1 of 29 DOCUMENTS 

THE METHODIST PROTESTANT CHURCH, East Baltimore Station, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 391; 1848 Md. LEXIS 6 

June, 1848, Decided 

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

On the 28th April, 1847, the appellants, the trustees of the Methodist Protestant Church, East Baltimore Station, filed their bill in the equity side of Baltimore County Court, in which they allege that in their corporate capacity, they are the owners of a certain lot of ground situated on the corner of Pitt and Aisquith streets, in the city of Baltimore, on which is erected a building regularly used as a place of public worship, by the religious society embodied under the said corporate name. That this lot and building was so owned and occupied, at the time the Mayor and City Council of Baltimore, passed an ordinance providing for the opening and widening "Little Aisquith street," approved on the 20th April, 1846, and has ever since been so owned and occupied. That by the act of 1817, ch. 148, full power was given to said Mayor and City Council to open, extend, widen or straighten any street in said city, "upon the application in writing, of the proprietors of not less than two-thirds of any property which may be intended to be taken for such purpose," and by the act of 1838, ch. 226, like power was given them, to provide for laying out, opening,  [**2]  extending, widening, straightening or closing up, in whole or in part any street in said city, "which, in their opinion, the public welfare or convenience may require;" that on the 9th March, 1841, the said Mayor and City Council passed an ordinance entitled "an ordinance for exercising certain powers vested in this corporation, in relation to streets in the city of Baltimore," by which a board of commissioners was created, with power and authority according to the provisions of the acts of Assembly, and ordinances of the corporation of said city, to open, &c., any street, &c. in said city, and to assess and tax the expenses thereof as thereby directed, "subject, nevertheless, to all such restrictions exempting certain descriptions of property from assessment, as are contained in any law of this State, or in this ordinance, or any other ordinance of this city;" that by the laws of this State and ordinances of the city of Baltimore, houses for public worship are exempt from any tax to the State or the city.

That afterwards on the 20th April, 1846, said Mayor and City Council passed another ordinance providing for the widening of "Little Aisquith street," by which, among other things [**3]  it was ordered that the commissioners for opening streets, should proceed in all respects in the widening of said street, agreeably to the provisions of the said ordinance of the 9th March, 1841, but that by said ordinance of the 20th April, 1846, it was not declared, and does not in any manner appear whether the widening of said street was determined on upon the application in writing of the proprietors of not less than two-thirds of the property intended to be taken in so widening said street; or whether in the opinion of the said Mayor and City Council, the public welfare and convenience required it; and that upon an inspection of the premises and of the plats made by said street commissioners, it manifestly appears that the widening of said street, as proposed, will not conduce to the public welfare and convenience; that said street commissioners not regarding the acts of Assembly and ordinances of the said city corporation, and the rights, privileges and exemptions of your orator, did not give the notice of sixty days required by the ordinance of March, 1841, before entering upon the duties assigned them, and did not in any manner conform thereto, but did assess the said lot and [**4]  building a large sum of money, as and for a benefit conferred by the widening of said street, and that in other particulars their proceedings were erroneous and contrary to law, and in violation of the rights of your orator; that the collector of taxes for said city, acting under the direction of said city corporation, was about to sell said property for the payment of said tax. The bill then prays for an injunction restraining said corporation and its agents from attempting further to enforce said tax against your orator, and that the proceedings of said street commissioners may be quashed, and for general relief. On the same day the injunction was granted as prayed by Baltimore County Court.

The answer of the Mayor and City Council of Baltimore to this bill, filed on the 9th July, 1847, admits the complainant to be a corporation and owner of the lot and building mentioned in the bill, but denies that said building is regularly used as a place of public worship by the religious society embodied under the corporate name of the complainant, and avers that said building, which is not connected with the complainant's meeting house, but separated from it by a private alley, consists [**5]  of a two story brick house, the upper story of which is occupied by the sexton of complainant and his family as a dwelling house, and the lower story of which is used for the Sunday School of complainant and its class meetings and prayer meetings. That complainant so used and occupied said building at the time of the passage of the ordinance of the 20th April, 1846. Respondent admits the passage of the acts of Assembly and the ordinance of the 9th March, 1841, referred to in the bill, and also that of the 20th April, 1846, for the widening of "Little Aisquith street," and avers that the public welfare and convenience required the widening thereof, and that the ordinance so passed, was passed because in the judgment of the respondent it was required by the public welfare and convenience. That the street commissioners entered upon their duties in regard to the widening of said street on the 20th April, 1846, and gave notice by advertisement inserted on the following day, and afterwards published in two of the daily newspapers published in the city of Baltimore, that they would proceed on the 24th June next ensuing, at 4 o'clock in the afternoon, at their office, to exercise the power [**6]  and perform the duty assigned them, in regard to widening Little Aisquith street, agreeably to the provisions of an ordinance, entitled "An ordinance for the widening of Little Aisquith street," and of the ordinance, entitled "An ordinance to provide for exercising certain powers vested in this corporation, in relation to streets in Baltimore city," and according to appointment, proceeded to perform their said duty, and in so doing, assessed upon the said lot and building of the complainant, the sum of seventeen dollars, as and for a benefit conferred by the widening of said street,--and that the collector of this corporation is bound and will collect said assessment, unless restrained by this court. That this corporation in passing said ordinances, have, in all respects, observed the requisitions of the act of 1838, referred to in the bill, and that said street commissioners have strictly followed the said act and ordinances, and that all acts and proceedings in the premises are well and lawfully done, and should be enforced. Respondent further saith, that by the ordinances aforesaid, an appeal to Baltimore City Court is allowed to all persons improperly assessed by the commissioners [**7]  of streets of the city of Baltimore, and that in said court, and not here, the case set forth in said bill is cognizable; and this respondent denies the jurisdiction of this court in the premises, and prays to have benefit of this objection, as if formally pleaded.

The deposition of Zaccheus O. Bond, taken before a justice of the peace, by consent of parties, was filed in the cause. The witness deposes, that the building spoken of is used for public worship, and also for a Sabbath School. A room up stairs is occupied by the sexton of the church. The room down stairs is open twice a week for public worship, and almost every evening in the week, (Sundays excepted,) it is open for business appertaining to the church. The public worship to which he refers, is prayer-meeting one night in the week, preaching another night. The class-meetings are held there through the day, nearly every day. The building is never open for public worship when the church is open. The attendance in this building is fewer than in the church. The prayer-meetings and preaching in this building are open acts of worship, and parts of the religious services of the Methodist Protestant Church.

The cause was [**8]  then removed to the Court of Chancery, and submitted upon motion to dissolve the injunction. The Chancellor (JOHNSON) on the 29th July, 1847, dissolved the injunction, and delivered the following opinion:--

The bill in this case was filed on the equity side of Baltimore County Court, and subsequently transferred to this court, under the provisions of the act of Assembly for that purpose.

It seeks to restrain, by injunction, the Mayor and City Council of Baltimore and their agents, from proceeding to collect a tax and assessment, which had been imposed upon the property of the complainant, as and for a benefit, which in the judgment of the street commissioners of the city of Baltimore, had been conferred upon their property by the widening of Little Aisquith street. The interposition of the court is asked upon the ground, that the commissioners in imposing the tax, have acted in disregard of the acts of Assembly, the ordinances of the Mayor and City Council in the premises; and especially in violation of those provisions of the laws and ordinances, which exempt this property of the complainants from taxation. The injunction was ordered, and after answer filed, the proceedings [**9]  were transferred to this court, in which the motion to dissolve has been argued by the solicitors of the parties.

The bill alleges, that upon the lot of ground upon which the tax has been assessed, there is erected a building, regularly used as a place of public worship, and it is contended, that such property is, by the laws of this State and the ordinances of the city, exempt from taxation for any purpose. The answer denies the allegation as to the use of the building, and some proof has been taken in regard to the character of the building, and its use as a place of public worship. And the answer also insists, that by the ordinances of the city upon the subject of opening and widening streets, an appeal to Baltimore City Court is allowed to all persons improperly assessed by the street commissioners, and that in that court, and not here, the case made by the bill is cognizable,--and, therefore, the jurisdiction of the Chancery Court is denied.

The Chancellor concurs in this view of the subject, and for that reason, forbears to express an opinion upon the other questions which have been argued by the counsel.

It was said by the court of Appeals, in the case of Gott and Wilson vs. Carr, 6 Gill & Johns. 312, [**10]  that "it is a salutary principle of law, that every person is bound to take care of, and protect his own rights and interests, and to vindicate them in due season, and in the proper place;" and because the complainant in that case did not vindicate his rights in due season, and in the proper place, the interposition of the Chancery Court in his favor was refused.

