latent Worth," and "Muddy Creek,"--the same being situate in Allegany County, in the said State, at and for the price or sum of $ 3,000--the said sale to be subject to the approval of the said court,--and the said sum of $ 3,000 to be paid by the said Markell upon the ratification of the above sale by the High Court of Chancery of Maryland. And the said Markell, on his part, hereby agrees to pay the said sum of $ 3,000, for the interest of the said Cunningham in and to the above [**7]  described lands, upon the ratification of the sale thereof by the High Court of Chancery of Maryland. In testimony whereof, the said parties have hereunto set their hands and seals on the day and year first above written.

The said Schley, on his part, agrees to execute a good and sufficient deed, conveying the interest, right, title and estate of the said Cunningham in and to the above lands, to the said Jacob Markell, upon receiving the purchase money thereof, as above stipulated: and as further and more particular description of the above lands, and not as guarantee of their area or contents, it is herein stated that "Latent Worth" is supposed to contain ten thousand seven hundred and sixty-one and six-eighths acres of land; "Glen Eyry," four thousand six hundred and twenty-four, and "Muddy Creek" five hundred and sixty-five and one-eighth acres of land.

GEO. SCHLEY.    [Seal.]

JACOB MARKELL. [Seal.]

T. R. No. 1.--Trustee's Sale.

"By virtue of a decree of the High Court of Chancery of Maryland, I will offer at public sale, in the Town of Cumberland, on Tuesday, the 8th September next, between the hours of 10 o'clock A. M. and 4 P. M. the following [**8]  valuable real estate, (or so much thereof as may be necessary for the payment of debts,) of which James Cunningham died seized and possessed, situated in Allegany County, in said State.

"No. 1.--A tract of land, called 'Muddy Creek,' containing five hundred and sixty-five and a half acres.

"No. 2.--A tract of land, called 'Glen Eyry,' containing four thousand six hundred and twenty-four acres.

"No. 3.--A tract of land, called 'Latent Worth,' containing ten thousand seven hundred and sixty-one and five-eighths acres.

"These lands lie west of Cumberland, at no great distance from the Western or National Turnpike Road, and form a portion of that country, usually styled 'The Glades.' They are admirably adapted to the growth of rye, oats, grass and potatoes, well supplied with water and timber, and are among the best grazing lands in Maryland. A more detailed description is deemed unnecessary, as those desirous of purchasing are invited to call on Mr. William Cunningham, who resides thereon, and who will shew them to all wishing to view them.

"The terms of the sale prescribed by the decree, are as follows: one third, &c.

"The trustee is directed to convey to [**9]  the purchaser or purchasers, the property to him or them sold, by a good and sufficient deed.

"The creditors of James Cunningham, deceased, are hereby notified to file their claims, with the vouchers thereof, in the Chancery Office, within four months from the above day of sale.     GEO. SCHLEY, Trustee."

August 15th.

T. R. No. 2.--Trustee's Sale.

By virtue of a decree of the High Court of Chancery of Maryland, I will offer at private sale, (having failed to sell at public sale,) the following valuable real estate, or so much thereof as may be necessary for the payment of debts,) of which James Cunningham died seized and possessed, situate in Allegany County in said State, &c. then as in the above notice of sale.

T. R. No. 3.

Washington, 24th May, 1847.

Sir,--My father was authorized by Mr. Wayman to sell Cunningham's lands in Allegany--fifteen thousand nine hundred and fifty acres--and has made a sale in conformity with Mr. Wayman's instructions. I see by an advertisement in a Cumberland paper that you are a trustee, under a decree of the court, to make the conveyance; will you please let me know, by return mail, whether you are prepared to make [**10]  the conveyance, or whether it must be first ratified by the court, and whether it will be convenient for you to come here to receive the money and make the conveyance.

Your ob't servant,

George Schley, Esq.     BEN. E. GREEN.

T. R. No. 4.

Washington, 10 June, 1847.

Dear Sir,--During the last winter, I was authorized by Mr. Wayman to sell three tracts of land, situated in Allegany, containing near sixteen thousand acres, at 50 cents per acre, for which he was to allow me a commission of 4 per cent. on the sale. On the 16th April, I wrote to him that I had made a sale, subject to the examination of the party, and that he must hold himself in readiness to make the deed. On the 24th May, I wrote to him through my son, saying, that the arrangement was concluded, and wished to know when and where he would receive the money. In reply, he wrote to me that you, as trustee, had sold the land to other parties, and in reply to a letter to you, you wrote to the same effect. I have since received letters from Mr. Thomas and Mr. Markell, saying that they had purchased from you. I have seen Mr. Wayman, and he will oppose the ratification of the sale made by you, and he [**11]  requests me to report the sale made by me to you. I have sold the lands to Benjamin E. Green for fifty cents per acre, and he is prepared to pay the money as soon as the requisite deeds are delivered. I write this that you may also report these facts, that the whole subject may be before the Chancellor.

Yours truly,

George Schley, Esq.     DUFF GREEN.

The Chancellor passed an order of ratification nisi the 17th August, 1847.

The defendant, Wayman, excepted to the sale.

1st. Because the public were not properly advised of the title in the property thus sold, which the trustee had the power to sell. The trustee does not state in any of his advertisements the names of the parties to the suit in Chancery, or the date of the decree,--and as various deeds were executed by James Cunningham, and the trustee lived remote from the land, proper information could not be readily obtained, and especially as it did not appear by the said advertisements that the titles of your petitioner and Richard G. Stockett, mortgagees and trustees, were directed to be sold by the said decree.

The trustee, in his advertisement, states that he sells "the land of which James Cunningham [**12]  died seized and possessed, &c." and not the title of the parties to the suit, as directed by the decree. Whereas, by the proceedings, it does appear that Cunningham had conveyed all this land, by deed of trust in his life-time, to your petitioner--the original of which deed is herewith filed.

2d. Because the trustee did not, in fact, sell all the interest of the parties, as by the decree he was bound to do, but sold only the interest and title of which James Cunningham died seized, as will appear by his report, and the contract of sale, exhibited with his report, and his letter to this petitioner, herewith filed.

3d. Because there was alleged to be an outstanding tax-title in some purchaser under the tax laws, which title your petitioner found, on consulting an attorney, was so defective as to be worthless; yet to prevent any supposed injury which a tax-title might cause in the contemplated sale, your petitioner had a legal tender of the taxes, and the premium and costs made in due time and according to law, so as to entitle him to redeem the same, if it had been regularly sold, which tender was refused by the said tax purchaser, whereby your petitioner is advised that the [**13]  right of the said tax purchaser, if any he had, was released, and the title became re-invested in the former owners, which information, in relation to the tender, &c. as above stated, this petitioner believes was unknown to the said trustee at the time of the sale, as will appear by the papers herewith filed, and which he intended to communicate before the sale thereof.

4th. Because this petitioner, by reason of the facilities afforded him, having for a long time been negotiating for the sale of this property, as he though he had a right to do, with the approbation of the trustee, did, before the sale made by the trustee reported, actually contract for the sale of this land, at the rate of fifty cents an acre, for the quantity as called for by the patents, without survey, containing by the estimate about sixteen thousand acres--to Benjamin E. Green and Duff Green, or one of them; the cash to be paid at the ratification of the sale and the delivery of the deed, deducting therefrom five per cent. allowed the said Duff Green for making the sale thereof, as will appear by Exhibits H. W. Nos. 5, &c. and making the purchase money nearly $ 8,000, (all of which he thought he was doing [**14]  with the approbation of the trustee,) whereas the trustee's sale was for only $ 3,000; that immediately on the communication of these terms of sale by Green, this petitioner made the same known to the said trustee, as he had done during the previous negotiations, and was surprised to hear that the trustee had made sale as aforesaid, to Jacob Markell and others, without any previous notice to this petitioner.

5th. Because this petitioner, in all his conversations and correspondence with the said trustee and Francis Thomas, one of the purchasers, and with all interested, had insisted on obtaining not less than fifty cents per acre--a sum which the property is fully and fairly worth, and made the same known to all the said persons.

6th. Because the said sale, as reported by the said trustee, was a private sale, made without any notice given to the public generally, or to your petitioner in particular,--although your petitioner expected a public notice thereof; and although it was known to the said trustee, and to the said Francis Thomas, as your petitioner believes, that your petitioner was negotiating with the said Green for the sale of these lands, as will appear by reference [**15]  to the trustee's report, and the exhibits herewith filed, marked Exhibits H. W. Nos. 2, &c.; that the court will ratify and confirm the sale, so as aforesaid made by the said Henry Wayman to the said Duff Green, after setting aside the sale, so as aforesaid reported by the said trustee.

7th. That the said George Schley has not executed a bond for the faithful performance of his duties as trustee, according to law and the terms of the said decree--the paper filed by the said George Schley having no stamp thereon.

8th. Also, because, since the offer to purchase made to the trustee by Jacob Markell and others, as reported, the Baltimore and Ohio Rail-road Company have fixed on their western terminus, and are about to prosecute the continuance of their Rail-road to the Ohio river, which road will pass near, if not through the lands for which the offers aforesaid were made, and thereby has, since said offers, greatly increased the value of said lands.

Exhibit H. W. No. 1, was the indenture made on the 21st October, 1835, between James Cunningham and Catherine Cunningham, his wife, of the one part, and Henry Wayman of the other part, for the trust under which the decree passed.  [**16]  

The record contained letters from Geo. Schley, the trustee, to Henry Wayman; from Duff Green to F. H. Thomas, interested in the purchase from Thomas to Green and Wayman; a contract of the 9th June, 1847, between Wayman and Green, for the sale of the land, with the conditions of such sale. Letters from Green to George Schley; all which are sufficiently adverted to in the opinion of the Chancellor in this cause.

The trustee, George Schley, in reply to the first objection to the ratification of his sale, stated that by reference to his report and accompanying vouchers, it will appear that the sale of the land of James Cunningham, deceased, was advertised in four newspapers; two in the county where the lands were situate, one in Washington County, and one in the City of Baltimore. The trustee deemed the notice of sale sufficiently diffused by the extended circulation of these papers. The advertisement offered for sale the real estate, (or so much thereof as might be necessary for the payment of debts,) of which James Cunningham died seized and possessed, situate in Allegany County. The decree directed, that the real estate of James Cunningham, deceased, in the proceedings mentioned,  [**17]  or so much thereof as might be necessary for the payment of his debts, should be sold. It will be perceived that the advertisement is "ad idem" with the decree, and in compliance therewith, your trustee admits that the idea that it was necessary for him to state in his advertisement the names of the parties to the suit, and the date of the decree, has never been diffused as widely as his notice of said sale. The novelty of the objection attracted the attention of this respondent to the various notices of sale, under decrees of the High Court of Chancery, to be found in the Baltimore papers; and in no instance has he been able to find the names of the parties, and the date of the decree stated. Upon consultation with some of the oldest practitioners in said court, he discovered that the idea aforesaid was as novel to them, as it confessedly is to this respondent.

2D OBJECTION.--In reference to this objection, the trustee states now, as already stated in his report, that objection was made by the purchaser to your trustee determining the number of acres of land by the number expressed in the patents, and that further difficulty was made, because of the cloud hanging over the title,  [**18]  by reason of the claim of title under a sale made by the collector of taxes of Allegany County. To guard against all difficulty, either as to title, or number of acres, your trustee proposed to sell Cunningham's interest, as contra-distinguished from any claim of title to be asserted by strangers, or abatement of price, to be claimed because of deficiency of number of acres, conceiving that he was in this mode selling all he was authorized by said decree to sell, most beneficially for said estate; and the purchaser being all the while under the impression, that he was buying all that said decree authorized to be sold. In making the sale in the mode he did, your trustee was governed, in great measure, by the suggestions of an experienced and distinguished solicitor, as will appear by the letter, herewith filed, marked G. S. No. 1.

3D OBJECTION.--The facts set forth in this objection are novel to the trustee, except that he had heard that one or more attorneys had pronounced said sale defective.

4TH OBJECTION.--Your trustee most positively and emphatically denies any communication on the part of Mr. Wayman, of a sale made by said Wayman to Green, until after your trustee had [**19]  made the sale reported by him,--and he herewith exhibits, as part of this answer, the only letter he received from said Wayman prior to said sale, on the subject of a purchase by said Green of said lands. Your trustee also exhibits, as part of this, his answer, a letter from said Wayman, which sufficiently explains why the trustee was ignorant of the offer of Green, until it was too late to accept it.

5TH OBJECTION.--Your trustee has answered this objection in his report, and he refers your Honor to it, as containing his views of the value of said lands.

6TH OBJECTION.--In answer to this objection, your trustee refers to the printed notices of private sale accompanying his report.

The said trustee, further answering, says that the said sale was made by him under the belief at the time, that it was the highest price he could get for the lands, after having in vain tried to sell at public sale, and after having advertised them for months in the newspapers at private sale, without an offer.

That the said sale was, as far as he was concerned, a fair and bona fide sale, and one that he supposed at the time he made it, would be regarded and treated by this court as binding [**20]  and obligatory on all the parties as if it had been made under the hammer, when he first offered the property at public sale. If, however, he is mistaken in this, and the said sale should be set aside, he will then proceed to offer the said land for sale again, in such manner as this Honorable Court shall order and direct.

The objections to the ratification of the sale were further answered in detail by Jacob Markell and Francis Thomas, parties interested in the purchase. They filed a large number of letters, to which no further notice need be paid than what is contained in the Chancellor's opinion.

The letters were all admitted to be originals.

The exceptions to the sale having been heard, the Chancellor, (JOHNSON,) on the 10th September, 1847, delivered the following opinion:--

On the 6th December, 1842, a creditor's bill was filed in this court by Gibbes and others, as the executors of Robert Oliver, the administrators of Horatio McPherson, and the administrators of John McPherson, against the heirs of James Cunningham, who died in November, 1835, for the sale of his real estate, the personal being insufficient to pay his debts. The said real estate was stated [**21]  in the bill to consist of a tract called "Glen Eyry," a tract called "Latem Worth," and a tract called "Muddy Creek," lying in Allegany County in this State; one other tract called "Cheviot Dale," and other parcels of land in this State.

It was alleged in the bill, that Cunningham in his life-time had executed a mortgage of a portion of his lands to Henry Wayman and Richard G. Stockett; but of what portion, or for what purpose, the complainants did not know. That on the 21st October, in the year 1835, he, Cunningham and wife, executed a deed of trust to the said Wayman, but that the trustee had neglected and refused to execute the trusts in any manner.

The heirs of Cunningham, his personal representatives, and Stockett and Wayman, were made parties defendants.

The deed from Cunningham and wife to Wayman, conveys to the latter the before mentioned tracts of land, lying in Allegany County, of which "Latent Worth" is said to contain ten thousand seven hundred and sixty-one acres, more or less; "Glen Eyry" four thousand six hundred and twenty-four acres; and "Muddy Creek" five hundred and sixty-five acres, more or less; and the trusts are, that Wayman and his heirs may raise [**22]  by a sale of the property as much money as will pay the debts for which he is liable as the surety of Cunningham, in the first place--then to reimburse him for such sums as he may advance for the said Cunningham--then to pay such other debts as the said Wayman may consider just and equitable--then to pay the expenses of the trust--and lastly, to pay over the surplus to the grantor, his heirs, executors or assigns.

Upon this bill, the Chancellor, on the 13th April, 1846, passed a decree, directing that the real estate of James Cunningham, deceased, in the proceedings mentioned, or so much thereof as may be necessary for the payment of his debts, be sold, and appointing George Schley, of Washington County, trustee, to make the sale. This decree is in common form, first requiring the trustee to give bond, and then to sell, after giving three weeks notice of the sale, as usual.

The trustee gave the prescribed bond, which is dated on the 29th April, 1846; but which was not filed and approved until the 7th of the then following July.

On the 17th June last, the trustee's report of his proceedings under the decree was filed. In this it is stated, that having bonded as required [**23]  by the decree, and having advertised the said lands for sale as therein required, in two newspapers in Cumberland, one in Hagerstown, and one in Baltimore, he attended, pursuant to the notice, at Cumberland, on the 8th September, 1846, and offered the lands for sale; that he was then notified of a claim of title to "Latent Worth," growing out of a sale of the same by the collector; that the highest bid he could get for said tract was five cents per acre. For "Glen Eyry" but six cents was bid, and for "Muddy Creek" twenty-six cents per acre was the best bid, which bids the trustees refused to take, and consequently, no sale was made at that time.

That shortly afterwards, he re-advertised the land in the two Cumberland papers, to be sold at private sale, and although the advertisement had been continued from that period to the date of the report, but one proposal had been made for a purchase, which the trustee accepted by entering into a written contract with the purchaser, filed with the report, from which it will appear that he had sold the right and estate of James Cunningham, deceased, in the lands, to Jacob Markell, for the gross sum of $ 3,000, to be paid in cash, upon the [**24]  purchaser being notified by the trustee of the final ratification of the sale.

The trustee then proceeds to state in detail the reasons which induced him to sell so large a number of acres, for nominally so small a sum, which reasons were satisfactory to his mind, conducting him to the conclusion that he could not effect a better sale.

The trustee further states, that on the 22d December, 1846, the defendant, Wayman, wrote him, stating that he had received a letter from a certain Duff Green, of Washington City, enquiring about these lands, as he wished to purchase them for a Northern Company, and to know the lowest price for them; that Wayman, in answering the letter, had fixed the price at fifty cents, which he thought had better be taken, if such a sale could be made by the trustee or the writer; that the trustee replied, expressing his readiness to receive and consider any proposition for a purchase from said Green, and desiring Wayman so to say to Green; but from that time to the 24th May, 1847, nothing was heard from either Wayman or Green--that on that day, he received a letter from Benja. E. Green, marked T. R. No. 3, and filed with the report--and afterwards another [**25]  letter from Duff Green, dated the 10th June, 1847, also filed, marked T. R. No. 4.

The agreement between the trustee and Markell, signed and sealed by them referred to, and filed with the report, is dated the 15th May, 1847, and states that Schley agrees to sell to Markell, all the estate, right, title and interest of the said James Cunningham, deceased, of, in and to the said lands, viz: "Glen Eyry," "Latent Worth" and "Muddy Creek," for the sum of $ 3,000--the sale to be subject to the approval of the court, and the money to be be paid upon the ratification--the interest, right, title and estate of Cunningham to be conveyed by the trustee upon the payment of the purchase money, as stipulated by Markell; and then by way of further description of the lands sold, and not as a guarantee of their area or contents, it is stated in the contract that they are supposed to contain the quantity of acres already mentioned.

In the trustee's advertisement of the public sale, to take place on the 8th September, 1846, he says, that by virtue of a decree of the High Court of Chancery of Maryland, I will offer at public sale in Cumberland, on Tuesday, the 8th September next, between the [**26]  hours of 10 A. M. and 4 P. M. the following valuable real estate, (or so much thereof as may be necessary for the payment of debts,) of which James Cunningham died seized and possessed. The lands are then described as lying west of Cumberland, at no great distance from the Western or National Road, and form a portion of that country, usually styled "The Glades," and by their names and the number of acres already stated, as being contained in each tract.

Purchasers are then invited to call on Mr. William Cunningham, who is stated to reside thereon, who will shew the lands; and the terms of sale, as prescribed by the decree, are then given, to wit: one-third cash on the day of sale, or its ratification, and the residue in one and two years from the day of sale; and upon these terms, they are advertised to be sold.

This advertisement appeared for the first time in the Hagerstown paper, on the 10th August, 1846, and from thence it was copied into other papers, as therein directed.

In the advertisement of the private sale, which appeared in the Cumberland papers for the first time on the 10th November, 1846, the same description is given of the lands, and it corresponds,  [**27]  in all respects, with the previous advertisement, except that the trustee says he will offer the lands at private sale, having failed to sell at public sale.

On the 28th June, 1847, Henry Wayman and the heirs of James Cunningham, filed exceptions to the ratification of the sale reported by the trustee upon various grounds; and upon the same day an order was passed, fixing the first day of the present month for the hearing. Upon notice being served upon the parties in interest and upon the trustee, the trustee and two of the parties, to wit: Markell, the purchaser, and Francis Thomas, who it appears was concerned in the purchase, have answered, and a correspondence, to some extent, between the several persons concerned, and the trustee, has been filed, and upon the said exceptions and answers, and this correspondences, the case has been argued. The letters are admitted to be genuine, and to have the same effect as if regularly proved under an order; but facts affirmed in these letters are not admitted by the purchasers, and are excepted to. It would occupy too much space to recapitulate the facts and averments contained in the answers to the exceptions and the correspondence. The [**28]  Chancellor has read the papers with the utmost care, and will, in the observations he is about to make upon the exceptions to the sale, state the result to which his mind has been brought, by a deliberate consideration of the whole case.

The first objection taken to the sale is, that the public were not properly advised of the title in the property thus sold, which the trustee had the power to sell.

This objection rests upon the supposition, that the trustee should have stated in his advertisement the names of the parties to the suit in which the decree passed, and the several deeds creating incumbrances upon the property.

The decree, it will be recollected, directs that the real estate of James Cunningham, deceased, in the proceedings mentioned, or so much thereof as may be necessary to pay his debts, be sold. It does not say in terms, that the title of the parties to the suit shall be sold, though no doubt a sale under the decree would pass such title.

The language of the advertisement is:--

By virtue of a decree of the High Court of Chancery, there will be sold certain real estate, naming the tracts, and giving their locality, of which James Cunningham died [**29]  seized and possessed. It does not say his title alone will be sold, but the lands of which he died seized and possessed. The public was notified by this advertisement that these lands were to be sold under a Chancery decree, to which decree, of course, there must be parties; and I am of opinion, that in the absence of evidence, that competition in the purchase was prevented by the character of the advertisement, or that the sale was, in any respect prejudiced thereby. It seems to me it should not on this account be vacated. A reference to the Chancery proceedings, to which the public was directed, would have shown who were the parties, and what title was to be sold. The trustee's advertisement referred to the fountain of his authority--described the lands to be sold by name and locality, and gave such other information respecting them as would enable persons disposed to purchase to ascertain all that it was material they should be informed of.

The Chancellor does not think, from an examination of the forms of advertisements of Chancery sales usually employed, that such precision as is insisted upon by the counsel for the parties objecting to this sale, has been supposed to be [**30]  necessary.

The second objection is, that the trustee did not, in fact, sell the interest of the parties to the suit, but only the interest and title of which James Cunningham died seized.

The purchasers, in their answers to these exceptions, take a different view of the matter; but conceding that this exception states truly the nature and extent of the interest purchased by Markell, still this seems to be an objection, which only the purchasers themselves could take, as they, and they alone, are injured by it. Besides, it may not be unworthy of remark, that the sale reported by the trustee disposed of precisely that interest in the lands of which Cunningham died seized; and the answer of Wayman to the bill under which they were sold states, "that he died seized in fee of the several tracts of lands named and described in the bill of complaint."

The third objection has reference to the cloud upon the title, which, it is supposed, might readily have been removed; but which the trustee was not in a condition to remove, by reason of his ignorance of facts, known to Wayman, one of the objectors.

This objection may, perhaps, be open to the observation, that if Wayman [**31]  knew of any fact which would disperse the cloud which hung over the title, and omitted to communicate it to the trustee in due time, it does not become him, when a sale has been made, upon the ratification of which other parties interested in the proceeds are insisting, to interpose an objection upon that ground.

It is true that when a sale is objected to upon the ground of inadequacy of price, which inadequacy may be traced to doubts about the title, it becomes material to inquire whether the trustee might not, by reasonable efforts, have removed the cloud; and if the court can see that such efforts were not used, the question whether the sale shall, or shall not be ratified, may be affected by such neglect. Glenn vs. Clapp, 11 Gill & Johns. 1.

But from the very nature of the doubt about the title in this case, it was impossible that any diligence on the part of the trustee could remove it; the opinion of counsel might be taken upon the subject, but nothing short of the judgment of the court could solve the question.

It appears by the proceedings that the party who purchased for taxes, asserted, and was determined to maintain, the title thus acquired.

The [**32]  forth and fifth objections are based upon an alleged inadequacy of price, and upon negotiations carried on by Mr. Wayman for the sale of the property, which resulted as stated, in selling at a price much higher than the price obtained by the trustee; that inadequacy of price will not induce the court to vacate a sale, in other respects, unexceptionable, unless such inadequacy is so gross as to indicate a want of reasonable judgment and discretion in the trustee, was said by Court of Appeals in Glenn vs. Clapp, 11 Gill & Johns. 9.

It is material, therefore, to enquire whether the inadequacy of price in this case is so gross and palpable as to indicate a want of discretion and judgment on the part of the trustee. Looking to the bid made on the 8th September, 1846, when the lands were offered at public sale, as any criterion of the price which could probably be obtained for them, and the sale reported surely cannot be condemned upon the grounds of inadequacy, since the sale reported is for a much larger sum than was offered at the public bidding.

But it is said, that although the price bid at the public offer of this property, was less than the sum which Markell [**33]  and Thomas proposed to pay, yet the trustee had information that negotiations were pending, if not concluded, by Wayman, for a much larger sum,--and that under such circumstances, the trustee should have at least communicated with Mr. Wayman before he made a sale. The Chancellor thinks that the reasons assigned by the trustee for proceeding as he did, are satisfactory; and, indeed, Mr. Wayman himself confesses, that he, and not the trustee, was remiss in not giving information at the proper time; but is there any evidence that these lands are worth more, or that more could be obtained for them than Markell and Thomas have agreed to give? and emphatically, it may be asked, is there any evidence to show that a better price could have been had on the 15th May, 1847, the date of the sale?

The letter of Duff Green of the 19th August, 1847, with its conditions and qualifications cannot be regarded as an offer; and yet it is the only one which has been made for the property, except such as may be found in the correspondence of the same party and his son with Wayman; and in the contract of the 9th June, 1847, between Wayman and Green, which besides containing stipulations which render [**34]  it totally inadmissible, is, in effect, withdrawn by the letter of the 19th August last. In fact, though this property has been in the market, by advertisements in the newspapers, with very little intermission from August, 1846, to May, 1847, the offer of Mr. Markell is the only one to which any substantial character can be assigned, besides the almost nominal bid on the 8th September, 1846.

It is true Mr. Wayman, by a paper filed on the 7th instant, agrees to give $ 4,000 for the property, on the terms reported by the trustee; but this offer, in my opinion, cannot be allowed to have much weight in determining whether the property sold previously at a price so much below its value, as to indicate a want of reasonable judgment in the trustee.

It is made after an event has happened, subsequent to the reported sale, which, in the opinion of many persons, has enhanced the value of the property. The Chancellor thinks as was said by the Court of Appeals in the case of Tyson vs. Mickle, 2 Gill, 384, that the validity or invalidity of the sale, must depend upon the state of circumstances existing at the time it was made. The clear equity of such a principle seems undeniable.  [**35]  

The sixth ground relied upon for not ratifying this sale is founded upon the manner in which it was made. It was a private sale, though the decree, which is in common form, directs a public one; for this deviation from the decree, it is supposed the sale must be condemned.

It is an admitted principle, that in sales made by the agency of trustees, acting under decrees of a Court of Chancery, the court is the contracting party on the one side, and the bidder on the other; the trustee being regarded as the mere agent or attorney of the court. I say this is the principle, though unlike all other contracts, one of the contracting parties is permitted to sit in judgment upon the contract, and pronounce upon its validity or invalidity. Glenn vs. Clapp, 11 Gill & Johns. 8. 2 Bland, 638, 639.

The principle, however, is understood to be incontestible, and as has been conceded in the argument. Chancellor Hanson has laid down the rule which should govern the court in deciding upon sales made under its authority. In the case of Lawson vs. The State, in 1804, he observed, "that reasons which would induce him, as proprietor or trustee, to set aside a sale [**36]  made by his agent, should determine him, as Chancellor, to refuse his approbation to a sale made by a trustee.

It was decided by the late Chancellor, that if a trustee, directed to sell at public sale, does, notwithstanding, sell at private sale, the sale will be confirmed, if satisfactory reasons are given for doing so, and no objection is made. Andrews vs. Scotton, 2 Bland, 643.

The counsel by whom this case has been argued, have differed as to what was meant by the Chancellor when he speaks of no objection being made; but my impression is, that he must have meant objections of sufficient force to outweigh the reasons given by the trustee for deviating from the terms of the decree; and that he could not have intended that reasons which would be satisfactory to him, in the absence of objections, should be overborne by the mere unsupported veto of any one looking to the court as the vendor, and the trustee as its agent, acting according to the terms prescribed by the former. If, for reasons deemed sufficient by the court, the agent departs from the form in which he is to exercise his authority, who could have a right, merely upon the ground of such departure,  [**37]  to say that the principal should not ratify the act of its agent?

If the principle be sound, that the court is the vendor, and to be considered the proprietor of the thing to be sold, such a right of arbitrary interdiction on the part of any one cannot be maintained.

But it is to be recollected in this case, that the trustee did not undertake to sell these lands at private sale, until a fruitless effort had been made to dispose of them according to the terms of the decree; and that even after he had failed in this effort, they were constantly kept in the market by advertisements offering them at private sale. It is not the case, therefore, of a trustee who has undertaken to depart from the terms of the authority under which he acts, without first making an effort to comply with them, but it is the case of a deviation from those terms, after an ineffectual endeavor to conform to them. It is also a circumstance very material to be considered, that the price at which the trustee had contracted to sell these lands greatly exceeds the best offer he could get for them when exposed to public sale; and another very strong recommendation of the sale made is to be found in the circumstance,  [**38]  that the property was never withdrawn from the public eye, but kept always before it and in the market, by advertisements in the newspapers.

In Tyson vs. Mickle, 2 Gill, 383, a private sale made by a trustee, was confirmed by the court, though the amount of the private bid was considerably less than had been offered for the same property when exposed publicly; and the court in that case say, that Chancery will always ratify an act when done, which upon a previous application would have been authorized. It is true that in the case of Tyson vs. Mickle, the parties interested consented to the sale; but one of those parties, and one largely interested, was a minor, and therefore incompetent to consent. Adopting the principle of the Court of Appeals, that an act when done will be ratified, which the court, if applied to beforehand, would have authorized, I am of opinion, that the objection to the act of the trustee in this case, founded upon the form of the sale, cannot prevail; and it seems to me that upon an application, setting out all that had taken place prior to the sale to Mr. Markell, the trustee would have been authorized to accept his offer.

Whilst the Chancellor [**39]  would consider it his duty to vacate sales made by officers of his appointment, under the influence of error, fraud, misrepresentation or injurious mistake, he nevertheless thinks that it would be a fatal policy to be astute in finding out objections to them. The impression of the court is, that they are entitled to the benefit of every fair and reasonable intendment,--and that a bona fide purchaser is not to lose the rights which he supposed he was acquiring when dealing with its agent upon objections founded upon the modal regulations of the sale--the non-observance of which is not shown to have been injurious. Marshall's lessee vs. Greenfield, 8 Gill & Johns. 349.

The 7th objection to the sale is because the trustee's bond is not upon stamped paper as required by the act of 1845, chap. 193. The law went into effect on the 1st May, 1846, and this bond, though dated on the 29th April, 1846, was not filed and approved by the Chancellor until the 7th July following.

The argument is, that the bond was of no effect until filed and approved; those acts constituting its delivery and acceptance.

By adverting to the terms of the decree, it will be found that the [**40]  trustee is to proceed to make sale of the property, upon giving bond in a certain penalty, and with sureties to be approved by the Chancellor, conditioned for the faithful performance of the trust reposed in him by the decree.

This bond has been approved by the Chancellor, and it seems to me it would be of dangerous consequence to say, that although thus approved, the purchaser shall not get the benefit of his purchase, if the bond, for any reason, is defective.

Few persons, I presume, would be disposed to bid at trustees' sales, if such a doctrine is to obtain. The Chancellor, for this reason, does not deem it necessary to express an opinion upon the point discussed by the counsel; but upon application to require the trustee to execute another bond, he will be prepared to do so.

Upon the remaining objection, my opinion has been already expressed, and need not be repeated, and I conclude, therefore, that the objections filed to the sale in this case must be overruled, though in view of all the circumstances of the case, the order will direct that the parties pay their own costs respectively. I have arrived at this conclusion, after considering the case with much attention,  [**41]  aided by the very full and able arguments of the counsel employed in it. If my judgment is erroneous, I am gratified to know that a superior court will correct the error.

From this decree, Henry Wayman, William C. Cunningham, and Charles E. Cunningham appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

It is not necessary for a trustee, in his published notice of sale under a decree, to state the names of the parties to the suit in which the decree was passed; nor the several deeds creating incumbrances on the property offered for sale.

A decree directed that the real estate of J. deceased, in the proceedings mentioned, or so much as may be necessary to pay his debts, be sold; and although it does not say in terms, that the title of the parties to the suit should be sold, still a sale under the decree would pass such title.

A notice of sale, which states that by virtue of a decree of the Court of Chancery, there will be sold certain real estate, naming the tracts, giving their locality, of which J. died seized and possessed, is a notice that there must be parties to the decree,--and in the absence of evidence, that competition in the purchase was prevented by the character of the notice, or that the sale was, in any respect, prejudiced thereby; a sale under such notice should not be vacated.

A defendant in a cause, under such a decree, cannot object that the trustee did not, in fact, sell the interest of the parties to the suit, but only of one of them. Such an objection might come from a purchaser, who is alone injured by it.

Where a defendant, whose title is decreed to be sold, knows of any fact which would disperse a cloud on the title decreed to be sold, and omits to communicate it to the trustee in due time, it does not become him, when a sale has been made, to interpose it as an objection to the ratification of sale against purchasers.

When a sale is objected to on the ground of inadequacy of price, which may be traced to doubts about the title, it becomes material to inquire, whether the trustee might not, by reasonable efforts, have removed the cloud.

Where, from the nature of the doubt, no diligence on the part of the trustee could remove it, he may proceed to a sale, and the parties may refer its solution to the judgment of the court.

Where a sale reported was of a private sale, made for a much larger sum than could be obtained at an offer at public sale, duly made by a trustee, inadequacy of price is no objection to the private sale.

An event which happens subsequent to a reported sale, and which, in the opinion of many persons, has enhanced the value of the property sold, ought not to affect such reported sale.

In Andrews vs. Scotton, 2 Bland, 643, it was decided, "that if a trustee directed to sell by decree at a public sale, sell, at private sale, the sale will be confirmed, if satisfactory reasons are given for so doing, and no objection is made." These latter words mean objections of sufficient force, to outweigh the reasons given by the trustee for deviating from the terms of the decree.

Where a trustee did not undertake to sell at private sale until a fruitless effort had been made at public sale, according to the terms of the decree, and even after such failure kept the property in the market by advertisements offering it at private sale, and procured a greater price at private than he had been offered at public sale--the court will not consider his conduct a substantial deviation from the decree, but only one offered from necessity.

Chancery will ratify an act when done, which upon a previous application, would have been ordered.

Whilst the Chancellor would consider it his duty to vacate sales made by officers of his appointment, under the influence of error, fraud, misrepresentation, or injurious mistake, still it would be fatal policy to be astute in finding out objections to them.

Where a trustee's bond is not stamped, but was filed and approved by the Chancellor, and the trustee proceeded to make the sale as decreed--this is not a ground for vacating the sale; but the Chancellor, on application, will require the trustee to file a new bond.  

COUNSEL:
By ALEX. RANDALL and NELSON for the appellants, and

By ALEXANDER and F. A. SCHLEY for the appellees.  

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

OPINION:

 [*231]  By the court:
Decree of the Chancellor affirmed for the reasons stated by him.
DECREE AFFIRMED.  

22 of 33 DOCUMENTS 

THE BALTIMORE AND SUSQUEHANNA RAIL-ROAD CO. vs. SAMUEL FAUNCE AND J. D. PASSMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 68; 1847 Md. LEXIS 50 

December, 1847, Decided 

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

This was an action of assumpsit, brought by the appellants against the appellees. The defendants pleaded the general issue.

1ST EXCEPTION. The plaintiffs offered in evidence the contract between the appellees and the York and Maryland Line R. R. Co. for work, to be done by the said appellees under said contract, and the final estimate thereof by Isaac Trimble, engineer thereof for the time being, viz:

________________________________________________________________________________
For money paid by them,	$   129 27	
For work on bridge, sect. 65,	12,586 25	
For work on graduation, sect. 65,	11,926 56	
	
	$ 24,642 08	
________________________________________________________________________________

From the graduation work, the estimate deducted the sum of $ 870, for work done on the section by Toy to that amount.

And proved, by Robert S. Hollins, that he was the secretary of the plaintiffs; that the plaintiffs had agreed with the said Yk. and Md. Line R. R. Co. to make on its behalf the payments to become due by it on said contract; that he, as agent for the plaintiffs, received from Mr. Trimble, the engineer for the time being, the final estimate of the work done by the defendants under their contract, after which, he was called upon, at the office of the plaintiffs,  [**2]  by the defendant, Passmore, in regard to the settlement of the claims of the defendants under their contract; that he shewed him the final estimate, which Passmore examined and returned to the witness, under the remark, that the deduction for work done by Toy was too great; that the next morning, the defendant, Faunce, called at the office of the plaintiffs and examined the final estimate, and handed it back to the witness, with a request, that he would state what amount was due to the defendants: and that thereupon, the witness made out a statement of what was due the defendants, intending to state the same according to the said final estimate--which statement he now produces, and which showed a balance due the defendants, $ 3,306 10.

The paper also showed the payments to the defendants to be--

________________________________________________________________________________
Small notes,	$ 1,006 00	
3 months,	1,300 10	
6 months,	1,000 00	
	
	$ 3,306 10	
________________________________________________________________________________

And that in making said statement, he omitted, by mistake, to make a deduction of $ 870, for work done by Toy, which deduction was made by the final estimate; and that the balance, which he stated to the defendants to be due to them, was erroneous to that extent; that on the preceding [**3]  morning, the defendants both came to the office of the plaintiffs, and that the final estimate and the statement above mentioned were put into their hands; that they were some time looking over them, in the course of which the defendant, Faunce, asked the defendant, Passmore, whether the balance would be sufficient to pay their debts: and upon his replying in the affirmative, they then both declared their willingness to settle, after which, the witness paid them, on behalf of the plaintiffs, the said balance of $ 3,306, (which was, by his mistake, $ 870 too much, as already stated,) and obtained their receipts therefor and their release, under seal, to the Yk. and Md. Line Rail-road Co. for the work done.

The plaintiffs further proved, by the said witness, that he had no authority from the plaintiffs to make any settlement, except upon the basis of the said final estimate; that he would not have made the payment of $ 3,306 10, had he been aware of his mistake, in failing to deduct the $ 870, which is deducted by the final estimate; that on the same day on which said payment was made, and shortly after the defendants had left the office of the plaintiffs, he discovered, by a conversation [**4]  with Mr. Trimble, that he had made the mistake above mentioned; and thereon proceeded with said Trimble, immediately, in search of the defendants; in the course of an hour, they found the defendant, Faunce, and stated to him the mistake that had been committed by this witness, and demanded the return of the money, to which his only reply was, that he was not acquainted with the work done, but would find Passmore, who was out paying his bills, and bring him to the office, and there examine into the matter, upon which the witness returned to the office; and after waiting there some time in vain for the defendants, proceeded again in search of them, in company with Mr. Charles Howard, the president of the plaintiffs, and met them--and the subject of the mistake again brought up, and Mr. Howard offered if the over-payment were returned, to cancel the final release and receipts, and take a receipt on account for the residue;--but that this was refused, and the defendants declined returning the money, and assigned no reason therefor, so far as the witness recollects.

The defendants thereupon, to sustain the issue on their part, proved by the cross-examination of the same witness, that [**5]  he had no personal knowledge of the extent of the work done by the defendants under their contract. And further offered to prove by him, that the payment which he made to the defendants, as already given in evidence by him, and as shown by the papers so offered in evidence by the plaintiffs, consisted of the following, viz:

In small notes, issued by the plaintiffs, of the denomination of one and two dollars, and of the form herewith exhibited--to the amount of $ 1,006; and in the promissory notes of the plaintiffs, of $ 100 each, some payable at three, some at six months, and of the form herewith exhibited; as is shown by said papers, so offered in evidence by the plaintiffs as aforesaid.

To the admissibility of which evidence, the plaintiffs objected. But the court (ARCHER, C. J., and LE GRAND, A. J.,) overruled said objection, and allowed said evidence to go to the jury. The plaintiffs excepted.

2D EXCEPTION. The plaintiffs, to support the issue on their part, gave in evidence the facts already stated in the first bill of exceptions. And the defendants, to support the issue on their part, also proved the facts which were given in evidence by them, as already stated [**6]  in the same bill.

Thereupon, the plaintiffs proved that all the $ 100 notes by the plaintiffs had come in and been paid; and that all their $ 2 notes had likewise been redeemed; but that there still remained out about $ 230 of their $ 1 notes.

The defendants further proved that an agreement has been made with the Citizens Bank for the redemption of the $ 1 and $ 2 notes of the plaintiffs; and that they circulated as money in the community.

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

1st. If the jury find, from the evidence, that at the time of the settlement between the defendants and the witness, Hollins, the said witness, exhibited to them the final estimate of the work done, and the sums to be paid for it, which has been offered in evidence; and that the said witness intending and agreeing to pay the defendants for the work done, according to the said final estimates, and having no authority, as the agent of said company to pay them in another mode, or to make any additions or deductions from the sums as allowed or charged the defendants by said estimates; and intending to pay the defendants for said work according to the said estimates, &c.  [**7]  the allowances and deductions made thereby, did, by mistake, omit to make the deduction of $ 870 appearing on the said estimate for graduation, as a deduction properly chargeable to and to be made as against the defendants from the amount fixed by said estimate; and that said Hollins settled with them, and paid them by mistake, the whole amount of the sum allowed by said estimate for graduation, without deducting said $ 870, and took from said defendants their receipts and releases, which have been offered in evidence. And if the jury also find, that after said payment by mistake, the said witness, with the president of the plaintiffs, called upon the defendants and made known to them the said mistake, and demanded of them the return of the said amount, so over-paid by mistake, and the defendants, upon such demand, refused to return the said over-payment, and have never since returned it to the plaintiffs--then the plaintiffs are entitled to recover the same sum of $ 870, with such allowance for interest as the jury may deem it proper to make.

2d. If the jury find the facts stated in the plaintiffs' first prayer, then the plaintiffs are entitled to recover--notwithstanding the [**8]  jury may find, from the evidence, that the payment was made in the $ 100 notes, and in the $ 1 and $ 2 notes of the plaintiffs, as proved by the witness, Hollins.

3d. If the jury find that the payment was made to the defendants by the witness, Hollins, as stated by him in his evidence; that there was no illegality in the said payment, except as to the $ 1 and $ 2 notes, so paid out by said witness; and that the payment of the $ 100 notes, as proved by him, was not illegal.

4th. If the jury find the facts stated in the plaintiffs' first prayer, then the defendants are estopped from alleging that they had not money in their hands, to the extent of the over-payment, to respond to the plaintiffs in this action.

5th. If the jury find the facts stated in the plaintiffs' first prayer, and that no application was made, either by the plaintiffs or the defendants, of the payment made by the said Hollins to the defendants, then in the proper and legal application of the same, the $ 1 and $ 2 notes paid to them, as stated by said Hollins in his evidence, are first to be applied to the payment of the sum of debt, on account of which, they were so paid to the defendants by said Hollins;  [**9]  and the plaintiffs are entitled to recover for the said over-payment by mistake.

6th. If the jury find, from the facts stated in the plaintiffs' first prayer, and so find that the payment to the defendant by the witness, Hollins, was, in part, made in the $ 1 and $ 2 notes of the plaintiffs, as stated by the witness, Hollins, then said $ 1 and $ 2 notes, so paid to and received by the defendants, were in law applicable to the payment of the debt, on account of which, it was so paid to and received by the defendants, and was, under the facts stated in the plaintiffs' first prayer, money in their hands for the payment of said debt.

7th. That if the jury find the facts stated in the plaintiffs' first prayer, and that the payment so made to the defendants by the witness, Hollins, was made, as stated by said Hollins, in the $ 100 and $ 1 and $ 2 notes of the plaintiffs; and if the jury also find that the said defendants had in fact applied, before the said demand made by the president of the plaintiffs, the said $ 1 and $ 2 notes of the plaintiffs so received by them, in whole, or in part, to the payment of the said debt on account of which they were so received, then the plaintiffs [**10]  are entitled to recover.

8th. That if the jury find the fact stated in the plaintiffs' first prayer, and that the payment so made to the defendants by the witness, Hollins, was made, as stated by said witness, in the $ 100 and $ 1 and $ 2 notes of the plaintiffs; and that the said defendants, after the receipt of the same, had paid away in discharge of their debts, or recovered the money on the said $ 1 and $ 2 notes, or any part of them, before the bringing of the action, then the plaintiffs are entitled to recover to the extent of the said payment away, in discharge of their debts by said notes, or of the money received on them by the defendants before the bringing of this action.

9th. That if the jury find the facts stated in the plaintiffs' first prayer, and if they also find that the payment to the defendants by the witness, Hollins, was made in part in the $ 100 notes of the plaintiffs, as stated by said Hollins in his evidence, and that the defendants expressly agreed to receive said $ 100 notes in payment of the debts, on account of which, they were paid to and received by the defendants, then the said $ 100 notes so received and agreed to be taken in payment by the [**11]  defendants, were in law a payment of said debt; and that they were money in the hands of the defendants, by the force of such receipt and agreements, to respond to the plaintiffs in this action; and that the receipts and release of the defendants, for or on said payment, which have been offered in evidence, are evidence that the defendants did expressly agree to receive the said $ 100 notes in payment of said debt.

10th. That if the jury find the facts stated in the plaintiffs' first prayer, and if they also find that the said payment, made to the defendants by the witness, Hollins, as stated by the witness, Hollins, in part in the $ 1 and $ 2 notes of the plaintiffs, and that the said defendants, having received and given receipts and release, as before stated, did in fact apply the same notes to the payment of the debt, on account of which, they were so received and applied, did in law amount to the payment of the said debt, to the extent to which they applied and covered said debt.

The court (ARCHER, C. J., and LE GRAND, A. J.,) refused to grant said prayers and each of them--to which refusal, as to said prayers and each of them, the plaintiffs excepted.

The verdict [**12]  and judgment of the court below being in favor of the defendants, the plaintiffs appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

A party cannot recover money, voluntarily paid, with a full knowledge of all the facts, although no obligation to make such payment existed.

A party making a payment in the mistaken belief, that the sum paid was the true balance appearing due from an account before him, and not noticing a deduction therefrom, paid a larger sum than he intended, may recover the excess.

A payment cannot well be said to be voluntary when it is made in consequence alone of a false view of the facts.

The subsequent discovery of the error destroys the whole basis of the agreement, and the parties are restored to their original condition and rights.

Where the agent of a rail-road company agreed to pay only what the engineer of the company certified, and supposed he was paying no more, while in fact he did pay more to a contractor, the company may recover the sum erroneously paid.

Where the defendant's claim was $ 2,436 10, and his agent intending to pay that sum, erroneously and unconsciously paid $ 3,306 10, which payment was made up of $ 1,006 in small notes illegally issued by the plaintiff, and $ 2,300 10 in current money, the defendant received the whole as money, and upon immediate demand, refused to return the small notes, or the over-payment. In an action for money had and received, the plaintiff may show the error; the defendant cannot defend himself upon the ground that the small notes were illegally issued.

The law properly withholds its aid when parties ask to enforce an illegal contract; but this is not such a case. The plaintiff does not ask to enforce an illegal contract, nor recover against the defendant for refusing to violate the law. The action is brought to correct a mistake.

Where a municipal corporation authorized one of its inhabitants to issue small notes as currency, in their name, but for his benefit, and upon his responsibility; and he afterwards, by will, directed his estate to be sold for the payment of such notes, the notes being issued in violation of law, a bill, filed to coerce the sale, was held to be an attempt to enforce a void contract, and dismissed.

In an action for money had and received, any thing received by the defendant as money, will entitle the plaintiff to recover; as a bond, a note, a credit in account, land received and acknowledged as money, and a mixed, erroneous, payment of legal and illegal notes--there being circumstances to show that the defendant received money for the illegal notes.  

COUNSEL:
By CAMPBELL and MCMAHON for the appellants, and

By NELSON for the appellees.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*76]  CHAMBERS, J., delivered the opinion of this court.
Two questions arise on this record: First, whether the plaintiffs can recover back money, paid under such circumstances of knowledge or means of information as existed in this case? And secondly, if entitled in other respects, whether the plaintiff is precluded by reason of the character of the notes in which the payment was in part made?
The facts upon which the opinion of the court was asked, are, that the payment was made in the mistaken belief that the sum paid was the true balance appearing due by the final estimate, and that the agent who made the payment for the plaintiffs intending to pay that balance, and not noticing the deduction of $ 870, paid a sum larger by that amount than he intended.
It is rightly said, that a party cannot recover money voluntarily paid with a full knowledge of [**13]  all the facts, although no obligation to make such payment existed. If informed of the law which exempts him, he must abide the consequences of his folly, in abandoning the protection it afforded him--if ignorant, he was bound to acquire information.
It is regarded as a gift without consideration. But full knowledge of the facts is here negatived. The statement in the bill of exception assumes, and the testimony of the witness shows, that he made the payment, believing at the moment of making it, that the engineer, whose estimates he was bound to regard, had certified the sum to be due which was actually paid.
Then it is urged that ample means were at hand to obtain full and accurate information, and many cases have been referred to as establishing the proposition, that a recovery cannot 

 [*77]  be had where the party paying has access to information, and by his own laches neglects to acquire it.
Certainly some of the authorities seem to countenance such a doctrine; but, we think, the opposite opinion best accords with the plainest principles of justice, and has the weight of authority to sustain it. The case of Lucas and others, and Worwick, 1 Mod. & Rob. 293, in [**14]  many particulars, resembles this case.
The defendant had a claim against the plaintiffs for work and labor, amounting as defendant alleged, to £  142; the plaintiffs disputed certain items, and admitted a balance of only £  97; at defendant's request, Lucas, one of the plaintiffs, paid £  20 on account. The defendant afterwards met Lucas and agreed to abandon the disputed items. Whereupon, Lucas paid him £  97, forgetting the previous payment of £  20; but, almost immediately after, notified the defendant of the mistake, and demanded the return of the £  20; and on his refusal, the action was brought to recover that sum.
The case was fully discussed before Denman and Baron Bolland, who held that as the money was paid by mistake in the hurry of business, it might be recovered back as received to the use of the plaintiffs.
The case of Kelly vs. Solari, 9 M. & W. 54, was fully considered. There the parties paying had at one time a knowledge of the fact, the forgetfulness of which subsequently induced them to make the payment. The Chief Baron, at nisi prius, instructed the jury, that the previous knowledge or means of knowledge would [**15]  prevent the recovery; but on argument, he united with all the other Barons in the opinion, that there must be knowledge existing in the mind at the time of the payment. Of what avail is it, in any view of justice or sound sense, that a man once knew or had means to know a fact, if, at the moment when alone, such knowledge is practically useful, he is actually ignorant of it?
A payment cannot well be said to be made voluntarily when it is made in consequence alone of a false view of facts. The assent is only induced by the conviction then prevailing in the 

 [*78]  mind, that the particular fact existed, and is scarcely to be distinguished from an assent or agreement to pay on the condition that the fact did exist.
The subsequent discovery of the error destroys the whole basis of the agreement, and the parties are restored to their original condition and rights. Of what avail is it, that industry and vigilance might have procured the information? Still the party has done an act he did not intend to do, and did not know or believe he was doing. In this case, the agent assented and agreed to pay only what the engineer certified; he supposed he was paying no more when he delivered [**16]  the notes to defendants, and his volition was no more involved in any amount beyond, than it would have been had he paid them a bank note of $ 1,000, misreading, and intending it to be a note of $ 100.
In the case of Bell vs. Gardner, 4 Man. & Gran. 11, found in 43 Eng. Com. Law 16, the Judges of the Common Pleas, unanimously adopt the principle of Lucas & Worwick, and applying it to the case before them held it to be a good defence to a suit on a promissory note, that it had been given to the plaintiff to discharge a debt supposed to be due; but which, owing to a fact then unknown to defendant, was not legally recoverable, although the defendant had ample means of knowing the fact.
We are therefore of opinion, that there was nothing in the facts of this case as stated in the exception, which would prevent the plaintiffs from recovering, because of the alleged voluntary character of the payment with the means of knowing and correcting the error under which it was made.
We will now consider whether the recovery is barred by reason that the payment was made in the particular notes which the defendants received.
It has been denied in the argument that [**17]  these small notes were illegally issued. We are inclined to think they are prohibited; but do not find it necessary to express a more decided opinion upon that point--assuming the small notes to have been issued illegally, how will the case stand?

 [*79]  The plaintiffs' agent paid away $ 3,306 10, being more by $ 870 than was due, and more than he designed to pay; of the sum paid, $ 1,006 were in small notes illegally issued by the plaintiffs, the residue, $ 2,300 10 in good paper, the defendants received the whole as money, and as the evidence shows have used the notes as money in a few hours after the payment.
The agent having discovered his mistake, called on the defendants to return him the notes to the amount of $ 870, the sum overpaid by mistake, and they refuse to return the notes or account in any manner for the sum overpaid, and now contend that principles of public policy forbid the plaintiffs from enforcing such demand.
We cannot yield our assent to a proposition which would sanction such a result. The law properly and consistently withholds its aid when parties ask to enforce an illegal contract--all are presumed to know the law, and if a contract be made to violate [**18]  it, whether it be a contract to perpetrate a crime, malum in se, such as murder or arson, or to violate a municipal enactment, such as the act prohibiting the issue of small notes, and a remedy is sought either to enforce such contract or to obtain compensation for a breach of it, the parties are properly told the law will neither assist you to coerce another to violate its provisions, nor suffer you to recover against another for refusing to do so.
In this case the plaintiffs do not ask to enforce any illegal contract. They do not ask to recover against defendants for refusing to violate the law. The defendants have received of them, as and for money, a large amount of notes--part good, and part not good, in consequence of a mistake committed by their agent. Their demand was to correct this mistake--to return the notes, or any of them, which were paid by mistake. Clearly, there is no violation of any law in such a claim. If the same amount of notes, and of the same denomination, had been found in the street by the defendants, or by any other person, would it be an answer to a claim made for them by plaintiffs, that a part of the property thus found consisted of small notes, issued [**19]  contrary to an Act of Assembly? Or, to 

 [*80]  put a case more nearly resembling the one before us, if not identical in principle, would it be a sufficient answer, under such circumstances, to say the notes found amounted to $ 3,306? You are justly indebted to me in the sum of $ 2,436, which leaves but $ 870; and amongst the notes, there were more than to that amount in small notes, illegally issued. Now, the defendants had no more claim to these notes, or any of them, than if they had found them: and, we think, there is a manifest distinction between such a case as this, and one to which the principles apply, which are referred to by the defendants' counsel.
The case of Baugher vs. Danner's Executors, affirmed in this court at December session, 1844, MS. is not like this case. There, Joseph Danner, a citizen of the town of Emmittsburg, was permitted by the corporation of the town to issue small notes in the name of the corporation, but for his sole benefit, and for the payment of which, he was to be alone responsible. He did issue a large amount of such notes, which were received as currency; and amongst others, the complainant, Baugher, received them to a considerable [**20]  amount. Danner afterwards, by his will, directed his estate, real and personal, to be sold by his executors, and the proceeds to be applied to the payment of his debts and the small notes, issued by him in the name of the corporation of Emmittsburg, for which issues he was individually bound. The executors sold the estate, and refused to apply any part of the proceeds to the payment of these small notes, which he held to the amount of more than $ 1,200. The bill was filed to coerce payment, but was dismissed, upon the ground that it was an attempt to enforce the execution of an illegal contract. The notes were issued in violation of law; the promise to pay, which they contained on their face, was void by the Act of Assembly; and the very object of that proceeding was to obtain the aid of a court of equity, specifically to enforce the execution of a contract, held by the court to be void. Such is not the case here; there was nothing illegal in the demand of the plaintiffs--nor would a compliance with it involve any violation of law.

 [*81]  The case of Catts and Phalen, 43 U.S. 376, 2 How. 376, 11 L. Ed. 306, is in principle similar to this. Catts [**21]  was in that case employed by Phalen to draw lottery tickets from the wheel. Catts, having secretly procured a ticket, concealed in his coat sleeve the numbers corresponding with those on his own ticket: and instead of fairly drawing such numbers as presented themselves by chance, drew out the concealed numbers, and thereby caused the ticket, held by his accomplice for his use, to be considered entitled to the highest prize; and Catts afterwards, through his accomplice, received the amount of the prize, for which sum the action was brought.
The defence was that the lottery was prohibited by law, and the money being received in the course of an illegal transaction, could not be recovered back. But the Supreme Court held the defence was not tenable, and affirmed the judgment of the Circuit Court, which had decided the recovery could be had.
The next difficulty suggested in the way of a recovery is, that this being an action for money had and received, it must be proved that money was actually received by the defendants.
The authorities cited, however, make it clear that any thing received as money will entitle the party. Thus, a bond, a note, a credit in account,  [**22]  and even land when received and acknowledged as money, have been respectively held to be sufficient to sustain a count for money had and received. Here, there are circumstances to show the defendants received money for the small notes; and they received, also, a large part of the payment in good notes.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

23 of 33 DOCUMENTS 

THE FRANKLIN FIRE INSURANCE COMPANY vs. ALEXANDER HAMILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 87; 1847 Md. LEXIS 52 

December, 1847, Decided 

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

This was an action of covenant, commenced on the 30th August, 1842, by the appellee against the appellant, to recover a loss by fire, under a policy of insurance of the appellants.

The defendants below pleaded that they had not broken their covenant; and the parties agreed that "all errors in pleading are released, and any matter may be given in evidence under the above plea, which might be given in evidence under any other plea, or pleaded; provided, notice in writing, of the substance of such defence, be given four weeks before the trial."

At the trial, the plaintiff offered in evidence the policy of insurance in this case, which it was admitted was executed by the defendants; the destruction by fire of the building, in which the property insured by the policy in this case, viz: a steam engine, and the machinery of a plaster mill, was situated; that it was damaged by fire, which occurred on the 20th June, 1842; an estimate of the loss by fire, made out by one Cassidy, was left with the defendants on the 15th July, 1842, and amounted to $ 4,140 47. The policy required that all persons insured, sustaining any loss or damage by fire,  [**2]  are forthwith to give notice to the secretary, and as soon as possible after, to deliver in as particular an account of their loss or damage as the nature of the case will admit of; and to produce to the Company satisfactory proof thereof. And proved, by said Cassidy, that said estimate contained, in his judgment and opinion, the fair and just value of the loss sustained by the plaintiff from said fire. And further proved, by said Cassidy and other witnesses, that in the judgment of Cassidy and of said witnesses, the engine and machinery of the plaintiff, damaged by said fire, was, before such fire, worth from $ 3,500 to $ 4,000.

The defendants offered to give evidence by Francis H. Smith, the agent of the defendants, by parol, that within two days after the fire occurred in this case, the plaintiff called at the office of the defendants, and notified said witness of the fire; that said witness informed the plaintiff that he must make out his estimate of loss; that within two or three days after said fire occurred, the said Smith, as agent of the defendants, examined the damage done to the property of the said plaintiff, insured by the policy in this case, and finding the damage [**3]  trifling, in comparison with the sum insured by said policy, elected, in behalf of defendants, to repair said insured property, under the provisions in the policy, and notified said plaintiff of such election, and informed the plaintiff, within three days from the occurrence of said fire, that the defendants were then ready to repair said insured property within the time provided in the policy; but that if said property should be repaired before the building in which the same was to be repaired and put up, was roofed in and repaired, that said insured property, so repaired, would be liable to injury from exposure to weather, &c.; and that at said interview between said plaintiff and the agent of the defendants, as also at several other interviews, it was distinctly agreed and understood between them, that for the benefit of said plaintiff, and to preserve his property from such damage by weather, &c., that the time within which said insured property was to be repaired and restored, according to the provisions contained in the policy in this case, should be enlarged and extended, and the repairs and restoration of said insured property dispensed with, and postponed until the building,  [**4]  in which the same was located, should be repaired and made fit to receive said insured property; that in pursuance of said last mentioned agreement, said witness went on to repair said building with all possible despatch; that within three days after said fire, said witness employed Wells, Miller & Clarke, machinists, to repair said insured property, who took said property in charge; and that as soon as said building was roofed in and repaired, said insured property was repaired, and put in as good order and condition as it was before the said fire: and tendered the plaintiff by the following letter:

Agency Franklin Fire Insurance Co. Baltimore, 7th October, 1842.

ALEXANDER HAMILL, ESQ.

Dear Sir,--I have to inform you that the engine and plaster mill insured for you in this office, which was lately damaged by fire, is now in complete repair and ready for you. Should any part of the work not meet your approbation, you will please point it out, and if the complaint be well founded, it shall be attended to.     F. H. SMITH, Agent.

(Endorsed,) "Alexander Hamill, Esq., present."

But that he refused to receive the same, by his reply to said letter.

Sir,--I [**5]  have your extraordinary note of 7th October, given me, after your Company had violated every engagement, and after a controversy pending, for the recovery of the amount of your insurance and suit instituted for redress, I hardly expected that you would have added insult to injury; but after the course you have pursued, what should I not expect from you?

Your ob't servant,

Oct. 8th, 1842.     ALEXANDER HAMILL.

(Endorsed,) "Francis H. Smith, Esq., Agent of Franklin Fire Insurance Company, present."

That two or three days after the time limited for the repair of the insured property specified in the policy had elapsed--that is to say: on the 20th August, 1842, Mr. Glenn, as counsel for the plaintiff, called at the office of the defendants and demanded the payment of the amount insured by the policy, when he, the witness, informed said counsel of the agreement between said plaintiff and defendant, enlarging the time for the performance of the said repairs, &c. The witness also stated, that the defendants had a policy on the said house at the time of the fire, and elected to repair the same. The defendants further offered in evidence by Wm. C. Neale, that he was at [**6]  the time of said fire, clerk for the defendants; and that he, the witness, was present at frequent conversations at different times, between the plaintiff and Mr. Smith, the agent of the defendants, one of which occurred the day after the fire--in which it was agreed and understood between said plaintiff and said agent, that the time limited in the policy in this case, for the repairs and restoration of the property insured by the policy of insurance in this case, should be enlarged and extended; and that said repairs and restoration of said insured property should be postponed, until after the roofing in and repairing the building in which said insured property was located; that the defendants were ready at any time after said fire occurred to repair said insured property, and offered the plaintiff to repair said property in the presence of the witness, which offer said plaintiff declined, and preferred that said property should not be repaired and restored until after the building, in which the same was located, should be roofed in and repaired; and that in consequence of said arrangement, said insured property was not repaired within the time limited in the policy.

The defendants [**7]  further offered in evidence by Wells and Thomas J. Matthews, practical machinists, that they were employed by the defendants to repair the steam engine and machinery, which was the subject matter of insurance in this case; that said insured property was put into the hands of said witnesses for repairs, within two or three days after the fire occurred, and they commenced said repairs forthwith, and prosecuted the same, from time to time, as their convenience permitted; that they did not hurry the execution of the said repairs, because they were informed by the agent of the defendants, that there was no need of hurry, and that said repairs were fully finished and completed, and put in as good order and condition as the said insured property was before said fire occurred, (if not in better condition,) by the 3d October, 1842; and that the whole cost of said repairs was $ 350, which was paid by defendants; that said plaintiff was notified, by letter from the said agent of said defendants, dated 7th October, 1842, that said insured property was ready for said plaintiff. The said witness of defendants also stated upon cross-examination, that he had no recollection that after the said estimate [**8]  of loss was left with the defendants on the 18th July, 1842, as aforesaid, any other conversation was had between plaintiff and said Smith, in relation to any agreement to waive the time for repairing said insured property, as such time is limited by the policy, and by said witness, as well as by said Smith; that after Mr. Glenn, as the attorney of the plaintiff, demanded payment of said loss, on the 20th August, no understanding or agreement was had between plaintiff and defendants, in regard to any such waiver, but neither of said witnesses ever heard from plaintiff within thirty days after notice of loss as aforesaid, that he would not waive said time for such repairs. And the plaintiff gave in evidence that he consulted said Glenn, as counsel, in relation to said claim, and that under the advice of said Glenn, said estimate of loss was made out and left with the defendants' said agent, so as to authorize plaintiff to recover the amount of said loss, after the end of thirty days from the leaving of said estimate with the defendants.

The defendants also gave in evidence, that notwithstanding the leaving of such estimate of loss, and the demand of payment by said Glenn, as attorney [**9]  of plaintiff, on the 18th July and 20th August, 1842, respectively, the defendants, nor said Smith, did not proceed to repair said loss within thirty days from either period, although the same could have been repaired at any time within ten days; nor did he, they or said agent, then direct said Wells, Miller & Clarke, to make such repairs with practical expedition.

The plaintiff further gave in evidence, that said insured property was not fully repaired, but stood in need of some $ 30 or $ 40 of additional work, in order to place the same in working condition, and that the same was, after being repaired as aforesaid, sold at public auction under a distress for two quarters rent due by the plaintiff, one-half of which accrued after said fire, and brought the sum of $ 240.

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

1st. "That the plaintiff is entitled to recover the amount of damage he actually sustained by the fire, which occurred on the 20th July, 1842, if the jury believe that his loss was not repaired by the defendants within the time stated in the policy, and has not since been paid, and that no parol evidence is admissible to shew that said Hamill [**10]  consented, in opposition to the terms of said policy, to allow such repairs to be made at any time after the period specified in such policy.

2d. "That even if such parol evidence were admissible, that the delivery to said defendants of an estimate of loss, the demand of payment and institution of suit was a rescission of such arrangement, and unless defendants repaired or paid as aforesaid, within thirty days after such rescission, plaintiff is entitled to recover for the actual loss sustained by him by said fire."

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

1st. "That the testimony of F. H. Smith and W. C. Neale, in relation to the agreement between the plaintiff and the agent of the defendants, for the extension and enlargement of the time specified in the policy of insurance in this case, for the completion of the repairs, &c. of the subject matter of insurance, in case of loss or damage, is admissible, for the purpose of proving that said time was, by such agreement, enlarged and extended.

2d. "That if the jury believe the testimony of Smith and Neale, mentioned in the first prayer, that the plaintiff is not entitled to recover in this [**11]  case.

3d. "If the jury believe from the evidence, that after the loss by fire in this case, and before the expiration of the period specified in the policy, for the repairs or restoration of the subject matter of insurance, it was agreed between the plaintiff and the agent of the defendants, with a view to the interest and advantage of the plaintiff, that the time for said repairs and restoration of the subject matter of insurance should be enlarged and extended, until the building in which said subject matter of insurance was located, could be repaired and made fit for the reception of said subject matter of insurance; and that the defendants, relying upon such agreement, without any notice to the contrary from plaintiff, failed to have the said repairs, &c. made within the period specified in said policy; that the plaintiff is not entitled to recover in this case.

4th. "That the testimony of Smith and Neale, in reference to the agreement mentioned in the first prayer, is admissible in mitigation of damages."

The court (LE GRAND, A. J.,) granted the plaintiff's first prayer, but refused the second, and refused all the defendants' prayers; to which granting of the plaintiff's [**12]  first prayer, and refusing to grant the defendants' prayers, the defendants excepted.

The defendants below prosecuted this appeal.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action of covenant, the defendant pleaded non infregit, &c. with liberty to give in evidence any matter he might have pleaded; provided, he gave notice to the plaintiff of the matter of such evidence within, &c.--not having given the notice, the cause stood under the plea filed.

In such action under that plea, a parol agreement by which the time of performance of the covenant was enlarged, is not admissible in evidence.

A contract of insurance against loss is one of indemnity. The right to recover is commensurate with the loss actually sustained. Any evidence conducing to show the loss less than that claimed, would be admissible. The doctrine relative to mitigation of damages has no application to such a case.

In an action of covenant, where the plaintiff was not entitled to recover, unless he proved that the property insured was destroyed by fire; that notice of the loss, and an estimate of damage sustained, were furnished the underwriter, according to the terms of the policy, it is error in the County Court to instruct the jury, that the plaintiff is entitled to recover, in such a form as to take from them the consideration of the fact--when the fire occurred, and assume the day, or that notice of the disaster was forthwith communicated, and a particular account of loss furnished to the company.  

COUNSEL:
BY TEACKLE and MCMAHON for the appellants, and

BY MEREDITH and REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*94]  MARTIN, J., delivered the opinion of this court.
In this case, an action of covenant was instituted by the appellee against the appellants, on a policy of insurance against loss by fire, executed by the Insurance Company, on the 14th May, 1842.
The defendant pleaded non infregit conventionem, to which was annexed the following agreement, signed by the counsel in the cause:
"All errors in pleading are released, and any matter may be given in evidence under the above plea, which might be given in evidence under any other plea or pleas--provided, notice in writing of the substance of such defence be given four weeks before the trial."
It does not appear from the record that notice in writing was given by the defendants, of the defence on which they intended to rely as required by the agreement,  [**13]  and the case stands on the plea of non infregit conventionem.

 [*95]  In this condition of the pleadings, it is clear that the parol agreement for the extension of the time, within which the property might be repaired by the Insurance Company, according to the stipulations of the policy, was inadmissible, as there was no plea to which it could be applied.
The court, therefore, committed no error in rejecting the defendants' first, second and third prayers.
The court below were also correct in rejecting the defendants' fourth prayer.
In a contract of indemnity, like the one under consideration, the right to recover must be commensurate with the loss actually sustained by the plaintiff, and any evidence conducing to show that the damage consequent upon the fire was less than that claimed by the plaintiff, would be admissible; but the doctrine relative to the mitigation of damages, has no application to a case of this description.
The plaintiff, in his first prayer, asked the court to instruct the jury:
"That he is entitled to recover the amount of damage he actually sustained by the fire, which occurred on the 20th July, 1842, if the jury believe that his loss [**14]  was not repaired by the defendants within the time stated in the policy, and has not since been paid; and that no parol evidence is admissible to show that said Hamill consented, in opposition to the terms of the said policy, to allow such repairs to be made at any time after the period specified in said policy."
By the eighth article of the policy, it is stipulated:
"That all persons assured by the Company, sustaining any loss or damage by fire, are forthwith to give notice to the secretary, and as soon as possible after, deliver in as particular an account of their loss or damage, as the nature of the case will admit of, and to produce to the Company satisfactory proof thereof."
It is evident that the plaintiff in this case was not entitled to recover, unless he proved that the property insured was destroyed by fire; and, that notice of the loss was given, and an estimate of the damage sustained, furnished to the Company, 

 [*96]  as required by the eighth article of the policy of insurance. And, although the court were correct in deciding that the parol agreement was inadmissible under the pleadings in the cause; yet, they erred, we think, in granting the prayer, because,  [**15]  by so doing, they assumed as facts, questions which should have been submitted to the consideration of the jury. The cases of Crawford vs. Berry, 6 G. & J. 63, and the Charleston Insurance Company vs. Corner, are conclusive on this point.
In the last case, the court says:
"The first and second instructions are, in effect, an assertion by the court, that the Eliza Davidson was captured and detained by the Pearl, and in the third instruction, that the Corrientes was blockaded on and after the ship's release at Montevideo. Doubtless, the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy the jury, or the circumstance, that it is all on one side, does not authorize the court to instruct the jury, that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right to weigh the credibility of evidence. In thus incautiously expressing their opinion, the court erred."
It is apparent from an examination of this prayer, that the court, by instructing the jury that the plaintiff was entitled to recover, assumed the fact,  [**16]  that a fire occurred on the day mentioned in the prayer, and also, that notice of the disaster was forthwith communicated to the secretary of the Company, and a particular account of the loss or damage sustained by the plaintiff, delivered as soon as possible after the fire, in conformity with the stipulations of the contract. These were questions for the consideration of the jury, and the court erred in granting the prayer.
The judgment of the County Court, is, therefore, reversed. But, we desire to be understood, as expressing no opinion on the question, whether the parol agreement offered in evidence by the defendants, would have been admissible in a different condition of the pleadings.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

24 of 33 DOCUMENTS 

JAMES T. SULLIVAN vs. ROBERT G. VIOLETT AND JAMES DEMPSEY, PARTNERS, TRADING UNDER THE FIRM OF VIOLETT & DEMPSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 181; 1847 Md. LEXIS 59 

December, 1847, Decided 

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

This was an action of assumpsit, brought on 26th March, 1844, by the appellees against the appellant. The plaintiffs counted upon the promissory note of the appellant, dated 28th January, 1841, as payable on the 1st June, 1841, to the appellees, and also upon the money counts. The defendant pleaded non-assumpsit and actio non infra tres annos, on which pleas issues were joined. The verdict was for the appellees.

The plaintiffs, to support the issue on their part, read in evidence to the jury two commissions, and the proofs taken thereunder.

M. Snyder, Jr. proved that in the spring of the year, (during the fishing of 1840,) when Dutton and Myers were fishing just below the late residence of Major Green, and adjoining the fishery then occupied by me, Myers encroached on me by running or hauling his seine in my berth, and thus essentially interfering with my rights, I protested against his trespassing on me, and finding him obstinately persisting in his course, so injurious to my rights, I had a vessel anchored on the border of my fishery, to prevent a recurrence of the interference above-mentioned. The fisheries occupied by Dutton & Myers,  [**2]  and myself, were immediately contiguous--theirs being the next below that occupied by me. By the means thus described, Myers was prevented from further encroachments, and his progress in his fishing was partially suspended, when he found me determined not to permit him to fish in my berth. During these difficulties, a man came to me, and said his name was Sullivan,--and also declared that he was one of the partners engaged in the fishery above-mentioned, with Dutton & Myers, and that he came to endeavor to produce a reconciliation between his partner, Myers, and myself, which he hoped might be done without further trouble. I answered him by declaring my readiness to do in the premises whatever any two disinterested fishermen might decide to be right. I am not positive that Sullivan, who spoke to me, as above stated, was James T. Sullivan, but I know he walked a little lame, stepping rather on the toes of one of his feet, as if his heel did not touch the ground, and I understood then that he was James T. Sullivan. In his conversation with me, the said S. intimated that he was the only responsible partner of the above firm of Dutton & Myers. He gave me fully to understand, that if the [**3]  said firm should sustain any loss, he, S., must bear the burden; that he knew nothing about any contract, written or oral, between the said parties.