I think the principle of that case applies to this. The act of 1838, ch. 226, which gives to the corporate authorities of Baltimore, to lay out, open and widen streets, &c directs among other things, that they shall have power to provide for granting appeals to Baltimore City Court, from the decisions of the commissioners, and to secure to every person interested in such decisions, the trial by jury, on application within a reasonable time. And the 9th sec. of the ordinance of the City, No. 10, of 1841, approved on the 9th March of that year, which is an ordinance for exercising the powers vested in the city by the act of 1838, ch. 226, confers upon persons who may be dissatisfied with the assessment of damages or benefits, which may be made by the commissioners, the right of appeal within a limited and reasonable time,  [**11]  to the judges of Baltimore City Court, and gives to the said judges, power to hear and fully examine the subject, and decide thereon, with a provision for summoning a jury, to try any question of fact. And a similar provision in reference to the right of appeal, is made by the 9th sec. of the ordinance, No. 59, of 1846.

The street in question was widened under ordinance, No. 49, of 1846, which directs that the street commissioners shall proceed, in all respects, in the widening of the street, agreeably to the provisions of the ordinance of the 9th March, 1841, and consequently, the right of appeal to the City Court, secured by the latter ordinance, might have been enjoyed by any person conceiving himself aggrieved by the judgment of the commissioners. It seems to me, that the remedy thus provided for the examination and correction, (if erroneous) of the proceedings of the commissioners, should have been taken by these complainants, and that they have no right, passing by that remedy, to invoke the extraordinary power of a Court of Chancery, to interpose by way of injunction for their relief. The injunction will consequently be dissolved.

From this order, the complainant appealed [**12]  to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

The legislature, by the acts of 1817, ch. 148, and 1838, ch. 226, conferred certain powers upon the corporate authorities of the city of Baltimore, in relation to the opening and widening of streets in said city. Held,

That it is not essential to the validity of an ordinance of said corporation, executing the powers thus conferred, that it should state or indicate the act in execution of which it was passed.

If no power be stated as its basis, the ordinance will be regarded as emanating from that which would have warranted its passage; and if two such powers exist, it may be imputed to either, in conformity to which, its provisions show it to have been adopted.

The power to determine whether or not the public welfare and convenience require the widening of any particular street, is, by the act of 1838, ch. 226, vested exclusively in the Mayor and City Council, and whether their judgment be right or wrong, is no subject for revision or correction in a court of equity.

When notice to all persons interested in the opening or widening of any street, has been duly given by publication, as required by the act of 1838, ignorance thereof, in any party, can afford him no ground for relief, either in equity, or by appeal to the City Court. The law imputes notice, and will not admit testimony to disprove it.

The Court of Chancery, except as an appellate tribunal, never interferes to arrest, or set aside, the proceedings of courts of law, or other judicial tribunals, upon the ground of legal error therein, unless prompted by conscience, to prevent wrong and injustice, but leaves the party complainant to his remedy at law.

Where a party fails to avail himself of the means provided by law, for the redress of the wrong of which he complains, he is without remedy in a court of Chancery.

The law having given to parties considering themselves aggrieved by the proceedings of the street commissioners of the City of Baltimore, an appeal to Baltimore City Court, they can successfully seek redress only in that tribunal.

The testimony of but one witness is clearly insufficient to overthrow the responsive and positive denials of an answer.  

COUNSEL:
T. P. SCOTT for the appellant, insisted:--

1st. That the ordinance of the 20th April, 1846, and the proceedings of the city commissioners do not show affirmatively, nor does it appear negatively, whether Little Aisquith street was to be opened and widened under the act of 1817, on the application of two-thirds of the proprietors of the ground, or under the act of 1838, because of the requirements for public convenience. There is no evidence of any application of proprietors under the act of 1817. It manifestly appears from the terms of the ordinance of the 20th April, 1846, that the public convenience will not be promoted by the proposed change. The city commissioners did not proceed, in conformity with the provisions of the ordinance of the 9th March, 1841, as directed by the ordinance of April, 1846. They did not give sixty days notice, as required by the former ordinance, and assessed the property of the appellant contrary thereto.

2d. That though provision is made under said acts and ordinances for an appeal from the decision of the commissioners, yet the appellant is not thereby precluded from his remedy by injunction; because,  [**13]  it had no actual notice in fact of the assessment complained of, until the attempt was made to enforce it by sale of the property. The whole proceedings of the city commissioners being coram non-judice, the appellant was not bound by any mere constructive notice. Though in an action of ejectment, brought by any purchaser of this property, the appellant might defend itself at law; yet to avoid circuity of action, needless and expensive litigation, and for more prompt, efficient and adequate justice under the peculiar circumstances of this case, it is entitled to its remedy by injunction.

CAMPBELL and WILSON for the appellee, contended:--

1st. That the notice given by the commissioners was given in conformity with the act of 1838, ch. 226, in its 2d section, and also with the 6th section of the ordinance of 1846, No. 59. That the building assessed is no house for public worship, and if it were, is not exempt from an assessment for benefits.

2d. That the remedy of the party is misconceived, even if the objections above answered were good. The City Court of Baltimore being provided for by law to entertain such questions.  

JUDGES:
The cause was argued before DORSEY, C. J., SPENCE [**14]  and MARTIN, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*399]  DORSEY, C. J., delivered the opinion of this court.
Various grounds have been assigned by the complainant, why the injunction issued in this case, should not have been dissolved. And first, it is insisted, that the ordinance, of the 20th April, 1846, No. 49, for the opening of Aisquith street, is invalid, because it is not apparent on its face, whether it was passed in execution of the powers delegated to the Mayor and City Council of Baltimore, by the act of 1817, ch. 148, or by the act of 1838, ch. 226. It is not essential to the validity of an ordinance, executing powers conferred by the legislature, that it should state, or indicate, the power in execution, of which the ordinance was passed. If it state no particular power, as its basis, judicial courtesy requires that we should regard it as emanating from that power, which would have warranted its passage. If two such powers exist, it may be imputed to either; in conformity to which its provisions and prerequisites shew, that it has been adopted. If, in these respects, in accordance with both, no incongruity or injustice can result, in regarding it as the offspring of both,  [**15]  or either of 

 [*400]  the powers. It is, therefore, no fatal objection to the proceedings of the city commissioners, that they do not, therein distinctly unfold under what act of Assembly, or ordinance their powers were exerted. If sustainable on either, their proceedings cannot be invalidated on that ground, in a court of equity.
The allegation and offer to prove in the bill, that the public welfare or convenience does not require the widening of Aisquith street, furnishes no ground for relief, by the interference of a Court of Chancery. By the act of 1838, ch. 226, the determination of that question is exclusively vested in the Mayor and City Council of Baltimore; and whether their judgment be right or wrong, is no subject for revision or correction in a court of equity.
The appellant seeks to sustain the injunction issued in its behalf, on the ground, that it "had no actual notice in fact of the assessment complained of, until the attempt was made to enforce such assessment by a sale of its property." If such fact were at all material, it is a sufficient answer to it, to state, that it is unsustained by any proof; and that the bill discloses no such ground for equitable [**16]  relief; and that for aught appearing therein, it might be true, that the complainant had full knowledge of every proceeding of the city commissioners at the time it occurred: and could, in the mode prescribed by the act of 1838, by an appeal to the City Court of Baltimore, have been amply protected and redressed against all the illegality and injustice of which it now complains. But, it is immaterial whether such "actual notice in fact" were given to, or possessed by the complainant or not. By the act of 1838, the legislature have provided the mode, by which all persons are to be notified, whose interests are to be affected by the widening, opening, or straightening of streets in the city of Baltimore; and the time during which such notice shall be published in the newspapers. Which being complied with; ignorance thereof, in any owner on whose property benefits have been assessed, is his misfortune or his fault, but can furnish no 

 [*401]  ground for relief to him, either on a bill in equity, or an appeal to the City Court.
Before the Mayor and City Council of Baltimore could proceed to execute the powers vested in them by the act of 1838, at least sixty days notice [**17]  must be given of any application, which may be made for the passage of any ordinance, by advertisement, in at least two of the daily newspapers in the city of Baltimore. And "before any commissioners, appointed by any ordinance to be passed in virtue of this act, shall proceed to the performance of their duty, they shall give notice in at least two of the daily newspapers in the city of Baltimore, of the subject of the ordinance, under which they propose to act, at least thirty days before the time of their first meeting, to execute the same." And it is further enacted, "That upon the return of any assessment to be made under any ordinance, to be passed in virtue of this act, the register of the city of Baltimore, shall cause a copy of said assessment to be published for thirty days, in at least two of the daily newspapers of said city." It is not pretended that all these publications have not been regularly made pursuant to the provisions of the act of Assembly. Against the validity of such proceedings, a want of notice in point of fact can form no objection. The law imputes notice, and will not admit testimony to disprove it, in a case like the present. The time for [**18]  an appeal from any such assessment, is thirty days after the register's publication.
The ordinance of 9th March, 1841, No. 10, sec. 6, requires sixty days previous notice of the meeting of the commissioners to discharge their duties, to be published in at least two daily newspapers of the city of Baltimore: whereas, the act of 1838, in virtue of which that ordinance was passed, required the publication of such notice for but thirty days. Without deeming it necessary to inquire, whether the commissioners have not legally executed their powers, by giving the notices specified in the act of Assembly, it may be sufficient to say, that this objection, as to the time during which the notice was given, is, of itself, of a purely legal or technical 