F. X. Masterton proved that he knew from general reputation and intercourse, that George H. Dutton and Alexander Myers were members of the firm of Dutton & Myers; and in the spring of 1840, Mr. James T. Sullivan, the defendant, informed him that he was a member of said firm, which was then engaged in the business of fishing on the Potomac river.

The plaintiffs gave in evidence to the jury, that the note drawn by Myers & Dutton in favor of the plaintiffs, viz:

"Havre de Grace, Jan'y 28th, 1841.

"Note, $ 490. On the 1st day of June, we promise to pay Violett & Dempsey, or order, $ 490, for value received.

"DUTTON & MYERS."

Across the back of which said note, was thus written, to wit: "Jas. T. Sullivan"--in the hand-writing of the defendant,--and that the signature to said note is also in the handwriting of defendant.

The plaintiffs further offered in evidence the following letter from Dutton & Myers to plaintiffs:

"Gentlemen,--Above we send you our note, payable on 1st June next, for the balance due [**4]  you, as per your account rendered. We have made the note payable on the 1st of June, as before that time we will be unable to get money here, and we hope that will be satisfactory to you. We have delayed sending the note, hoping that we would have been able to send you some money--but have been disappointed. Should you have an opportunity of disposing of our seine and ropes, you will confer a favor by letting us know.

"Very respectfully, yours,

"DUTTON & MYERS."

"MESSRS. VIOLETT & DEMPSEY, Alexandria."

And proved that the body of said letter, as well as the signature to and direction of the same, were in the handwriting of the defendant.

The defendant then read in evidence the following letter from the plaintiffs to Myers & Dutton:

Alexandria, December 23d, 1840.

"MESSRS. DUTTON & MYERS, Gentlemen:

"Annexed you will find a statement of our account against you for the rent of Wright's Point Fishery, showing a balance due us, without interest, of $ 490, for which we will be glad to receive your note, payable the 1st May next, endorsed by Mr. Sullivan, or send us your draft on some merchant in Baltimore, accepted, payable as above-mentioned. We [**5]  have credited you with the vats, at $ 35 per pair--the price we were to allow for them when bedded on the landing and caulked, (as you will find by referring to R. G. Violett's letter to you, written last winter;) but the vats are not all there; nor are those you have put up of such quality as we had been led to believe we were to receive." "Mr. Wareham's note we will hold until due, and hope to find it met promptly. Should we hear of an opportunity to dispose of your outfit, it will give us pleasure to do all we can to aid you in effecting a sale, but fear there is but little probability of such good luck befalling us. There are two outfits on the Potomac, to be sold in the course of this winter, and very much doubt whether there can be found as many purchasers to take them.

"VIOLETT & DEMPSEY."

Alexandria, Dec'r 12th, 1840.

Dutton & Myers     To Violett & Dempsey, DR.

________________________________________________________________________________
For 1 year's rent of Wright's Point Fishery, due as	
   per article of lease, June 1st, 1840,	$ 900 00	
CR.--1840,	December 12th. By 6 pair of vats, put	
	up by them on the premises, as per agree-	
	ment, at $ 35 per pair,	$ 210 00	
"   "	George Wareham's note, dated	
	22d Nov. 1840, and payable	
	to them on the 1st June next,	
	and by them endorsed, for	200 00	
			410 00	
	
	   Balance due V. & D.,		$ 490 00	
________________________________________________________________________________

 [**6]  

Which was admitted to be in the hand-writing of the plaintiffs. And the following lease, which is in the words and of the tenor following, to wit:

Lease. "These articles of agreement of lease, made and entered into this 4th November, 1839, between Robert G. Violett and James Dempsey, of, &c., and George H. Dutton and Alexander K. Myers, of, &c.,--witness that the said V. & D. have leased, and do hereby lease, to the said D. & M. the fishing landing and shore, called, &c."

And then offered evidence by G. H. D. that defendant never was a partner in the said firm of Dutton & Myers; that plaintiffs knew such to be the fact; that defendant, who resided in Havre de Grace, afterwards became the agent of said firm, and as such in the absence of said Dutton from Havre de Grace, and the inability of said Myers to attend to business, acted under the direction of said Dutton as agent, and so wrote the said letter offered in evidence by plaintiffs and the note on which this suit was instituted, and in compliance with the request contained in said letter of plaintiffs to Dutton & Myers; and further proved by Samuel E. Treadwell, that he was present at the conversation referred to [**7]  in the testimony taken under and returned with the said commission to Alexandria, as having taken place between the defendant and the witness, Matthias Snyder; and that said defendant then stated to said Snyder, that he was not a partner, and had no interest in said firm of Dutton & Myers.

The plaintiffs prayed the court to instruct the jury:

That if they believe from the evidence that the name of James T. Sullivan, the defendant, was written by him upon the back of the note offered in evidence at the time said note was signed by Dutton & Myers, or shortly afterwards, that then said defendant, even if he were not a member of the firm of Dutton & Myers, "is liable in this action, and the plaintiffs are entitled to recover," which prayer was granted by the court.

The defendant then prayed the court upon the evidence above stated to grant the following prayer:

"If the jury shall believe that the plaintiffs addressed the letter of the 23d December, 1840, offered in evidence in this cause to Dutton & Myers, requesting their note endorsed by the defendant, and that the defendant was authorized by Dutton & Myers to sign their names to the note upon which this suit was [**8]  brought, and after writing his own name on the back thereof, to send the same to plaintiffs, and that defendant did sign the name of Dutton & Myers to said note and write his own name on the back of the same, as endorser, as requested by the plaintiffs in said letter, that then they cannot find for the plaintiffs, as the liability of defendant is not that of a maker of said note--which the court (ARCHER, C. J., and PURVIANCE, A. J.,) refused.

The defendant excepted, and prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

V. & D. sued S., and declared against him as maker of a note, and upon the common counts. The note was signed by N. & M., payable to the plaintiffs, or order, and across the back of it, S. had written his signature in blank. The plaintiffs proved that the signature, N. & M., was written by S., and that he was a partner of that firm. The note was given for a balance due by N. & M. to the plaintiffs, upon their request, who had asked for the note endorsed by S. The defendant proved that he was not the partner of N. & M., but their agent, and the plaintiffs knew it. The plaintiffs prayed the County Court to instruct the jury, that if they believe that the name of S. was written by him on the back of the note at the time it was signed by N. & M., or shortly afterwards--that then the defendant, even if he were not a member of the firm of N. & M. is liable in this action, and the plaintiffs entitled to recover, which was granted, and affirmed upon appeal.

The defendant S. then prayed for an instruction, that if the jury should believe that the plaintiffs solicited the note from N. & M., to be endorsed by S., and that he was authorized by N. & M. to sign their names to such note, and after writing his own name on the back of said note, to send the same to the plaintiffs; and that S. did sign the name of N. & M. to said note, and wrote his name on the back of the same as endorser, as requested by the plaintiffs,--that then the jury cannot find for the plaintiffs, as the defendant's liability is not that of a maker of said note. The County Court refused said prayer, which was affirmed upon appeal.

Upon the back of the note of N. & M., payable to V. & D. or order, S. wrote his name generally. Held, that he was liable to V. & D. as maker.  

COUNSEL:
By H. W. ARCHER for appellant.

This was an action of assumpsit, brought to May term, 1844, by Violett & Dempsey against James T. Sullivan, the appellant, upon a promissory note, drawn in the following words:

"Havre de Grace, January 28th, 1841.

"On the 1st day of June, we promise to pay Violett & Dempsey, or order, $ 490, for value received.

"Signed,     DUTTON & MYERS."

And endorsed in blank by James T. Sullivan at the time it was drawn.

The declaration charged Sullivan as maker of the note, with counts for work and labor, goods sold and delivered, and the common money counts. The circumstances attending the transaction, as proved [**9]  at the trial, were these:

Violett & Dempsey having a claim against Dutton & Myers, on the 23d December, 1840, wrote to them as follows:

"Gentlemen,--Annexed you will find a statement of our account against you for the rent of Wright's Point Fishery, shewing a balance due us, without interest, of $ 490, for which we will be glad to receive your note, payable the 1st day of May next, or send us your draft on some merchant in Baltimore, accepted, payable as above-mentioned."

On the 28th January, 1841, Dutton & Myers sent to plaintiffs the note on which this suit was instituted,--and at the same time wrote to them as follows:

"Gentlemen,--Above we send you our note, payable on the 1st of June next, for the balance of your account rendered. We have made the note payable the 1st of June, as before that time we will be unable to get money here. We have delayed sending the note, hoping that we would be able to send you some money, but have been disappointed."

And evidence was offered to prove that the above letter and note were written and sent to plaintiffs by Sullivan, acting as agent for Dutton & Myers. No proof was offered of demand on D. & M., or of notice of [**10]  non-payment of the note by them.

The above stated facts being in evidence, the defendant prayed the court to instruct the jury--that Sullivan could only be treated as an endorser of a negotiable note, and as such could only be held liable, upon proof of demand on the maker, and due notice of non-payment; that the form of the note, and the position of defendant's name on it, indicate the intention to become responsible only as second endorser, endorsing for the accommodation of the plaintiffs. This is the legal inference: in this view full effect is given to defendant's signature,--and there is no fact in the case from which the court could infer that he ever assumed to become liable to plaintiffs. Clopper vs. Union Bank, 7 H. & J. 102. Farmers' Bank vs. Duvall, 7 G. & J. 88. Seabury vs. Hungerford, 2 Hill N. Y. R. 80. Hall vs. Newcomb, 3 Hill N. Y. R. 233. Story on Promissory Notes, (2d edition,) sections 133, 134, 479 and 480. Hough vs. Grey, 19 Wend. R. 202.

2d. That if parol evidence be admissible to rebut the legal presumption, that S. could only be held liable as endorser upon the note, and to charge him as maker or guarantor; or even if it should be held, that the fact,  [**11]  that he, not being the payee, endorsed the note at the time it was made, constituted him prima facie, a joint promissor with Dutton & Myers. The correspondence between the parties, and the fact that he was not privy to the original consideration for which the note was given, should have been submitted to the jury, to find the intention of the parties. Story on Promissory Notes, sec. 479. Herrick vs. Carman, 12 J. R. 161. Tillman vs. Wheeler, 17 J. R. 326. Tenney vs. Prince, 4 Pick. R. 385. Knapp vs. Parker, 6 Vermont R. 642. Flint vs. Day, 9 Vermont R. 347. Nash vs. Skinner, 12 Vermont R. 227.

3d. That even if Sullivan be considered a promissor upon the note, the correspondence between the parties furnishes evidence to shew that the note was given for a pre-existing debt, due by Dutton & Myers to the plaintiffs,--and therefore void under the statute of frauds. This evidence should have been submitted to the jury, but was excluded by the prayer granted by the court. Wyman vs. Grey, 7 H. & J. 409, 414. Rogers vs. Walters, 2 G. & J. 64. Elder vs. Warfield, 7 H. & J. 391. Elliott vs. Giese, 7 H. & J. 457. Aldridge vs. Turner, 1 G. & J. 427.

By COLEMAN YELLOTT for the appellees.  [**12]  

1. Some effect must be given to the signature of Sullivan, ut res magis valeat quam pereat.

2. He is not an endorser of the note. Story on Prom. Notes, sections 3, 4, 6, 135. Stat. 3 and 4 Anne, ch. 9. The note could not have been negotiated without the further endorsement of Violett & Dempsey. They would thus be compelled to incur a liability against their will. In case of non-payment of the note, Sullivan, as second endorser, could have sued them as prior endorsers. This would defeat their object in seeking Sullivan's signature. They could thus become security to him, not he to them.

3. He became a joint maker of the note--a joint promissor with Dutton & Myers. Name of maker may appear on any part of the note. Story on Notes, section 34. Chitty on Bills, margin p. 185, 186. Taylor vs. Dobbins, 1 Strange, R. 395. If endorser's name on the face, or at bottom of note, still a good endorsement. Story on Notes, sec. 121. Story on Bills of Exchange, sec. 204. Gibson vs. Powell, 6 How. Miss. R. 60. So if maker's name on back of note, may still be maker. Endorser of note stands as drawer of a bill of exchange. Story on Notes, sec. 129. But what authority had Sullivan to draw [**13]  in favor of Violett & Dempsey on Dutton & Myers? The latter had already promised to pay the former. The holder may write the words of note over the signature on the back; if he does not, the law writes it for him, and will give signature the same effect as if at bottom of the note. See Josselyn vs. Ames, 3 Mass. R. 274. Hunt's Ad. vs. Adams, 5 Mass. R. 361. Hunt's Ad. vs. Adams, 6 Mass. R. 519, 523. Ulen vs. Kittredge, 7 Mass. R. 233, 235. White vs. Howland, 9 Mass. R. 314, 316. Moies vs. Bird, 11 Mass. R. 438, 440. Sumner vs. Gay, 4 Pick. R. 311. Tenney vs. Prince, 4 Pickering R. 385, 387. Baker vs. Briggs, 8 Pick. R. 122, 130. Oxford Bank vs. Haynes, 8 Pick. R. 423. Chaffee vs. Jones, 19 Pick. R. 263. Austin vs. Boyd, 24 Pick. R. 64. Knapp vs. Parker, 6 Vermont R. 642, 645, 646. Flint vs. Day, 9 Vermont, 347. Nash vs. Skinner, 12 Vermont R. 220, 227, 229. Martin et al. vs. Boyd, 11 New Hamp. R. 385. Beckwith vs. Angel, 6 Connect. R. 317, 318, 319, 320. Bright vs. Carpenter et al. 9 Ohio R. 139. Cooley vs. Lawrence, 4 Martin's Louisiana R. 639. The principle recognized by these authorities is, that if A. puts his signature in blank upon a note, payable to B. or order, at the time [**14]  of making of the note, A. becomes a co-maker; if after the making and delivery up of the note, then such signing constitutes A. a guarantor. See Story on Notes, sec. 58, 476. Gist's Ad. vs. Drakely, 2 Gill's R. 341. Until the case of Hall vs. Newcomb, 3 Hill's N. Y. R. 234, there was no New York decisions asserting a different doctrine. Some of them drew a distinction between notes payable to A. or bearer, and these payable to A. or order,--holding that blank signatures on the former by a third party, would constitute him merely an endorser, or the latter kind, a joint maker. See Herrick vs. Carman, 12 Johnson R. 159. Nelson vs. Dubois, 13 Johnson, 175, 178, 179. Campbell vs. Butler, 14 Johnson, 349, 351. Tillman vs. Wheeler, 17 Johnson, 326, 327, 328. Seymour vs. Van Slyck, 8 Wendell, 421. Dean vs. Hall, 17 Wendell, 214, 215, 216. Hough vs. Gray, 19 Wendell, 202, 203. Seabury vs. Hungerford, 2 Hill, 80, 83. Miller vs. Gaston, 2 Hill, 188, 190.

It seems that in Hall vs. Newcomb, 3 Hill, 234, the Supreme Court being equally divided, the judgment below was affirmed. The case was afterwards taken to the Court of Errors. See 7 Hill, 416,--and there twice argued. Judgment of Supreme [**15]  Court affirmed. Should a single case thus decided outweigh the numerous decisions of six States of the Union, and the deliberate adjudications of a Parsons, a Parker, and a Shaw, of Massachusetts--of a Spencer and Thompson, of New York, and of a Williams, of Vermont?

4. The court below was right in not leaving it to the jury to construe the contract. In cases of signatures on blank paper, rule would be different. Here the note was filled up at the time of Sullivan's signing. The law then construes the contract. See 11 Mass. R. 122. 11 New Hampshire, 388. Parol evidence is inadmissible to explain or vary the written contract. If Sullivan's intention could be given in evidence, still it must be first shown that plaintiffs below had notice of such intention previous to accepting note. 11 Mass. R. 436. 12 Vermont R. 219. 9 Vermont R. 345. 6 Vermont, 642. There being no evidence of such notice, the question of intention could not have been submitted to jury. Different rule would enable Sullivan to perpetrate fraud on Violett & Dempsey. They are presumed to know the law, but not the notions of a Harford County jury. Relying on the construction which the law gave the signature, they [**16]  regarded Sullivan as joint-maker, and therefore gave no notice of dishonor.

5. Not necessary that blank endorsement should have been filled up. See act of 1825, ch. 35. Point not having been raised below, cannot be taken advantage of here. 1825, ch. 117.

6. Sufficient consideration for Sullivan's signing to support action against him as joint-maker. Story on Notes, sec. 186.  

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

OPINION:

 [*190]  By the court:
JUDGMENT AFFIRMED.  

25 of 33 DOCUMENTS 

THE FARMERS AND MECHANICS BANK OF FREDERICK CO., THE BANK OF WESTMINSTER, AND ANNE JONES vs. HENRY WAYMAN AND RICHARD G. STOCKETT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 336; 1847 Md. LEXIS 32 

December, 1847, Decided 

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

The bill in this cause was filed by the appellees on the 6th August, 1841, and alleged, that by an order of the Chancellor of the 20th January, 1826, and passed in a cause in this court depending, wherein one Samuel Jones of Joshua, since deceased, and Anne his wife, were complainants, and your present orators, as trustees and executors of the last will of one Larkin Shipley, deceased, were defendants, your present orators were directed and required, unless cause should be shown to the contrary, as thereby allowed, to invest a certain sum of money at that time in this Honorable court, to the credit of said cause, in stock of the Bank of Westminster, the said stock to be transferred unto and held by and in the name of the said trustees, for the uses, intents and purposes in the proceedings mentioned, and the interest and dividends thereon, as the same may become due and be collected, shall be paid by them unto the said Anne, the wife of the said Samuel, during her natural life, and after her death the said bank stock shall be disposed of and pass as is directed by the last will and testament of the said testator; that no cause to the contrary [**2]  having been shewn, and your orator, Stockett, having suggested that he had in hand an additional sum of $ 1900 belonging to said estate, your Honor by an additional order in the cause, dated on the 18th March, 1826, authorized and directed your present orators, the trustees, to invest the said additional sum of money in stock of the Bank of Westminster, upon the terms and as is prescribed by the aforesaid order of the 20th January aforesaid, and the said order is thereby declared to be absolute, and the said trustees are directed to invest the said sums of money accordingly; that in obedience to the aforesaid orders, they did purchase 222 shares of the capital stock of the Bank of Westminster, and did procure the same to be transferred unto them as directed by said orders, and having filed their report thereof, your Honor by another order passed in the cause on the 20th April, 1826, ratified and confirmed as by the aforesaid orders and other proceedings in said cause, and now, &c.; that upon the face of said transfer, the fiduciary character of your orators as transferrees, and the authority under which they acted, were fully apparent; that the said Bank of Westminster was incorporated [**3]  and established in the town of Westminster, in Frederick county, by an act of the General Assembly of Maryland, passed at December session, 1815, ch. 75, and that by one other act of said General Assembly, passed at its December session, 1821, ch. 42, the said Bank was authorized to establish an office of pay and receipt at Frederick town in said county, and that by one other act of the said General Assembly, passed at its December session, 1826, ch. 107, the name of the principal Bank is changed to that of the Farmers and Mechanics Bank of Frederick County, and is transferred to the city of Frederick, and a branch thereof is continued at Westminster, as by said acts will appear, and your orators are further informed and so charge, that under the powers conferred on the said corporation by the said acts of Assembly, the transfer books and stock books thereof are placed under the control of the said principal Bank, and that the corporation is now liable to be sued by your orators by its name of the Farmers and Mechanics Bank of Frederick County.

And your orators charge that the conjugal relations subsisting between the said Samuel Jones of Joshua, and Anne his wife, being perfectly [**4]  cordial, your orators for their convenience permitted the said Jones and wife from time to time to draw the dividends declared on said stock, and believing that the stock itself was perfectly secured by the special terms of the aforesaid transfer thereof from any transfer or other application thereof, without the order of this court, they have not intermeddled therewith in any manner. But now so it is; your orators having heard that said stock had been sold by the said Samuel Jones of Joshua in his lifetime, and by him actually transferred, forthwith applied for information on the subject thereof unto the present cashier of the Bank of Westminster, from whom they received the letters marked Exhibits A. and B., and in conformity with his suggestion, having addressed a letter of inquiry to the cashier of the Farmers and Mechanics Bank of Frederick County, they received in answer from him the letter marked Exhibit C., all which, &c. These letters are all addressed to Thomas S. Alexander, who had, as solicitor for your orators, made the applications aforesaid to the said cashiers, and from all these letters it appears that the said Bank now pretends that on the 14th June, 1830, the said [**5]  stock was transferred by the said Jones and wife as follows, to wit: one hundred shares thereof unto one William M. B. Wilson, one hundred shares thereof unto John J. Wilson, and twenty-two shares thereof unto one Jonathan J. Wilson, unto whom the dividends declared on said stocks ever since the date of said transfers, have been regularly paid.

And your orators aver that no order hath ever been passed by your Honor for the transfer of the said stock, or any part thereof, nor were your orators, or either of them, in any way, directly or indirectly, parties or privies thereto; on the contrary, they aver that they had no notice whatsoever, that any such transfer was made, until within a very few weeks prior to the date of their aforesaid Exhibit A.; and indeed your orators discovered by referring to said exhibits, that the transfer was made by the said Jones and wife, not as pretended agents of your orators, but under color of some title in themselves so to do. But your orators are advised to deny the title of said Jones and wife, or either of them, so to intermeddle with said stock, and to insist that the transfer so as aforesaid made unto your orators was without notice, &c.; and [**6]  that the said corporation or the said present transferrees ought to account unto your orators for the dividends declared on said stock since the date of said transfers; that the said Samuel Jones of Joshua, and Anne his wife, had lawful issue--five children--to wit: &c., all of whom are now living and are under the age of twenty-one years, and that said persons, if living at the death of the said Anne Jones, will be entitled to the aforesaid principal stock under the provisions of the last will and testament of the said Larkin Shipley, deceased, and that the said Samuel Jones of Joshua, departed this life sometime in the year eighteen hundred and thirty, intestate, and that administration on his personal estate hath been duly granted by the Orphans court of Baltimore county, unto his widow, Anne Jones aforesaid, who hath in virtue thereof possessed herself of personal estate to an amount more than sufficient to discharge charge the claim which your orators may have against said estate by reason of the aforesaid fraud, and your orators are advised, that if from any cause whatsoever they should be disappointed in obtaining relief as against the said corporation and transferrees, as hereinbefore [**7]  claimed, they ought at least to have relief as against the said Samuel Jones, or his estate, in the hands of his administratrix, for the value of said stock at the time the same was transferred as aforesaid, and the dividends or interest on said stock or value.

Prayer that the transfers of stock may be declared fraudulent and void; that said stock may be decreed to be retransferred unto your orators, and that the said Bank and the said transferrees may be required to account with your orators for all dividends declared on said stock since the date of said transfers, or in case the said transfers shall be held to be valid, then that your orators may be decreed to have satisfaction out of the estate of the said Samuel Jones of Joshua, in the hands of his administratrix, for the value of the aforesaid stock, so as aforesaid converted by him, and that your orators may have such other and further relief as their case may require; and for subpoena against the said Farmers and Mechanics Bank of Frederick County, William M. B. Wilson, John J. Wilson and Jonathan J. Wilson, Anne Jones, and infant children of Samuel Jones, &c.

COMPLAINANTS' EXHIBIT A.

Bank of Westminster, July [**8]  1st, 1841.

Sir:

On examination I have not been able to find the names of either Henry Wayman or Richard G. Stockett, on the books of this Bank as stockholders or otherwise.

Yours most respectfully,     JOHN FISHER, C'r. Th. S. Alexander, Esq., Annapolis, Md.

COMPLAINANTS' EXHIBIT B.

Bank of Westminster, July 9th, 1841.

Dear Sir:

On the receipt of your first letter, I examined the stock leger and dividend books, in which the names of the stockholders are entered, and the names of Rich'd G. Stockett and Henry Wayman, trustees, do not appear on either of these books, and they are the only books to which we refer for the names of stockholders. On the receipt of your letter of the 5th inst., in which you say that Joshua Jones transferred the stock, and also give the date of transfer and number of shares, I referred to the stock account of Mr. Jones on the stock leger, and find that he transferred on the 8th day of April, 1826, to Anne Jones, wife of Samuel Jones of J., 222 shares of stock. When I found that the date and number of shares of stock agreed with your statement, I referred to the transfer book, to which we never look for the names of stockholders,  [**9]  and there find the transfer to which you refer, a copy of which I annex. The stock was entered on the stock leger and dividend book in the name of Anne Jones, wife of Samuel Jones of J., and not Rich'd G. Stockett and Henry Wayman, trustees, as from the transfer it would appear it should. Soon after this transfer was made, there was an alteration in the charter of this Bank, by which it was made the Branch of the Farmers and Mechanics Bank of Frederick Co., and this stock was transferred to the mother Bank at Frederick. If there has been any transfer of the stock, it must have been done since it has been under the control of the Bank at Frederick. You can get this information by application to Wm. Beall, Esq., Cash'r, Frederick. If you apply to him, you should state that the stock stood in the name of Anne Jones, wife of Samuel Jones of J., or he will not be able to give you the information required.     Yours very respectfully,

JOHN FISHER, C'r.

Th. S. Alexander, Esq., Annapolis, Md.

COPY. 308. For value received, I do hereby assign and transfer to Richard G. Stockett and Henry Wayman, trustees, under the last will and testament of Larkin Shipley, for the benefit [**10]  of Anne Jones, wife of Samuel Jones of Joshua, during her natural life, and after her death in trust for purposes prescribed in said will, and pursuant to an order of the Chancellor, dated the 20th January, 1826, two hundred and twenty-two shares of the capital stock of the Bank of Westminster, standing in my name on the books of said Bank, on which fifteen dollars has been paid on each share. April 8th, 1826.

Witness.     Signed--JOSHUA JONES.

Signed--J. C. Cockey.

COMPLAINANTS' EXHIBIT C.

Farmers and Mechanics Bank of Frederick Co.,

Frederick, July 14th, 1841.

Dear Sir:

I have to state in reply to your favor of the 13th inst., that at the time the separation took place between this institution and its branch at Westminster, the stock belonging to Anne Jones was under the act of separation, continued in this Bank in the name of Anne Jones, wife of Samuel Jones. On the 14th June, 1830, the whole stock was sold and transferred by said Samuel Jones and Anne Jones his wife, to the following persons, to wit:

________________________________________________________________________________

Wm. M. B. Wilson,	100 shares.	
Jno. J. Wilson,	100  "	
Jonathan T. Wilson,	 22  "	
	
	222	
________________________________________________________________________________

Each transfer was signed [**11]  by Jones and wife.

The stock has always stood in the name of Anne Jones, wife of Samuel Jones, on the stock leger and on the dividend book, and I presume was so transferred by Joshua Jones, and not transferred by him to the trustees mentioned in your letter.

Yours very respectfully,

WM. BEALL, C'r.

Th. S. Alexander, Annapolis, Md.

The answer of the Farmers and Mechanics Bank of F. C. alleged that as to those parts of the said bill which speak of former proceedings in this court, in which Samuel Jones of Joshua, and Anne his wife, were complainants, and the now complainants as executors of Larkin Shipley, were defendants, and of the several orders and proceedings had in the said cause, this defendant has no actual knowledge, and prays leave to refer to the said proceedings themselves as the best evidence of their contents, and of the legal or equitable rights of the parties therein named; that on the 8th April, 1826, a transfer was made by Joshua Jones to the complainants of, &c.; that the copy of said transfer annexed to his Exhibit B. is a true copy thereof; that the Bank of Westminster, incorporated by the act of 1815, was established as alleged in the bill,  [**12]  and that by the act of 1821, the said Bank was authorized to establish an office of pay and receipt in Frederick town, and that by the act of 1826, the name of the said corporation was changed to that which it now bears, and the principal Bank transferred to the city of Frederick in the spring of the year 1827, with a branch thereof at Westminster. And this defendant for further answer says, that in execution of the said last mentioned act, the then cashier of the institution at Frederick town, on or about the 14th March, 1827, requested the then cashier of the institution at Westminster to furnish him with a copy of the list of stockholders, which was accordingly sent to the cashier of the Bank at F. T., on or about the 22d of the same month and year; that upon the receipt of this stock list by the Bank at F. T., a stock leger was opened in said Bank, wherein each stockholder named in said list was credited with the amount of stock appearing by said list to be standing in his or her name. That it appeared in and by said list so furnished by the cashier of the branch of the said Bank at W., that Anne Jones, wife of Samuel Jones, was a stockholder to the amount of two hundred and twenty-two [**13]  shares, upon each of which the sum of fifteen dollars had been paid, and accordingly in the stock leger before mentioned, the said shares were passed to her credit; that from the period of the establishment of the office of pay and receipt at F. T. as aforesaid, until the alteration before mentioned was made in the name of the corporation, and it assumed that of the F. and M. B. of F. C. in virtue of the act of 1826; the said office was furnished by the parent Bank at W. immediately upon the declaration of each dividend, with a list called the dividend list or dividend sheet, containing the names of the stockholders, the number of shares held by each, and the amount of dividend due each stockholder respectively. That from the period of the transfer as aforesaid by Joshua Jones, until the location of the mother Bank at F. T., the name of Anne Jones alone appeared on said lists as a stockholder, and during the same period all dividends declared upon the said stock were paid at the Bank in W., as they continued to be up to the dividend of November, 1829, inclusive, and that the only dividend paid upon the said shares until after their transfer, as hereinafter mentioned, was that declared [**14]  in May, 1830, which was paid to Samuel Jones of Joshua, the husband of the said Anne Jones, on the 11th of the then following month of June. And this defendant further answering says, that by an act of the General Assembly of this State, passed in the year 1829, the parent Bank of the said Bank at F., and the branch thereof at W. were created and declared separate and independent institutions, upon the terms and conditions therein prescribed, certain of the stockholders of the said institution previously existing, being by the said act declared to be a body corporate and politic, by the name and style of the F. and M. B. of F. C., and certain others of the said stockholders being likewise by the said act declared to be also a body politic and corporate by the name and style of the Bank of Westminster, as upon reference to the said act will more fully and at large appear; that the copy of the stock list furnished as before mentioned by the cashier of the Bank at W. to the cashier of the Bank at F., and the dividend list or dividend sheet furnished from time to time as aforesaid were the only documents ever received by the latter institution, from which it could have derived or had the [**15]  means of ascertaining the names of the stockholders. That the original transfer book opened whilst the parent Bank was at W., and in which alone the true character of the transfer of the stock in question was to be found, has always been and is still in that institution; that under all the aforegoing circumstances, they had a right to consider, and in truth were bound to consider the said Anne Jones, wife of S. J. of J., as the absolute and unrestricted owner of the said stock, with full power and authority to transfer the same, with the concurrence of her said husband. That accordingly on or about the 14th June, 1830, the said stock was transferred by the said S. J. of J. and A. his wife, to the following persons, that is to say, one hundred shares to Wm. M. B. Wilson, &c.; that these transfers were made in the mode usual at this Bank, in virtue of written powers for that purpose, signed by the said Samuel Jones and Anne Jones; and this defendant most positively avers that at the time said transfers were made, it had no knowledge, nor had any of its officers or servants any knowledge that the complainants, as trustees or otherwise, or any other person or persons had any interest in [**16]  or control over said stock; and this defendant further says, that though Henry Wayman, one of the complainants, soon after the transfer to the said Wilsons as aforesaid, called at the banking house of this defendant, and manifested some anxiety when informed of the said transfers, the actual nature of the transaction was not then disclosed by him to the officers and servants of this defendant, who until recently remained in ignorance thereof, the error, if one has been committed, was caused by the acts of the officers of the parent Bank when it was located at Westminster, where the evidence to correct the same has always hitherto been and still remains; and this defendant is advised and insists, that as the stockholders of the F. and M. B. of F. C., its officers and agents, had no agency in or were in any way instrumental in the acts complained of, they cannot be held responsible for the same. This defendant admits the death of Samuel Jones of Joshua in the year 1830, but they know nothing of the number or names of the children left by him, nor what their rights under the will of Larkin Shipley will be after the death of the said Anne Jones. This defendant does not know what personal [**17]  estate the said Anne Jones possessed herself of as administratrix of the said Samuel Jones; but if, as the complainants allege, the amount of said personal estate is sufficient to discharge the complainants' claim, growing out of the transactions hereinbefore referred to, the remedy of the said complainants, if they have any, would properly be directed against her. And this defendant admits, that since the date of the transfer of said stock to Wm. M. B. Wilson, &c., the dividends declared thereupon have been paid to them. And to so much of the said bill as prays for an account of the dividends which have been declared upon the said stock since the said transfer, this defendant insists that the complainants are entitled to no such relief during the lifetime of the said Anne Jones, the said dividends being applicable to her benefit during her lifetime, as appears upon the face of the transfer made by said Joshua Jones, and she herself having united in the transfer to the said Wilsons. But if the Chancellor should think otherwise, and require an account from this defendant of such dividends, then this defendant pleads and relies upon the act of limitations as a bar to all the said dividends [**18]  which were declared or paid more than three years before the filing of the present bill; and this defendant prays that he may have the full benefit of said plea at the final hearing of this cause, &c.

With the answer was exhibited several schedules, which are unnecessary to be inserted.

The bill was then amended so as to make the Bank of Westminster a defendant, a separate institution from the other defendant, as stated in the opinion of this court.

The answer of Anne Jones admitted the investment under the orders of the court; the existence of the Banks in their original and separated capacities; the acts of Assembly in relation to said Banks; the receipt of dividends on the said stock by her husband Samuel; that she administered upon his estate; that she knows nothing of any transfer of said stock, except that on one occasion, she thinks sometime in or about the year 1830, being with her said husband in the city of Frederick, he told her that he had some stock in the Bank there and wished her to go to the Bank and sign her name, adding that it would be an advantage to him and their family, and that he would make it good when they got home, and that she did accordingly [**19]  repair with him to the Bank and sign her name in a book, but without knowing what stock it was in relation to which he spoke, or that it was the stock in which she had an interest in the Bank of Westminster, or asking any questions in relation to the same, and that her said husband never afterwards mentioned the subject to her. And this respondent further answering says, that since her husband's death, which took place in the autumn of the year 1831, she has found among his papers, one of which, that herewith annexed, marked defendant's Exhibit A. J., No. 1, is a copy, but that she never saw the same, nor was its existence communicated to her in his lifetime; that there have been no assets of said estate received by her except those above set forth, and except also some stock in one of the Banks in Baltimore, and in a Savings Institution there, which stock was claimed by one of the complainants as part of the trust fund, and has been accordingly transferred to, and as she is informed and believes is now held by them, and she denies therefore the existence of assets to meet the claim set up by the said bill; that the notice required to be given by law to parties having claims against [**20]  said estate, was by her duly given, and that no debts or claims were either known or notified to her to exist against said estate at the time of the payment and distribution by her as aforesaid; that she denies all fraud, and in bar to the relief prayed, relies and insists as well on the great lapse of time since the transfers therein mentioned and alleged to be fraudulent and void, were made, as upon an act of the General Assembly of the then province, and now State of Maryland, passed at April session, 1715, chapter 23, entitled an act for limitation of certain actions for avoiding suits at law, and craves to have the benefit of said statute, and of such lapse of time as if the same had been fully and formally pleaded.

DEFENDANT'S EXHIBIT A. J., No. 1.

$ 3100. On demand we promise to pay to Mrs. Anne Jones, (wife of Samuel Jones of J.) or order, the sum of three thousand one hundred dollars with interest, for value received.

JONES & HARDESTY.

This note was given for money that I received for stock sold in the Farmers and Mechanics Bank of Frederick County, belonging to my wife, and is quite separate from the business of the firm; and this memorandum is taken in [**21]  case of death, that is, the money was loaned to the firm on interest, to be returned on demand, and properly R. J. Stockett and Henry Wayman as trustees to my wife, have the right to receive the same, and invest it for the benefit of my wife according to the will of Larkin Shipley, deceased.     SAM'L JONES OF J.

The purchasers of the stock also answered the bill.

The answer of the Bank of Westminster denied all fraud--relied on the lapse of time--staleness of the demand, and act of limitations--admitted the various changes affecting the two institutions--insisted upon want of notice and irresponsibility under the circumstances of the Bank of Westminster for the transfer by Samuel Jones.