 [*402]  character; and it not being even pretended, that the complainant was damnified thereby, it forms not the slightest ground for equitable relief; much less for the interposition of a court of equity, by way of injunction. A Court of Chancery, except when acting as an appellate tribunal, never interferes to arrest or set aside the proceedings of courts of law, or other judicial tribunals, upon the ground of legal error therein, unless [**19]  prompted by conscience to prevent wrong and injustice; but leaves the party complainant to his redress in a court of law.
As an authority that an appellant having failed to avail himself of the means provided by law for the redress of the wrong of which he complains, (the means in this case being an appeal to the City Court,) is without remedy in a Court of Chancery. See the case of Gott & Wilson vs. Carr, 6 G. & J. 309.
Another, and it is conceived, a conclusive objection to the injunction issued in this case, is, that by the 9th section of the ordinance of March 9th, 1841, No. 10, and of May 15th, 1846, No. 59, on an appeal from the proceedings of the commissioners, the City Court are authorized, after an examination into the same, in the mode therein pointed out, to amend or supply all defects and omissions in the return and proceedings of the commissioners, "and alter, modify and correct the said record of proceedings in all, or any of its parts," as it "shall deem just and proper." To the Court of Chancery or County Court, sitting as a court of equity, no such power is delegated; nor can it be lawfully or judiciously exercised by those tribunals. To persons [**20]  aggrieved by the proceedings of the commissioners in cases like the present, the legislative enactments upon the subject have provided the tribunal and means of redress, and there only can it be successfully sought.
To sustain a court of equity, in the exercise of the power it has assumed, would, in effect, be conferring upon it appellate authority, where it is wholly incompetent to administer justice and render full and adequate relief to all concerned; on whose rights, if it act at all, it ought to adjudicate. There is no 

 [*403]  time prescribed within which, such an application must be made. A complainant may wait until the proceedings of the commissioners are, in part, or wholly, except as to himself, executed by the widening, opening, or straightening the street, and then apply for relief to a court of equity. To tolerate such an interference, as the present, would produce endless confusion and difficulty; and would be wholly inconsistent with, and subversive of the policy and design of the acts of Assembly, and ordinances of the Mayor and City Council of Baltimore, in relation to the widening, opening and straightening of streets, and would render, almost impracticable,  [**21]  if not annihilate the exercise of such a power.
But if it were conceded, that the case stated by the bill, warranted the issuing of the injunction, it was rightly dissolved by the Chancellor. The allegation that the property, charged with the assessment for benefits, was a house for public worship, was responsively and positively denied by the answer; and to disprove and overrule such denial, the testimony of but one witness was offered; which was clearly insufficient for that purpose.
Whether the testimony of that witness, unaffected by the answer, shewed the house in question, to be such a house for public worship as was included in the exemption contained in the ordinances referred to, it is deemed unnecessary to consider.
The order of the Chancellor dissolving the injunction in this case is affirmed with costs; and the bill of complaint of the appellant, is dismissed with costs, both in this court and the court below.
DECREE AFFIRMED.  

2 of 29 DOCUMENTS 

WESTERN BANK OF BALTIMORE, garnishee of JAMES M. RAISIN, vs. ADAM B. KYLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 343; 1848 Md. LEXIS 3 

June, 1848, Decided 

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

This was an attachment, sued out on the 9th March, 1846, by the appellee against James M. Raisin, and laid in the hands of The Western Bank of Baltimore, on the 11th of that month. It was founded on a decree obtained in Baltimore County Court, as a Court of Equity, on the 22d December, 1841, for $ 3,200, &c.; revived on the 10th November, 1845.

The garnishees pleaded payment by James M. Raisin.

1ST EXCEPTION.--The plaintiff, to support the issue on his part, gave in evidence a decree of Baltimore county court, passed on the equity side, 22d December, 1841.

The garnishee, to support the issue on his part, offered in evidence an agreement in writing, entered into between the plaintiff and the said James M. Raisin, the hand writing of which was admitted on the part of the plaintiff.

$ 600. Baltimore, 29th April, 1843.--Received of James M. Raisin, three joint notes of himself and brother, Dr. E. F. Raisin, for $ 600, as follows:

One dated 1st April, 1843, at 6 months, bearing interest from 1st October, 1842, for $ 200 00.

One dated 1st April, 1843, at 12 months, bearing interest from 1st October, 1842, for $ 200 00.

One [**2]  dated 1st April, 1843, at 18 months, bearing interest from 1st October, 1842, for $ 200 00.

Making the above mentioned sum of six hundred dollars.

Upon the payment of these notes at maturity, we agree to release James M. Raisin from all penalties and liabilities, on account of a judgment recovered against him in Baltimore county court, for $ 3,200 00. Provided, always, that upon the failure, on the part of J. M. Raisin or E. F. Raisin, to pay the above mentioned notes at maturity, our judgment against J. M. Raisin to continue in full force, and this agreement to be null and void.     DINSMORE & KYLE, for A. B. Kyle.

And also offered in evidence the three promissory notes of the said James M. Raisin and E. F. Raisin, mentioned in said agreement, the amounts of which, with the interest growing thereon, were admitted, by the plaintiff, to have been paid him upon the days respectively mentioned in the receipts therefor, endorsed on said notes.

$ 200.     Kent County, Md., April 1, 1843.

Six months after date, we, and each of us, promise to pay Dinsmore & Kyle, or order, two hundred dollars, for value received, with interest from the first day of October,  [**3]  1842.

JAMES M. RAISIN.

E. F. RAISIN.

On the back whereof is the following statement and receipt, to wit:

________________________________________________________________________________
J. M. Raisin and E. F. Raisin, $ 200.	
   April 1st, at 6 months,	$ 200 00	
   Interest,	12 00	
   Collection in check,	50	
	
	$ 212 50	
P'd check on Smyrna, of E. F. Raisin, Oct. 2.	200 00	
	
	$ 12 50	
________________________________________________________________________________

Received twelve dollars and fifty cents on settlement--within note of Messrs. Pope & Green. DINSMORE & KYLE.

Balto., October, 1843.

$ 200.     Kent County, Md., April 1, 1843.

Twelve months after date, we, and each of us, promise to pay Dinsmore & Kyle, or order, two hundred dollars, for value received, with interest from the first day of October, 1842.

JAMES M. RAISIN.

E. F. RAISIN.

On the back whereof is the following statement and receipt, to wit:

________________________________________________________________________________
J. M. Raisin and E. F. Raisin,	
   April 1st, 1843, 12 months,	$ 200 00	
   Interest,	18 00	
	
	$ 218 00	
________________________________________________________________________________

Balto., 2d April, 1844.--Received amo't of within note of Mr. C. Green.

DINSMORE & KYLE,

per Henry W. D. Kyle.

$ 200.     Kent County, Md., April 1, 1843.

Eighteen months after date, we,  [**4]  and each of us, promise to pay Dinsmore & Kyle, or order, two hundred dollars, for value received, with interest from the first of October, 1842.

JAMES M. RAISIN.

E. F. RAISIN.

On the back whereof is the following statement and receipt, to wit:

J. M. Raisin and E. F. Raisin, April 1st, 1843, 18 months, due 1st October, 1844.

________________________________________________________________________________
Amount note, ...	$ 200 00	
Interest from 1st October, 1842,	
  to 25th June, 1845,	32 82	
	
	$ 232 82	
________________________________________________________________________________

Baltimore, June 25, 1845.--Received, by the hands of Mr. T. H. Horsey, two hundred and thirty-two dollars and eighty-two cents, the am't of within note.     DINSMORE & KYLE.

The parties agreed to submit to the court, as the only question of law to be raised in the cause, the effect of the payment and receipt of the third and last of said notes under the said agreement.

The garnishee prayed the court to instruct the jury, that upon the facts offered in evidence, the receipt by the plaintiff of the amount of the third note, and interest thereon, on the day on which it was paid, was a waiver on his part of the default of the said Raisin, in not paying or causing it to be paid at maturity; and prevented [**5]  any recovery by him, upon the decree given in evidence on his part.