The bill was afterwards amended so as to make Richard G. Hardesty, a former partner of Samuel Jones, deceased, a party in consequence of the allegations in the answer of Anne Jones, that he had assets of Samuel in his hands, and that the partnership of Jones & Hardesty was also bound for the proceeds of this stock according to the memorandum filed with her answer, but it appearing that he had settled with the administratrix and procured a release from her, the bill as to him was dismissed.  [**22]  

A supplemental answer of Anne Jones duly filed, alleged that after the death of her husband, the complainant, Wayman, informed her that her husband had undertaken to furnish him with twenty-seven shares of Farmers and Merchants Bank stock, and had received from him on the faith of such engagement, an amount of trust funds belonging to the complainants sufficient for their purchase, but that he had failed to transfer the stock in his lifetime, and she was bound to make good his said undertaking. This respondent further saith, that having shown to the said Wayman not long after her husband's death, the note of Jones & Hardesty, referred to in her original answer, he said that the affair which it disclosed would injure her husband's memory, and that she must give him some stocks as a security, which he learned belonged to the estate of her husband. This respondent further saith, that upon the representations and at the request above mentioned of the said Henry Wayman, she did on the 13th March, 1842, transfer 40 shares of stock in the Maryland Savings Institution, worth on that day and saleable for $ 1040, to the said complainants in trust, and also 34 shares of Farmers and Merchants [**23]  Bank stock of the par value of $ 50, and that the same have ever since stood on the books of said Institutions in the names of the said complainants.

This respondent further saith, that on the 18th April, 1833, the said Henry Wayman also received from Richard S. Hardesty, the surviving partner of the firm of Jones & Hardesty, the sum of $ 1000, and gave therefor a receipt in the words and figures following, to wit:

"Received Baltimore, 18th April, 1833, of Jones & Hardesty, by the hands of Richard S. Hardesty, one thousand dollars, being part of the money due Mrs. Anne Jones.

HENRY WAYMAN, Trustee."

But that the same was done without her knowledge or authority.

This respondent further saith, that the reason why the facts above mentioned do not appear in her original answer, is that her recollection of them at the time she gave the necessary information to her solicitors to enable them to draw it, was vague and indistinct, and entertaining the impression that they were not important to the present controversy, she took no pains to refresh her memory; but that having since in a conversation with her solicitors found that they were of moment, and that justice [**24]  to her co-defendants, as well as to herself, required her to furnish the record, with all that she could ascertain on the subject, she has consulted all the sources of information at her command, and is thus enabled to make this detailed and accurate statement.

The cestui que trusts in remainder, infant children of Samuel Jones, also answered, when a commission was issued to take proof, but as the points ultimately decided by this court do not involve a consideration of the evidence, it is unnecessary to report it further than it is assumed and stated in the opinion of this court.

At September term, 1845, the Chancellor (BLAND) decreed that the Farmers and Mechanics Bank of Frederick County forthwith assign and transfer according to law, 222 shares of the stock of the said Bank unto the plaintiffs, Henry Wayman and Richard G. Stockett, to be held by them in trust as specified by the said order of this court of the 20th January, 1826. That the said bodies politic--the Farmers and Mechanics Bank of Frederick County and the Bank of Westminster, and the said Anne Jones for herself, and as administratrix of Samuel Jones of Joshua, deceased--account with the said plaintiffs of [**25]  and concerning their said claims, as set forth in their said original and amended bills of complaint; that this case be and the same is hereby referred to the auditor, with directions to state an account or accounts accordingly from the pleadings and proofs now in the case, and from such other proofs as may be laid before him. In which account the auditor will estimate the stock herein directed to be transferred at its par value of fifteen dollars per share; and he will then charge the said administratrix with the whole amount for which her intestate sold the said stock, and the dividends which have been declared on that number of shares after the day of the said transfer, and before the day when the transfer shall have been made to the said plaintiffs as herein directed, so as to shew the amount with which the said Banks are chargeable, over and above the par value of the said stock, as well as the amount for which they are entitled to obtain reimbursement from the estate, if any, of the said Samuel Jones of Joshua, deceased, and the amount of the dividends of the said quantity of stock which might have been received and paid over to the said Anne Jones, but for her having improperly [**26]  united in the grossly fraudulent transfer so as aforesaid made by her and her husband, together with the profits made by the said sale of the said stock above its par value, must be awarded to the said trustees, to be by them invested in their own names in trust as aforesaid, and as it was owing to the fraud or blunder of the then Bank of Westminster, that in the year 1826, the legal title to the said stock was not truly placed upon its books in the name of the plaintiffs, Wayman and Stockett, as that institution was bound to have done, according to the express terms of the power of attorney then presented to it for that purpose, it became chargeable by having thus improperly left the way open for Jones and wife to perpetrate the aforesaid gross fraud, by the said transfer of the 14th June, 1830, and therefore the auditor will state the whole amount of the liability of the said defendants, and then apportion the same between the said two Banks as nearly as may be, according to the provisions of the act of 1829, ch. 35. And the aforesaid parties are hereby authorized to take testimony in relation to the said accounts. And it is further adjudged, ordered and decreed, that the said original [**27]  and amended bills of complaint be and the same are hereby as against the said Wm. M. B. Wilson, John J. Wilson, Jonathan T. Wilson, and Richard S. Hardesty, dismissed with costs.

The Chancellor assigned as the ground of his decree, that neither of these banking institutions, either before or since their separation, can be deemed and treated as trustees to any extent, or for any purpose whatever, as by the terms of the legislative enactments under which they or either of them have heretofore acted or may now act, they can have no concern with any other than the legal title to their stock, which alone they have been allowed to place upon their books, and to transfer in the manner prescribed, and such legal title having in this instance been designed and declared to be for the protection of the interests of the cestui que trusts, these banking institutions are liable for not having placed upon their books that legal title in the name of these trustees, as the assignees thereof, according to the express terms of the power of attorney under which they acted. The mode of transfer having been prescribed and directed to be made under the supervision of the corporation, it acts at its [**28]  peril as to the authority of such transfer and all other like consequences. That Anne Jones having participated in the fraudulent transfer of the 14th June, 1830, whereby the interests of the cestui que trusts in remainder might have been wholly lost, and were certainly put in great jeopardy; she has thus divested herself for the benefit of such cestui que trusts in remainder of all claim to any dividends after that act, and before its wrong has been repaired. No fraudulent or improper conduct has been proved against the defendants, Wm. M. B. Wilson, John J. Wilson, Jonathan T. Wilson and Richard S. Hardesty.

From this decree, the defendants (except the Wilsons) appealed to this court.  

DISPOSITION:
DECREE REVERSED WITHOUT COSTS, AND CAUSE REMANDED.  

HEADNOTES:

In April, 1826, I. transferred to R. and H., trustees under the will of L., for the benefit of A. wife of S., during her natural life, and after her death in trust for the infant devisees in said will, and pursuant to an order of the Chancellor of 20th January, 1826, certain shares of the capital stock of the Bank of W. The books of the bank showed the transfer as above. The bank was incorporated at W. in 1815, and in 1821 was authorized to establish an office at F. In 1827, the principal bank was transferred by law to F., with a branch at W.; the officers at W. furnished a list of stockholders to those at F., by which it appeared that the stock stood in the name of A. wife of S. In 1829, these institutions were declared separate and independent corporations, and in 1830, the stock standing at F. in the name of A. wife of S., was by them sold and transferred to an innocent third party, without the knowledge of R. and H. the trustees. After this S. died; A. administered upon his estate; and it coming to the knowledge of H., one of the trustees, that the bank stock at W. had been transferred and sold by S. and wife, he applied to her, and she paid him in 1833, through the surviving partner of her husband, $ 1000, and in 1842 delivered him certain stocks, then of value as a payment or security for the trust funds disposed of as aforesaid. Some of the stocks turned out of no value. Upon a bill filed against the banks at W. and F., the widow and administratrix of S. and the purchasers of the stock by R. and H., &c. to repair the injury done the trust, Held,

1. That H., one of the trustees, having received money and stocks on account of the trust, and being thus liable to account with the trust estate, could not as complainant be entitled to a decree without such accounting.

2. Equity may oblige a complainant to assume the position of a defendant, that justice between the parties may be effectuated; and where the case justifies it, will decree at once without waiting for such change of position.

3. As it did not clearly appear whether the stocks transferred by A. to H. were in payment, or by way of security, this court considered it premature to decree upon those subjects, but left them for further investigation in the court of Chancery, as well in relation to the principal fund as the interest.

4. The co-complainant and trustee, R., may recover from the administratrix of S. in due course of administration, to the extent of assets which have come to her hands, such sum as he may be unable to recover from H.

5. The injury which the trust estate has sustained, will be repaired by the payment of a sum equivalent to the price at which the stock was sold, when the transfer was made by S. and wife.

6. Such sum should be invested for the benefit of the c. q. t. under the will of L.

7. For A.'s participation in the transfer of the stock, as she was a feme covert, under the dominion of her husband, she incurred no penalty or forfeiture of her right as c. q. t. for life. She claimed nothing on account of interest; and there is no reason why the estate if repaired, may not be increased for the benefit of those in remainder.

Forfeitures are not viewed in a favorable light by a court of equity.

After the accounting by H., and by A. as administratrix of S., such a sum shall not be found due from both, as with the funds in court will be sufficient to reinstate the trust estate to the amount of the stock transferred by S. and A., then the balance necessary to accomplish this object should be paid by the two banks; and if the decree against H. and A. should be unavailing to the c. q. t. the amount for which they shall be decreed to pay, then the said banks ought to be held responsible for any deficiency that may occur.

Where by a transfer on the books of a bank, the corporation has notice of the trusts with which certain shares of its stock were clothed, and that the complainants were the legal proprietors thereof, the officers of such corporation being trustees of the stockholders cannot, without its being responsible, by any negligence or mistake allow the title to pass to the stock in a transfer by any other person than the trustees.

By the act of 1826, ch. 107, sec. 12, it was directed that books should be kept at F., in which should be fairly entered the names of the stockholders, the amount of stock belonging to each, and that transfers should be made on the books of the bank on proper application by the stockholders. Such a stock list was not kept by the bank; and in consequence of which, the bank as it was then incorporated, consisting of the mother bank at F. and its branch at W. would have become responsible for any injury which had proceeded from such neglect.

Such a liability having been incurred, the act of 1829, ch. 35, which separated the mother bank and its branch into two independent corporations, does not destroy it.

Each, after the separation, ought to be held liable in equity for the prior neglect of duty, and in proportion to the capital of each; neither, present bank, can throw the whole loss upon the other.

Where there is no knowledge in the trustees of the violation of an express trust, nor in the cestui que trusts, no acquiescence can be imputed to them, and hence, lapse of time is no bar in favor of those guilty of such violation.

Where trustees were properly proceeding against parties, who by negligence had permitted the trust funds to be converted, and alienated to innocent and irresponsible parties, the costs incurred by them ought to be allowed out of the trust fund, though the decree was reversed for error in the extent and primary liability of some of the defendants, still it was without costs to them.

This court by the act of 1841, ch. 163, is prohibited from allowing any objection to be urged to the jurisdiction of the court of Chancery, when no such objection was there taken.  

COUNSEL:
By MCLEAN, MAULSBY and MCMAHON for the appellants, and

By RANDALL and ALEXANDER for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*353]  ARCHER, C. J., delivered the opinion of this court.
The complainant, Wayman, one of the trustees, having received large sums of money for the purpose of repairing the injury which the trust estate has sustained in [**29]  the transfer of the stock belonging to the trust estate, and being thus, himself, liable to account with the trust estate, for the moneys thus by him received, could not as a complainant be entitled to a decree without such accounting.
The authorities cited establish the power of the court to cause him to assume a different position in the controversy, and that he might be made a defendant instead of a plaintiff, that justice between the parties may be effectuated.
Such a course would, however, be attended with delay, and we do not deem such a proceeding necessary in this case. In 1 Keen 618, the master of the rolls in delivering his judgment says: "there have been cases in which the court, with the view to substantial justice, has overcome the difficulties arising from a misjoinder of plaintiffs. In the case of Mosley vs. Taylor before Sir William Grant, and which is cited in 2 Young & Jer. 520, under the name of Mosley vs. Lord Hawke, a tenant for life, on whose instigation and for whose benefit a breach of trust had been committed, was joined as plaintiff with the other cestui que trusts in a bill against the trustees, who objected to 

 [*354]  any relief [**30]  being granted in that state of the record; but the objection was overruled, and a decree made against the defendant, and the offending tenant for life, who was one of the plaintiffs." This authority would justify a decree against Wayman, one of the plaintiffs, for any sum which may be found to be due from him, without the necessity of a change in the proceedings.
The complainant, Wayman, should be made to account for all the moneys received by him, and for the stocks transferred to him in part satisfaction for the wrongful transfer of the property of the trust estate.
It does not clearly appear to us from the proceedings in the cause, in what manner, and in what character, the stock of the Savings Institution was transferred by the administratrix of Samuel Jones to him; whether as security merely for the claim of the trustees against the estate of her husband, or in part payment of the same. Nor does it appear to us, satisfactorily, if the same had been transferred merely as a security, and not in payment, whether any act of Wayman, for which he could be held accountable, conduced to the loss consequent upon the failure of that institution.
We may likewise observe,  [**31]  that there is some obscurity in the record in relation to the amount of Farmers and Merchants Bank stock, which was transferred by Mrs. Jones to the trustees, to repair the injury arising from the transfer of the stock of the cestui que trusts.
From the above considerations, we think it would be premature to pronounce any judgment in respect to these stocks against Wayman, but shall leave this matter for investigation in the Court of Chancery, when the account shall be taken.
We shall also leave open the question, what interest, if any, shall be charged against Wayman, as when the account shall be taken, other evidence may be adduced than that which the record before us now furnishes.
For such sum, if any, as upon such accounting shall happen to be due from Wayman, he should be held responsible to the trust estate.

 [*355]  The administratrix of Samuel Jones should be held accountable in due course of administration for such sum as the complainant shall be unable to recover from Wayman, to the extent of the assets which have come to her hands.
The injury which the trust estate has sustained will be repaired by the payment of a sum, equivalent [**32]  to the price at which the stock was sold, when the transfer was made by Jones and wife.
When a sum equivalent to this shall be paid, it should be invested for the benefit of the cestui que trusts under the will of Larkin Shipley, as well Mrs. Jones, as her children. It is true Mrs. Jones participated in the transfer of this stock, but she was a feme covert under the dominion of her husband, and ought not on this account to be visited with penalties or forfeitures. She claims herself nothing on account of dividends; but if the fund is made good, we can perceive nothing in her situation, or the circumstances surrounding the transfer, which should forfeit her interests in the trust estate for the purpose of swelling the interests of the cestui que trusts in remainder. Forfeitures are certainly not viewed in a favorable light by a court of equity, and of all cases, this would seem to be the least suitable for the application of such a principle.
If in stating the account against Wayman, and charging him with such interest as his conduct may justify, the balance found due from him, when added to the sums paid into court, shall be found to be greater than [**33]  will be necessary to reinstate the trust estate, the surplus thus created should be decreed to Mrs. Jones.
If by such accounting by Wayman, and by Mrs. Jones administratrix of Jones, such a sum should not be found due from both, as added to the sum paid into court, will be sufficient to reinstate the trust estate to the amount of the stock transferred by Jones and wife, then we are of opinion that the balance necessary to accomplish this object should be paid by the Farmers and Mechanics Bank of Frederick, and by the Westminster Bank, and that should the decree against Wayman or the administratrix of Jones be unavailing in yielding to the 

 [*356]  cestui que trusts the amount which they shall be decreed to pay, then the said Banks ought to be held responsible for any deficiency that may occur.
In thus determining the ultimate responsibility of the Bank, we proceed to assign the reasons which have conducted us to this conclusion.
It is unnecessary to enquire whether a court of equity could entertain jurisdiction as against the Banks, over the subject matter of this claim, no such question having been raised in the Court of Chancery, and [**34]  this court being prohibited by the act of 1841, ch. 163, from allowing any objection to be urged to the jurisdiction of the court below, when no such objection was there taken.
The stock in controversy was transferred on the books of the Bank of Westminster on the 8th April, 1846, to Stockett and Wayman, as trustees under the will of Larkin Shipley, for the benefit of Anne Jones, wife of Samuel Jones, during her natural life, and after her death for the purposes prescribed in said will, and pursuant to an order of the Chancery Court, dated 20th January, 1826.
Thus the Bank of Westminster, by this transfer, had notice of the trusts with which the stock was clothed, and that the complainants were the legal proprietors of the stock, and its officers being the trustees of the stockholders, could not without making the Bank responsible, by any negligence or mistake allow the title to pass to the stock by a transfer by any other persons than the trustees, without involving the Bank in responsibility.
This Bank continued its operations, but with a change of name to the Farmers and Mechanics Bank of Frederick, and with a change of the location of the mother [**35]  Bank to Frederick, and a change of the branch from Frederick to Westminster.
By the act of 1829, ch. 35, the mother Bank and its branch at Westminster were made independent of each other, and on the application of the stockholders each was incorporated as a separate and independent Bank.
By the act of 1826, ch. 107, sec. 12, it was directed that 

 [*357]  books should be kept at Frederick, in which should be fairly entered the names of the stockholders, and the amount of stock belonging to each, and transfers should be made on the books of the Bank on proper application by the stockholders.
Such a stock list as was demanded by this law, was not kept by the Bank, in consequence of which the Bank as it was then incorporated, consisting of the mother Bank at Frederick and its branch at Westminster, would have become responsible for any injury which had proceeded from such neglect; and had the transfer been made before the Banks became independent of each other, by the charters granted to each, by the act of 1829, ch. 35, the responsibility of the Bank as then chartered, would have been beyond all question.
In consequence of the error above adverted to,  [**36]  in not keeping an accurate stock list, the Frederick Bank allowed the transfer to be made, whereby the injury complained of has resulted, after the law of 1829, ch. 35, which created the two Banks, separate and independent Banks, and the inquiry is, whether, under such circumstances, both Banks are not responsible?
The act of 1829, ch. 35, by separating the mother Bank and its branch, and creating them independent Banks, did not affect their former liabilities, and such is the express declaration of the act. Now from the omission to form a proper stock list, the injury has resulted to the trust estate. For the consequences resulting from this neglect of duty, the Bank of Westminster became liable and remained subject to this liability, upon the change of its name to the Farmers and Mechanics Bank of Frederick. This responsibility was in no degree lessened by the separation of the Banks, but each after the separation, ought to be held liable in equity for this neglect of duty, in proportion to the capital of each. The present Bank of Westminster cannot throw the entire loss, if any is to happen, upon the present Farmers and Mechanics Bank of Frederick, upon the [**37]  ground that this latter Bank permitted the transfer by Jones and wife to the Wilsons, because, the cause of that transfer was the neglect of duty in the former Bank, of 

 [*358]  which the Westminster Bank was a constituent part, and on this account equity would seem to demand that she should participate in such loss as shall occur from the negligence adverted to.
It has been urged that lapse of time constitutes an available defence for the Banks. To this proposition we cannot agree. So far as the complainant, Stockett, is concerned, there is no evidence that he ever knew of the conversion and sale of the stock, until these proceedings were commenced. Nor is there any evidence that the cestui que trusts in remainder, were ever aware that they had been deprived of their property by the transfer of the stock, until the institution of these proceedings. There is therefore not the slightest ground to impute acquiescence. Besides, the cestui que trusts, except Mrs. Jones, had no immediate possessory title to the beneficial interest, and have not yet, as Mrs. Jones is still living, and therefore clearly, there could be in this case no bar from lapse of [**38]  time.
Nor can the Banks claim exemption from the fact that Wayman may have been reimbursed. There is no proof that Stockett joined in any receipt which may have been given by Wayman, or that he, in any manner, ever sanctioned his receipt of the money paid by Mrs. Jones.
The decree of the Court of Chancery will be reversed, but without costs, and the cause remanded to that court for further proceedings.
For any costs incurred by the trustees by this decree, they ought to be allowed out of the trust fund.
DECREE REVERSED WITHOUT COSTS, AND CAUSE REMANDED.  

26 of 33 DOCUMENTS 

THOMAS S. ALEXANDER AND MARGARET A. GHISELIN vs. ROBERT GHISELIN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 138; 1847 Md. LEXIS 17 

December, 1847, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the equity side of Prince George's County Court.

The appeal in this case is from an order passed on consideration of bill and answers, dissolving an injunction, which had been granted on the bill, to stay a sale of negroes, under executions issued out of that court, on judgments recovered against the defendant, Robert Ghiselin, in favor of other defendants.

The bill which was filed on the 11th Nov., 1846, states, that a certain Robert Ghiselin, is, and at the date of the transactions hereinafter particularly detailed, was largely indebted unto your orator Thomas, and especially in the sum of $ 6000 on his promissory note, for that sum, dated on the 24th February, 1844, as by said note, marked A, and filed as part of this bill will appear; which said debt was chiefly for monies advanced by your orator Thomas, to pay judgments against the said Robert. That the said Robert was, and yet is indebted unto your oratrix Margaret, in the sum of $ 10,000, besides interest, which was secured by a mortgage of said Robert's real estate, now recorded amongst the land records of said county; and a copy whereof, to be marked B, your orators propose hereafter to file as part [**2]  of this bill. And that the said Robert was, and yet is indebted unto divers other persons, in large sums of money, which are secured by judgments, entered up in Prince George's county court against him. That sometime in the spring of 1845, the said Robert proposed to borrow from certain Thomas Edmonson and John Glenn, the sum of $ 15,000, with which he proposed to pay off and discharge the liens on his estate, other than his debt due to your oratrix Margaret; and also to retire certain paper, on which your orator was liable, as endorser, and accepted for him. To effect this object, it was necessary that the incumbrance held by your oratrix Margaret, should be postponed in favor of the individuals who were expected to make such advances; and your oratrix Margaret, who is the mother of the said Robert, was therefore prevailed to agree, to waive or postpone her said incumbrance for such purpose, on condition, that she should receive an additional security, by way of mortgage of the said Robert's negroes. And your orator Thomas, who was privy to, and participating in the arrangements aforesaid, finding that payment of any part of his large claim would necessarily be postponed for many [**3]  years, required, and upon his requisition, the said Robert agreed, that your orator should likewise have a security and indemnity upon said negroes. And your orator Thomas, therefore, at the request of the said Robert, prepared first, the draft of a mortgage, from the said Robert to the said Edmonson, to secure payment of the sum of seven thousand dollars, or thereabouts, in which your oratrix Margaret was to unite as a party, for the purpose of waiving her aforesaid incumbrance, in favor of the said Edmonson. In the next place, a draft of a like mortgage, from the said Robert to the said Glenn, to secure the payment of the sum of eight thousand dollars, or thereabouts, on which a like agreement was to be made by your oratrix Margaret, for postponing her lien in favor of said Glenn. And lastly, by a draft of a bill of sale, by said Robert to your orators, of his stock of negroes, to secure their claims as aforesaid. That the draft first within described, is now in possession of said Robert; that the second is now in the office of the clerk of Prince George's county, deposited for record, and having been executed, under the circumstances hereinafter detailed; and the last was lately [**4]  re-delivered by said Robert to your orator, and is marked C, and filed as part of this bill; and your orators pray leave to file a copy of the deed, from said Robert to said Glenn, as a part also of this bill. That at the time of making the aforesaid agreement, and of preparing the drafts aforesaid, they had no notice whatever of the insolvency of the said Robert, nor any reason for believing that he was in fact insolvent, or designed or contemplated an application for the benefit of the insolvent laws; and consequently, there was not, and could not have been any intention on the part of any of the parties, to give an undue and improper preference to your orators. On the contrary, the said Robert assured them, (and they believed said assurances,) that his debts did not exceed the sum of $ 40,000, whilst his property, if sold at any time, would yield $ 60,000 at the least; and it was from their confidence in the truth of such statements and assurances, that your oratrix Margaret consented to waive her lien as aforesaid; and your orator Thomas failed to require a more available security. And your orators further charge, that at the time of the agreement aforesaid, the only security held [**5]  by your orator Thomas, consisted of a claim, or part of a claim, assigned by one Robert Bowie to the said Robert Ghiselin, to reimburse monies, which the said Ghiselin had been, before that time, compelled to pay, as surety for the said Bowie, to extent of two thousand dollars, or thereabouts; and which monies had been borrowed by the said Ghiselin, from your orator Thomas; and it had been therefore agreed, between the said Ghiselin and your orator Thomas, that the proceeds of said claim, when collected, should be paid over to your said orator Thomas, in payment of so much of his claim against the said Ghiselin; and in confident reliance on the said agreement, your orator Thomas consented, that the judgment which had been recovered against the said Ghiselin as surety for said Bowie, and on which the payment aforesaid was made, should be entered satisfied. And your orators further charge, that the aforesaid drafts, as soon as prepared, were delivered to the said Robert, with the distinctly expressed understanding amongst the parties aforesaid, that whenever, and so soon as your oratrix Margaret should execute the mortgage and agreement aforesaid, the said Robert should and would execute [**6]  the aforesaid bill of sale; so that they might be, at one and at the same time deposited for record. And your orators further show, that the completion of the agreement and arrangement aforesaid, was delayed from time to time, because of various circumstances connected with the title of the said Robert, until in or about the month of September, 1845, at which time, misfortunes, which had most unexpectedly involved several of his friends, admonished your orator Thomas, of the impropriety of suffering his large claim to remain unsecured; and he therefore addressed himself to the said Robert, urging his right to a sufficient and available security, for payment of his aforesaid claim; and in return, he received from the said Robert a letter marked D, and filed as part of this bill; wherein the said Robert expresses his belief, that he would be able to settle his affairs; and promises, and engages, in case he should be disappointed in this expectation, to secure your orator Thomas amply. At this moment, your said orator had no notice of the insolvency of the said Robert, or of the extent of his liabilities; and being a brother-in-law of said Robert, could not do otherwise than acquiesce [**7]  in the wish expressed by the said Robert, that your said orator would allow some further time for making a settlement of his affairs. But your orator confidently expected, that so soon as the said Robert should have accomplished his proposed arrangements, or should have discovered his inability to effect them, he would have prepared and sent to your said orator the security he had promised; and in this expectation and confidence, shortly after the receipt of said letter, he permitted the said Robert to receive the money collected on the assignment, made by Robert Bowie as aforesaid, and appropriate the same to the payment of judgments outstanding against him, and to enter up satisfaction of said judgments. And your orator Thomas further avers, that lately, and after the negotiations of the said Robert, for raising money as aforesaid, had entirely failed, he again applied to the said Robert to make unto him the promised security; but the said Robert now alleged, that he was insolvent, and contemplating, as probable, an application for the benefit of the insolvent laws, any security given to your said orator as aforesaid, would be an undue and improper preference; and since that time,  [**8]  the said Robert has applied for the benefit of the insolvent laws, and your said orator has been appointed his trustee, and has bonded as such. But your orator charges, that at the times of the aforesaid oral and written agreements, between the said Robert and your orator Thomas, there was no law to prevent the giving of security, at the solicitation of a creditor; and that your orator, by relinquishing his right, to receive a large sum of money on account, and in faith of the agreement aforesaid, is purchaser of the benefit thereof, for a valuable consideration, and that down to the time of the application of said money, and for months thereafter, he had no notice whatever of the insolvent circumstances of said Robert, and did not imagine it was, or would become necessary for him to seek relief from the insolvent laws. Now, your orator herewith exhibits a statement of his claim for money due him, marked E, and prays the same may be taken as part of this bill. He is unable at this moment, to prepare a schedule of his liabilities, for the said Robert; but will do so in the progress of this suit. And your oratrix Margaret, further charges, that shortly after the agreement aforesaid,  [**9]  first herein before mentioned, and the preparation of the drafts aforesaid, the said Robert presented to your oratrix Margaret, the draft secondly within mentioned, being the draft intended for the benefit of the said Glenn, and desired your oratrix to execute and acknowledge the same, which your oratrix accordingly did, and the same has been placed in the office for record, and herewith your oratrix files a copy, marked F, and prays it may be taken as part of this bill. Your oratrix avers, that at the time of executing and acknowledging said deed, she verily believed, and chiefly from the fact, that it was in the hand-writing of your orator Thomas, and one of the very drafts prepared by him as aforesaid, that it was to be made under the agreement aforesaid, and had no doubt that the said Robert, (who is her eldest child, and to whom she has at all times entrusted the management of her affairs,) would have immediately executed, and placed on the record a bill of sale of his stock of negroes, to your orators as aforesaid, and from her very great confidence in him, has always believed it was so executed until within a very few days last past, when she discovered it had not been done.  [**10]  Your orators have no doubt, that the failure of said Robert to execute said bill of sale, proceeded from his hope, that he would succeed in procuring the balance of the sum required, to relieve him from embarrassment, and his belief, that it would be in time to execute the said bill of sale thereafter; and they are advised, that they cannot be injured by his delay as aforesaid, but that they are purchasers for a valuable consideration, and as such, are now entitled to full indemnity, out of the stock of negroes agreed to be conveyed to them as aforesaid.

And your orator Thomas further charges, that before the application of the said Robert for the benefit of the insolvent laws, and before your said orator had any notice whatever, of the execution of the deed from the said Robert and your oratrix Margaret, to the said Glenn, he prepared the draft of a bill in equity, to be laid before your Honors, claiming for himself, as sole complainant, the benefit of the aforesaid agreements, and laid the same before eminent counsel, residing in the city of Baltimore, for advice; and by said counsel, was advised to file the same in this court; but before said application, conversing with a [**11]  friend who had far better opportunities of knowing the extent of the said Robert's pecuniary embarrassments, on the subject of said claim, he was assured that your orator Thomas' loss could not exceed one thousand dollars; and to save such sum, his said friend, and your said orator, both concluded it was not expedient, under the circumstances, to insist on his equities aforesaid. And your said orator was the more readily induced to act on this suggestion, as he believed he would have the opportunity of prosecuting his claim for a priority, on the distribution of the proceeds of sales in insolvency, in case it should turn out that the deficiency in the value of the estate should prove greater than was anticipated. And your orator Thomas admits, on several occasions he had stated, that he would not litigate his aforesaid claim in equity, against the general creditors of the said Robert, many of whom were his personal and intimate friends, in order to save a thousand dollars, or such sum; and he avers, he is yet unwilling to prosecute a claim to any priority over said creditors, for the sake of one, or even two thousand dollars; but that he has been induced to depart from his aforesaid [**12]  intention, to withhold his claim until the estate was about to be distributed in insolvency, from his conviction, that the loss to the general creditors must be far greater than was originally anticipated; and that their losses are to be aggravated by the efforts now making by judgment creditors of the said Robert, to force a sale of his negroes, under executions. And furthermore, your said orator now has great reason to apprehend, and verily fears, that the security of your oratrix Margaret is endangered by the execution of the mortgage of the said Robert and Margaret, to the said Glenn, and the failure of the said Glenn to place the said mortgage on record, until within a few weeks, last past; and being the son-in-law of said Margaret, and having been influential in prevailing on her to assent to the arrangements proposed, for relief of said Robert, he has deemed it his duty to make a timely effort to vindicate her claims; and he is advised, that a failure on his part, to claim the benefit of an agreement, made for their common security, whilst he was asserting her right to the benefit thereof, would have an unfavorable influence on a future application, on his part, to enforce the [**13]  same, for her protection.

But now, so may it please your Honors, certain creditors of the said Robert, that is to say, Michael B. Carroll, Thomas Holland, &c., John Glenn, John W. Walker, John Edward Bird, and the President, Directors and Company of the Farmers Bank of Maryland, having recovered or purchased up judgments against him, as by short copies thereof, marked G, and filed as part of this bill, appears, have issued their executions, and seized said negroes, or some of them, and are now about to have them sold for their judgments, as aforesaid. Whereas, your orators are advised, that by force of the appointment and qualification of a trustee, for the benefit of the creditors of said Robert, the said executions were so far superseded as to vest the property and possession of said negroes in the said trustee, to be sold by him; and your orators hereby consent, that said trustee may sell and dispose of said negroes, and that the proceeds of such sales may be disposed of by your Honors in equity, or in insolvency, according to the just rights of all the claimants thereof; or, if this cannot be done, then your orators insist upon their equity, to a specific performance of the [**14]  aforesaid agreement, and a consequent sale of said negroes, or such part thereof as may be necessary, for satisfaction of their aforesaid claims; or, in the event, that said judgment creditors have, in the estimation of this court, acquired any priority over said orators, then they insist that they ought to be entitled to the benefit of the liens of said judgments, as against all other property of said Robert.

To the end therefore, that the defendants hereto, may answer the several matters and things herein before charged; and that your orators may have such relief in the premises as their case may require, and in the mean time, that the said judgment creditors may be enjoined from all further proceedings on their executions aforesaid, against the aforesaid negroes; may it please your Honors to grant unto your orators the writ of injunction against the said Michael B. Carroll, &c. &c., John Glenn, and the President, Directors and Company of the Farmers Bank of Maryland, commanding and strictly enjoining and restraining them, and every of them, from proceeding further with their aforesaid executions, until the further order of this court. And also, the writ of subpoena to the said [**15]  Robert Ghiselin and Michael B. Carroll, &c.

Exhibit A, is the original promissory note of Robert Ghiselin to Alexander, dated 24th February, 1844, for $ 6,000, with interest.

Exhibit B, is a copy of the mortgage from Robert Ghiselin to Margaret A. Ghiselin, dated 25th November, 1834, of all the mortgagor's real estate, to secure the payment of ten thousand dollars, with interest.

Exhibit C, referred to in the aforegoing bill:--

Whereas, Robert Ghiselin, by his certain indenture of mortgage, dated on the 25th of November, 1834, did convey unto Margaret Ann Ghiselin, of said county, certain real estate in said county, in order to secure to her the payment of the sum of ten thousand dollars, current money, and interest as in said indenture is more fully expressed. And whereas, the said Margaret Ann Ghiselin, at the instance and request of the said Robert Ghiselin, hath agreed to waive her priority of lien on said premises in favor of certain Thomas Edmonson and John Glenn, and to enable him the better to secure the payment of large sums of money now due and owing from him unto them. And whereas, the said Robert Ghiselin is also indebted unto Thomas S. Alexander, in [**16]  the sum of six thousand dollars, current money, besides interest on the promissory note of said Robert Ghiselin, for said sum, dated on the twenty-fourth day of February, in the year eighteen hundred and forty-four. And the said Thomas S. Alexander is also liable as endorser of promissory notes of the said Ghiselin, discounted at The Farmers Bank of Maryland, for his accommodation. Now, know all men by these presents, that the said Robert Ghiselin, for the purpose of securing, in the first place, unto the said Margaret Ann Ghiselin, the payment of the sum of money so as aforesaid due and owing unto her, and interest thereon. And secondly, unto the said Thomas S. Alexander the payment of the sum of money, so as aforesaid due and owing unto him, and interest thereon. And also, lastly, to indemnify the said Alexander against all, and all manner of liabilities which he may have heretofore assumed, or hereafter may assume, on account of the said Robert Ghiselin, and in consideration of the sum of one dollar, current money, to him in hand paid by the said Margaret Ann Ghiselin and Thomas S. Alexander, at or before the sealing and delivery of these presents, the receipt whereof is hereby [**17]  acknowledged, hath granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said Margaret Ann Ghiselin and Thomas S. Alexander, their executors, administrators and assigns, all and singular the negro slaves of him, the said Robert Ghiselin, and now in their possession, with their and every of their increase, to have and to hold the aforesaid negroes, with their increase unto, and to the use of the said Margaret Ann Ghiselin and Thomas S. Alexander, their executors, administrators and assigns; provided, nevertheless, that if the said Robert Ghiselin, his executors or administrators, shall well and truly pay unto the said Margaret Ann Ghiselin, her executors, administrators or assigns, the aforesaid sum of ten thousand dollars, current money, with interest thereon, according to the tenor and effect of the indenture of mortgage herein before recited, and shall also, whenever he or they shall be thereto hereafter required, well and truly pay unto the said Thomas S. Alexander, his executors, administrators or assigns, the aforesaid sum of six thousand dollars, with interest thereon from the date of said note; and indemnify the said Alexander, his executors [**18]  and administrators, from all damage on account of his liabilities assumed, or hereafter to be assumed, for and on account of the said Robert Ghiselin, then these presents and every thing herein contained shall be void, and of none effect. In witness whereof the said Robert Ghiselin hath hereto set his hand and seal, this     day of June, in the year eighteen hundred and forty-five.

This paper was not executed by R. G.

Exhibit D, referred to in the aforegoing bill:--

OCTOBER 3rd, 1845.

DEAR SIR,--Having intended up, I delayed answering your letter received some days since, as I thought we could talk the subject over, and I could express myself more fully than by letter. The subject has indeed been most harrowing to my feelings, particularly as I find you feel some apprehensions about the safety of my debt to you. I do not anticipate any immediate executions against my property, and do hope yet to force Robert Bowie to do something for me. I shall adopt a plan which I feel confident will do it. You shall certainly be made secure, when I find that I shall fail to make my negotiation; but a bill of sale to you at this time, while this matter is still open, would [**19]  prove most ruinous to me, otherwise I should not hesitate a moment about it. You should however feel easy about it; for my property at but a moderate price would far exceed my debts. This however we can talk about when I see you. I hope you will not express to any one at present, any apprehension about my failing in my negotiation, otherwise it might hasten executions, which I have assurances will be delayed until I can do something. Our love to all.