Which instruction the court (LE GRAND) refused to give, but directed the jury that to the extent to which the garnishee had funds of the said Raisin in his hands, at the time the attachment was laid, provided the same did not exceed the balance of said decree, after deducting the amount paid on said notes, the plaintiff was entitled to recover, and that the non-payment, at maturity, of the last of said notes, remitted the plaintiff, under the foregoing agreement, to the whole debt mentioned therein. To which refusal and direction the said garnishee excepted.

The verdict and judgment being against The Western Bank it prosecuted the present appeal.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

In 1841 K. obtained a decree in equity against R., who, in 1843, delivered to K. his notes, with security, payable in six, twelve, and eighteen months, for about one-fifth of the amount of the decree. K. agreed to release R. from the decree, provided that, upon failure to pay "the above-mentioned notes at maturity, the decree to continue in full force, and the agreement to be null and void." The two first notes were paid at maturity; and some months after, the third fell due, in 1845, K. received and accepted the whole amount, with interest on it to the day of payment. In 1846, K. sent out an attachment against R. The garnishees pleaded payment by R. The effect of the payment of the three notes was the only question submitted to the Court. Held,

1. The receipt of the notes, and the acceptance of the security, must have been intended as a satisfaction of the decree, if they had been paid at maturity.

2. K. could not treat the agreement as a nullity, and still hold on to the notes.

3. The agreement was a compromise, in consideration of security for the compliance of its terms.

4. On failure to pay the third note at maturity, K. might have treated the whole agreement as a nullity; and be remitted to his decree crediting it with the two notes paid.

5. Time, in such a case, is an essential ingredient of the contract. The stipulation was for the benefit of K, who might renounce it. It was voidable at his election.

6. A condition in a lease, that, upon neglect of the lessee to pay the rent, or any other failure to perform on his part, the lease shall cease and determine, does not render the lease absolutely void, upon the default in performing the condition, but voidable at the election of the lessor; if he elect to waive the forfeiture, the lessee is bound, as though there had been no breach of condition.

7. If the agreement in this case became a nullity, so did the note. If K. had proceeded on his decree, he must have produced the third note to be cancelled.

8. The court will not dispense with the point of time in composition, but it may be waived.

9. A mere agreement between parties, to accept a less sum for a larger amount agreed to be due, is a nudum pactum.  

COUNSEL:
By J. MASON CAMPBELL and REVERDY JOHNSON for the appellants, and

By ALEXANDER for the appellees.  

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

OPINIONBY:
FRICK 

OPINION:

 [*347]  FRICK, J., delivered the opinion of this court.
In this case, Kyle, the appellee, was a creditor of James M. Raisin, to whom the Western Bank of Baltimore, the present garnishee, was indebted in a sum of money, upon a judgment [**6]  obtained against the bank. Out of the amount of this judgment, Kyle, by this proceeding in attachment, seeks to recover the sum alleged to be due to him by Raisin.
Kyle had originally, at the December term of Baltimore County Court, in Equity, obtained a decree against James M. Raisin, for the sum of $ 3,200, with interest thereon, from the 31st January, 1838; and with this decree unsatisfied, received from Raisin three notes, with Raisin's brother as surety, amounting in all to $ 600; for which notes he delivered to Raisin the following receipt:

"$ 600.     Baltimore, 29th April, 1843.
"Received of James M. Raisin three joint notes of himself and brother, Dr. E. F. Raisin, $ 600, as follows:
"One, dated 1st April, 1843, at 6 months, bearing interest from 1st of October, 1842, for $ 200.
"One, dated 1st April, 1843, at 12 months, 1st October, 1842, $ 200.
"One, dated 1st April, 1843, at 18 months, 1st October, 1842, $ 200. Making the above mentioned sum of $ 600.
"Upon the payment of these notes, at maturity, we agree to 

 [*348]  release James M. Raisin from all penalties and liabilities on account of a judgment recovered [**7]  against him in Baltimore County Court, for $ 3,200. Provided always, that upon the failure on the part of J. M. Raisin, or E. F. Raisin to pay the above mentioned notes at maturity, our judgment against E. M. Raisin to continue in full force, and this agreement to be null and void.
DINSMORE & KYLE, for A. B. Kyle."
Of these notes thus given, it appears that the two first were paid at maturity; one of them, as appears by the receipt on the back of it, by E. F. Raisin. The third was not paid at maturity, but Kyle subsequently, on the 25th of June, 1845, (nearly nine months after it became due) received and accepted the whole amount, with interest on it to the day of payment.
To the attachment, the garnishee on behalf of the defendant, James M. Raisin, pleaded payment. And both parties agreeing to submit to the court, as the only question of law to be raised in the cause, the effect of the payment and receipt of the third and last of said notes under the said agreement, the court directed the jury, "that to the extent to which the garnishee had funds of the said Raisin in its hands at the time the attachment was laid, provided the same did not exceed [**8]  the balance of said decree, after deducting the amount paid on said notes, the plaintiff was entitled to recover, and that the non-payment at maturity of the last of said notes, remitted the plaintiff under the foregoing agreement, to the whole debt mentioned therein."
In this instruction we think the court erred. That the release predicated upon the payment of the notes at maturity, must have been conclusive against Kyle, if the notes had been met according to the agreement, is undeniable. For the receipt of the notes, and the acceptance of the surety for payment, must have been intended in satisfaction of the whole debt, provided the condition upon which the release was to take effect had been complied with.
It has, however, been contended that the agreement was but a present indulgence, by suspension of further proceedings 

 [*349]  against the debtor; that is, the notes, with security, were intended as the purchase money for the indulgence, and were to be paid at all events, even if the release never attached, by the non-compliance in time; that the extinguishment of the entire debt on compliance with the terms, was but to stimulate the payment of the notes at maturity. [**9]  
On this construction the appellee claims both the benefit of the default, and the security on the notes; and in this mode of construing the agreement, it is that we detect the fallacy of the instruction, which assumes that he might treat the agreement as a nullity, and still hold on to the notes. It is clear to us that the agreement was not intended as an indulgence to the party by a suspension of the debt, but it was a compromise in consideration of security for the compliance of the terms, which if met according to the express stipulations, was to operate as an extinguishment of the whole debt. On the failure of Raisin to pay the third note, on the 2d October, 1844, there is no doubt that Kyle might have treated the whole agreement as a nullity. He was remitted back again to the original cause of action. He might have credited the debt with the two notes paid, and have proceeded instanter upon his decree for the whole balance due. Time was an essential ingredient in his contract, and if the notes were not all paid as they matured, the agreement was to be null and void. By the agreement, the original debt was not cancelled, on the contrary, it was to revive in case of [**10]  default in the payment of the notes in time. This stipulation was for the benefit and in favor of the appellee. He was not bound to enforce it. He might still, at his election, renounce the right introduced entirely for his advantage, and proceed upon the compromise. The option is with him to avoid the agreement. It is not necessarily void, but voidable at his election. "A condition in a lease, that upon neglect of lessee to pay the rent, or any other failure to perform on his part, the lease shall cease and determine or become null and void, does not render the lease absolutely void upon the default in performing the condition, but voidable at the election of the lessor; if he elect to waive the 

 [*350]  forfeiture, the lessee is bound, as though there had been no breach of condition." 1 Denio 516. 50 Law Library 200.
What is the true construction of the conduct of the appellee here? Did he elect to stand by his forfeiture on the 2nd October, 1844, when the last note matured? Would he not naturally, at once, and instanter, have resorted to his original cause of action, if he intended to treat the agreement as a nullity, and insist on the default? Or did he not [**11]  rather signify on his part a waiver of the forfeiture, by waiting nine months for the payment of the last note, during all which time he had the option and election of enforcing the penalty of the agreement. If within that time, he had elected to proceed upon the forfeiture, would he not, or ought he not to have handed back the third note, and relieved the surety under the agreement? For in this view his election to stand by the forfeiture must invalidate the outstanding note. If the agreement became a nullity, so also did the note; and if he had followed up the default by instant proceedings against James Raisin, he must have produced this third note and offered it to be cancelled, before he could recover the whole balance of his claim.
But after an interval of nine months he received from the parties the payment of this third note, with interest in full. Was not this acceptance an assertion, or admission of existing rights under the agreement? That note had no legal existence or validity, but under the agreement. He might, it is true, have sued upon it, as soon as it became due; but if so, it must be that he held the agreement still in force, and had elected to waive the forfeiture. [**12]  And if he waited to receive the amount without suit, is not the receipt of it, an affirmance of the continued existence of the agreement? By the receipt on the back of the note on the 15th June, 1845, he concedes the compromise to be in full life. He himself revived it, and waived the default; and what was done on that day, was as if done on the day agreed upon in the note.
The case ex parte Bennett, in 2d Atkyns Ch. 526, cited in the argument of this cause, is a case in point. There Lingood being indebted to Bennett in a large sum, it was 