Yours truly,     ROB'T GHISELIN.

TO THOMAS S. ALEXANDER, Esq., Baltimore.

Exhibit E, is the account of the claim of the complainant, Alexander against R. G.

Exhibit F, is the mortgage from Robert Ghiselin to John Glenn, dated 10th June, 1845, of his real estate; to secure the payment to Glenn of $ 8056,30, with interest. Margaret Ann Ghiselin unites in this mortgage, for the purpose of waiving "her priority of lien on the aforesaid premises, in favor of the said John Glenn."

The injunction was accordingly ordered and issued, and being served on the sheriff, the negroes were delivered over to the complainant, Alexander, as insolvent trustee.

The separate answer of Robert Ghiselin to the bill of complaint [**20]  of Margaret A. Ghiselin and Thomas S. Alexander.

This respondent, now, &c., for answer, says: that it is true, he was at, or about the time stated in said bill of complaint, largely indebted to the complainant, Alexander, and to the amount stated by him, a large part of which indebtedness was created by borrowing money, to pay off judgments against the respondent; and he also admits his indebtedness to Margaret A. Ghiselin, the other complainant; and he also admits his indebtedness to various other persons, by judgments, as stated in said bill. Further answering, he admits, that in the spring of 1845, he proposed to borrow of Thomas Edmonson and John Glenn, the sum of fifteen thousand dollars, to pay off all the judgments against him, and the mortgage held by Farmers Bank of Maryland, of which he did procure from said John Glenn, upwards of eight thousand dollars; and this respondent admits, that he proposed to said Margaret A. Ghiselin, that if she would agree to postpone her lien upon his lands, so as to enable him to raise said money, he would give her as additional security for her debt, a lien on said negroes; and he further admits, that the said Alexander proposed, and this [**21]  respondent agreed, to give him also a lien on his negroes, as security for his debt, after such fifteen thousand dollars should be raised and received as aforesaid; but he denies that he ever agreed to give such mortgage to the prejudice of the then existing judgment creditors, because it was understood by complainants, as well as respondent, that these were to be first provided for, from said sums of money; and he admits, that the various papers, as stated by said complainants, were prepared by said Alexander, at the request of said respondent, and sent to said respondent for execution; two of them only were executed, that is, the mortgage to Glenn, and the mortgage to Edmonson, the mortgage to Glenn only having been delivered, the other was cancelled, the said Edmonson not having advanced the amount which the respondent expected to receive from him. And this respondent admits, that said papers, except the mortgage to Glenn, always remained in his possession, until written for last fall, by said Alexander, when the paper prepared as a mortgage to himself, and which was not executed by said respondent, was returned to him by said respondent. And he freely admits, that when these transactions [**22]  occurred, he had no intention, or expectation of being or becoming an insolvent debtor, but really believed himself able to pay all his debts. He further admits, that said Alexander held as his only security for his debt, a claim on Robert Bowie, as stated in said bill, the proceeds of which claim were afterwards appropriated by the respondent, as stated in said bill; and he further states, that he does not recollect, that there was any understanding, that said papers should all be executed at the same time; although he does remember, that no mortgage was to be made to his mother, or said Alexander, until the mortgage to Glenn and Edmonson were first made, in order to pay off the said judgments.

This respondent further answering, admits, that having received from said Alexander a letter, dated September, 1845, which has been mislaid, he wrote the reply thereto, filed in the said bill. He admits the final application for security, as alleged in said bill, and his refusal to make the same; and he also admits his application for the benefit of the insolvent laws, and the appointment of said Alexander as his trustee; and he admits the levy of execution, as stated in said bill.

The [**23]  joint and several answers of Henry J. Harrison, John W. Walker, and others, stated, that they are judgment creditors of the defendant, the said Robert Ghiselin, for the several and respective amounts, shewn and indicated by short copies of said judgments, filed with the said complainants' bill, marked exhibit G; that some of their said judgments were recovered in eighteen hundred and forty-three and four, as appears from said exhibit; no part of which has been paid them by the said Robert Ghiselin, but the whole amount thereof is still due and unpaid, that they issued executions on said judgments, respectively, returnable to the April term of Prince George's county court, eighteen hundred and forty-six; but they were not levied upon the property of the said Robert; that executions of fieri facias were renewed thereon, and were issued from said court on the 28th July, 1846. And all of them were levied upon the negroes and personal property of the said Robert, as stated by the complainants, on the 29th July, 1846, long before the application of the said Robert Ghiselin for the benefit of the insolvent law of the State, which application was not made until the day of October last past.  [**24]  

These respondents admit, that the said Robert Ghiselin has petitioned for relief under the insolvent laws of the State, as stated by the complainants; and that the said Thomas S. Alexander has been appointed his trustee, and bonded as such; and received a conveyance of said insolvent's property as trustee; but these respondents are advised and insist, that his application for the benefit of the insolvent law, and the appointment and qualification of the said Alexander, as his trustee, does not supersede or suspend the executions of these respondents, which were issued and levied antecedently to the said application; or in any manner interfere with or impair their right to proceed at law with their executions, and to reap the fruits thereof, by a sheriff's sale of the negroes and property seized and levied upon as aforesaid. These respondents further answering, say, that they know nothing of the indebtedness of the said Robert Ghiselin, to the said complainants, or either of them; that they are ignorant of any arrangements or agreements, as stated in the complainants' bill, between the said Robert Ghiselin and the complainants, or either of them, in regard to the securing their [**25]  said mentioned debts, by conveyance in the nature of a bill of sale or mortgage, or in any other way; and they are advised and insist, that even if there were made between the said parties, any such agreements, promises and arrangements, they were secret and private contracts, assurances and agreements, that ought not to receive countenance in a court of equity, against bona fide creditors; and especially against creditors of the grade of these respondents, whose executions are actually levied before the filing of the complainants' bill.

These respondents further answering, say, that the collection of their said claims on judgment, and the management thereof, was committed to their respective attorneys; and they are informed by them and believe, and they therefore aver, that after said judgments became ripe for execution, they would have ordered executions thereon, with a view to enforce the collection of their debts, but for the repeated assurances of the said Robert, that the said John Glenn and Thomas S. Alexander were making arrangements in Baltimore for a loan for him, for about fifteen thousand dollars, with which their said judgments were to be first paid and satisfied;  [**26]  and in consequence of these assurances, and at the repeated requests of the said Robert, they forbore to press the recovery of their said debts. And your defendants state, that it was known to the said Thomas and Margaret, that the defendants were indulging the said Robert, under the belief and expectation that the said loan would be made, and their said debts paid thereby; and these defendants aver, that this expectation alone prevented them from causing executions to be issued on their said judgments, and levied long before the time they were issued and levied, as aforesaid. And they also state, that their said counsel did not know that said negotiation had failed, until the month of July or August, 1846; but during all this time their said counsel believed, that the said negotiation would succeed, and the said debts be paid, as they had been so often assured. These respondents further answering, are advised and insist, that all of said agreements, contracts, arrangements and promises, mentioned in the said bill, as having been made and entered into between the said complainants, and the said Robert Ghiselin, about the securing of the debts of the said complainants, by conveyances,  [**27]  as mentioned therein, and all the other promises between the said parties stated in the said bill, if such were ever made and entered into, (and about all of which these respondents are totally ignorant,) are void and inoperative in law, the same not being in writing, under the statute of frauds and perjuries, which is pleaded to the same by these respondents, and relied upon to defend the same, and by way of defence. And these respondents jointly and severally plead, by way of defence to said promises, agreements and contracts, the statute of 29th Charles 2, chapter 3, commonly called the statute of frauds, and insist that the said promises and agreements are all void, under the said statute.

These respondents further answering, state, that the said promises and agreements, if ever made to the said complainants by the said Robert, from the very terms of them, as appears from the complainants' exhibit of a letter from the said Robert, and from the averments of the said bill, were entirely conditional and were not to have been carried into effect, unless the said Robert succeeded in raising a sum of money by a loan sufficient to relieve him from his embarrassments, and especially [**28]  from these respondents' judgments, and which he failed to do; the promises were therefore dependent upon a contingency which did not occur, and cannot be enforced even against the said Robert. These respondents further answering, insist that the complainants should have given an injunction bond, and they insist the injunction should not have been granted, without bond, in pursuance of the law, and as in duty bound they will ever pray, &c.

The answer of John Glenn admitted, that the exhibit A, of complainants, is the promissory note of his co-defendant, Robert Ghiselin. He knows nothing of the other particulars of the claim of the complainant Alexander, against the said Robert, but refers to, and is willing to adopt the answer of the said Robert, so far as it relates to the origin, amount and condition of said claim. This defendant also admits, that the said Robert was and is indebted unto the complainant Margaret, in the sum of ten thousand dollars, with interest; the payment whereof is secured by mortgage, as is more fully stated in said bill. He also admits, that the said Robert was indebted unto the Farmers Bank of Maryland, in the sum of four thousand dollars, and interest [**29]  on a mortgage, which constituted the first incumbrance on his lands; and also to divers other persons, on judgments recovered against him, and being so indebted, the said Robert, in the spring of the year eighteen hundred and forty-five, applied to this defendant, to procure for him a loan of fifteen thousand dollars, to be applied to the discharge of all the incumbrances on his lands, other than the mortgage of the complainant Margaret, his mother. That this defendant examined into the state of affairs of the said Robert, because convinced that fifteen thousand dollars was sufficient to relieve the said Robert, as aforesaid. And therefore agreed to advance the sum of eight thousand dollars, and entered into a treaty with one Thomas Edmonson, for an advance by him of the remaining seven thousand dollars. But the said Edmonson, and this defendant, required as a condition, on which their advances were to be made, as aforesaid, that the complainant Margaret should agree to waive or postpone the lien of her incumbrance in their favor; and it became necessary to call in the assistance of the complainant Alexander, her son-in-law, to explain the circumstance to her, with its probable consequences.  [**30]  And through his intervention, it was agreed, as this defendant heard at the time, both from the said Alexander and the said Robert, that the said Margaret should waive the lien of her mortgage to the above mentioned extent, and in consideration thereof, should receive an additional security, by mortgage of the negroes of the said Robert.

This defendant cannot undertake to answer, whether he had or not any notice of any proposed security to be given to the said Alexander. But it was understood at the time, by all parties, that the requisite instruments of writing, were to be prepared by the said Alexander; and confiding in the information given him at the time, and since, by the said Robert, he has no doubt, and admits, that the instruments described in the bill, as intended for the security of this defendant, of the said Edmonson, and of the complainants, were prepared, as is stated in the bill, he refers to the answer of Robert Ghiselin, which he makes part of this, whether the said Alexander was, by agreement as aforesaid, to receive the security, which the last described instrument professes to give him. And this defendant admits, that it was understood and expected by him,  [**31]  and he supposed by all the parties, that the aforesaid mortgages would have been executed and delivered as soon as they were prepared; and that when the said Margaret parted from her lien on the real estate, she was at once to have received the additional security, proposed to be given by mortgage, of the said Robert's negroes. And this defendant, in fact, did shortly thereafter receive the mortgage to himself, as is stated in said bill; and did thereupon advance the sum of money therein mentioned, which was applied in payment of judgments and other claims.

That the said Edmonson declined to advance the money promised by him, because of an outstanding judgment, recovered against the said Robert, as surety of one Robert Bowie, and after many delays the negotiation with him was broken off. This defendant further admits, that the complainants' exhibit D, is in the hand-writing of the said Robert, and was written by him at the time, and under the circumstances mentioned in said bill. This defendant has been informed by the said Robert, and therefore admits, that at the time of the original agreement, the said Alexander held an assignment made by one Robert Bowie, to the said Robert [**32]  Ghiselin; and that in reliance on the security, to be acquired under the proposed arrangement, he permitted the said Ghiselin to receive and apply the money arising on said assignment, to the payment of judgments against him.

This defendant admits, that throughout the year 1845, and until the summer of the year 1846, the said Robert was believed to be solvent, and able to pay his debts. He further says, that at the last mentioned date, he had reason to suspect the insolvency of the said Robert, and therefore caused writs of fieri facias issued on judgments held by him, as stated in the bill, and that the same were laid on the negro slaves of the said Robert; and this defendant is advised and insists, that by reason of the levy aforesaid, he has acquired a lien on said negroes, which is to be preferred to the claims of the complainants in said bill; and he further relies and insists on the defences afforded by the statute of frauds, as a complete bar to the relief prayed by said bill, and prays that the injunction heretofore granted on said bill, may be dissolved, and he may be dismissed with costs, &c.

The cause was then submitted on a motion made by defendants, for a dissolution [**33]  of the injunction, and by an order, dated 23rd April, 1847, the court (KEY, A. J.) dissolved the injunction.

The complainants appealed from this order of dissolution.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

Under the act of 1805, ch. 110, and its supplements, the trustee of an insolvent is not restricted in his sales to what he has in actual possession. Property in the hands of a tenant, a bailee, or a trespasser, or mortgagee of more value than the debt, may be sold.

The design of the 7th section of that act was to allow full force and effect to an execution levied, as a lien or incumbrance, in connexion with which words, the process is mentioned, but not to determine nor indicate by whom the sale was to be made.

The act of 1805 and its supplements, require the trustee to take into his possession all the estate and effects to which the insolvent had the right of possession at the time of his application, and to sell and dispose of all his property in possession, reversion or remainder, and pay off the liens and incumbrances thereon, and to regard an execution as a lien upon personal property, only in the case where it was actually levied before the insolvent's petition.

In the case of the personal estate, it secures to the execution creditor a priority over all judgments not in the same condition, by making his debt a specific lien on the property seized in execution.

The law has given to the trustee the entire management of the estate, subject to the control of the court by whom he is appointed; charging him with the duty of paying off liens and incumbrances, to which the estate might be subject.

An agreement to mortgage personal property alone, to secure a debt due from the one contracting party to the other, to be performed forthwith, is not affected by the statute of frauds; but if it had also related to land, it would have been within its operation.

An equitable mortgage may be enforced against others than the contracting party.

Although the exception in the act of 1729, ch. 8, sec. 5, is broad enough in terms to defeat a bona fide purchaser, who has paid his money on the faith of a legal transfer or security, to be forthwith executed, if the rights of a creditor should happen to intervene; still it is not always to have that construction, but has been so considered in equity, as to avoid many of the inconveniences which a literal interpretation of it would inflict.

A court of equity may specifically execute a contract for a mortgage or other equitable lien against creditors.

The rule that equity regards as done that which was agreed to be done, is part of our law. The instances in which it has been enforced, and against the very terms of the registry acts, are numerous.

A written contract to execute a mortgage, clearly expressed, made bona fide, and for full value, raises an equity for the party claiming under such contract, that prevails over the legal rights of creditors.

If a contract be as well established, it imposes the same moral and equitable obligation to perform it when verbally made, as if made in writing, and the legal effect of the terms of the agreement will be the same, in the one case, as in the other.

Courts of equity have properly required, that every agreement should be clearly and explicitly established, before it will lend its aid to enforce it.

G. held a mortgage on real estate, the first incumbrance; she was prevailed on to agree that it should be postponed in favor of individuals, who were expected to loan the mortgagor a further sum of, &c. to pay off and discharge liens on his estate and other debts; on condition that she should receive as additional security, a mortgage on her mortgagor's negroes. Two persons had promised to loan the amount on receiving mortgages, to which hers should be postponed; and it was expected by all that the required sum would be raised on these terms. The deeds were prepared, as well the mortgages to the persons who were to loan the money, as the mortgage to G. on the negroes. A mortgage to one of the persons who was to loan a part of the money, was also prepared and executed by G. and her mortgagor; but the other who had agreed to loan the balance declined doing so, and the amount was not procured. Held, that G. had performed the condition on her part, so far as to be entitled to specific execution of the agreement, to give her a mortgage on the negroes to the extent of the sum borrowed.

In a court of law, a party claiming under a contract must claim according to its terms. If he venture to speculate on a contingency, over which he has no control, he must abide the issue; and if the event does not occur, as he has assumed, the contract is at an end.

But even at law, if one party be prevented by the other from performing the contract, he can recover from that other, by showing a performance of as much as it was permitted him to perform, and a readiness to perform the residue.

The rule in equity is much more broad, and permits a party specifically to enforce a contract, who has performed so much of it as to incur loss, if he is in no default for not performing the residue.

Another creditor of the mortgagor, participating in the arrangement by which G's first lien was to be waived, and her debt further secured by the lien on his negroes, finding that his claim would be postponed for many years, required of the mortgagor, who agreed, that he should likewise have a security on the negroes. Held, that the terms of this agreement were neither vague nor uncertain.

An existing creditor demanding specific security for his debt, and obtaining the promise of the debtor to comply, is to be considered in a court of equity, as favorably as a creditor, who at the moment of becoming a creditor, obtains a pledge for a specific security.

The existence of a debt at law is a consideration for an express promise, equivalent to the advance of an equal amount for the transfer of property, and ought to be a sufficient basis in equity on which to rest an agreement, fair in all other respects, and will sustain an agreement by a debtor to give a specific lien to a creditor.

When a case is before the court on the motion to dissolve an injunction, and on bill and answer, the answers are to be taken as true, so far as they affect the interests of the defendants respectively making them, and so far as they are responsive to the bill; and the statements of the bill are to be received as true, so far as they are not denied.

It is proper as a general rule, very rarely, if ever, to be departed from, that an injunction bond should be required, when an application is allowed that delays the recovery or receipt of money, or which lessens or in any respect endangers any existing securities, or renders liable to loss thereby, any money, profits, or property, which the adverse party is by injunction prevented from receiving or enjoying.

Where a judgment creditor had sued out execution, and levied it upon the personal property of the defendant, who afterwards applied for relief under the insolvent laws, and a trustee was duly appointed, upon a bill filed by other creditors of the insolvent claiming a specific lien by way of mortgage on such property, and the insolvent's trustee, for an injunction to arrest the sale of the property by the sheriff. Held, that the complainants were entitled to such injunction, but that a bond should have been filed and approved before it issued.

In general, where an injunction issues without bond, the defendants may petition for an order of court, requiring bond to be given by a reasonable period, or on default, to have the injunction dissolved.

But when the answers have come in, and they show on their face a case for a perpetual injunction, and the continuance of the writ was not dependent upon a question of law or fact to be established, it would be wholly unnecessary to require a bond.  

COUNSEL:
By ALEXANDER for the appellants.

The appellants insist that the order dissolving the injunction is erroneous, and that the injunction ought to have been continued.

1st. Because the appointment and qualification of the said Alexander as trustee of Robert Ghiselin, on the application of the latter for the benefit of the insolvent laws, superseded the executions of the defendants, and vested in him the property which had been taken in execution.

2nd. Because the agreement mentioned in the bill is a valid agreement, and proper to be enforced in equity; and therefore the complainants are entitled to satisfaction of their demands out of the proceeds of sales of the negroes in question, even to the prejudice of the creditors claiming under the aforesaid executions.

3rd. It will be insisted further, that if the execution creditors should appear entitled to a preference over the complainants, the benefit of the injunction ought to be sustained so far as to prevent [**34]  any further proceeding on the writs of execution; and that the remedy would be by a declaration that the execution creditors are entitled to a preference in the distribution of the funds in the hands of the insolvent trustee, to be administered in insolvency, and that the complainants shall be subrogated to the rights of the execution creditors, so as to entitle themselves to the benefit of the lien of the judgments and executions against other property of the insolvent, which may be liable therefor.

It is objected that the injunction issued without a bond. It was ruled by Chancellor Johnson, many years ago, that a stranger to a judgment, seeking to enjoin it, need not give bond. He claims under a mere equitable title. The practice is uniform. The complainant here is under no personal obligation to pay the debt. The Cape Sable Co's case, 3 Bland, 615. 1835, ch. 346. Alex. Prac., 81, 82. Jones vs. Magill, 1 Bland, 194, note.

If the objection is valid, there should have been a rule requiring bond by a given day. The injunction should not have been at once peremptorily dissolved.

The subject of the agreement here is not land, but personal property. Under the statute of [**35]  frauds, it is objected that the promise relied on in this case was not to be enforced within a year. But that statute only applies where it appears that the agreement was not to be performed within the year. If the contract is in the alternative, it is not within the statute. Here a speedy execution of the agreement was contemplated. Both Glenn and Ghiselin so designed. The papers are dated in June, 1845; no proof of postponement to end of a year. But the statute is no bar in this case. Jones vs. Hardesty et al, 10 G. & J. 404.

The act of 1805, ch. 110, sec. 5, 7, superseded the executions issued by the creditors of Ghiselin, upon his application for relief under the insolvent laws. The property was vested in his trustee, who is bound to pay all liens, judgments and incumbrances. The act determines what judgments are liens as to lands; as to personal property to create a lien, the execution must have been levied. The general property is in the trustee. The specific property in the lien creditor. A trustee is appointed that there may be a jurisdiction to administer the fund. This operates a supersedeas of the execution and transfer of the property by the policy of the law to the [**36]  trustee. He is authorized to sell for the benefit of all. Creditors rely on their priorities. The appointment of the trustee does not determine the lien absolutely, but only sub modo. It restrains the sheriff. There is convenience in the rule. This renders a dissolution of the injunction in this case unnecessary. Under the act of 1799, on injunction, the property goes back from the sheriff to the trustee, who has the general property. It could now only be reached again by a new fieri facias; yet in the hands of the trustee, this is prohibited by the act of 1805, ch. 110.

Upon the 2nd point: Could the agreement for a lien been enforced against the original parties? Mrs. Ghiselin was an incumbrancer with sufficient security. On the property secured to her it was proposed to borrow $ 15,000. She was satisfied with this. She was solicted to postpone her rights. She believed that $ 15,000 would relieve her son from embarrassments. If she would agree to postpone her rights, she was to have additional security on her son's negroes. Additional security for the relinquishment of a part of prior security, is a good consideration between the parties. She let in Mr. Glenn to a preference.  [**37]  She agreed to do the same as to Edmonson. This entitled her to the additional security. Mr. Glenn advised this course after examination into R. G's affairs. He complied; Edmonson refused; that part failed. The additional security may avail to the extent of the injury. Mrs. G's part was special and limited in its character. It was to be concurrent with acts of other parties. There was a clear execution of the contract on her part. Alexander was brought in to induce him to aid the execution of Mrs. G's contract, new incumbrances were to be created on lands and negroes. He demanded a second security on the negroes, before he proffered his aid. He had no knowledge of Ghiselin's situation. There was nothing to prevent his exacting security. The proof is in exhibit C; this was prepared by Alexander. It imports an agreement. He was not to do any thing, but he was to be secured with Mrs. G. There is no necessity for a new consideration between debtor and creditor. Alexander agreed to postpone his claim for some years. It was no part of his duty to raise the $ 15,000. His duty was only to postpone his claim.

Equity considers as done what ought to be done. A vendor is a trustee for his [**38]  vendee. The right to a conveyance may be asserted against the vendor or his heirs. A purchaser for value without notice is the only exception to this rule. 2 Sto. Eq. 959, sec. 1502. The purchaser must be bona fide, and must have paid the purchase money. The equity of vendee for value, is superior to that of judgment creditors claiming under judgments subsequent to the agreement. Finch et al. vs. Earl Winchelsea, 1 P. Wms. 277, 278. Hampson vs. Edelen, 2 H. & J. 64.

The equity of vendor for unpaid purchase money, is enforced against the judgment creditor and assignee of the vendee. Repp et al. vs. Repp et al., 12 G. & J. 344. In the matter of Howe, 1 Paige N. Y. Eq. R. 125.

Mortgage defective for want of enrolment established against a judgment creditor. Taylor vs. Wheeler, 2 Vernon, 564.

A defective mortgage made in consideration of giving up another security enforced against parties. Tiernan vs. Poor & wife, 1 G. & J. 206. Brundige et al. vs. Poor & wife, 2 G. & J. 1. Woods vs. Fulton & Starck, 4 H. & J. 329. McMechen & Sullivan vs. Maggs, 4 H. & J. 132.

An agreement to mortgage will be enforced against a prior judgment creditor, with notice before purchase. Massey [**39]  vs. McIlvain, 2 Hill C. R. 428. The case of Burr vs. Burr, 3 Ves. 573, 575, 581, is near to Alexander's claim. An agreement for a mortgage, a specific lien against creditors. Exe'r of Polony & Read vs. Keenan et al. 3 Dessau, 74. The same rules extend to personal property otherwise illustrated. Young vs. Keighly, 15 Ves. 557. Read vs. Galliard, adm'r of T. Simons, 2 Dessau, 552. Dow et al. vs. Ker et al. 1 Spear, 431, 418. Fletcher et al. vs. Morey, 2 Sto. Rep. 564. Burn vs. Carvalho, 4 Mylne & Craig, 690. Aldridge & Higdon vs. Weems & Hall, 2 G. & J. 36. Thomas' Exe'r vs. Von Kapff's Exe'r, 6 G. & J. 373. Depeyster et al. vs. Gould et al. 2 Green, N. J. 481, 374. 2 Sto. Eq. 962, sec. 1503. Minns vs. Morse et al. 15 Ohio, 568. Richardson vs. Stillinger, 12 G. & J. 483. Lempriere vs. Pasley, 2 Tenn. Reports, 485.

The complainant is entitled to specific performance, as between parties. As to personal estate, third parties cannot object. The creditor has no superior right without a levy on personal property, and the insolvent law supercedes this. Moreover the judgment creditors have other liens. Evertson vs. Booth, 19 Johns. 492. Though the contract be not fully performed by Alexander,  [**40]  yet he might sustain a bill to protect such interest as he had acquired under his contract with Ghiselin. Corse vs. Patterson, 6 H. & J. 154.

By C. C. MAGRUDER for the appellees.

The appellees will insist that the court below properly dissolved the injunction in this case:--

1. Because the application of Robert Ghiselin, for the benefit of the insolvent laws, did not impair the lien acquired by his judgment creditors, by virtue of the executions levied upon his personal property, nor suspend their rights to enforce the said execution, by a sale of the property levied upon.

2. Because the agreement for security, relied upon by the complainants, is denied by the defendants, and if proven, could not prejudice them, being void under the statute of frauds.

3. The agreement between the said complainants and the said Robert, should not be specifically enforced, to the prejudice of the said judgment creditors, under the circumstances of the case.

4. That the benefit of the injunction should not be extended to the said complainants, as contended in their third point, to the prejudice of the said judgment creditors, or other creditors of the said Robert.

5.  [**41]  The complainants should have given an injunction bond, and their failure to do so was a sufficient cause for dissolving the injunction.

Under the act of 1805, ch. 110, sec. 7, the lien on personal property does not depend on the actual execution of the levy. It flows from the judgment. The proceeds of all property of the insolvent, after satisfying all judgments, incumbrances, and liens, remain for all other creditors equally. It is the residue that is to be divided. But the execution process is to have some effect. It is something in addition to the judgment. By the execution levied, the creditor obtains a superior, a specific equity. A levy changes the nature of the property. The creditor obtains a qualified property. Beatty vs. Chapline, 2 H. & J. 19. Hanson vs. Barnes, 3 G. & J. 359.

The act of 1799, ch. 79, sec. 10, shows the effect of the injunction on the sheriff. Since the act of 1826, ch. 157, the property and person of the debtor are released by the injunction from the sheriff's control.

The injunction is not grantable without a bond--1835, ch. 346.

This parol contract is void. Lammott vs. Gist, 2 H. & G. 433. There was neither part performance, nor payment [**42]  here, to take the case out of the statute of frauds. Lacon vs. Mertins, 3 Atk. 3. There was concealment here, which would prevent the complainants from taking the fund. Bliss vs. Thompson, 4 Mass. 488. The promise to give the mortgage was void. Boyd vs. Stone, 11 Mass. 342. The relinquishment of R. G's right to redeem the mortgage to Mrs. G., cannot be proved by parol. Scott vs. McFarland, 13 Mass. 309. The terms of the contract are uncertain as to their extent; and equity will not specifically enforce it. Harnett vs. Yielding, 2 Sch. & Lef. 548.

Part performance under the statute of frauds. Payment of the purchase money is not sufficient part performance of a verbal contract for land, to take it out of the statute of frauds. Jackson vs. Cutright & Clark, 5 Mumf. 318.

There is a distinction between contracts to purchase and mortgage. The latter are not favored nor extended in equity, in view of the statute of frauds. Ex parte Hooper, 19 Ves. 477.

Intervening equities will arrest the court in granting specific performance. Carberry vs. Tannehill, 1 H. & J. 224.

To enforce this alleged contract under the circumstances, would nullify the act of 1729, ch. 8, which demands [**43]  that mortgages of personal property to affect third parties, should be acknowledged and recorded within twenty days of their execution. The conditions of this act have not been complied with. Dorsey vs. Smithson, 6 H. & J. 61. Hudson vs. Warner and Vance, 2 H. & G. 415. Moale & Johnson vs. Buchanan et al., 11 G. & J. 314. Warnick vs. Michael, 11 G. & J. 153. Salmon vs. Claggett, 3 Bland, 125.

By WM. H. TUCK for the appellees, upon the 1st, 3d, and 4th points.

1st. The effect of the application and discharge upon the fi. fas., actually levied before that time. An execution authorizes the sheriff to take property and make the debt. A seizure gives him a qualified property in the chattels--that is a property unaccompanied by a right to immediate possession. But yet he has a technical possession, on which he may maintain trespass or replevin. The character of this writ, and the powers and duties of the sheriff, are explained in--Chapline vs. Beatty, 2 H. & J. 15.

The judges in that case agree, that the sheriff has a property in the chattel, special to be sure; but for the purpose of making the debt, Judge Gantt maintains that each party, the sheriff and defendant, had a [**44]  qualified property. That the defendant might sell or bequeath, subject to the sheriff's property. They all agree that the fi. fa. is one entire thing, and cannot be disturbed, except in particular cases provided for by the statute or common law. Thus an injunction did not release the property, although it suspended its execution, until 1799, ch. 79, sec. 10.

And as late as 1826, ch. 147, a defendant taken under ca. sa. was not discharged by injunction. Where the plaintiff or defendant dies, the execution may go on, although the property be returned in the inventory. This is by reason of the qualified property that the deceased has in the goods. If a defendant may sell, subject to the levy, what prevents the deed to the trustee, passing a qualified interest; it is but a deed at last of all his estate in the property.

It is contended, that the possession, with an absolute title, must pass under the insolvent's deed, in virtue of act of 1805, ch. 110, sec. 5. But this does not necessarily follow. The words of that act, and of 1827, ch. 70, are technical, and have a technical meaning--the former uses PROPERTY, and the latter ESTATE. The last act prevails, and must be construed [**45]  in a technical sense, as referring to the interest of the insolvent, and not to the body of the property. The insolvent cannot convey more than he enjoys himself; and the trustee takes the property, subject to the liens of others. In the cases in bankruptcy, mortgages, &c., the question may not have been raised. Suppose the case of a bill to sell mortgaged real estate, where the mortgagee is not a party, where would be the legal title under the sale? The title passes under a creditor's bill, because the mortgage creditor may come in, and these cases are provided for by law. But on general principles, the legal estate would be in the mortgagee.

The 7th sec. of 1805, ch. 110, does not necessarily suppose that the property passes to the trustee as matter of right. It only means that he shall pay off all liens, &c., as in a case in equity, where the incumbrancer may come in and take satisfaction from the property covered by his lien; or as the case of an administrator or executor, the sheriff may sell, and the plaintiff has a right to the benefit of the lien. Suppose a creditor, under a mortgage, has possession of the property, can the trustee take it from him? He may file his bill [**46]  to redeem for the benefit of the creditors. What return can the sheriff make to a fi. fa. that will discharge him? In this case the return "enjoined" will do--but how, where there is no injunction?

The eligibility of this mode of exercising the power of sale--as to cash and credit. Who pays the expenses of this proceeding, the sheriff's fees and trustees' commission? A dissolution of the injunction was unnecessary, because the property had been discharged under the act of 1799, ch. 79, sec. 10. That act provides that the property shall go back to the defendant. The court had no right to deprive us of the security we had in the sheriff's bond--and turn us over to that of the trustee. This may be immaterial; and if the case on motion to dissolve had gone against us, perhaps we should not have been here at this time. The appeal is just as unnecessary as the dissolution.

3rd POINT. 1st. Was there any agreement at all, as against Ghiselin?

2nd. As against his creditors, and especially the defendants.

What is a contract?--Chitty on Contracts, 15, 16, 26, 71. Addison on Contracts, 33, 4, 5, 6. 1 Sumner, 225. They must agree in the same sense, to the same thing. Newland's [**47]  Contract, 151, 152, 224.

What is a contract as to Mrs. Ghiselin? She was to release as to $ 15,000.--Did she do it? The bill admits that she did not execute the deed to Edmonson. The answer shews that Ghiselin duly executed it. It was sent to him, says the bill, and remained in his possession. It was an entire contract, both as to her and Alexander; that is, he was to give the security when the $ 15,000 were raised, as a condition precedent, his object being to provide for his creditors. Addison on Contracts, 194. Story on Contracts, 8, 9. Am. Jurist, Oct., 1833, art. 3, p. 251. 3 Bos. and Pull., 300. Youqua vs. Nixon, 1 Pet. C. C. R. 222. Stansbury vs. Fringer, 11 G. & J. 150. It is contended, that there can be an apportionment of this consideration; that is, that she is entitled to be secured to the extent of Glenn's mortgage. If the contract be entire, this is not so. Suppose she were suing at law for a breach of agreement by R. G., must she not aver a performance, or an offer to perform all she agreed to do? There must be a contract set out, giving a cause of action on both sides. 4 G. & J. 467. It is said the bill of sale was the consideration--so it was; but to be delivered [**48]  only on raising the $ 15,000--this was the entirety of the contract; and it was the chief inducement.

4th POINT. Ghiselin's answer. Then again, it is said the only condition, on her part, was to release her liens. It makes no difference that the negotiation partly failed. She had nothing to do with raising the money; and she was not to clear the title, &c. She well knew that she was to have no bill of sale until she released for the whole amount--$ 15,000. There was no mistake, surprise or fraud practised on her. She knew all about it. Mr. A. was called in to make explanations, &c. And the question is not what she agreed to do, but what Ghiselin agreed to do? What was his understanding of the contract?

Glenn's answer is relied on to shew that all the papers were to be executed at the same time, as evidence of one entire contract; also on the dates, &c. We say it was an entire contract; but the mortgages were to precede the deed for the negroes--else why did not she call on R. G. soon after June, 1845? Why did not they complain of his delay? The answer says, that the security was to be given "after such $ 15,000 should be raised and received, as aforesaid." But he denies,  [**49]  &c.

She claims the benefit of a part performance. She is not the only one unhappily connected with R. G's embarrassments. She had a security and she lost it,--but by her own fault. She should have withheld the deed to Glenn, until the other was executed, so that the bill of sale could be demanded under the contract.

She comes in equity relying on a part performance. In all these cases she must offer and be in a situation to perform the rest of the contract on her part. Here she cannot make the offer, because under the present circumstances, the contract cannot be completed. Buchanan et al. vs. Lorman et al., 12 G. & J. 190. There is no averment in the bill, that $ 8,000 were raised on Glenn's mortgage, or that it was applied under the agreement. The answer of Glenn states that $ 8,000 were advanced and paid towards judgments and other claims. The answer of Ghiselin says, the money was to pay the Bank and judgments. What has become of the money? The Bank is not paid. It is not averred that judgments were paid. Perhaps it has been applied to the withdrawal of the paper on which Mr. A. was liable?--and if so, it was against the agreement as understood by Mr. Ghiselin.

2d.  [**50]  Is there an agreement as to Alexander? As to him, the first agreement (if any) entirely failed. The Bill and answer shew that his security depended on R. G's raising the money. The bill states that after the letter of 3d October, 1845, he expected another deed to be prepared, and sent him. This abandoned the first agreement. The letter of Ghiselin by itself is no agreement, binding the negroes without an acceptance. There is nothing to show that it was an acceptance by R. G. of an offer made by Alexander. On the contrary, he declines giving a bill of sale, which it is insisted was the proposal of that letter.

The court will not enforce any alleged agreement, unless they can see that it was certain and mutual, and understood by the parties in the same sense. 19 Johns. 205. 12 Johns. 190. 1 Sumner R. 224.

The cases cited in argument were express and certain agreements in writing for particular security. Not demands for security generally. In all these cases, there was an agreement binding certain ascertained property. We need not examine them, that is the fact. The letter of Alexander demanded a sufficient and available security. The answer says you shall be secured on the [**51]  happening of an event. Nothing is said here about negroes as the security. He may as well claim an equity against all the property. Mr. A. could have enforced this agreement against any property, if these negroes had been levied on before the letter.