 [*351]  agreed to compound for a certain amount, to be paid to Bennett by instalments of £  25 every quarter of the year. Lingood paid the first, and for the second gave Bennett two notes, payable at a future day, which Bennett accepted. Lingood became bankrupt, and Bennett insisted before the commissioners, that he had a right to prove his whole debt. The Lord Chancellor said: "The rule has been rightly laid down, that the court will not dispense with the point of time in compositions. For when a creditor agrees to take less than his debt, so that it be paid precisely at the day, and the debtor fails [**13]  of payment, he cannot be relieved." But "Bennett's acceptance of the two notes from Lingood instead of the money, is a waiver of the particular default in the payment of the instalment." It is also to be observed, that this is not the case of a mere agreement between the parties to accept a less sum for a larger amount, agreed to be due, which is nudum pactum. In such case, the appellee would have the right, as claimed by his counsel, to receive the $ 600, and credit the amount pro tanto on the judgment or decree. That rule may well apply to a security of equal degree for a smaller sum, which is no satisfaction for a larger one, payable in the same manner. But here where there is a new consideration for the relinquishment of the residue of the debt--the security of Raisin's brother upon the notes. The books abound with authorities to show, if paid, it is a good accord and satisfaction of the whole debt. Here the brother, it appears, paid at least one of the notes. And it is said by Lord Ellenborough, in 11 East. 394, cited in Geiser vs. Kershner, 4 G. & J. 305, "if on the faith of such agreement, a third person be lured in to become surety [**14]  for any part of the debts, on the ground that the party will be thereby discharged of the remainder, the agreement is binding." It is the security for a less sum which, if the creditor accepts, as a satisfaction for the whole debt is a sufficient and binding consideration. But the whole amount stipulated for must be paid. 3 Eng. Com. Law 363. 1 Taunt. 526. 20 Johns. 78. 2 Metc. 283. 1 Smith's Leading Cases, 146. And as in the case under review, time may be made an essential 

 [*352]  ingredient in the contract. But as before remarked, such a stipulation may be waived by the party in whose favor it is made. Kyle did not choose to insist on his forfeiture, and proceed against the original debtor for his balance; but elects to abide by the note for which he has security, accepts the $ 200, with interest, after the default, and receipts in full for the same on the note.
This he must be presumed to have done with a knowledge of his rights, and of all the consequences; and the receipt by him of the amount of the third note, must be construed as a waiver on his part of all right under the agreement to claim [**15]  or enforce the forfeiture.
In the discussion of the case, the counsel for the appellee urged the objection before the court, that the plea of payment did not meet the case presented; that the only answer to an acceptance of a less sum in satisfaction of a larger, is accord and satisfaction. "It appears, however, by an endorsement of this plea, that all errors in pleading on both sides are released, and the garnishee may have liberty to give the special matter in evidence under it." To this agreement it may be objected, perhaps, that it is only signed by the counsel for the garnishee. But we find the further agreement before adverted to, that the only question to be raised in the cause was upon the effect of the payment, on which this court have just expressed their opinion; so that if the release of errors is not obligatory on both parties, yet both have agreed to restrict themselves to the only one question submitted by them. The only prayer offered is predicated upon the notes offered in evidence, as being a satisfaction of the debt. No question is raised in the prayer, or upon the record, as regards the pleadings; and where it does not appear in the record that the question, as [**16]  regards the form or sufficiency of the pleading, has been submitted or decided in the court below, this court has only to repeat here, (in recurring again to the act of 1825, ch. 117,) that it is prohibited from entertaining the question. Further, it is urged that as the writ of attachment, after reciting the decree of 1841 against Raisin, alleges the revival of said decree, in November, 1845, 

 [*353]  as part of the cause of action; and the only defence taken being on this plea of payment, the plea must necessarily have reference to the said decree so revived; and there being beyond this plea no other denial of the validity of this decree, its operation in the case concludes the defendant below; because the previous acceptance and payment of the notes in evidence cannot be said to be an answer to the subsequent decree or judgment so revived, as the cause of action.
It might be a sufficient answer to this on the part of the appellee to say, that although such decree is recited in the writ as part of the cause of action, yet it no where appears in proof upon the record. No evidence was offered in the court below of the existence of such revived decree.
The plaintiff there [**17]  gave in evidence a decree on the equity side of the court, dated 22d December, 1841, and then rested his case. The garnishee, to support the issue made, offered the agreement and the proof of the payment of the notes, as before stated, and of course with reference to the decree of 1841. So that this position is not maintained in fact; but even if allowed to have any force as urged by counsel, the point is concluded by his own agreement, to restrict the enquiry in this case singly to the effect of the payment of the notes under the agreement, on which the opinion of the court, as before expressed, is against the appellee, and the judgment below is reversed.
JUDGMENT REVERSED.  

3 of 29 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE vs. THE BALTIMORE AND OHIO RAIL-ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 288; 1848 Md. LEXIS 1 

June, 1848, Decided 

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

This was an action of assumpsit, brought to January term, 1846, by the appellants against the appellees. The defendants pleaded non-assumpsit. A verdict was rendered for them, when the plaintiffs prosecuted this appeal.

At the trial of the cause, the plaintiffs, to support the issue on their part, offered in evidence the acts of the General Assembly of Maryland, and the Ordinances of the Mayor and City Council of Baltimore, relating to taxation in the State or City of Baltimore; and also the act of the General Assembly of December session, 1835, ch. 395.

The defendants, to support the issue on their part, offered in evidence their charter, passed at December session, 1826, ch. 123, and all the supplements thereto, and all the laws and ordinances of said City relating to the defendants.

It was admitted that the defendants owned real and personal estate, and shares of their own stock in the City of Baltimore that would be liable to tax, and the tax on which would amount to $ 100, except for the exemption claimed by them, and denied by the plaintiffs. It was admitted that the charter of the defendants has been assented to, according [**2]  to its terms, by the States of Pennsylvania and Virginia, and by the United States, as legislature of the District of Columbia. It was admitted, that if in the opinion of the court, the stock in the hands of an individual holder would be liable to taxation, the judgment of this court shall be entered in favor of the plaintiffs for $ 101 and costs.

Whereupon, the plaintiffs prayed the court to instruct the jury:--

1st. That the real estate of the Baltimore and Ohio Railroad Company, the defendants, situate in the City of Baltimore, is liable for City taxes.

2d. That the personal property of the Baltimore and Ohio Rail-road Company, situate in the City of Baltimore, is liable for City taxes.

3d. That the capital stock of the Baltimore and Ohio Railroad Company, the defendants, is liable for City taxes.

4. That the shares of the capital stock of the Baltimore and Ohio Rail-road Company in the hands of the share-holders, is liable for City taxes.

The court, (PURVIANCE, A. J.) refused to grant each and all of said prayers. The plaintiffs excepted.

It is agreed in this cause that the counsel may, in the appellate court, read from the printed volume of the [**3]  Laws or Ordinances of the City of Baltimore, all such laws and parts of laws or ordinances as either may desire, for the purpose of argument or illustration, to have the same effect as if such laws, or parts of laws, or ordinances, had been set forth at length in the bill of exceptions.  

DISPOSITION:
AFFIRMED.  

HEADNOTES:

In 3 Howard 133, the Supreme Court of the United States say of a franchise for banking when bought, "the price is paid for the use of the privilege whilst it lasts, and any tax upon it would substantially be an addition to the price." If by this was meant a special legislative charge or imposition upon the franchise, the correctness of the principle could not be denied; and if it meant a special tax, technically speaking, levied for the support of the government of Maryland, it would be void, as repugnant to 13th Article of the Declaration of Rights of Maryland.

If, as must be done, the Supreme Court of the United States are to be understood as speaking in reference to the general tax, laid upon all property within the State, under the act of 1841, ch. 23, then the proposition referred to, as asserted by that court, cannot be maintained.

A franchise as property, is, according to its value, liable to taxation for the support of government, whether paid for by a bonus or not.

The burden or bonus imposed by the charters, or acts reviving the charters of banks in Maryland, was not a tax upon the fair value of the privilege or franchise, when granted by the legislature, but the price to be paid or fine levied, for the right of exercising the powers and enjoying the immunities conferred by the charter. It was not a tax for the support of government.

No valuable consideration is necessary to the validity of a legislative grant.

The right of taxation is never presumed to be surrendered by the sovereign power; and such surrender is never made, unless it be the result of express terms, or necessary inference.

Under the true construction of the 13th Article of our Bill of Rights, we cannot presume that a franchise, if the subject of taxation, may, by its excessive exercise, be destroyed or rendered valueless.

This tribunal is bound to submit to the judicial decisions of the Supreme Court of the U. S. involving the true construction of the Constitution, treaties, and laws of the U. S. Yet there is no obligation on it to acquiesce in the dicta of that tribunal, not necessarily established by the matters by it adjudicated.

The charter of the Baltimore and Ohio R. R. Co.--act of 1826, ch. 123, sec. 18, declares that the shares of the capital stock of that Company shall be considered personal estate, and exempt from the imposition of any tax or burthen.

The State's right to tax that stock, and the right of all corporations created by the State to tax it, is excluded by the comprehensive and universal terms of the exemption.

The specific property of a corporation is as much an ingredient in the shares of its stock, and component part of their value, as is any portion of the corporate property. In the case of the Baltimore and Ohio R. R. Co. both are exempt from taxation.

The right to tax the stock or the specific property of the Baltimore and Ohio R. R. Co. was not re-invested in the State by the act of 1835, ch. 395, sec. 15.  

COUNSEL:
By B. C. PRESSTMAN for the appellants, and

By JOHN H. B. LATROBE and REVERDY JOHNSON for the appellees.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*290]  DORSEY, J., delivered the opinion of this court.
The conclusive influence on the case before us, which, by the counsel of the appellants, has been attributed to the cases of Gordon vs. The Appeal Tax Court, and Cheston vs. The Appeal Tax Court, in 44 U.S. 133, 3 How. 133, 11 L. Ed. 529, &c., is not admitted. As grounds to support the opinion it gave, the Supreme Court say, that a franchise for banking, when bought, "the price is paid for the use of the privilege whilst it lasts, and any tax upon it would substantially be an addition to the price." And in the progress of its opinion, it also says that "the franchise is their (meaning the banks) corporate [**4]  property, which like any other property would be taxable, if a price had not been paid for it, which the Legislature accepted as the consideration 

 [*291]  for allowing them to use the franchise during the continuance of their charters. If in the first extract from their opinion, the Supreme Court meant a special legislative charge or imposition upon the franchise, the correctness of the principle could not be denied; and if it meant a special tax, technically speaking, levied for the support of the government of Maryland, it would be clearly unconstitutional and void, as being repugnant to the 13th Article of the Declaration of Rights, which declares "that every person in the State ought to contribute his proportion of public taxes for the support of government, according to his actual worth in real or personal property within the State."
But if, as must be done, the Supreme Court are to be understood as speaking in reference to the general tax laid upon all property within the State under the act of 1841; then it is respectfully insisted, that the proposition referred to, as asserted by the Supreme Court, cannot be maintained; and that the franchise, as property, is, according [**5]  to its value, liable to taxation for the support of government, whether paid for by a bonus, or not. In support of this judicial postulate of the legislative intent, as adopted by the Supreme Court, no authority has been referred to, and for it, no satisfactory reason has been assigned.
What was the burden or bonus imposed by the charters, or the acts of Assembly renewing the charters of the banks? Not a tax, in the appropriate sense of the term, upon the fair value of the privilege or franchise, when granted by the legislature; but the price to be paid, or fine levied by legislative discretion, for the right of exercising the powers and enjoying the immunities conferred by the charter. It was not a tax levied upon the franchise, or its value, after its creation, for the support of the government. If so regarded, it would be unconstitutional and illegal under the 13th Article of the Declaration of Rights. According to the true import of the term, it is no tax; but a price or condition, arbitrarily or discretionally fixed by the legislature as the consideration for its grant. The exaction of such bonus had no reference, and bore no analogy 

 [*292]  to the transcendental power or [**6]  right of the legislature to levy taxes for the support of government. It emanated from the exercise of no such power. It was the mere proposal or offer of a bargain or contract by the legislature, which might be accepted or rejected at the discretion of those to whom the offer was made. It bears not the semblance of resemblance to the rigid principles of taxation, where the sovereign will of the legislature, acting constitutionally, governs and commands every thing, leaving nothing to the discretion of others.
In granting such charters of incorporation, whether with or without a bonus, the legislature never, for one moment, suppose that they are in any degree impairing the State's eminent right of taxation; or that their acts could have the slightest bearing upon such a question. But for this decision of the Supreme Court, it might well have been supposed, both on reason and authority, that the right of the State to tax a franchise of value, which its legislature had granted to a corporation, was as undeniable where a bonus had been paid, as if the grant had been unattended by a bonus. No valuable consideration is necessary to the validity of a legislative grant. The intention of [**7]  the legislature is the all-controlling principle by which the construction of its enactment is to be governed,--and nothing is more conclusively established, as well by the decisions of the Supreme Court of the United States, as by those of Maryland and of other judicial tribunals, than that the right of taxation is never presumed to be surrendered by the sovereign power,--and that such surrender is never made, unless it be the result of express terms, or necessary inference. The argument is wholly unsound when applied to Maryland, that a franchise, if subject to taxation, may by its excessive exercise be destroyed or rendered valueless; because by the 13th Article of the Bill of Rights, the legislature can impose no tax upon it which is not equally borne by every other species of property in the State, in proportion to its value. To infer that the legislature, by the exaction of a bonus, as the condition of a grant of corporate powers, had by implication divested itself of one of its most important rights of eminent domain, 

 [*293]  is, to say the least of it, not an implication resulting from necessity. And it might with some show of reason, be contended, that the [**8]  legislative exaction of a bonus, instead of evincing peculiar favor towards the corporation, and a willingness to make all concessions which might conduce to its benefit, or promote the accomplishment of its objects, rather evinces a contrary disposition.
From the aforegoing remarks, it must not be understood that there is in this tribunal the slightest disposition to withhold its full acquiescence and submission to the judicial decisions of the Supreme Court of the United States, involving the true construction of the Constitution, treaties, and laws of the United States--yet there is no obligation on this court to acquiesce in the dicta of the Supreme Court, not necessarily established by the matters by it adjudicated. As for example, this court is bound to conform and give effect to the judgments of the Supreme Court in the case of Gordon vs. The Appeal Tax Court, and Cheston vs. The Appeal Tax Court, reported in 44 U.S. 133, 3 How. 133, 11 L. Ed. 529. But it is not bound to admit the dictum in the Supreme Court's opinion, that by requiring a bonus for a charter of incorporation, the legislature surrenders its right to tax the franchise [**9]  in common with all other property in the State; the judgments of that court in those cases being sustainable on other, and as appears to us, more obvious grounds: and in doing so, it is conceived that this court is supporting, rather than impugning, the Supreme Court's judgments in the case of Cheston vs. The Appeal Tax Court. The recital (in the court's opinion in that case) from the charter of the Farmers and Planters Bank, (the tax on the shares of stock of that bank owned by Cheston, being the ground of appeal in that case,) shows that a bonus was to be paid by the bank to the State of Maryland as the price of its charter; the recital stating that at the session of December, 1835, the Farmers and Planters Bank was incorporated. It was required to pay a bonus and school tax, but the charter contained no exemption from taxation. And notwithstanding the legislative exaction of bonus, the Supreme Court decide that the tax levied by the 

 [*294]  State of Maryland upon the shares of the stock of that bank, was constitutional and valid. This decision, it is respectfully suggested, could not have been made consistently with the assumption, that the exaction of [**10]  the bonus divests the State of the power of levying a tax, on the franchise conferred by the charter. The Supreme Court seeks to sustain this, its judgment, by declaring that this State tax upon the market value of the shares of bank stock, is no tax upon the franchise, but a tax upon the property owned by the bank. Is this declaration consistent with the fact? It is respectfully insisted that it is not. The question is at once decided by a moment's consideration, of what is, the market value of the shares of the stock of a corporation, the representative? What are the ingredients of which it is composed? It is not the mere value of the money and specific articles of property owned by the corporation; but the value of the shares it represents, as well the value of the franchise, as of the other property held under it. That the franchise is of itself property, is conceded by the Supreme Court, and at the present day could not be the subject of controversy. That the market value of the shares embraces the value of the franchise, is demonstrated by the notorious fact, that shares of stock frequently have acquired a market value before, by the exercise of the powers conferred by the franchise, [**11]  the corporation has acquired any property under it. And in times past, it was no unusual thing to find the shares of stock in a corporation, selling in the market, for twice, three, or more than four times, the value of the shares of stock, if adjusted in reference to the property of the corporation, independently of the value of its franchise. It necessarily follows, that the value of the franchise, as a part of the property of the corporation, is embraced in the valuation of its shares of stock. Whilst entirely concurring, for other reasons than some of those assigned, in the matter adjudicated by the Supreme Court, in the case of Cheston vs. The Appeal Tax Court, this court does not feel itself bound to conform to a dictum, which, it is conceived, rather conflicts with, than sustains the judgment of the Supreme Court. And, therefore, it regards 