It is reasonable to infer that he did not mean a bill of sale on his negroes, because they were morally pledged to the judgment creditors, and Alexander knew it, as appears by the answer. R. G. had always refused this, unless they were paid. A bill of sale would be ruinous, &c. Any bill of sale would have the effect of bringing his creditors on him. He may have meant a mortgage. There is no consideration for the agreement set up in the letter.

The prior indebtedness is not sufficient. This was a new agreement for security. At law, as in equity, it must be mutual, and give each party a cause of action. Suppose Alexander were suing at law, what could he say as the consideration of the contract? Suppose the agreement had been, I will sell you the negroes for my debt? 7 G. & J. 404. If R. G. had complied, or were to offer to comply, what performance could he claim against Alexander? He says the consideration was forbearance in agreeing [**52]  to postpone his claim for seven years, to Glenn's mortgage. He cannot be said to forbear doing what he had no design of doing. It is no where averred that he ever designed suing or taking any steps, until after this letter. The postponement by Glenn's mortgage was part of the original contract; and this was abandoned when he demanded a security on different grounds.

But he had nothing to do with this. It is not pretended that his assent was necessary to Glenn's mortgage. He was only called on to make explanations, &c., as counsel and friend of the family; and it was made through his intervention. The letter does not offer the security if he would wait longer. As to forbearance. Chitty on Contracts, 35. 1 Penn. Rep. 385.

He acquiesced in his proposal for further time. Alexander did not consider himself bound by any agreement to forbear, because he prepared his bill, and did not file it, because advised not to do so. The time of this does not appear, but it may have been shortly after Oct. 1845. He does not appear to have had any apprehension of his debt until Sept. 1845.

Another consideration alleged, is the receipt of $ 2,000 by R. G. This might make him a purchaser [**53]  of the judgment he paid. He held this security at the time of the alleged agreement. It turned out to be available for $ 2000. By crediting R. G. again, he has lost it. Can he charge it against this property? If he had kept that security, his claim against these negroes would be $ 2000 less--or rather, he would have two securities, which would protect us pro tanto. But it is no where alleged that this $ 2,000 transaction formed an element of these agreements.

The money was received by R. G., and paid away after the letter of 3d Oct. was received. It was a new advance by Alexander, and not covered by any preceding agreement. How can that be made the consideration of a previous contract?

The receipt of the $ 2000 by R. G., with Alexander's permission, was a payment of that sum of his claim for $ 6,000, (and on her loan for $ 2,000) as against third persons.

Is the contract to be enforced against the defendants?--execution creditors. He says, equity considers as done what is agreed to be done. And hence, because a bill of sale was agreed to be given, equity will treat the property as if it had been given. That is the general rule. But it will not be enforced against a party [**54]  who has not been in default, or against those claiming under such a party. He who seeks equity must do equity. As to Mr. Alexander's lien, when did it become a lien?--conceding that he assented to the letter. Not until the negotiation had failed. When was this? The record does not show. Then our executions may have been levied before it failed; and the onus is on him to show that his lien attached before the executions. 11 G. & J. 326.

In the cases cited on the other side, there were clear and explicit agreements. In all the cases cited on our side, where there was any doubt, the court refused to establish them, as well as in those where there was any suspicion of unfairness. In McMechen vs. Maggs, 4 H. & J. 132, there was express notice of the secret lien. In Aldridge vs. Hall & Weems, 2 G. & J. 30, the agreement was written on the paper, which did not require delivery. Woods vs. Fulton & Starck, 4 H. & J. 329, creditors were not parties. Tiernan vs. Poor, 1 G. & J. 216. Brundige vs. Poor, 2 G. & J. 1, consideration was forbearance, and enforced against the parties only. 6 G. & J., Thomas vs. Von Kapff, was an express agreement on record for the security. Hampson vs. Edelen,  [**55]  2 H. & J. 64. Repp vs. Repp, 12 G. & J. 344. Richardson vs. Stillinger, 12 G. & J. 483, was a case of Vendor vs. Vendee, where the judge says, that all such secret or known equities would be enforced. But that is not this case. There are many reasons for the equity as against a vendee, that do not apply against others. This was arguendo to, and applies to the particular case then before the court; otherwise it would contradict 11 G. & J. 314. That case goes on the ground of agreement, with possession. We had no notice of this secret equity. If we had, we might have saved ourselves, by taking other property.

4th POINT. As to the substitution. These creditors have no one to protect them. They are not parties. Alexander's duty as trustee is to protect all. We rejected the proposal of the counsel, because we have no power to bind the general creditors by our agreement. And besides, I do not perceive the fairness of making them assignees of judgments against the land, by the use of the trust funds. This substitution cannot take place here, because the general creditors are not parties. It may be done in insolvency.

By T. F. BOWIE, also for the appellees.

There is but one [**56]  question here. The priority of Mr. Alexander, over the judgment creditors of R. Ghiselin. He claims under Mrs. Ghiselin, but his contract has no reference to hers. His demand is clear of hers. We represent the general creditors' defendants. The answers of R. Ghiselin and J. Glenn have no effect against us. One co-defendant cannot be evidence against another, under the circumstances here presented. The real defendants are the creditors of Ghiselin, against one who seeks to enforce an equity alleged to be superior to theirs. Warfield vs. Gambrill, 1 G. & J. 503. And this posture of the case excludes the answers of those co-defendants as evidence, who claim against the general creditors. As respects them, the court can only regard the bill and their answers.

If the complainant have no remedy against R. G., he can have none against his creditors. It would be against conscience to enforce the contract against him. The nature of the alleged contract shows there can be no specific execution. Alexander was merely agent, not a contracting party in his own right, nor for himself. The contract was between Mrs. G. and her son, and was to raise $ 15,000. She agreed to release him for treating [**57]  R. G. as vendor. There is no breach on his part which would entitle his mother to specific execution. And as respects the mother, the contract was by parol. This was the agreement of June, 1845. The other complainant, Alexander, seeks to connect that contract with one of October, 1845, though nothing was added by Mrs. G. to the first.

Whether the agreement be in writing, or by parol, with part performance, still it must be specific and certain, both in terms and description of property. This is defective in both. It must be mutual in its stipulations. Alexander was not to advance a dollar. To do nothing but act as counsel. Geiger vs. Green, Ms. Dec., 1846.

The contract was also indivisible in its nature, which is another ground against specific performance. Hamilton vs. Warfield, 2 G. & J. 482. 13 Ves. J. 328. 1 Sch. & Lef. 32. Prec. in Ch'y, 560. 1 Atk. 12. Stark's Ev. 603, 612.

Mrs. G. has only in part performed this contract; and it became impossible for her, by her own default, to perform the residue. She was to raise $ 15,000, or give a lien in advance of her own, to that extent. She stopped at $ 8,000. R. G. was entitled to all the advantages of the contract, according [**58]  to its stipulations. The permission to let R. G. collect $ 2,000 formed no part of Alexander's agreement. The original agreement did not call for it; and therefore, it cannot be relied upon, as an act of part performance.

To set this contract up, will be to divert the value of the negroes from all the general creditors.

The contract is void at law and in equity. It is so under the act of 1729, ch. 8, sec. 5, which declares, that no goods or chattels, whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property thereof be transferred to any purchaser, mortgagor or donor, unless the same be by writing, and acknowledged and recorded, &c. The act, however, not to extend to make void mortgages against the mortgagor, or those claiming under him. As respects R. G., he cannot set up this act; but those who claim against him may. The act was to remedy the effects of secret conveyances, as distinguished from recorded ones. This case is within the mischief of the act. It is not a case in which an effective registration would be decreed. Mrs. G. should not have released her lien until she got an acknowledged mortgage of the negroes to [**59]  be recorded. The contract is void at law, and equity will not set it up. There is no pretence of notice to the creditors, which would make it inequitable on their part to resist. Trumbo Ex. Neff vs. Blizzard & Jacobs, 6 G. & J. 18. Birely & Holtz vs. Staley, 5 G. & J. 456. Stockett vs. Ellicott, 3 G. & J. 125. Warnick vs. Michael, 11 G. & J. 153. Lamborn vs. Watson, 6 H. & J. 252. Moale vs. Buchanan et al., 11 G. & J. 326. Woods et al. vs. Fulton & Starck, 4 H. & J. 329. Pannell & Smith vs. Farmers Bank, 7 H. & J. 202.

By MCMAHON, in reply.

In the spring of 1845, R. Ghiselin's estate was covered by various liabilities. Mortgage in 1834 to his mother. Judgments in 1843 and 1844. In debt to Alexander $ 6,000, to pay off judgments. And also variously liable as endorser and acceptor. He opened a negotiation to pay off judgments; and in order to this, applied to his mother; and by contract with her, she agreed to waive her prior liens for an additional security on his negroes. Alexander knew all this, and willing to come in posterior to Mrs. G., also desired security for his debt. He thereupon prepared three instruments, to be executed by R. G., one to Glenn, one to Edmonson,  [**60]  another to Mrs. G. and himself. These he handed to Ghiselin; as to the instruments, he was to execute and retain them until called for. That to Glenn, was executed in June, 1845. Alexander had hoped to accomplish the entire negotiation; but it failed, and failed by default of R. G. During this period, Alexander wrote him, and received replies, in Sept. and October, 1845. After these letters, and in reliance on the original agreement, Alexander surrendered a security to him, which enabled him to enter a judgment satisfied. In October, Ghiselin sought relief from his creditors through the insolvent laws; and hence this controversy between his unsatisfied creditors and the complainants.

On the question of latent equity, what is the general rule of courts of equity, in such cases as relates to sales and mortgages?

The equity descends on all those who have no superior equity. Massey vs. McIlvain, 2 Hill, 428. Parties and privies are all bound. Agreements binding the conscience are enforced. Dow et al. vs. Kerr et al., 1 Spear, 416, 417. General creditors are bound by a particular equity, if it affects their conscience. Administrators are bound. Thomas' Ex. vs. Von Kapff, 6 G.  [**61]  & J. 381. Taylor vs. Wheeler, 2 Vernon, 564. The bankrupt law in England does not interfere with this power. Lempriere Assignees vs. Pasley, 2 D. & E. 206, 210. Mogg vs. Baker, 3 Mess & Wells Ex. 195. In the matter of Howe, 1 Paige, 125. Fletcher et al. vs. Morey, 2 Sto. Rep. 564. The doctrine is, that with reference to assignees, they take subject to all agreements of this sort. Trustees are also so bound. Burn vs. Burn, 3 Ves. 575. Young vs. Keighly, 15 Ves. 557. Hosford vs. Nichols, 1 Paige, 226. The result is as far as general creditors are concerned, however possessed of the legal estate, they take subject to such equities. Parting with the legal title, the equity attaches to that title. This equity is only arrested by new contracts with the debtor in possession, creating particular equities. The law elects between the vendor and his new creditors. They are misled in such cases. They are ignorant of the secret trust. The new creditor to avail himself of the election, must be a very purchaser for full value without notice. She purchased with notice, there is an end of his equity, and he must purchase a legal title. A purchaser of the equitable title cannot avail himself of the [**62]  legal title. The purchaser of the equitable title must take notice of prior equities.

Who gives the judgment creditor the lien? He proceeds in invitum. The law gives it. For what? Not for the land, but as an indemnity. Liens by operation of law, take only the interest of the debtor. 2 Sto. Eq. 962, sec. 1503, note b.

In England, a deposite of title deeds is an equitable mortgage A creditor by execution takes the interest of the debtor. 2 Sto. Eq. 1502, sec. 1228. Lien for purchase money will prevail against a judgment creditor of vendee before conveyance. Depeyster vs. Gould, 2 Green, 481. As it regards judgment creditors, with or without notice, they take subject to equities. Taylor vs. Wheeler, 2 Vernon, 564. Finch vs. Winchelsea, 1 P. Wms. 277. In the matter of Howe, 1 Paige, 126, 127. Ex. of Polony & Read vs. Keenan, 3 Dessau, 77. Massey vs. McIlvain, 2 Hill, 428. Minns vs. Morse, 15 Ohio, 571. Hampson vs. Edelen, 2 H. & J. 64. A parol, secret, unrecorded, agreement, founded on value, would be enforced against a subsequent judgment creditor; if binding, he cannot sell the land. Repp vs. Repp, 12 G. & J. 341. Richardson vs. Stillinger, 12 G. & J. 483. A sale under fi.  [**63]  fa. would not affect secret equities.

We are, however, now dealing with personalty, where there is no lien until the execution reaches the sheriff, or at most, until it issues. It is a lien by the law, which shall not work any wrong. 2 Sto. Eq. 962, 1503. State vs. Bank of Md. 6 G. & J. 229. The courts cannot avoid prior equities by awarding executions.

I assume, independent of the acts of assembly, if this contract did create an equitable right, the complainants are entitled to enforce it.

Has the act of 1729 changed the rule or modified it? The difficulty arose in Twyne's case, how far conveyance without delivery was a badge of fraud. The possession of a mortgagor being consistent with the terms of a conveyance, did away the fraud. The act of 1729 made continuance of possession conclusive evidence of fraud in certain cases. The act gave the option to deliver up the property, or put your deed on record. Has this case any thing to do with that act? The unexecuted agreement could not be recorded.

Creditors trusting parties after incumbrance upon personalty, is the mischief under the act of 1729. That act nullifies the contract where parties are trusted after the [**64]  agreement. Here they were all prior creditors, and not within the mischief. It relates to actual conveyances of property. The other recording acts show this. By the act of 1763, ch. 14, no estate in slaves to pass, unless by deed recorded. A bond of conveyance could not be recorded until 1831, ch. 305. An agreement for, is not a mortgage. Distinctions have been drawn in other States between real and personal property. 1 Kentucky Laws, 428. 4 Am. Digest, 389, sec. 5. The act of 1729, meant to prevent frauds by parties to incumbrances; but where a title must be pursued through equity, that was left untouched. Courts would act in each case according to circumstances. Creditors under the act of 1785, could not object to recording such an agreement The registry laws have nothing to do with equities. 2 Powell Mor. 624, note o. These acts do not affect the fundamental principles of equity. Hudson vs. Warner & Vance, 2 H. & G. 429. Pannell & Smith vs. Farmers Bank, 7 H. & J. 204. A mortgage for value is analogous to a contract for sale. Security for a debt is likened to a purchaser. Sto. Eq. 656, sec. 1229. In Aldridge & Higdon vs. Weems & Hall, 2 G. & J. 36, a secret equity was enforced.  [**65]  

In Moale & Johnson vs. Buchanan et al. 11 G. & J. 314, the complainants were only assignees for general creditors, volunteers, not purchasers for value. The property assigned, left out of the deed, and the case never relieved of the statute of frauds, until the assignees took possession. When the Marine Bank procured its lien, no right existed to enforce the contract. The delay granted to R. G. was only prejudicial to Alexander. There was no wrong in the original transaction, and none since. It is as right now, as when it started.

How does the statute of frauds affect this cause? That does not relate to all contracts affecting land. It must be an interest in a sale of land, not a mere collateral agreement affecting it. Green vs. Vardiman, 2 Blackf. 331. Addison vs. Hack, 2 Gill, 229.

The pleadings acknowledge the contract with A. and Mrs. G., and this takes it out of the statute.

Again, R. Ghiselin got a part of the consideration. He was to do another act, raise a further sum. His was the first step to be taken. Then Mrs. G's priority was to be waived. She was to release. Such was the order of executing the agreement. These are independent acts. At law, the contract [**66]  would be enforced. R. G. got a part of the consideration, and could not stop. It would be unjust in him to keep what he has, without performing his part of the agreement. 1 Wm's. Saund, 320. As respects Mrs. G., there was part performance, and readiness to perform the residue. R. G. was to convey the negroes for both G. and A., on waiving the lien on the land. It was waived. No new interest in land is sought. The statute of frauds does not apply. It would be a fraud to refuse performance after what was done. The lien waived, cannot be resumed. 2 Sto. Eq. 77, sec. 760. Ibid, 96, 97, 99, sec. 771, 775. As to the consideration of the contract, there is abundant, as respects Mrs. Ghiselin. She waives in favor of all liens; comes in last; this puts her in danger; refuse her the personalty, and she has no lien but the ultimate one upon the land; and if that is not enough, she takes as general creditor only. 2 Sto. Eq. 656, sec. 1229.

Mr. Alexander's contract has also a sufficient consideration. If it was a nude pact, still it was followed by an act done upon the faith of it, to the injury or loss of another. Train vs. Gold, 5 Pick. 384.

There are two considerations. The original [**67]  consideration, and the $ 2,000 after paid, or given up. All such agreements may be enforced against the general creditors.

Then as to the dissolution of the injunction. The bill is confessed. The creditors, in their answer, do not deny one fact in it. Mr. Glenn confesses he knew all about it. There is no latent equity about it. Upon a bill for specific performance, though the case is not fully admitted by the answer, still if enough of specific performance be admitted, the injunction which went with the bill will not be dissolved. 2 Sto. Eq. 94, 95, sec. 770. The drafts of the instruments were delivered on the express condition, that Ghiselin was to assign the negroes. He declines merely upon the ground of his insolvency. The letter of Ghiselin reflects light upon the antecedent transactions, and is pregnant with the results relied on. Bradley vs. Wash., Alex. & Geo. T. Steam Packet Co., 13 Peters, 98.

As to want of bond, prior to the injunction issued. The complainants have an equitable title, were no parties to the judgments, and not bound to pay the debt to the third party. 3 Bland, 615. 1835, ch. 346, sec. 3. 1835, ch. 384, sec. 4. The bond was, in the discretion of the [**68]  Chancellor, to require or not. 1 Bland, 194. The execution creditors had no right to sell after the appointment of a trustee. The injunction killed the process; the execution was at an end. The act of 1805 places the property in the hands of trustee, for beneficial purposes, to be administered by one hand. It is admitted, the sheriff has a special property, subject to the general property. He may maintain trover, but the law may be changed, and this is what the act of 1805 has accomplished. There ought to be no divided administration. It is so under the bankrupt law of Congress, which is far short of our insolvent act of 1805.  

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

OPINIONBY:
CHAMBERS 

OPINION:

 [*178]  CHAMBERS, J., delivered the opinion of this court.
The first objection to the continuance of the injunction in this case is, that the appointment of the trustee did not suspend the rights of creditors to enforce their judgments.
The 5th section of the act of 1805, ch. 110, provides that the insolvent shall convey to his trustee all the property he has in possession. The 7th section directs a sale to be made of all the property conveyed to the [**69]  trustee, and applies the proceeds to general creditors, after satisfying all judgments, incumbrances and liens; but no judgment to be entered after the insolvent's application shall be a lien on his real property, nor shall any process against his real or personal property have any effect thereon, except writs of fieri facias, actually and bona fide levied before such application.
It is alleged that "the insolvent is to convey what he possesses," the receipt of which the trustee is to acknowledge, the trustee is to "sell what is conveyed," of course he is to sell only what the trustee has in his actual possession. If this be so, then the property in the hands of a tenant, a bailee, or a 

 [*179]  trespasser, belonging to an insolvent, is not to be sold--nor a mortgaged estate in possession of a mortgagee, although the mortgaged premises might be worth in a fair market, tenfold the amount of the debt: a construction which results in such conclusions cannot be adopted.
Again it is contended, that the provision, "no process against real or personal property shall have any effect thereon, except writs of fieri facias, actually and bona fide levied before such application,  [**70]  " virtually asserts, that in the excepted case it shall have effect, and it is assumed that the sale by the sheriff must be the effect intended. This assumption is not warranted. The design of the law was to allow full force and effect to an execution levied as a lien or incumbrance, in connection with which words the process is mentioned, but not to determine, or in any manner to indicate, by whom a sale was to be made.
The true construction then of the act of 1805, and the supplementary acts relating to insolvent debtors, requires the trustee to take into his possession all the estate and effects to which the insolvent had the right of possession at the time of his application, and to sell and dispose of all his property, whether in possession, reversion, or remainder, and pay off the liens and incumbrances thereon, and to regard an execution as a lien upon personal property only in the case where it was actually levied before the insolvent's petition.
The effect is certainly an important one. In the case of personal estate, it secures to the execution creditor a priority over all judgments not in the same condition, by making his debt a specific lien on the property seized [**71]  in execution. There may possibly be cases in which a priority might be acquired over other judgments or incumbrances of equal date, in respect to real estate.
The leading and general design of all bankrupt and insolvent laws, is to insure a prompt and complete settlement of all the affairs of the party, and an early distribution amongst the creditors, as nearly in equal proportions as a regard to positive and acknowledged preferences will admit. To facilitate these objects, our law has wisely given to the trustee, to be appointed 

 [*180]  by the court, the entire management of the estate, subject of course to the control of the court by whom he is appointed, charging him with the duty of paying off liens and incumbrances, to which the estate might be subject. His duty requires him to make the earliest disposition and settlement regarding the interests of all the creditors--the particular lien creditor included--and brings all the claimants before one tribunal, whereas, by allowing sheriffs and mortgagees to participate in the administration of the trust, adverse interests are created, delays endangered if not ensured, and probably different, and possibly conflicting tribunals consulted.  [**72]  
The next ground of defence against the claim of the appellant, is that the agreement relied on in the bill, not being in writing, is void by the statute of frauds. If the assumption taken in the argument, that the alleged contract related to land as well as personal property, were well founded, it would be fatal. But the contract stated, and which the bill asks to have enforced, is an agreement to mortgage personal property alone. The debt was due from the party contracting, not the debt of another, and it was to be performed forthwith, so that the provisions of that statute do not affect it.
It is said however, that the registry acts, and particularly the act of 1729, ch. 8, make it void, as against creditors. This objection goes to the whole extent of the position, that an equitable mortgage cannot be enforced, except against the contracting party. No exception is made in the act, the terms of which are broad enough to defeat a bona fide purchaser, who has paid his money on the faith of a legal transfer or security, to be forthwith executed, if the rights of a creditor should happen to intervene, although the creditor had full notice of the transaction. There certainly [**73]  is great difficulty in any general legislation on the subject, to avoid individual cases of serious hardship. The manifest injustice and oppression which a rigid execution of these registry acts according to their letter, would occasion, has led courts of equity to construe them as they have the statute of frauds, in a way to avoid many of the inconveniences and injuries which a literal 

 [*181]  interpretation would inflict. How far in the aggregate the benefits of such a construction exceed the mischiefs, it is not the province of this court to decide. Wise and experienced jurists have differed in their opinions as to which would have been the more judicious course. All however agree, that a literal construction was not adopted, and to abandon at this period the precedents of all past time, would be to unsettle titles to property, destroy an entire system of chancery jurisprudence erected upon the supposed equity of these laws, and matured with the concurrence of many legislative enactments, and throw doubt and confusion over a large and important branch of the law, most intimately affecting the rights of every species of property.
Certainly it would be a novel doctrine in  [**74]  Maryland, to assert that the Chancery court cannot specifically execute a contract for a mortgage, or other equitable lien against creditors. The rule that "equity regards as done that which was agreed to be done," was imported with other parts of the system by our ancestors. The instances in which it has been enforced, and against the very terms of the registry acts, are numerous.
The every day occurrence of proceedings to enforce a conveyance bond, is a familiar instance. Who doubts the authority of a Chancery court to direct a conveyance, where the party in possession, under a bond of conveyance has paid the purchase money; or that the title would prevail against creditors whose judgments were intermediate between the creation of the equitable title by the bond, and the legal title by the decree and deed? and yet our registry laws all the while declare that no estate in the lands for above seven years, shall pass, alter or change, except by a conveyance formally acknowledged and registered within a limited period.
Indeed, some of the appellee's solicitors did not deny that a written contract to execute a mortgage clearly expressed, made bona fide, and for full value, would [**75]  raise an equity for the party claiming under such contract, that would prevail over the legal rights of creditors. The decisions of this court in the cases referred to at the bar, so clearly establish this doctrine that it 

 [*182]  is impossible to doubt it. They object however, that this contract is not in writing. It is asked by way of answer to this objection, by what law is a written contract required? The equity is as great, all other considerations being equal, in the one case as the other. The danger of mistake, and the greater facility of obtaining false testimony in the proof of a verbal agreement, has occasioned statutory enactments, distinguishing them in certain enumerated cases. In all others they are on the same footing; personal property may be transferred in many instances, and the title pass by parol contract. We know of no decision which has asserted that a contract to execute a mortgage for personal property, may not also be by parol, except in the cases which the statute of frauds requires to be in writing. On the contrary, several of the cases cited were on parol contracts. See Mogg vs. Baker, 3 Mees & Wels. 195. Massey & McIllvain, 2 Hill 421. [**76]  M'Mechen & Maggs, 4 H. & J. 132. If the contract be as well established, it imposes the same moral and equitable obligation to perform it, when made verbally, as if made in writing, and the legal effect of the terms of the agreement will be the same in the one case as the other.
The greater difficulty of proving the precise terms and import of the agreement is necessarily incurred by the party setting it up, and courts of equity have properly required that every agreement shall be clearly and explicitly established, before they will lend their aid to enforce it.
A further objection to the contract alleged in this bill is, that it has not the certainty and explicitness required, so far as regards the alleged agreement with T. S. Alexander, and with regard to that, with Mrs. Ghiselin it was contingent, and that she has not performed the condition on which it was to depend.
And first, as to Mrs. Ghiselin's agreement the statement is, that she held a clear mortgage, so far as it appears, the first incumbrance for $ 10,000 on the whole real estate, said to be worth $ 40,000: thus secured, she was prevailed on to agree that this incumbrance should be postponed, [**77]  in favor of the individuals who were expected to loan the sum of $ 15,000 to 

 [*183]  her son, to pay off and discharge the liens on his estate and other debts, on condition that she should receive as additional security, a mortgage on the negroes of her son. Two individuals had promised to loan this amount on receiving mortgages, to which hers should be postponed, and it was confidently anticipated by all, that the $ 15,000 would be procured on these terms. The deeds were prepared, as well the mortgages to the persons who were to loan the money, (one of which for $ 8,000, was executed both by Mrs. Ghiselin and her son) as the mortgage to Mrs. Ghiselin on the negroes. In this condition of things, the person who had agreed to loan the remaining $ 7,000, declined doing so, and the amount could not be and has not been procured.
In a court of law, a party claiming under a contract must claim according to its terms. If he venture to speculate on a contingency, over which he has no control, he must abide the issue, and if the event does not occur as he assumed, the contract is at an end. But even at law, if one party be prevented by the other from performing the contract, he [**78]  can recover from that other by showing a performance of as much as it was permitted him to perform, and a readiness to perform the residue.
The rule in equity is much more broad, and permits a party specifically to enforce a contract, who has performed so much of it as to incur loss; if he is in no default for not performing the residue. The argument must assume that Mrs. G. was to procure a lender before she can be in default. Such certainly was not the case. Her contract was to release to the persons from whom her son was to procure the loan. If Edmonson had refused, and another person had been found by Robert Ghiselin willing to make the loan on the same terms, she was bound by her contract to release to such other person. But it was the office of Robert Ghiselin to find the lender, and it was his failure to do so, that made it impossible for her to release according to her contract.
She is therefore in the attitude of a party who has performed so much of the contract as it was possible, and ready 

 [*184]  to perform the rest, but prevented from doing so, by the act of the other contracting party. This part performance has occasioned a postponement of her lien [**79]  to the extent of $ 8,000; she is not therefore, as the authorities describe it, "in statu quo." To this extent, she is injured by her part performance, and is entitled therefore to a specific execution of the contract, or to such relief as in the altered condition of the property is equivalent thereto.
Then, as to Alexander, the statement of the bill is, that being the son-in-law of Mrs. G., and participating in the arrangement by which her former lien was to be waived, and her debt further secured by a mortgage on the negroes, and finding that his large claim would be postponed for many years, "he required, and Ghiselin agreed, that Alexander should likewise have a security and indemnity upon said negroes." The terms of this agreement do not seem to be vague or uncertain; a creditor in procuring from his debtor the security of a mortgage on his family of negroes, another creditor engaged in the arrangement, and finding mortgages given upon the land on a long credit, and a mortgage on the negroes for a still longer credit, and anticipating great delay in the payment of his debts, demands of the debtor "to give him indemnity and security on the same negroes," and the [**80]  debtor agrees to do so. It is clearly a contract to secure the last named creditor by a mortgage on the same negroes, which were previously agreed to be mortgaged to Mrs. Ghiselin, and of course subject to her mortgage; so far then as this statement of the agreement is concerned, it is not subject to the exception taken. But it is said another contract is alleged, and a different one, in that part of the bill which is supposed to rely on the language of the bill of sale, as the contract. In regard to that transaction it is alleged that Alexander, at the request of Robert G., prepared the deeds, including the mortgage of Robert G., to both Mrs. G. and Alexander, of his stock of negroes, which mortgage was delivered to R. G., and is filed as an exhibit in the cause. Now this is either a subsequent agreement, or it is not. If it be a subsequent agreement 

 [*185]  it must supersede the first, as far as they differ; and then the agreement to execute this particular mortgage must be regarded as the subsisting and only contract between the parties. If it be so, and such is the correct view of the case, there is an end to the objection now discussed. Whatever [**81]  reason may be urged against it, most clearly the want of sufficient certainty cannot.
If however, it be not regarded as a subsequent contract, then the effort to enlarge by the mortgage, the terms of the original agreement, will not render it more vague or uncertain than it was originally.
The question of consideration, so far as regards the agreement with Alexander, was alluded to in the argument, but chiefly in reference to any supposed contract, based upon the consideration of forbearance. Whether an existing creditor demanding specific security for his debt, and obtaining the promise of the debtor to comply, is to be considered in a court of equity, as favorably as a creditor, who at the moment of becoming a creditor, obtains a pledge for a specific security has been much agitated, and the decisions have not been uniform on the subject.
In Burn & Burn, 3 Ves. 573, a case is cited as having been decided both by the then Chancellor, Lord Rosslyn, and his predecessor, Lord Thurlow, in which the facts were these:-- Sir Simeon Stuart being pressed by a creditor in his neighborhood, engaged by letter to "make him a mortgage upon some part of his [**82]  Hampshire estates," and afterwards made a conveyance to trustees, for the payment of all his debts, and died leaving both general and judgment creditors, and without having executed the mortgage. It was held that the agreement to mortgage was to be regarded in equity as a mortgage from the date of the letter, and the debt was classed before the judgment creditors. The authority of that decision is sanctioned by sound reason. If a general creditor who has indulged his debtor on the faith of his ability to pay all his debts, shall commence the race of vigilance, as soon as the prospect of declining ability shall disclose the probable prudence 

 [*186]  of a specific security, and by pressing his debtor does all be can to obtain a lien on a particular portion of his debtor's effects, how will justice or equity be violated by compelling the debtor to execute his agreement, if by accident or from unwillingness he has failed to comply with it, more than in the case of a party who relies on a similar agreement, and advances a consideration on the plighted faith of the other contracting party?
The existence of a debt is at law a consideration for an express promise, equivalent to the [**83]  advance of an equal amount for the transfer of property, and certainly ought to be a sufficient basis in equity on which to rest an agreement, fair in all other respects, and will sustain an agreement by a debtor to give a specific lien to a creditor.
The late case of Burn vs. Carvalho, 4 Myl. & Craig 690, fully confirms this doctrine. There the debtor having property in the hands of his agent abroad, agreed with his creditor to apply such property, or a sufficient part of it, to the discharge of his liability, and sent directions to his agent for that purpose, but became bankrupt before his instructions had or could have reached the hands of the agent.
The assignees of the bankrupt in an action of trover, recovered the goods which had been delivered subsequently to the commission, issued against the bankrupt. Yet the Vice Chancellor, and subsequently on appeal, Lord Chancellor Cottenham held the agreement to give the lien, and it was enforced against the creditors claiming under the commission.
It is by one of the solicitors particularly urged upon the court that the lien cannot in this case be made out against Robert Ghiselin, and hence he concludes it cannot possibly [**84]  be enforced against the creditors. It is to be remembered that the case is now before the court on a motion to dissolve the injunction on the bill and the answers; that the answers are to be taken as true, so far as they affect the interests of the defendants respectively making them, and so far as they are responsive to the bill, and the statements of the bill are to be received as true so far as they are not denied.

 [*187]  It has been shown that the bill alleges an agreement sufficient to entitle the appellant to the aid of the court, if it be made out. It is conceded the answers of the other defendants, except Ghiselin, do not deny the agreement--they profess to know nothing on the subject, and rely on their legal and equitable rights.
The answer of Ghiselin in so many terms, admits "that the complainant Alexander, proposed, and he agreed to give him also a lien on his negroes as security for his debt," and also "that the various papers set forth in the bill, (amongst which, be it remembered, is the mortgage to Mrs. Ghiselin and Alexander) were prepared by said Alexander, at his (R. Ghiselin's) request;" he alleges however, that the mortgage was [**85]  to be a security for the debt, after the $ 15,000 should be raised and received as contemplated, and denies that he ever agreed to give such mortgage to the "prejudice of the then existing judgment creditors."
As against him, therefore, it would seem obvious, there must be an enforcement of the lien, so as not to affect judgment creditors being such at the date of the agreement--admitting what perhaps might well be doubted, that this part of the answer was strictly responsive, and not in avoidance. How far this restriction or qualification would, if proved, affect the case at any future stage of it, we are relieved from the necessity of considering, because the complainant Alexander, in person and as solicitor for Mrs. Ghiselin, has expressed to the court during the argument, their entire willingness to have such qualification attached to the agreement, and to claim their liens thereunder, subject to existing judgments, and allowing them a priority.
It appears therefore, that in the present position of the case, the bill being admitted by one defendant and not denied by the others, the agreement must be regarded by the court as subsisting. How far its existence subject [**86]  to the prior rights of judgment creditors, would have entitled the appellants to claim a continuance of the injunction, is a question not necessary to discuss, because the injunction was proper on the other 

 [*188]  ground, that is to say, the right of the trustee to administer the fund.
The only remaining objection is that an injunction bond was not filed. It is certainly proper as a general rule, very rarely, if ever to be departed from, that an injunction bond should be required when an application is allowed that delays the recovery or receipt of money, or which lessens or in any respect endangers any existing securities, or renders liable to loss thereby any money or profits, or property, which the adverse party is by the injunction prevented from receiving or enjoying. There should have been an injunction bond in the present instance, and on failure to file it before the injunction issued, the defendants in the court below could and should have applied by petition for an order requiring such bond to be given by a reasonable period, to be limited for that purpose, or, on default to have the injunction dissolved. Such a proceeding would still be proper, and would be directed [**87]  in the court below, if the continuance of the injunction was dependent upon a question of fact or law yet to be established.
But whatever might be said, if there was any longer a doubt as to the issue of the application for an injunction, it would be an idle and perfectly useless form, and of course unnecessary now to require an injunction bond, because it is the direct result of the opinion above expressed, that the injunction, the only effect of which is to restrain the judgment creditors from proceeding to sell, must be perpetual, it being in all the answers admitted that the complainant Alexander is the trustee duly appointed under the insolvent law, and therefore having authority to take into his possession all the effects of the insolvent, and administer them as he must do, on the responsibility of his bond as trustee.
The case must however be remanded for the purpose of allowing further proceedings and such final decree as justice and equity shall require, upon proof to be taken in relation to the agreement alleged in the bill.
DECREE REVERSED AND CAUSE REMANDED.  

27 of 33 DOCUMENTS 

JOHN GUY vs. SAMPSON TAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 82; 1847 Md. LEXIS 51 

December, 1846, Argued 

December, 1847, Decided 

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

This was an action of assumpsit, commenced on the 6th December, 1843, by the appellee against the appellant. The defendant pleaded non assumpsit and limitations.

After verdict for the plaintiff, there was a motion for a new trial, which the County Court overruled.

The plaintiff offered in evidence the following notes, to wit:

"Phila., July 5th, 1839.

"$ 112 40.--Sixty days after date, I promise to pay Sampson Tams, or order, $ 112 40, value received, without default; payable at the counting-house of Mr. M. Newkirk, Market Street.     JOHN GUY."

"Phila., July 5th, 1839.

"$ 112 40.--Ninety days after date, I promise to pay Sampson Tams, or order, without defalcation, for value received, $ 112 40; payable at the counting-house of Mr. Matthew Newkirk, Market Street.     JOHN GUY."

The plaintiff then called Kerr as a witness, who proved, that on 25th Nov. 1841, Mr. Sampson Tams, plaintiff, called with witness at Guy's house; and in the course of conversation with Guy, Tams said, you (G.) are aware that I never troubled you for the payment of what you owed me. Guy then said, I am aware of it, and if I am allowed [**2]  a little time, I will pay your debt; and that he would certainly do his best for him, Tams.

On cross-examination, witness said he had not been invited to go to Guy's house to hear any conversation between T. and G.; that he made a memorandum of the conversation the next day in one of his books; and on producing it, the memorandum was as follows:

Memorandum. On 25th Nov. 1841, Mr. Sampson Tams, W. J. Kerr and myself, called in the evening about ten o'clock at the public house, kept and known as Guy's Monument House; in course of conversation between Mr. Guy and Mr. Tams, he, Mr. T. said, that he never troubled him for the payment of what he (Guy) owed him. Whereupon, Mr. Guy said he was aware of that, and if he was allowed a little time, he would pay his debt; and that he would most certainly do his best for Mr. Tams.