 [*295]  the non-payment of a legislative bonus, by the Baltimore and Ohio Rail-road Company, as furnishing no stronger ground for an implication of a right in the State of Maryland to tax the franchise of the Company, than if it had paid a bonus therefor. But suppose the views expressed of the dictum referred to be [**12]  erroneous, and that this court are to be controlled by it, as a conclusive adjudication by the Supreme Court, the case before us stands exempt from its influence. The Supreme Court have no where intimated, (on the contrary the reverse is the clear deduction from its opinion,) that to a corporation paying no bonus for its charter, the legislature of Maryland cannot grant an exemption from taxation. In the case now under consideration, it is conceived that such an exemption has been granted; the 18th section of its charter, the act of 1826, chap. 123, having declared that the shares of the capital stock of the said Company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burden. And there is nothing in the charter of the Baltimore and Ohio Rail-road Company, or the terms and expressions in which it is couched, or in the objects designed to be accomplished by it, that would justify a construction of this exemption from taxation, as less comprehensive and universal than its terms would ordinarily import. It must, therefore, be held as an exclusion, not only of the State's right to tax, but of the right of all manner of corporations [**13]  created by the State, within whose limits the Company may have either real or personal property.
But it is said, that although by the charter of the Baltimore and Ohio Rail-road Company, its shares of stock may be exempt from all taxation, yet that such exemption in no wise protects from taxation the specific articles of property of the Company. If such a specific property be deemed liable to the imposition of taxes, no sufficient reason can be assigned why the franchise should not be subject to the like imposition. It is as much an ingredient in the shares of stock, and component part of their value, as is any portion of the corporate property of the Company; and if under such an express legislative 

 [*296]  exemption as that now before us, the one be exempt from taxation, so also is the other.
The design contemplated by the legislature in the insertion of this clause of exemption in the act of Assembly, was to confer a certain substantial, not a nominal benefit, on the stockholders, and to induce capitalists to risk their money in a novel and hazardous enterprise. To impute to the legislature, in the case before us, an intention to exempt the shares of the stock from taxation, [**14]  and at the same time to reserve the right to tax every thing which constituted it a stock, and gave to it its value, would be gratuitously to cast an imputation upon the legislature, inconsistent with every principle of judicial courtesy. If, as has been contended, the legislature designed to retain the right of taxation upon the property of the Company, other than its franchise, it would have expressed its intention in terms about which there would have been no controversy; it would have limited its immunity to the franchise only, not to the shares of stock, which embraces every species of property owned by the company.
The effort made to restrict the immunity now under consideration to State taxes only, cannot be sustained. The terms used in its grant are so broad, unambiguous and universal, and the reasons for making them so accordant therewith, that their full and natural import must be given to them. The exemption covers County and City, as well as State taxes. There are no words used by the legislature qualifying or limiting the extent of the immunity conferred; it is therefore unlike the case of Mayor and City Council of Baltimore vs. Gordon, decided by this court at December [**15]  term, 1847.
It is a matter of notoriety and of history, that in chartering the Baltimore and Ohio Rail-road Company, the legislature and the people of Maryland regarded the completion of the work as a great State object, tending eminently to promote the future wealth and prosperity of Maryland, and particularly of the City of Baltimore, and to contribute to the permanence of the union of the United States. They also were duly sensible that this gigantic and patriotic undertaking could not be 

 [*297]  accomplished but at great expense and hazard of pecuniary loss to its undertakers. As an encouragement to the enterprise they were willing to confer on it every immunity, privilege and exemption which could reasonably be required, and tend to its completion. In expounding, therefore, those provisions of the charter of the Company, by which its expressed privileges and exemptions are imparted, liberal rules of interpretation for its benefit ought to be adopted to effectuate the benevolent designs of the legislature; and not such rules of restriction and limitation as should be applied to the charters of Companies incorporated for the peculiar benefit of their stockholders. [**16]  To confine the exemption, "from the imposition of any tax or burthen by the States assenting to this law," to State taxes only, would not be consistent with the benevolent designs of the legislature. At that period there were no State taxes; and for their future imposition there then existed no apparent grounds of apprehension.
But it is insisted that conceding the exemption by the charter to have been as broad and comprehensive as it is asserted, yet that by the 15th section of the act of 1835, ch. 395, such exemption was regained by the State, by the stockholders of the Baltimore and Ohio Rail-road Company assenting to the provisions of that act of Assembly. The language of the 15th section is as follows:--"And be it enacted, that in case it shall be necessary at any time hereafter to levy a direct tax, for the support of Government, or to sustain the public credit, the same shall be laid according to the 13th Article of the Declaration of Rights, including all goods, wares and merchandise belonging to citizens of this State, ships or vessels in or out of port, monies at interest on mortgage bond or any chose in action, stock and public securities of every description, and all [**17]  income derived from shares of every incorporated institution or otherwise, as well as every other description of property, real, personal or mixed, which escapes taxation under existing laws, and the faith of the State is hereby pledged to lay the same accordingly, in consideration hereof, and to provide for the payment of interest, and the reimbursements of principal, 

 [*298]  of debts to be created in virtue of this act, or of debts which may be created at any subsequent legislature, and all acts, and parts of acts, in contravention of the constitutional and equitable principles herein contained, shall thenceforward be repealed, abrogated and anulled." By this enactment, it was certainly not the design of the legislature to impair the ability of the Baltimore and Ohio Rail-road Company, to comply with its stipulation of paying the six per cent. interest on the $ 3,000,000 of State bonds, issued for the benefit of the Company. It was not intended to confer new powers, not before possessed by the State, but to pledge the faith of the State to capitalists who might become purchasers of its bonds, that the powers of taxation already possessed by the State, should, if necessary,  [**18]  be exerted for their benefit, and not to their prejudice. Nobody, at the passage of the act of 1835, then doubted but that the receipts of the State from the profits of the Rail-road Company, would be greater than any amount of taxes it could derive from the shares of stock or property of the Company, when subjected to such taxation, according to the thirteenth article of the Declaration of Rights. And, consequently, it is apparent that the abrogation of the exemption contended for, would have depressed rather than enhanced the value of the State bonds. By the 15th section of the act of 1835, the additional property desired to be brought within the range of taxation, was that which escapes taxation under existing laws. And it would be almost a solecism to say, that property has escaped a taxation with which, constitutionally, it could by no possibility have been visited.
But there is a still more conclusive reason why this court should not adopt the construction of the 15th section of the act of 1835, contended for by the appellants. It would be a wanton and unwarrantable violation of judicial courtesy, in imputing to the legislature an intention to commit a flagrant violation of [**19]  the Constitution of the United States; as, by sanctioning that construction, not only is the exemption of taxation withdrawn from the shares of stock of the Baltimore and Ohio Rail-road 

 [*299]  Company, but also from the shares of stock of the old Baltimore banks, and many other corporations enjoying such an exemption, which might be mentioned. And that too, without in any way submitting to such corporations an opportunity oa accepting or rejecting the provisions of the act of 1835. For such a judicial discourtesy to the General Assembly, in the case before us, no excuse or apology could be offered. To adopt a construction casting such an imputation upon the legislative intent, is never justifiable but in a case where the enactment is insusceptible of any other rational, legitimate, interpretation. Such, it cannot be insisted, is the condition of the 15th section of the act of 1835.
THE JUDGMENT OF THE COUNTY COURT IS AFFIRMED.  

4 of 29 DOCUMENTS 

WILLIAM PATTERSON vs. JOHN CROOKSHANKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 211; 1848 Md. LEXIS 33 

December, 1848, Decided 

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

On the 24th of October 1848, the appellee filed a petition in the Orphans court of Washington county, stating, that in 1832, a certain Joseph R. Ford, of Baltimore county, sold to petitioner a servant, named William, for a term of years, to commence on the day of sale, and end on the 1st day of January 1844. That petitioner had said William in his possession until the 12th of September 1838, when he absconded, and has been gone since, whereby he has lost his services for the time intervening between the said 12th of September and the 1st of January, 1844. That said William was recently arrested as an absconding servant, and he now brings him into court to be dealt with according to law. That he is advised, your honors can extend the term of said William, so as to indemnify your petitioner for said loss of service.

The defendant, William Patterson, by his answer, denied the matters charged in the petition, and prayed the court to examine into the said charges, and that he might be dismissed with costs, &c.

In support of the petition, a bill of sale from Joseph R. Ford, of Baltimore county, conveying to John Crookshanks,  [**2]  of Baltimore county, for the sum of $ 200, a negro boy named William, aged about eighteen years, to serve until the 1st of January 1844, which also contains this covenant, "and the said John Crookshanks, for himself, his executors," &c., does hereby covenant, &c., to and with the said Joseph R. Ford, that from and after the said 1st of January 1844, the said negro boy William shall be liberated, manumitted and set free, and forever discharged from any and all kinds of slavery whatsoever. This bill of sale was dated 10th of February 1832, signed and sealed by said Ford and Crookshanks, and acknowledged before Matthew Murray, a justice of the peace for Baltimore city, but was not recorded. There is also exhibited a power of attorney from "John Crookshanks, of Baltimore city," "authorising his son, 'William F. Crookshanks, of said city,' to file said application, and to sell said William for such term as the said Orphans court should direct," &c. This power of attorney was also acknowledged before a justice of the peace for said city.