E. M. Kerr, witness, then said, that he had first made the memorandum to read "all his debts," but immediately corrected it by erasing the word "all," and the letter "s" after debt--thus applying Guy's promise only to Tams' debt, because he so understood Mr. Guy to say. Witness also stated that he was, for many years, a partner of Mr. Tams, but not until [**3]  after the debt of Guy's was contracted, and is not interested therein. Whereupon, defendant prayed the court as follows:

1st. That if the jury shall believe that, at the interview between Tams and Guy, Tams said to Guy, I never troubled you for the payment of what you owed me--and Guy said he was aware of it, and if he was allowed a little time, he would pay all his debts; and that he, Guy, would most certainly do his best for Mr. Tams; that such is not a new assumption to take the case out of the statute of limitations.

2d. That if the jury believe that Tams went with witness, Kerr, to Guy's house, and that while there, Tams entered into conversation with Guy and said to him, I never troubled you for the payment of the debt you owed me; but did not produce or shew any evidence or evidences of debt to said Guy, nor say nor intimate that he then held two notes of said Guy, or indicate to Guy, in any manner, the amount of his claims then, although the jury believe that in that conversation Guy did say, if you will allow me a little time, I will pay your debt, and he would certainly do his best for him--does not remove the bar of the statute of limitations. Both of which prayers,  [**4]  the court (ARCHER, C. J., PURVIANCE AND LE GRAND, A. J.,) refused to grant. Defendant excepted.

The defendant prosecuted this appeal.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Where the court is called upon to instruct the jury as to the law arising on the facts, this impliedly assumes the correctness of the pleadings.

Where a claim would be barred by the statute of limitations, but for its revival by a subsequent promise to pay, it is not necessary to declare upon the new promise. Its effect is to revive the old, original, cause of action, by removing the statutory bar. It is not material whether the new promise be absolute or conditional. It is a matter of evidence, not of pleading. If conditional, it must appear to have been performed.

Where a debtor promises that, if allowed a little time, he would pay all his debts, and the creditor forbore to sue for two years, that is sufficient performance.

Whether a new promise, made by a debtor within the time of limitations, applies to the original debt, is a fact for the jury.

Before the court can grant a prayer of the defendant--that the evidence offered by the plaintiff does not remove the bar of the statute of limitations--it must assume the truth of every fact, in support of the plaintiff's claim, which the jury, under the testimony, are competent to find.

To remove the bar of the act of limitations, it is not necessary that the creditor, at the time of a new promise, should exhibit the evidence of his claim, or state the precise nature or amount thereof. These are facts for the jury, who must find to what debt or claim the new promise related. If the plaintiff shows but a single indebtedness, it may apply to that; and then, if the debtor alleges a different debt, the onus of proving it rests on him.  

COUNSEL:
By MEREDITH for the appellant, and

By MCMAHON for the appellee.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*84]  DORSEY, J., delivered the opinion of this court.
The defendant's first prayer is as follows:
"That if the jury shall believe, that at the interview between Tams and Guy, Tams said to Guy, I never troubled you for the payment of what you owed me; and Guy said he was aware of it, and if he was allowed a little time, he would pay all his debts, and that he, Guy, would certainly do his best for Mr. Tams; that such is not a new assumption to take the case out of the statute of limitations."
This prayer raises no question as to the conformity of the proof to the pleadings in the case; it impliedly assumes the correctness of the pleadings; and simply calls on the court to instruct the jury, as to the law arising on the facts which it contains. But were it otherwise, and the court below 

 [*85]  were assumed to have made its refusal [**5]  as well upon the pleadings as the proof recited in the prayer, the propriety of the decision would not be affected by the assumption. In this State, where a claim would be barred by the statute of limitations, but for its revival by a subsequent promise to pay, it is not necessary to declare upon the new promise. Its effect is not to give a new and substantive cause of action, which must be declared on as such, but to revive the old, original, cause of action, by removing the statutory bar. The original cause of action may be declared on, as it has been in this case, in the same manner as if it had never been obnoxious to the plea of limitations. If such be the law where the new promise is made, after the statutory bar has become complete, a fortiori should, such, the law, be applied to a case like the present, where before the bar attached to it, the new promise was made--and in this respect, it is immaterial whether the new promise be absolute, or conditional. It is wholly a matter of evidence, not of pleading; and the original cause of action is as effectually revived, the bar of the statute as fully removed, by a conditional promise, the condition of which has been performed,  [**6]  as it would be by an absolute promise.
What is the nature of the new promise stated in the prayer to have been made in the case before us? That, if he were allowed a little time he would pay all his debts. The condition for the allowance of a little time has been fully performed by the forbearance of the plaintiff below for nearly two years in the prosecution of his claim. To the interpretation given by the appellant's counsel to the concluding words of the promise, and that he, Guy, would certainly do his best for Mr. Tams, we cannot accede. Those words were not used to revoke or change the previous promise to pay if a little time were allowed him; but to strengthen and inspire confidence in the promise made, and to induce its acceptance. Had it been the intent of the appellant to promise to pay when he should be able, he would have used apt words for that purpose, and not made, as he did, a positive promise of payment, if but a little time were allowed him. In refusing the instruction required 

 [*86]  by this prayer, the County Court does not say that the promise made, if found by the jury, is sufficient to take the case out of the statute of limitations. In doing so,  [**7]  it would have trenched upon the province of the jury, in finding or assuming the fact, that the promise was made in reference to the debt due the appellee, of which debt, proof had been adduced before them. By granting the prayer, the court would in effect have instructed the jury, that under the proof in the cause, it was not competent for them to find that fact; and in doing so, it is conceived there would have been manifest error. We therefore approve of the court's refusal of the defendant's first prayer.
By the second prayer, the defendant called on the court to instruct the jury, "that if the jury believe that Tams went with witness, Kerr, to Guy's house, and that while there, Tams entered into conversation with Guy, and said to him, I never troubled you for the payment of the debt you owed me, but did not produce or show any evidence or evidences of debt to said Guy, nor say, nor intimate, that he then held two notes of said Guy, or indicate to Guy in any manner the amount of his claim, then, although the jury believe, that in that conversation Guy did say, if you will allow me a little time I will pay your debt, and he would certainly do [**8]  his best for him, does not remove the bar of the statute of limitations." Before the court could have granted this prayer, it must assume the truth of every fact in support of the plaintiff's claim, which the jury under the testimony before them, were competent to find. It must, therefore, assume, as facts found by the jury, that apart from the statutory bar, the defendant was indebted to the plaintiff in the amount of the two promissory notes, of which he had given evidence; that such indebtedness was the identical debt to which the plaintiff and defendant referred in their conversation detailed in the prayer; and that since the promise, nearly two years elapsed before the plaintiff had instituted the present action for the recovery of his claim. These were facts dehors the prayer, and for the finding of which, by the jury, there was evidence before them legally sufficient 

 [*87]  for that purpose. To remove the bar of the statute by a subsequent promise to pay, it is not necessary that the creditor at the time of such promise, should exhibit the evidence of his claim, or state the precise nature or amount thereof. These are facts to be found by the jury, who try the issues [**9]  joined between the parties in the suit instituted, for the recovery of the debt. The jury must also find to what debt or claim the subsequent promise related. Should the evidence on the part of the plaintiff show but a single indebtedness, the subsequent promise might well apply to it. If the debtor alleges that there was a different debt to which his promise might apply, the onus of proving it rests on him. See 2 Greenleaf's Ev. 356, sec. 441. To have warranted the court in giving the instruction demanded by the second prayer, the proof in the cause must have been legally insufficient to have authorized the jury in finding the two following facts, viz: That the promise related to the debt, of which testimony had been given; or that after the promise, a little time was not given by the plaintiff before the institution of his suit. Believing the testimony before the jury amply sufficient to warrant them in finding both those facts, the County Court committed no error in refusing the defendant's second prayer.
JUDGMENT AFFIRMED.  

28 of 33 DOCUMENTS 

JEREMIAH T. LOOCKERMAN AND OTHERS vs. LYDE G. MCBLAIR AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 177; 1847 Md. LEXIS 58 

December, 1847, Decided 

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

The bill in this cause was filed by the appellants on the 2d May, 1845, and represented that the late Jeremiah Townley Chase was, in his life-time, seized of sundry lots on Whetstone Point, in the City of Baltimore, and being so seized at the time of his death, by his last will and testament, so executed as to pass real estate, devised the same to his grand-children, and departed this life; that at the time of his death, there were living the following grand-children, &c.; that after the death of the said testator, there were born the following children of his son, R. M. C., viz: Thomas, Sally, and Richard Chase, who set up some claim under said will as grand-children, and as such, having a right to participate in said estate. The bill then proceeded to set forth the various interests and assignments of the devisees of the said J. T. C. under his will--alleged the estate could not be divided without loss to all the parties; that their interest could only be separated by a sale, which was prayed. Many of the parties were infants. After the answers were filed, and proof taken of the will of J. T. C., dated 26th December, 1823, which contains,  [**2]  among others, the clause following, viz:

"I will, devise and give to my dear grand-children, my lots on Whetstone Point, Nos. 10, 11, 12, to them, and their heirs forever, to be equally divided among them."

On the 17th November, 1845, the Chancellor (BLAND) decreed that the real estate in the proceedings mentioned, be sold for partition, &c.

The trustee reported a sale, which was confirmed, when the cause was referred to the auditor for a distribution of the proceeds.

The auditor reported two accounts, in one of which he made no allowance to Thomas, Sally, and R. M. Chase, Jr., grand-children, born after the death of the testator, J. T. C., while in the other account, he placed those grand-children upon the footing of the others.

The Chancellor ratified the latter account; and the other grand-children appealed therefrom.  

DISPOSITION:
DECREE REVERSED.  

HEADNOTES:

Under a devise "to my dear grand-children of my lots on W. Point, to them, and their heirs forever, to be equally divided among them." Grand-children born after the death of the testator do not take any thing.

In this case the devise is immediate: those entitled to the devised premises became so entitled as soon as the testator died. The description of the persons to take, is general; and only those who can take at the time of the testator's death, came within the description.

This devise comprehended all persons answering the description at the time of testator's death.  

COUNSEL:
By MCLEAN for the appellants, and

By RANDALL for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*179]  MAGRUDER, J., delivered the opinion of this court.
The late Jeremiah T. Chase, died in the year 1828. He made a will [**3]  dated in 1824, to which several codicils were added. One of the devises is in these words: "I will, devise and give to my dear grand-children, my lots on Whetstone Point, Nos. 10, 11 and 12, to them, and their heirs forever, to be equally divided among them."
At the time of executing the will, the testator had several grand-children in being. Others were born after the will was executed, but before his death; and the son of the testator had three children born after the death of the latter; the eldest of them was born in 1830.
An application having been made in behalf of the last three grand-children to be considered among the devisees, (each entitled to an equal interest in the devised premises with each of the older children) the Chancellor so decided, and the single question now to be determined is, whether those three children born since the death of Mr. Chase, have, in the premises devised to his grand-children, the interest which the Chancellor has allowed to them.
If the property is not to vest immediately after the death of the testator, but the vesting of it in possession is postponed, then such grand-children as are born before the property does vest in possession,  [**4]  may take. In this case, however, the devise is immediate. Those who are entitled to the devised premises became entitled to the land, so soon as the testator died--the description of the persons to take is general, and only those, who at the time of the testator's death came within that description can take.
In 3 Bro. Chan. Cases 404, note A, to Andrews and Partington, it is said that the testator's intent must prevail. This is not always the case. Lord Eldon, in Walker vs. Shore, 15 Vez. 125, said, "the construction I am obliged to make in this cause, may break in upon the actual intent of the testator: 

 [*180]  this rule, we are told by the master of the rolls, 11 Vez. 238, is a rule of necessity, and as soon as any became entitled to a vested interest in possession, after-born children," (of course, grand-children,) are excluded.
But we discover nothing in this clause of the will, nor in all the clauses of the will taken together, from which can be inferred a manifest intent that all the children of his children, no matter when born, should have a portion of the estate devised.
The will itself, (if we knew nothing of the [**5]  testator,) furnishes abundant evidence that it was written by a man able to express whatever was his intention. If indeed a doubt could exist in regard to the intent here, the question to which it might give rise could only be made by a different class of these claimants. Those born at the time of the execution of the will, might, with some reason, insist that the intent could not be to give to any who might be born afterwards, an interest in the devise, and might refer to the expression, "my dear grand-children," as not used in reference to children, who possibly may--but possibly may not--ever be in esse, and certainly not to those of whose existence, of course, he would not have any knowledge. This is the case, however, of a general devise to grand-children, as a class, and in such a case the authorities collected in the note to which reference has already been given in 3 Brown, show the devise "comprehends all persons answering the description at the time of the testator's death."
A decree will be signed reversing the Chancellor's order, and in conformity to this opinion.
The costs in chancery and in this court to be a charge upon the fund.
DECREE REVERSED.  

29 of 33 DOCUMENTS 

GEORGE H. WILLIAMS, TRUSTEE, vs. AMOS A. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 88; 1847 Md. LEXIS 8 

June, 1847, Decided 

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

In the matter of the petition of Amos A. Williams and another, for an order of the court on George H. Williams, trustee of George Williams, an insolvent debtor, to sell certain stock of the insolvent.

On the 20th Nov'r, 1846, George H. Williams, the trustee in this case, was ordered and directed to proceed forthwith to make sale of all right, title, and interest at law, and in equity, of the said insolvent, in the thirty-five shares of stock in the Savage Manufacturing Company, returned upon the schedule of said insolvent as being mortgaged to Martha Weld; said sale to be made in the city of Baltimore, and free from all liens on said stock, created by said insolvent; and the trustee before proceeding to sell shall give notice, &c., and to report for ratification, &c.

From this order, the trustee appealed to this court; and at this term, the appellee moved to dismiss the appeal, upon the ground that it was unauthorized.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

The trustee of an insolvent debtor cannot appeal from an order of the county court, before which the application of the insolvent is depending, directing him to sell the right and title of the insolvent to certain stock mentioned in his schedule of effects.

Such an appeal is not authorized by any act of assembly; and it is not a case either at law, or in equity.  

COUNSEL:
By C. YELLOTT and R. JOHNSON for the motion, and

By OTHO SCOTT and JOHN NELSON contra.  

JUDGES:
The motion to dismiss was argued before CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [**2]  
 [*89]  MAGRUDER, J., delivered the opinion of this court.
It is insisted by the appellee, that from the order of Harford county court, which is the ground of this appeal, the party appealing has no right to appeal.
This presents the question now before us.
This is an appeal from an order, passed by Harford county court, in the case of George Williams, a petitioner for the benefit of the insolvent laws of this State. The application of the petitioner was made the 19th December, 1843, and was made to a justice of the Orphans court of Harford county. On the 12th April, 1845, the justice of the Orphans court, to whom the application was made, directed a sale of the property of the insolvent. But this order was not passed until long after the proceedings before him, upon the application of the insolvent, had been returned by him to the county court. And when by the condition of the bond taken by the justice, the trustee was required in all things to observe, obey, and perform the orders, judgments and directions of Harford county court in the premises. The insolvent obtained his final discharge, and the record informs us what proceedings were had in Harford [**3]  county court before the 20th November, 1846. On that day, Harford county court passed an order that the trustee proceed forthwith to make sale of all right, title, and interest at law, and in equity, of said insolvent, in thirty-five shares of stock in The Savage Manufacturing Company, returned in the schedule of said insolvent as being mortgaged to Martha Weld, and prescribing the terms of sale. From this order the trustee appealed to this court.
A more particular notice of the proceedings in this case might be necessary, if the right of the appellant to appeal was established. But we are of the opinion, that from such an order, he had no right to appeal. No act of assembly authorizes it; and we must reverse the decision of this court in the case of the Wilmington and Susquehanna Rail Road 

 [*90]  Co. against Condon, (8 G. & J. 443,) before we can entertain this appeal. This is no case, either of law, or of equity. There can be no right of appeal in such a case as this--of course, this court is not authorized to express an opinion on the several points which have been discussed.
APPEAL DISMISSED.  

30 of 33 DOCUMENTS 

AMOS A. WILLIAMS vs. GEORGE H. WILLIAMS, TRUSTEE OF GEORGE WILLIAMS, AN INSOLVENT DEBTOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 84; 1847 Md. LEXIS 7 

June, 1847, Decided 

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

In the matter of George Williams, an insolvent debtor, upon the petition of the appellant, the county court (ARCHER, C. J.) on the 31st July, 1846, passed the following order:

For misbehavior by the trustee, the county court may remove him by the power conferred on it by the 10th sec. of act of 1805, ch. 110. But no power is conferred either directly or constructively to associate with a trustee another who is to participate with him in the discharge of the duties which he is bound by law to perform. The application of A. A. Williams and other creditors to associate Mr. Yellott with the present trustee, in the administration of the trust, cannot be gratified.

It does not appear from a careful reading of the testimony taken in this case, that any sufficient reason has been assigned for setting aside the sale of the stock of the insolvent in the Savage Manufacturing Company.

The sale was made in Bel Air in conformity with the order of the judge, which order was in conformity with such as are usually obtained by trustees, and the place of sale was not solicited by the trustee. It was advertised for the usual time and in the usual [**2]  manner, and the sale, although not made on the most public day, yet was made where sales have been frequently made. Had the sale of the stock been ordered in Baltimore, or in the Howard District (where the company is situate,) there is nothing in the evidence which induces the court to believe that a higher price would have been obtained for the stock, than what it sold for in Bel Air.

The company had been long in operation, and in consequence of not making regular dividends, the stock had no fixed market price. Before the day of sale by the trustee, no sales for money had been made at a higher price than the trustee obtained, and although the stock may have been intrinsically worth more, as a marketable commodity, it certainly was not on the day of sale estimated higher in the market than the price obtained for it by the trustee.

Under such circumstances, the court thinks the purchaser was fairly entitled to be confirmed in his purchase.

That afterwards the stock rose in the market in consequence of the active exertions of certain stockholders to acquire an ascendancy in the government of the company, ought not in my apprehension to have any influence on the validity [**3]  of the sale.

The court perceives nothing in the conduct of the trustee, or in the character and amount of the sale, which ought to disturb the title of the purchaser, or to order the stock again to be placed in the market.

Ordered the 26th May, 1846, that the sale heretofore made by George H. Williams, trustee of George Williams, be, and the same is hereby ratified and confirmed.

From that order Amos A. Williams prosecuted this appeal.

At this term the appellee, the trustee, moved to dismiss the appeal.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

An appeal will not lie from an order of the county court, made in proceedings under the act relating to insolvent debtors, refusing to associate another trustee with the permanent trustee of the insolvent, nor ordering a sale made by such trustee to be ratified and confirmed.

Creditors injured by the misconduct of the permanent trustee of an insolvent, have a remedy in the proper forum, and proper form, upon his bond for the discharge of his duty. 

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

By YELLOTT and R. JOHNSON contra.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*86]  MAGRUDER, J., delivered the opinion of this court.
The appeal in this case is taken from an order of Harford county court, dated 26th May, 1846, in the case of George Williams, an applicant for the benefit of the insolvent laws of this State. The application was made by the insolvent, in December, 1843.
In April, 1845, the trustee made report to Harford county court, of a sale made by him, of a part of the property of the insolvent. Why [**4]  such report was made, does not appear; and there is no act of assembly which requires it. An order, however, was obtained on the 14th April, 1845, that the sale would be ratified unless cause to the contrary be shown, on or before the 17th day of May, (1845,) then next. On that day, the appellants filed objections to the sale. Afterwards, an application 

 [*87]  was made in their behalf, and in behalf of other creditors, to the court, to associate Coleman Yellott, Esq., as trustee, to act jointly with the trustee in the case. On the 31st July, 1846, Harford county court acted upon the objections to the sale, and the application for the appointment of another trustee. This application the county court refused to grant, and overruled the objections to the sale. In disposing of these objections, perhaps it was not necessary for the court to add that the sale be ratified and confirmed; but these words can give no right of appeal.
From this order of the county court, an appeal is taken, and this court is called upon to decide whether the parties can appeal from such an order.
It will hardly be pretended, that so much of the order as relates to the appointment of a second trustee [**5]  can be reviewed in this court. If a doubt could ever have existed as to the right of appeal from such an order, the decision of the court in 1 H. & G. 160, ought to remove it. It is equally clear to the court, that from the rest of the order no appeal will lie.
It is true, indeed, that evil may sometimes result to individuals from the want of the right of appeal in such a case. But if so, relief must be sought elsewhere. No exceptions could be taken in the trial of issues, sent from the Orphans court, in the case of a contested will, or in the trial of issues from the county court upon allegations against an insolvent petitioner, until the legislature authorized the taking of them, and an appeal to the Court of Appeals. So our late bankrupt system allowed no appeal from the decisions of the District Court, in the exercise of the chancery powers with which it was invested; although these decisions often related to large amounts of property. The execution of such trusts, it was thought right, ought not to be delayed by appeals; of this, the creditors have no right to complain, because if injured by any misconduct of the trustee, the law has taken care that they shall [**6]  have bond, with security, the condition of which obliges the trustee, in all things, well and truly to discharge and fulfil his duties as trustee; and if the trustee be charged with a neglect of duty, 

 [*88]  whereby the party so alleging can be shown to be injured in the trial of the issues, on such an allegation made in the proper form, and in the proper forum, the right of appeal from a decision by the inferior court may be claimed.
APPEAL DISMISSED.  

31 of 33 DOCUMENTS 

RODERICK DORSEY vs. HENRY WAYMAN AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 59; 1847 Md. LEXIS 49 

December, 1846, Argued 

December, 1847, Decided 

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

The bill in this cause was filed by the appellant on the 7th September, 1837, and alleged that in 1818, William Hobbs, of S. &c. deceased, being seized and possessed of a parcel of land, agreed with Henry Wayman to sell him the same at and for the price of $ 20 an acre, and the said Wayman agreed to pay the purchase money for said land in annual instalments of $ 100; that Wayman, shortly after said agreement entered into possession, and ever since has held and used the same. That the precise quantity contained in said parcel was unknown at the time of the agreement, but has since been ascertained to be 30 acres, 1 r. and 20 sq. p. so that the purchase money therefor amounts to the sum of $ 607 50; that the said W. has paid the sum of $ 67, on account of said purchase, but that the residue remains due; that W. was also indebted unto the said Hobbs, deceased, $ 843, with interest from the 23d June, 1827; that since the death of said H. the said W. has paid to him as executor of said H. several sums of money on account, which are all endorsed on said note, and that the residue of the principal and interest secured by said note is still due.

That [**2]  some time in the year 1823, W. and Richard Dorsey, were liable as endorsers on a note drawn by Doctor Warner Hobbs, for the sum of $ 600, which was discounted for accommodation of the said Warner Hobbs, at the F. C. Bank. That W. H. died insolvent, and William Hobbs, of Samuel, having administered on his estate, it was agreed between the said W. H. and Richard D. and W. that the accommodation should be continued on a note to be drawn by said Hobbs, and endorsed by Richard D. and W. and that D. and W. should be responsible for the deficiency which should remain due after the application of proportionable dividends of the personal and real estate of Warner H. to the reduction of said note. That a note was accordingly drawn, endorsed and substituted as aforesaid, and renewed from time to time, the discounts on every renewal were paid, and certain sums were paid, in reduction of the principal, and on the 23d May, 1831, the sum of $ 375 56, being the entire balance due on said note, was paid into the F. C. Bank, by complainant as executor of the said William Hobbs. That some time after the agreement last aforesaid, the name of complainant was substituted as endorser on said note, in place [**3]  of the name of the aforesaid Richard Dorsey, whereby the said R. D. was discharged from his liability, but the liability of said W. remained: that the said W. is largely indebted unto the estate of the said Hobbs, for his moiety of said note and interest: that William Hobbs, has lately departed this life leaving complainant his executor, and devised the residue of his real and personal estate to Rachel Dorsey, then the wife of complainant, but since deceased, &c.; that W. pretends that he has large unsettled demands against the said William Hobbs, deceased, and which he insists ought to be set off against complainant's claims as aforesaid. Complainant does not admit the right of said W. to any credits in addition to those which are herein before mentioned, excepting that there has been received from the estate of Warner Hobbs, on account of the debt originally due by him, as is herein before stated, the following dividends of real and personal estate; that is to say, &c. that it is pretended by said W. that some of the aforesaid demands of your orator--and particularly the last--are barred by limitations. On the contrary, it was distinctly admitted by the said W. at the time of making [**4]  the agreement aforesaid for a reference, that the claims aforesaid were not barred; and the said W. did expressly undertake and promise to pay whatever sum should be ascertained to be due to your orator as aforesaid; that said admission and undertaking were made some time in the year 1836. Prayer for subpoena and answer, and for other and further relief.

With this bill were filed:

EXHIBIT C.

$ 843. Twelve months after date, this, my note, shall oblige me, my heirs, executors or administrators, to pay, or cause to be paid, unto William Hobbs, of Samuel, his heirs or assigns, the sum of $ 843, value received, with interest from date. As witness my hand and seal this 23d June, 1827.

Witness, Rod'k Dorsey.     HENRY WAYMAN, [Seal.]

Received Nov. 2d, 1830, $ 98 88 on the within. R. D.

Received 16th May, 1831, $ 500 on the within. R. D.

Received 22d October, 1831, $ 250 on the within. R. D.

EXHIBIT D.

Dear Sir:--I have some Baltimore notes, which I gave Nancy to take care of: as she has gone up to your house today, I can't send them, not knowing where she has put them. I send the endorsement on the blank paper for the bank, and agree to sustain [**5]  one-half the loss on the note, in case the estate on being settled up should be insolvent.     ROD'K DORSEY.

HENRY WAYMAN.

Monday Morning.

Whereas, Col. Dorsey was one of the endorsers of Warner Hobbs, Esquire, and it is the intention of Richard Dorsey, to pay one-half of the deficiency, in case there should be a deficiency in Warner Hobbs' estate; I shall hold myself accountable with the said Dorsey, to an equal proportion with Mr. William Hobbs.     HENRY WAYMAN.

August 4th, 1823.

Henry Wayman's answer admits the death of William Hobbs; that the complainant is his executor, and that the co-defendants are his devisees and heirs at law. He denies that he ever did purchase or agree to purchase of the said Hobbs, the land as stated in the said bill and Ex. A, and he further denies that the memorandum of an agreement, complainants' Ex. B, which it is admitted is signed by this defendant, refers, or was intended to refer to the land as plotted and described in the complainant's Ex. A, of which this defendant denies all knowledge or notice. But, he admits, that some time before 1827, he sold to one Haskell, a parcel of land adjoining the land of the said William [**6]  Hobbs; that said Haskell intending to build on said land thus purchased by him, did by mistake, erect his dwelling upon the land of the said Hobbs, being a small parcel, lying adjoining the turnpike road, and called "Range Declined," that finding his mistake, the said Haskell contracted to purchase of said Hobbs, this parcel of land, at $ 20 00 per acre, that afterwards, said Haskell moving off and abandoning his purchase of this defendant, and of said Hobbs, this defendant agreed to take the contract, made by said Haskell with said Hobbs, and to purchase this parcel of land of the said Hobbs at the price aforesaid per acre, the quantity then being unascertained, as stated in complainants' Ex. B.

That afterwards, the same was ascertained to contain five acres and eighteen perches, and that it was to this five acres and eighteen perches, and to it alone, that the said memorandum of an agreement, Ex. B refers; that for the balance of this purchase, after deducting the $ 67 paid for said Hobbs by this defendant, and interest, this defendant admits he is indebted to the complainant.

That the lands claimed by the complainant in his bill and Ex. A, with the exception of the part [**7]  thereof, five acres eighteen perches aforesaid, were purchased by this defendant's father, John Wayman, about 1782, and that since 1792, this land, with the exception aforesaid, came into the possession of this defendant, by the death of his said father, and has ever since been quietly and exclusively used, held, occupied and enjoyed, under enclosures, as this defendant's own absolute property, and this defendant relies upon this long and uninterrupted possession, by enclosures, for more than forty years as a bar to any claim thereto set up by the said bill.

He admits the execution of the single bill, complainant's Ex. C, and the credits; and alleges that defendant has not received credit thereon for sundry sums of money, as per, &c. paid by this defendant for said Hobbs, on account of said Hobbs' note, for all of which credits, it was agreed by said Hobbs this defendant should be credited on his single bill aforesaid, which credits this defendant insists should now be made. He denies that he ever was an endorser of a note of Dr. Warner Hobbs, or in any manner liable on his account, as alleged in the said bill. He admits that he did sign the agreement in writing, the complainant's [**8]  Ex. D. But this defendant denies that the said agreement applies, or was intended to apply to the note drawn by W. H. and endorsed by Roderick D. and this defendant, the complainant's Ex. F. The circumstances and facts of that matter this defendant avers were as follows:--

Dr. Warner Hobbs, a son of said W. H. was drawer of a note, and said W. H. and Richard D. endorsers thereon; that after the death of Warner H. there was some controversy between the said endorsers, as to the extent of their respective liabilities thereon, when it was agreed between them that they should share in equal parts any loss they should thereby sustain; and in order to keep up the negotiation until the loss could be ascertained, it was agreed that William H. should be the drawer of the note, Richard D. become first endorser, and this defendant agreed to become the second endorser, and to be security for Richard D. to the extent of what he should be bound to pay under said agreement, in case the said Richard D. should fail to pay the same, and in no other event whatever; that the said Richard D. afterwards died, leaving large and valuable estates, real and personal, more than adequate to the payment of [**9]  all his debts and liabilities; that if any thing be due on account of said agreement, it might and could have been received from his estate. And defendant, until the filing of this bill, believed the whole matter was adjusted,--and especially as the said Roderick D. assumed the place of the said Richard D. on the renewals of the said note, after the death of the said Richard D. This defendant denies that he ever was liable on the said note, Ex. F, in any other manner than as second endorser thereon. He denies that the drawer of said note, or the first endorser thereon, has any claim whatever on him; that the said William Hobbs left ample estate to pay all his debts.

This defendant, further answering, avers, that he never did receive any notice of the refusal of the drawer of said note, Ex. F, to pay the same, or of this defendant being held to pay the same or any part thereof until the filing of this bill, and this defendant does plead and rely upon the statute of limitations of this State, as a full and complete bar and defence to any right of action which may arise on the said note, complainant's Exhibit F, or on the said agreement, complainant's Exhibit D, against him.

And [**10]  this defendant denies that he is indebted to the complainant in any manner whatever, than for the balance due on the purchase of the said five acres and eighteen perches of land, at the price of $ 20 an acre, as aforesaid, and for the balance of his said single bill, and he pleads and relies upon the statute of limitations of the State of Maryland aforesaid, as a complete bar to all other pretended claims set up in said bill.

"Memorandum of an agreement between William Hobbs, of Samuel, and Henry Wayman, sheweth, that the said William Hobbs, of Samuel, hath sold unto the said Henry Wayman, all that part of a tract of land, called "Range Declined," lying adjoining the turnpike road near where Woodward now lives, at $ 20 per acre, payable $ 100 annually, with interest; the date of the sale to be fixed by a reference to papers in Mr. Wayman's possession--the sale being made some time past. We, having this day settled our other business without including the sale for this land, we make this memorandum to save trouble, in case of accident to either of us.

Witness our hands this 23d June, 1827.

Signed,

WM. HOBBS, OF SAM'L,

Witness, Rod'k Dorsey.     HENRY WAYMAN.  [**11]  "

On above is endorsed as follows:

"I hereby acknowledge that Mr. Henry Wayman paid my note to Zachariah Roberts, dated 7th April, 1818, for $ 67, on the within land.     Signed,    WM. HOBBS, OF SAM'L.

November 29th, 1839."

COMPLAINANT'S EXHIBIT F.

"June 16th, 1829.

"$ 340. Sixty days after date, I promise to pay to Roderick Dorsey, or order, $ 340, for value received--negotiable at the Frederick County Bank, and payable at George Baer's house, in Fredericktown.     WM. HOBBS, OF SAM'L."

"Endorsed, Roderick Dorsey, Henry Wayman.

________________________________________________________________________________
Note,	$ 340 00	
Protest,	3 15	
1 year, 9 months and 5 days interest,	35 98	
		$ 379 13	
   Deduct cash in bank,		3 57	
	
		$ 375 56	
________________________________________________________________________________

Received of Roderick Dorsey, executor of William Hobbs, of Sam'l, the above sum.     H. DOYLE, Teller.

May 23d, 1831."

A commission to take proof was then issued, under which a great variety of testimony, in relation to the details of the accounts between the parties, was taken; and the Chancellor passed a decree to account generally.

The auditor reported:

Statement No. 1, in which he charged Henry Wayman, in account with [**12]  Roderick Dorsey, executor of William Hobbs, of Samuel, deceased, with his single bill, of 23d June, 1827, as per Exhibit C, $ 843; which, after allowances for payments and charges for interest, left due by H. W. $ 278 01, as of 10th March, 1845.

Statement No. 4 related to the same single bill, but allowed further credits for payments, leaving a balance due of $ 77 35.

Statement No. 2 charged H. Wayman with the 5 acres and 18 perches of land and interest, $ 72 71.

Account A charged H. Wayman with the two balances of $ 77 35 and $ 72 71, and interest--amounting to $ 150 06.

To these accounts, both parties excepted.

On the 19th March, 1845, the Chancellor (BLAND) ratified Account A and dismissed the bill, as against all other defendants than Wayman.

The complainant appealed to this court.  

DISPOSITION:
DECREE REVERSED WITH COSTS AND DECREE FOR APPELLANT.  

HEADNOTES:

W. & H. agreed in writing, signed by them, that W. had sold to H. "all that part of a tract of land, called R., lying adjoining the turnpike road near where P. now lives, at, &c.--we having this day settled our other business without including the sale for this land, we make this memorandum to save trouble in case of accident to either of us." Held:

1st. That this agreement contained no sufficient description of the land sold; the bounds and quantity are both uncertain and indefinite, and could not be enforced any further than as admitted by H.

2d. That claims due H. long anterior to the above settlement, must, under the circumstances, be considered as closed.

Where a creditor has two claims against his debtor, and a payment made was designed to be on account of one, but was credited in fact to the other, with the consent of the debtor, he cannot afterwards, in the absence of any agreement to change the application of the money, insist, there was error in the credit.

Where a party voluntarily pays money, not being ignorant of the facts on which his liability depended or was asserted, though the demand is invalid, he cannot claim to apply such payment to another demand which his creditor has against him.

Where three parties were responsible as sureties upon a promissory note, and upon a difference arising as to the extent of their several liabilities, it was agreed that the note should be renewed--one being maker, and the two others endorsers; the latter endorser being security for the first. The executor of the maker having paid the note, omitted to present his claim to such last endorser until the estate of the first endorser, which was amply sufficient to pay his liability, was settled up; and when no recourse could be had against it.--Held, that the latter endorser was discharged.

The last endorser on a promissory note, who was the security for a prior endorser, does not lose his claim against his immediate principal, by continuing to endorse renewals of the note, which fell due after his principal's death.  

COUNSEL:
By ALEXANDER for the appellant, and

By WIRT and RANDALL for the appellees.  

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

OPINIONBY:
ARCHER 

OPINION:

 [*66]  ARCHER, C. J., delivered the opinion of this court.
The agreement for the sale of land, called "Range Declined," contains [**13]  no sufficient description of the land sold. It is described, as being all that part of "Range Declined," lying adjoining the turnpike. Thus, the contract gives only the line adjoining the turnpike; what are the other courses and distances of the land sold, cannot be known from the agreement itself, or by any thing referred to in it. Such an agreement, 

 [*67]  we apprehend, we could not enforce further, than as admitted by the defendant. To this extent, the Chancellor has decreed against the defendant, and he concedes, that to this extent, the decree is not objectionable. Independent of the above consideration, the evidence as to the bounds and quantity of land sold, is uncertain and indefinite.
As the second ground of appeal, it is conceded by the answer, that the sum credited to the single bill, was paid on the note; but, that Hobbs had agreed that it should be credited on the single bill.
Exhibit No. 2, filed with the answers, shows, that the sum in dispute was paid on the note, and there is no evidence of the existence of any such agreement to change the application of the payment. When the amount was paid by Wayman, it is not pretended he was ignorant of the [**14]  facts upon which his liability depended, and if the claim was legally invalid, having voluntarily paid the amount in controversy on the note, he cannot transfer the amount from the note to the single bill.
We cannot perceive there is any other credit than the above, and what has been allowed on the single bill, established as against the claim of the complainant on the single bill. The order of Steene, in favor of Wayman, was long anterior to the settlement recognized by the agreement of 1827, and must in the present state of the pleadings and evidence be considered as closed.
The claim No. 3, we do not think is established. The agreement between Richard Dorsey and Wayman, is unintelligible. The answer avers, that Wayman was only a security for Richard Dorsey, that he would pay one-half the loss which might be sustained.
William Hobbs and Richard Dorsey, having agreed each to sustain one-half the loss--the only testimony we have, in relation to the agreement under which the note of Wm. Hobbs was originally discounted--is proved by the declarations of Wayman, made evidence by the complainant's 12th Interrogatory, filed with the first commission.  [**15]  This evidence sustains the answer, and proves that Wayman was only the security of Richard 

 [*68]  Dorsey in the endorsement; that Dorsey's estate was amply sufficient to have paid his liability, yet, that no claim was presented until after Dorsey's estate was settled up, when he could have no recourse for indemnity against Dorsey's estate.
Believing this to be the only evidence operating on the case, and assuming it to have been the real transaction between the parties, we do not think that Wayman was answerable to Hobbs' estate for the deficiency, if it be true, as averred in the bill, that Richard Dorsey was discharged from his liability.
Wayman's consent to Dorsey's discharge is not, we think, indicated by his continued endorsements and payments of discounts. The bank was no party to the agreement by which he became security for Richard Dorsey, and, as regards the bank, he was bound as an endorsee from time to time, to provide for his note. In this way, the renewal of the notes may be accounted for, without attributing such renewal to any consent on his part to Richard Dorsey's discharge.
A decree will be passed, reversing the [**16]  decree of the Chancellor, and with costs to appellant; directing payment for the balance due on the land admitted by the answer to have been purchased; disallowing the credit of one hundred dollars, which has, by the Auditor, been allowed to the single bill, and disallowing the claim designated as No. 3.

DECREE REVERSED WITH COSTS AND DECREE FOR APPELLANT.  

32 of 33 DOCUMENTS 

GEORGE H. SMITH AND ELOISE HIS WIFE vs. MARTHA YOUNG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 197; 1847 Md. LEXIS 19 

December, 1847, Decided 

PRIOR HISTORY:
 [**1]   APPEAL from the Orphans Court of Prince George's County.

The appellants on the 8th May, 1847, filed their petition, alleging that Notley Young, late of Prince George's county, deceased, died sometime in or about the month of July, 1846, intestate, leaving your petitioner, Eloise, Martha Young, Benjamin F. Young, and two minor children, to wit, Clement and Julia, his only children and heirs-at-law. That a certain paper purporting to be the last will and testament of said Notley, was offered for probat in this court, as and for the last will and testament of said Notley; but a caveat being filed by your petitioners, against the said pretended last will, this Honorable court directed issues for trying the validity of said pretended will, to be sent to the county court of Prince George's county; and at the April term of said court, just passed, the said caveat was in all things sustained, and the said issues were decided by the court and jury, against the validity of said will, all of which will more fully appear by reference to the record of said caveat and issues, now in this court remaining upon procedendo from said county court; that in consequence of the setting aside of said [**2]  pretended will, it will become necessary for this court to grant letters of administration on the personal estate of the said Notley Young, to some person or persons who are entitled and qualified by law to administer thereon; that the said Benjamin F. Young is the only male child of the said Notley, of full age, who by law is entitled to the said administration; but in reference to the said Benjamin, your petitioners aver that he is disqualified, from total blindness and deafness, and from physical infirmity, from discharging the duties of said office; and upon being properly summoned before this court, your petitioners aver that the said Benjamin will renounce his right to said administration; that they have been informed that the said Martha, who is the only unmarried female child of said Notley of full age, claims the right of administration over your petitioner Eloise, and intends making her application to this court for letters of administration on the said Notley's personal estate; but in reference to said Martha, your petitioners aver and charge that she is now, and has been for many years, a nun in the convent at Georgetown, in the District of Columbia, having taken the black [**3]  veil, and an oath or vow of total and perpetual seclusion from the world, and renounced all participation in the secular pursuits of the same. That by reason of said vow and oath, she has disqualified herself from acting as such administratrix; and that she is now residing permanently in a foreign jurisdiction, and an inmate for life of a nunnery, and cannot be subjected or made amenable by any process known to the law, to the jurisdiction of this court, or made to obey the process thereof. That the said Martha has renounced her rights to administer on the said estate, if she ever had any, by reason of her said monastic vows; and is now estopped by her own acts from claiming such right, if any she ever had. Your petitioners therefore claim that administration rightfully belongs to your petitioner Eloise, who is of full age and in all respects able and qualified to administer on the estate of her said father. Prayer for summons and grant of letters, &c.

On the 8th May, 1847, the appellee also filed a petition, praying for letters of administration on her father's estate; and on the 19th May, she appeared in court, filed her answer to the petition of the appellants, in which she [**4]  admitted all the allegations of the petitioners, which did not relate to herself, and in relation to herself she alleged that for several years past she has been, and now is one of the "Sisters of the Visitation," an association of ladies for the objects of religion, education and charity; and who were incorporated by an act of Congress of the United States, as far back as the year 1828; and that as one of the said sisterhood, she has, since becoming a member thereof, always resided at the Convent of the Visitation, near Georgetown, in the District of Columbia, and beyond the limits of the State of Maryland; and that according to the rules and regulations of the sisterhood, she has in uniting herself with the same, become a nun, and has taken the black veil; and she admits also, that it was her engagement, and is her present purpose to continue permanently during her life, as a member of the said institution, and as such, to remain an inmate of said convent, unless she shall hereafter be called on to remove to some other establishment of the sisterhood, of which there are several, as well in, as out of the State of Maryland. But respondent further saith and averreth, that the petitioners [**5]  have greatly erred in their statement of the scope, character, and obligation of the engagement that this respondent has entered into as a nun and member of the association aforesaid: and she saith, that as such nun and member, she has not been required to take, nor has she taken any oath whatever; that the only vow or engagement that she has entered into, has been of a purely religious character, and is well understood by herself and the sisterhood, to impose no legal restraint or obligation of any kind; so that she may, if so disposed, at any time sever her connection with the sisterhood, and withdraw entirely and permanently from the convent, without any hindrance or restraint whatever; and of this course, there have been repeated instances on the part of other sisters entering into precisely the like vows or engagements with those of this respondent. And this respondent saith, that she hath not taken, nor do the rules and regulations of the association impose on any member any vow, oath or engagement of any kind, of total and perpetual seclusion from the world: for she saith, that although the avocations of the sisters for the most part confine them within the limits of their respective [**6]  conventional or other residences, yet instances have been, and are of frequent occurrence, in which, in entire consistency with their vows or engagements, they go beyond those limits into the world, on the business of the institution, or on their own private affairs, both in and out of courts; and in illustration of this, she saith that if letters of administration on the estate of the deceased shall be awarded to her, she will be prepared to attend personally before this Honorable court, for the purposes of qualification, settlement of accounts, and the like; and to perform all other essential duties incident to her office as administratrix, and requiring her personal attention. All which she will do without the slightest infringement of any vow or engagement of any kind, entered into by her, as a nun or sister of the Visitation. And she further saith, that it is equally untrue, that as a nun or otherwise, she has by any vow or engagement of any kind, renounced all participation in the secular pursuits of the world; for she saith, one chief object of the association is education; and they connect with it an active charity, extended towards those who have not the means of defraying [**7]  the expenses of their education. And she saith in illustration of this, that the association have always conducted at their establishment near Georgetown, and now do, a flourishing boarding and day school, for pay scholars of different religious denominations; the labours of which, devolving exclusively on the nuns, may be judged of by the fact, that the number of boarders alone at present in the school, exceeds ninety, and has only lately been considerably above one hundred; and their charity school also embraces a large number, without distinction of religious faith, many of whom are fed and clothed, as well as educated. It will be readily seen, that the conduct of such schools, and the supply of the varied wants of the pupils, necessarily involve an extensive participation in the secular pursuits of the world; and respondent therefore forbears, as unnecessary, a further enumeration of secular pursuits incident to the management, preservation, and disposal of their property. And respondent in conclusion, denies that she renounced or forfeited by any vows, her right of administration without this, &c. &c.

The petitioners then prayed that the court would direct an issue or issues [**8]  to be made up and sent to some court of law, most convenient for trying the same, in pursuance of the provisions of the act of Assembly in such case made and provided.

The following issues were tendered to the court by the petitioners:

1st. Whether the said Martha Young is, or is not, a resident of the State of Maryland.

2d. Whether the said Martha Young is, or is not, a professed nun in the monastery at Georgetown, in the District of Columbia, and an inmate thereof for the term of her natural life.

3d. Whether the said Martha Young has, or has not, taken a vow or engagement of perpetual seclusion from the world, and of renunciation of all participation in the secular pursuits of the world, and thereby become incapable of acting as administratrix on the personal estate of Notley Young, deceased.

4th. Whether the said Martha Young has, or has not, renounced her right of administration on the personal estate of Notley Young, deceased.

5th. Whether the said Martha Young is, or is not, estopped from all claim or right to administration on the said personal estate of Notley Young, deceased.

6th. Whether the said Martha Young is, or is not, capable of performing [**9]  in person, the duties of administratrix of said Notley Young's personal estate, without the consent of the Archbishop of Baltimore, or some other authority in the Roman Catholic Church.

7th. Whether the said Martha Young is entitled to administration on the personal estate of said Notley Young, as against her sister, Eloise Smith, the wife of George H. Smith.

8. Whether the said Benjamin F. Young is physically or otherwise incapable of administering on the said Notley Young's personal estate.

In connexion with the foregoing petition, the parties by their counsel, filed an agreement in writing of the tenor and words following, to wit:

"It is admitted by George Henry Smith and wife, and Martha Young, that Benjamin F. Young is incapable of performing the office of administrator on the estate of Notley Young, deceased, for the reasons stated in the petition. And they also agree, that the Orphans court may consider the application of said Smith and wife, for issues to be sent to a court of law, and for letters of administration on said Notley Young's estate, by them or by Martha Young, in the same manner and to the same extent, as if his incompetency were judicially [**10]  established, without prejudice to the rights of said B. F. Young, and subject to the right of either party to appeal."

On the 25th May, 1847, the Orphans court, DUCKETT, C. J., MARSHALL and HILL, A. J., overruled the prayer for issues to a court of law, upon the ground that some of them were immaterial; others related to questions of law, and to facts admitted by the petition and answer, and decreed that Martha Young was entitled to letters of administration upon her father's estate. The petitioners appealed to this court.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

Under the act of 1798, ch. 101, sub ch. 15, sec. 17, either party may apply to the Orphans court for issues to be sent to the county court, if there be any matters properly in issue between the parties to a contest upon plenary proceedings.

Whether there are any such matters in issue, the court will determine as a question of law.

No person by vows of any description, can exempt himself from any of the duties which the State may require of him, nor forfeit any of the rights of citizens, which, but for the vows, would have belonged to him.

Upon an application for letters of administration, the Orphans court can only regard the party making them as any other citizen, notwithstanding such party may have voluntarily taken upon himself vows of seclusion from the world.

The party applying for administration, and not the Orphans court, is to judge whether he can, consistently with vows he may have taken, discharge the duties of administrator.

The law requires of all who administer upon the estate of a deceased person, bond with ample security for the faithful performance of the duties they undertake.

Of the religious or other engagements of such parties, the Orphans court need not be informed, and issues designed only to give such information, ought not to be framed and sent to a county court.

By the act of 1798, ch. 101, sub ch. 5, sec. 19, it is declared, that in the grant of letters of administration "a feme sole shall be preferred to a married woman in equal degree." This rule is applicable to the children of the intestate, and is not to be connected exclusively with those sections of that sub chapter, which relate to the grant of letters to collaterals.

In the cases spoken of in the 10th and 23d sections of sub ch. 5, 1798, ch. 101, administration is to be granted in the discretion of the Orphans court.

The 10th sec. relates to cases where there is a widow and a child.

An intestate left no widow, a son, minor children, and a married and an unmarried daughter. The son was disqualified; and as between the daughters, the unmarried is to be preferred to the married daughter, in the grant of letters of administration upon the father's estate.  

COUNSEL:
By BOWIE and TUCK for the appellants, and

By SEMMES and BRENT for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*203]  MAGRUDER, J., delivered the opinion of this court.
It appears in this case, that the late Notley Young of Prince George's county, died in July, 1846, intestate, and leaving no widow. Besides two infant children he left a son, Benjamin, the appellant, Eloise, who had married the other appellant, and the appellee. The appellants by their petition applied to the Orphans court of Prince George's county, for letters of [**11]  administration to be granted to the appellant Eloise, or to both the petitioners, and to the exclusion of the appellee. This claim is upon the ground that the latter "is, and has been for many years a nun in the convent at Georgetown, in the District of Columbia, a foreign jurisdiction; having taken the black veil, and an oath or vow of total and perpetual seclusion from the world, and renounced all participation in the secular pursuits of the same." By reason of this, it is alleged that she is disqualified from acting as administratrix.

 [*204]  Pending this petition, the petitioners applied for issues to be sent to a county court. This application was rejected, and the above petition of the appellants was dismissed; letters of administration it seems, were ordered to be granted to the appellee. But of this the appellants are not the persons to complain, if they have no title to the administration. It is unnecessary therefore to notice anything which is said of Benjamin, the son of the intestate.
With respect to the application for issues to be sent to a county court, the act of Assembly authorizes either party to apply for them, if there be any matters properly [**12]  in issue between the parties; the question in this case is, whether there are any such matters in issue?
It is the opinion of this court, that the court below had no power to refuse letters of administration to the appellee, for the reasons suggested by the appellants in their petition. Neither by the vows spoken of, nor by vows of any description, can the parties making them, exempt themselves from any of the duties which the State might have required of them, or forfeit any of the rights which would have belonged to them as citizens but for the vows. Every thing stated in the petition by the appellants may be true, and yet the appellee does not subject herself to any pain, penalty, or disability, although it could be proved, that by her application for letters of administration, the appellee had violated the ordinances, and subjected herself to the discipline of the Church, of which she is a member; still in the Orphans court, and upon this application, she can only be regarded as an unmarried daughter of the intestate.
It has been argued, that although the law may not in express words deny to the appellee letters of administration on this estate, yet the vows which she has [**13]  taken render her incapable of discharging the duties of administratrix.
The answer to this is that the appellee herself, and not the court, is to judge whether she can consistently with her vows, discharge those duties. The law requires of all who administer upon the estate of a deceased person, bond with ample security for the faithful performance of the duties which they 

 [*205]  undertake. Of their other engagements, religious, or otherwise, into which they may have previously entered, the court which is to grant the letters of administration, need not to be informed, and issues designed only to give such information, ought not to be framed and sent to a county court.
The counsel for the appellants have also insisted that although the appellee may not by her religious vows, have disqualified herself as an administratrix, yet our act of Assembly does not say that she shall be preferred to her married sister. If not entitled to claim to the exclusion of her sister, is the claim of the appellant well founded to be associated with her in the administration upon their father's estate? This depends upon the act of 1798, ch. 101, sub chap. 5. The 19th section of this sub chapter does [**14]  say, "a feme sole shall be preferred to a married woman in equal degree." But this it is said, ought not to be applied to children of the intestate; it should be connected exclusively with those sections which relate to the grant of letters to collaterals. No reason for this is perceived; this sub chapter prescribes the rules by which the Orphans court is to be governed in granting letters of administration, whether to lineals, or collaterals, relations in the ascending or descending line, males or females, females married, or unmarried, &c., of course applying to each case the rules which are applicable to it. There can be no reason for saying that a rule like this is to be observed in the case of married and unmarried sisters, but it is to be disregarded when the persons claiming the letters are the daughters of the deceased, and certainly there are no words in the 19th section which will connect it exclusively with those sections which entitle collateral relations to the administration. If the appellants could claim in virtue of the 10th section, then it would seem that in order to associate the husband with the wife, as authorized by the 20th section, the latter must not [**15]  be a child, but a collateral relation of the intestate. Only in the cases spoken of in the 10th and 23rd sections, is administration to be granted "at the discretion of the court." The claim in this case of the married daughter to be united with her unmarried sister in the administration, is founded on the 10th section, 

 [*206]  and can rest on none other in the law. But that section is confined to cases in which there is a widow, as well as a child or children, and of course does not embrace this case, in which there is no widow to be preferred at the discretion of the court to any of the children.
There is then no error in the refusal by the court below to send issues in this case to a county court, there being no matters properly in issue; and this case is like any other in which the controversy for administration upon an intestate's estate is between two of his daughters, one of them married, and the other unmarried. The latter is to be preferred to the former.
ORDER AFFIRMED.  

33 of 33 DOCUMENTS 

THOMAS C. WORTHINGTON AND ISAAC ANDERSON vs. MARY E. SHIPLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Gill 449; 1847 Md. LEXIS 38 

December, 1847, Decided 

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

The bill in this cause was filed on the 28th September, 1842, by the appellee, and alleged, that on or about the 3d August, 1840, two negro girls, slaves for life, Kitty & Nancy, were conveyed to your oratrix by James Shipley, by a deed bearing date the day and year aforesaid, and duly acknowledged and recorded, a certified copy of which is herewith exhibited, that said negro girls have been seized and taken out of the possession of your oratrix by one Isaac C. Anderson, the sheriff of Howard District, by virtue of a supposed authority derived from a writ of fieri facias, issued on or about the 23d September, 1842, upon a judgment rendered in the case of Thomas C. Worthington, administrator of Charles G. Worthington against James Shipley, by the court of Howard District of Anne Arundel county, at the March term, of said court, in the year 1841, that said writ of fieri facias, issued against the property of James Shipley, the defendant in said case, and who is the same party, from whom your oratrix derived title to said girls as aforesaid, that the said plaintiff, Thomas C. Worthington, has directed the said sheriff, to seize and take said girls,  [**2]  under said writ of fieri facias, that they were so seized, and taken on or about the twenty-fourth day of September, 1842, and that said sheriff is about to sell them, to satisfy the said judgment under the writ aforesaid, that said negro girls, became the property of the said James Shipley, who is the father of your oratrix, through his wife who is now dead, and who was the mother of your oratrix, that the said S. was induced to convey said girls to your oratrix, by the death-bed solicitations of her said mother, who requested said S. to give all the negroes, who came to him through her, upon her marriage to her several children in the manner then pointed out by her; that said S. gave said girls to your oratrix during the life time of his wife, and at her urgent solicitation, and that said deed was made in pursuance of said gift. And your oratrix avers and charges that said negroes never were the property of the said James Shipley, but were given to her mother during her life-time, and after her death to your oratrix, by her grandfather Nehemiah Moxley. That she apprehends that said girls may be placed beyond her reach and control, and that they are favorite negroes with your oratrix,  [**3]  both on account of the manner in which they became the property of your oratrix, and on account of their own good character, and to the end, that said two negroes may again be delivered up to your oratrix, that the said sheriff may be restrained from selling said negroes, or disposing of them beyond the reach of your oratrix, and for other and further relief. Prayer for subpoena and injunction, &c.

With this bill was exhibited the following bill of sale:

"Know all men by these presents, that I, James Shipley, of Howard District, &c. for the natural love and affection, which I entertain for my daughter Mary Ellen Shipley, in consideration of the sum of $ 300 money to me in hand paid by the said M. E. S. of, &c., at and before the sealing and delivery of these presents, the receipt whereof, I, &c. have granted, bargained and sold, and by these presents, do grant, bargain, and sell, unto the said M. E. S. her &c., one negro woman, named Catharine, aged about twenty-five years, and one negro girl named Nancy, three years of age, to have and to hold, the said negroes above bargained and sold, or mentioned, and intended to be sold to the said M. E. S., her &c., forever, &c. I,  [**4]  the said J. S. have put the said M. E. S. in full possession, by delivering to her, the said M. E. S. the above named negroes, at the sealing and delivery of these presents, in the name of the premises, hereby bargained and sold, or mentioned, and intended to be sold, unto her, the said M. E. S. In witness, whereof, I, the said J. S. have hereunto subscribed my name, and affixed my seal, this 3d of August, 1841.

Witness, JAMES MARTIN.     JAMES SHIPLEY, [Seal.]"

Recorded the 3d day of August, 1841--and duly certified.

And the following judgment.

Court of Howard District of Anne Arundel county, March term, 1842.

THOMAS C. WORTHINGTON, adm'r, of CHARLES G. WORTHINGTON vs. JAMES SHIPLEY.

March 14th, 1842, judgment by confession for $ 568 47 debt, and $ 1000 damages and costs, damages to be released on payment of interest on debt, from 22d November 1839, and costs.

Test,     JOHN L. MOORE, Clerk.

On the 28th September 1842, the Chancellor (BLAND) ordered subpoena and injunction as prayed, bond being filed and approved.

The answer of Thomas C. Worthington, administrator of C. G. W. denies that the negro girls, Kitty and Nancy, were conveyed [**5]  to M. E. S., by her father J. S. by deed bearing date the 3d August, 1840, but avers that the conveyance above referred to, was made on the 3d August, 1841. He admits that said negro girls, were seized and taken by the sheriff of H. D. by the direction of this respondent, under an execution or fieri facias, issued as alleged in the short copy filed with said bill. He admits that the negroes Kitty and Nancy aforesaid, are the children, or descendants of a negro woman who was given to the mother of the complainant, on or about the marriage of complainant's father and mother, by Nehemiah Moxley, Junr., her grandfather, and that the title to said negroes was derived by complainant's father, by the gift aforesaid. This respondent does not know whether complainant's mother requested the said James Shipley, to give to her children all his negroes which came by her, but he denies that any gift was made of said negroes, Kitty and Nancy, to complainant in the life-time of her mother, or at any other time before the execution of the deed exhibited by complainant, and he denies also, that said negroes were given to complainant's mother during her life-time, and after her death, to the complainant,  [**6]  by the said Nehemiah Moxley, Jr., but he avers that they were given absolutely to the wife of said J. S., and thereby became his property. This respondent in his answer further states, that about the year 1840, the said J. S. became the collector of taxes for Anne Arundel county, in that part of said county, now known as Howard District, for the tax levied for the year 1839, and to be collected in the year 1840. That at this time the said J. S. was possessed of a life estate, in a farm which he derived through his wife, a farm in fee simple, containing about one hundred and eighty acres, and a brick house and lot in the village of Ellicott's Mills, together with the negroes gotten by his wife, and perhaps some few others, and a small amount of other personal property. That about this time, the said J. S. purchased a lot of ground in the village aforesaid, from a certain Edwin P. Hayden, and commenced the erection of a large stone edifice, which was in progression until the fall of 1841, when it was obliged to be abandoned for want of funds, after expending a large sum of money. That, when the time arrived for the settlement of the said James Shipley of the account as collector, as [**7]  aforesaid, he was found greatly in arrears to the commissioners of Anne Arundel county, and unable to pay, and on the eighth day of September, 1841, suit was instituted on his bond in Howard District court, and judgment obtained against him, at March term, 1842, for the sum of $ 4673 69 cents with interest. That, in the year 1841, being pressed by his creditors, for the settlement of their claims, and a little more than a month before the commencement of the suits of the commissioners of A. A. county, and this respondent, to wit: on the 2d August, 1841, the said J. S. executed a mortgage, to a certain William H. Worthington, for the farm of one hundred and eighty acres aforesaid, conditioned, to save him harmless from any loss he might sustain, as one of his securities on his bond, as collector of taxes as aforesaid, and on the same day, executed the deed to complainants, together with other deeds of a similar nature, conveying negroes to his children. That, on the 9th November 1841, the said J. S. mortgaged his brick house and lot aforesaid, in the village of Ellicott's Mills, to a certain Thomas Lister, for $ 1200. This respondent further states, that he has been informed, and believes,  [**8]  that the said J. S., was in the year 1840, and still is indebted to the estate of Nehemiah Moxley, Senr., whose administrator he was in the amount of ten or twelve hundred dollars. That in the year 1840, or 1841, the said James Shipley, married for a second wife, a certain Harriet Lindsay, a woman of no fortune, and after having purchased, and paid for the lot, aforementioned, from the said Edwin P. Hayden, but before he had obtained a conveyance for the same, to wit: on the 14th March, 1842, the day of the rendition of the judgments in favor of the commissioners of Anne Arundel county, and of this respondent, the said J. S. procured a conveyance of the same, together with the building partially thereon erected, as aforesaid, to be made by the said E. P. H., to the brother of the said Harriet, wife of said J. S., for her separate use; that at the time of the execution of the deed aforesaid, to said complainant, of said negro girls, the said James Shipley had no other property, except that above described, and except a small amount of household stuff, and perhaps a negro man, or negro woman, this respondent does not know which, lived in the city of Baltimore. This respondent avers,  [**9]  that at the time of the conveyance of the said negroes, to the complainant, that the indebtedness of the said James Shipley, was such, that his whole property would not have discharged his liabilities. That the valuable consideration mentioned in said conveyance was false and fraudulent, as well as the same consideration mentioned in the other deeds, conveying to his children his other negroes, and conveying his house and lot in trust, for his wife, as aforesaid. This respondent further states, that in addition to the other conveyances, made by the said J. S., in the year 1841, he sold and conveyed in the same year his life estate, in the farm aforesaid, which he acquired through his wife, to Nehemiah Moxley, Junr., that the deed aforesaid, made by the said J. S., to his daughter M. E. S., was made with the view to defraud his creditors, and among the rest this respondent, and is void. That at the time the said negro girls, Kitty and Nancy, were taken by the sheriff of Howard District as aforesaid, they were the property of the said J. S.

With the answer was filed a short copy of the judgment of the commissioners of Anne Arundel county, of 14th March, 1842, by confession for $  [**10]  4,673 69, &c., with interest from Oct., 1840.

The sheriff of Anne Arundel also answered the bill, but his answer is not material.

A commission to take proof was issued: the material parts of the proof taken are stated in the opinion of this court.

At September term, 1845, the Chancellor (BLAND) decreed the injunction to be perpetual, with costs. And the defendants appealed to this court.  

DISPOSITION:
DECREE REVERSED AND BILL DISMISSED.  

HEADNOTES:

S. being indebted to W., in 1839, and not having paid that debt, in 1841, made a voluntary conveyance to his daughter of certain negro slaves. The consideration stated in the deed was love and affection, as well as money paid; but no money was in fact paid. There was no proof in the cause tending to prove an express delivery of the slaves, by the father to his daughter, at any time prior to the execution of the deed in 1841. In 1842, W. recovered judgment against S., and levied a fieri facias upon the slaves in question: and the daughter claiming as well by parol gift from her father as by his deed, sued out an injunction to prevent a sale. The answer impeached the deed of 1841, as made by an insolvent grantor, and as fraudulent and void. Held,

1. Under the act of 1763, ch. 13, the delivery of slaves, the subject of a parol gift, must be express, and made at the time of the gift.

2. That the title of the daughter, who claimed the injunction, depended entirely upon the deed of 1841.

3. Under the statute of 13 Eliz., ch. 5, an indebtment by a grantor, at the time of the voluntary conveyance made, is prima facie only, and not conclusive evidence of a fraudulent purpose, with respect to a prior creditor.

4. This presumption may be repelled by showing that the grantor, or donor at the time of the gift, was in prosperous circumstances, possessed of ample means to discharge all his pecuniary obligations; and that the settlement impeached was a reasonable provision for his child, according to his or her station and condition in life.

5. A voluntary conveyance, made by a donor loaded with debt, involved with embarrassments, approximating to insolvency, or the owner of an estate not adequate to the payment of the claims against him, is fraudulent and void, against a prior creditor seeking to impeach it.

6. The word "voluntary" is not to be found in the statute of 13 Eliz., ch. 5. Deeds founded upon a good consideration, if made bona fide, are expressly excepted from its operation. Its provisions are directed against transfers concocted in fraud, and fabricated and devised by the debtor, for the purpose of delaying and defrauding his creditor.

The case of Reade vs. Livingston, 3 Johns. Ch. 481, erroneous as to the exposition given to the statute, 13 Eliz., ch. 5.  

COUNSEL:
By T. S. ALEXANDER for the appellants, and

By E. HAMMOND for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*455]  MARTIN, J., delivered the opinion of this court.
By the act of Assembly, of 1763, ch. 13, it is declared, that no negro or other slave, whereof the donor shall retain the use and possession, shall be transferred to any donee unless the gift be by writing, under the hand and seal of the donor, and acknowledged and recorded, as therein prescribed; with the proviso, that nothing contained in the act shall be construed to make void any parol gift of any negro or other slave, where there shall be an express delivery of such slave in pursuance of such [**11]  gift, and where the sale, use and possession of the same shall be transferred to the donee.
In the case of Coale against Harrington, 7 H. & John. 156, the Court of Appeals held, that:
"By the act of 1763, ch. 13, a gift of negroes is only required to be by deed, acknowledged and recorded, where the donor retains possession; that solemnity not being authorized, or required by law, when the possession passes to the donee, by delivery, at the time, and in pursuance of the gift, an office copy in such case of a bill of sale, is not competent evidence to prove title in the donee."
We have not been able to discover in this record any evidence even tending to prove that there was an express delivery of these slaves by James Shipley to his daughter at the time and in pursuance of the verbal gift alleged to have been made in the life-time of Mrs. Shipley; and we have referred to the act of 1763, and quoted the construction placed upon it, by the Court of Appeals, for the purpose of showing, that the parol gift asserted to have been made in this case, cannot be maintained; and that the title of the appellee to the slaves in controversy, must depend entirely upon [**12]  the validity of the bill of sale of the 3d August, 1841. 

 [*456]  It appears from the evidence in the cause, that this bill of sale was a voluntary conveyance of the two slaves mentioned in the proceedings by James Shipley to the appellee, who is his daughter. Although there is a monied consideration stated in the instrument, it is conceded that this was merely formal, and that the only consideration existing between the donor and donee, was that of love and affection. The debt of the appellant was created as early as the 22d November, 1839, and was therefore antecedent to the execution of the deed. And the question presented for our consideration, is, whether this conveyance is to be treated as fraudulent and void under the statute of 13 Eliz. ch. 5, with respect to this creditor upon the circumstances of the case as exhibited in the record.
It cannot be denied, that there has been some diversity of judicial opinion both in the English courts and in the tribunals of this country, with respect to the exposition of this statute, as applied to a voluntary conveyance from a father to his child, when attempted to be impeached by an antecedent creditor.
This subject was considered [**13]  by the Supreme Court of Connecticut, in the case of Salmon against Bennett, decided in 1816, 1 Connec.: 525; and we refer to the opinion as enunciating, what we consider to be the true interpretation of the statute of 13 Eliz. ch. 5: a construction which is certainly in accordance with the doctrine upon this point, as it is now established, by an almost unbroken series of modern decisions in England, and in the United States.
At page 542--the court say:
"Fraudulent and voluntary conveyances are void as to creditors; but in the case of a voluntary conveyance, a distinction is made between the children of the grantor and strangers. Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors where it is a provision for a child in consideration of love and affection; for if all gifts by way of settlement to children, by men in affluent and prosperous circumstances, were to be rendered void upon a reverse of fortune, it would involve children in the ruin of their parents, and in many cases might produce a greater evil than 

 [*457]  that intended to be remedied. Nor will all such conveyances be valid; for then it would [**14]  be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved; for this would be impracticable in many instances, where the conveyance ought not to be established. It may be collected from the circumstances of the case. But in all cases, where such intent can be shown the conveyance would be void, whether the grantor was indebted or not. In order to enable parents to make a suitable provision for their children, and to prevent them from defrauding creditors, these principles have been adopted, which appear to be founded in good policy, where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, and leaving ample funds unincumbered for the payment of the grantor's debts, then such conveyance will be valid against debts existing at the time. But though there be [**15]  no fraudulent intent, yet if the grantor were considerably indebted and embarrassed at the time, and on the eve of bankruptcy; or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts; then such conveyance will be void as to creditors."
This question came before the Supreme Court, in Hinde's Lessee against Longworth, 24 U.S. 199, 11 Wheat. 199, 6 L. Ed. 454, in 1826. It was the case of a voluntary conveyance by a father to his son, and impeached by antecedent judgment creditors, as fraudulent under the statute of 13 Eliz. Upon this point, Mr. Justice Thompson, in delivering the opinion of the court, said:--
"A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors. It may be so under certain circumstances; but the mere fact of being in debt to a small amount, would not make the deed 

 [*458]  fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembarrassed, and that the gift to the child was a reasonable provision according [**16]  to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side."
The question with respect to the true construction of the statute of 13 Eliz. was considered by Lord Langdale, in 1840, as the master of the Rolls, in Townsend against Westacott, 2 Beavan 345. He said:
"There has been a little exaggeration in the arguments on both sides as to the principle on which the Court acts in such cases as these: On the one side it has been assumed that the existence of any debts at the time of the execution of the deed would be such evidence of a fraudulent intention as to induce the Court to set aside a voluntary conveyance, and oblige the Court to do so under the statute of Elizabeth. I cannot think the real and just construction of the statute warrants that proposition, because there is scarcely any man who can avoid being in debt to some amount; he may intend to pay every debt as soon as it is contracted, and constantly use his best endeavors, and have [**17]  ample means to do so, and yet may be frequently, if not always indebted in some small sum; there may be a withholding of claims, contrary to his intention, by which he is kept indebted in spite of himself; it would be idle to allege this as the least foundation for assuming fraud, or any bad intention. On the other hand, it is said that something amounting to insolvency must be proved to set aside a voluntary conveyance; this too is inconsistent with the principle of the act, and with the judgments of the most eminent judges."
In the late case of Gale against Williamson, 8 Mees. & Wels. 409. The same doctrine was held in the Exchequer, by Lord Abinger & Rolfe Baron.
Rolfe--B. at page 410, says:
"It is a mistake to suppose that the statute, (13 Eliz.) makes 

 [*459]  void as against creditors all voluntary deeds. All that it says, is, that a practice of making covinous and fraudulent deeds had prevailed, and, therefore, that all feoffments, gifts, &c., of any lands or goods, and chattels, as against the persons whose actions, debts, &c., by such covinous and fraudulent devices and practices shall be disturbed, hindered, delayed, or defrauded,  [**18]  shall be void. The Courts in construing the statute have held it to include deeds made without consideration, as being prima facie fraudulent; because necessarily tending to delay creditors. But the question in each case is, whether the deed is fraudulent or not; and to rebut the presumption of fraud, the party is surely at liberty to give in evidence all the circumstances of the transaction."
The same proposition is declared by the Lord Chancellor and by Eyre Baron, in the case of Jones vs. Boulter, 1 Cox 288. 1 Story Eq. Sec. 364, (note) Lord Chancellor B. Skinner is reported to have used this language: "There is no mention in the act (Stat. 13 Eliz.) of voluntary conveyances; and the question has always been, whether in the transaction there has been fraud or covin. There were creditors at the time, and this is said always to have been a badge of fraud. It is true that this circumstance is always strong evidence of fraud. But if there be other circumstances in the case, that alone will not be sufficient." And Lord Mansfield, in Cadogan vs. Kennett, decided in 1776, Comp. 434, held:
"That a voluntary conveyance may be good against creditors,  [**19]  notwithstanding its being voluntary. The circumstances of a man being indebted at the time of his making a voluntary conveyance is an argument of fraud. The question in every case is, whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors."
In considering this subject, it is to be remarked as already stated, that the word "voluntary" is not to be found in the statute. Deeds founded upon a good consideration, if made bona fide, are expressly excepted from its operation; and it is perfectly clear, from the preamble of the statute, that its provisions were pointed not at voluntary conveyances as such, but against transfers 

 [*460]  concocted in fraud, and fabricated and devised by the debtor for the purpose of delaying and defrauding his creditor.
Yet the construction put on the statute, by those who held that an indebtedness at the time of the conveyance conclusively fastens upon the instrument a fraudulent character, as an inference of law, practically and necessarily places voluntary conveyances and fraudulent conveyances, in the same predicament. Upon this construction, every voluntary conveyance must be a [**20]  fraudulent conveyance with respect to the antecedent creditor.
A proposition of this kind cannot be maintained, and with great respect for the judgment of the eminent Judge, who delivered the opinion, in Reade against Livingston, 3 Johns. Ch. 481, we think, he erred in the exposition which he has given to the statute of 13 Eliz.
We therefore consider it as now established, at least by a decided preponderance of authority, and upon principles alone consistent with a just and rational interpretation of the statute, that an indebtment at the time of the voluntary conveyance, is prima facie only, and not conclusive evidence of a fraudulent purpose, even with respect to a prior creditor; and that this presumption may be repelled by showing that the grantor or donor at the time of the gift was in prosperous circumstances, possessed of ample means to discharge all his pecuniary obligations, and that the settlement upon the child was a reasonable provision, according to his or her station and condition in life.
Testing the voluntary conveyance in this case, by the rule thus announced, there can be no doubt that it must be pronounced fraudulent and void. [**21]  The donor at the period of its execution was literally loaded with debt; was involved in embarrassments approximating to insolvency, and the owner of an estate, so far as it was unincumbered, certainly not adequate to the payment of the claims against him.
It is clear upon all the cases, that a voluntary conveyance made under such circumstances cannot be upheld against a prior creditor's seeking to impeach it.
As the appellee failed to establish a valid title to the slaves 

 [*461]  taken in execution at the instance of the appellant, the Chancellor erred, we think, in making the injunction perpetual.
A decree will be signed reversing the decree of the Chancellor, and dismissing the complainant's Bill.
DECREE REVERSED AND BILL DISMISSED.