Testimony was then taken establishing the identity of the boy, William Patterson, the ownership of the appellee, and the fact of his leaving his said [**3]  master on the 12th of September 1838, the value of his services, the kind treatment of his master, &c.; whereupon the said Orphans court, on the 31st of October 1848, acting under the acts of 1833, ch. 224, and 1845, ch. 105, "ordered, that the term of service of said William Patterson, (negro,) be extended for eight years from this date, and that the said John Crookshanks have the right of selling the said William Patterson, (negro,) in or out of the State of Maryland." From this order the defendant appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The act of 1833, ch. 224, authorising the county courts to extend the term of service of slaves for a term of years, in certain cases, and its supplement, the act of 1845, ch. 105, conferring the same power upon the several orphans courts of the State, give no jurisdiction, either to the county courts or the orphans courts, unless the master, mistress, or agent, resides in the county where the application is made.

The object of these acts, which are to be construed together, was to give to each of these courts concurrent jurisdiction over the subject matter, when the parties claiming, or their agents, reside within the limits of the county. Any other construction would conflict with the whole judicial system of the State.

The appellee applied to the orphans court of Washington county, under the act of 1845, to extend the term of service of the appellant, who, he alleged, was sold to him as a slave for a term of years, to expire on the 1st of January 1844, and, in support of his title, offered a bill of sale for such term, manumitting the appellant thereafter, which was not recorded. HELD:

That the appellee having treated the appellant as a freeman in the court below, he could not, upon an appeal to this court, turn round and impeach the instrument of his own title, on the ground of its defective execution and want of record, and thereby make the appellant a slave, in order to deprive him of a legal standing in the appellate court.  

COUNSEL:
By JOHN THOMPSON MASON for the appellant, and

By BOYLE for the appellee.  

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

OPINIONBY:
FRICK 

OPINION:

 [*213]  FRICK, J., delivered the opinion of this court.
In the petition filed in this cause, before the orphans court of Washington county, by Crookshanks, the appellee, it is alleged, that the negro William Patterson, the appellant, being bound by bill of sale to serve said Crookshanks for a term of years, before the expiration of said term, absconded from him, by which for a long space of time he lost the services of said negro; and that having recently arrested [**4]  and recovered him, he had brought him before the orphans court of the county, that under the provisions of the act of 1845, ch. 108, he might have the term of service of said negro extended, so as to indemnify him for the loss sustained by his absconding.
The said negro Patterson appears by attorney in said court, and by his answer, denies the matters charged in the petition.
To prove the title to the service of the appellant, a bill of sale from Joseph Ford to John Crookshanks, both of Baltimore county, dated the 10th of February 1832, is produced, by which the said negro William Patterson, is sold to the said Crookshanks, for a term of years, to expire on the 1st of January 1844. And between them, it is further covenanted in the bill of sale, that at the expiration of that time, the said negro is to be liberated, manumitted and forever set free.
This bill of sale is acknowledged before Matthew Murray, a justice of the peace of the city of Baltimore; and as appears by the record, has never been recorded.
If further appears by a power of attorney, filed as part of the record, that the appellee constituted a certain William Crookshanks his agent [**5]  and attorney, to file the petition in this cause; and both the appellee and his agent are therein described as residents of the city of Baltimore.
On the hearing of this petition and answer before the orphans court of Washington county, that court ordered the term of service of said negro to be extended for eight years ensuing, with discretion to the appellee to sell him for that period, in or out of the State of Maryland. And from this order, the said negro Patterson,, has appealed to this court.

 [*214]  The principal ground of appeal, and one which is, of itself, decisive of this case, is the objection, that the orphans court of Washington county, had no jurisdiction in the cause. By the act of 1845, ch. 105, the several orphans courts in the State are authorized, "upon application of any owners of any slaves, for a term of years, on proof that the slave is in the habit of running away, to extend the term of service of such slave, and give the owner a right to sell him in or out of the State, as effectually, and in the same manner, as the county courts now have, under the act, to which this is a supplement." The act of 1833, ch. 224, to which the above act [**6]  is the supplement, in the 4th section declares, that "upon application of any master or mistress, or other person legally authorized by such master or mistress, to the county court of the county, where such master, mistress or their agent may reside, it shall be lawful for such court to grant an order for the sale," &c.
Construing the supplement in connection with the original act, it is apparent, that no jurisdiction is given, either to the county courts or the orphans courts, unless the master, mistress or agent resides in the county. The supplement standing alone is inoperative. The power there given is limited, and can only be used in reference to the original act. It is to be used in the same manner, and of course, only to the same extent, as it is applied in the county courts. As "effectually," and to the extent, that the county courts may use this power; to that limit, it is permitted to the orphans courts. This limitation is written on the face of the acts, which have for their object, to give to each of these courts, a concurrent jurisdiction over the subject matter, where the parties claiming, or their agent, reside within the limits of the county. Any other construction [**7]  would conflict with the whole judicial system of the State; and in a class of cases of frequent occurrence, would give to every orphans court, an expansion of jurisdiction, only limited by the boundaries of the State. This cannot be intended or assumed, as the interpretation of these acts. The master, mistress, or agent, must reside in the county where the application is made; and the residence of neither master or agent, as this record indicates, being within Washington 

 [*215]  county, the orphans court there, had no jurisdiction over the subject matter of this appeal, and therefore erred in assuming it.
But it is said this appeal is coram non judice; that the bill of sale from Ford to Crookshanks, providing for the freedom of the negro after January 1844, if intended to operate as a deed of manumission, is void, because it was not recorded according to law; and besides, was not acknowledged before a justice of the peace of the county, where the parties resided; they being described as of Baltimore county, while the magistrate purports to act in and for Baltimore city.
The instrument thus, for the purposes of this manumission, being a nullity, the negro [**8]  remains a slave, and in that character, it is contended, he has no status in court.
But how does this allegation consist with the conduct and course of the appellee, in this proceeding? He first arraigns him before the court as a freeman, and then to drive him from his rights and his defence as such, he invokes the instrument of his title, and its defective execution, to convert him into a slave. In the court below, he attains the object of his petition by representing him to be free, and procures a sentence of prolonged servitude against him. In this court, where the negro resorts to the remedy open to him, alike with every freeman, his appeal is to be estopped by the alleged taint of slavery, and his consequent exclusion from a legal status in court. If a slave, the whole proceeding against him under this act of Assembly in Washington county court, or any other court, is illegal and a nullity. It is a solecism to say, that as a slave, his term of service can be prolonged or extended. The law, in its express terms, and from its professed object can have no reference to a slave. The orphans court of Washington county, did not profess to deal with Patterson in that [**9]  character, and the very sentence imposed by them, denies it, by adding to the previous limited term of his servitude.
In any aspect of the case as presented to us, we do not feel at liberty to leave out of it, the prominent fact stated in the petition, that the negro was only bound to serve until January 1844; for, without this fact of limited bondage, the appellee had 

 [*216]  no case under the act of Assembly. It does not then comport with that allegation to insist now, that he is a slave, and as such must be turned out of court. The appellee brought him before the court, admitting the expiration of his term of service, but claiming indemnity for the portion of that service lost by his absconding. Upon this allegation, and the traverse of it in his answer, in the orphans court below, he is tried. Before that court, the appellee gave him the standing he now maintains here, and it is no part of our duty to disturb it. From the view before expressed on the first branch of the case, we are not called upon to pronounce upon any other point discussed in the cause. The forum selected by the appellee has no jurisdiction in the case, and their decision must be reversed.
JUDGMENT [**10]  REVERSED.  

5 of 29 DOCUMENTS 

ROBERT H. CARTER AND WIFE, AND MARY M. SMITH, vs. MARCUS DENNISON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 157; 1848 Md. LEXIS 29 

December, 1848, Decided 

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

On the 20th of October 1846, John Spear Smith applied to the commissioners of insolvent debtors of the city and county of Baltimore, for the benefit of the insolvent laws. He was granted a final discharge in March 1847, having reported among his creditors. "Marcus Dennison for $ 15,000, secured by mortgage, part, if not all, in dispute," and Margaret and Mary Smith, $ 20,000. John Glenn was appointed his permanent trustee, and gave an approved bond on the 20th of October 1846. On the 3rd of November, the trustee was directed by Baltimore county court, to which the proceedings in insolvency had been transmitted, by the commissioners aforesaid, to sell the real estate of the insolvent. The sales made in pursuance of this order, and which were duly ratified by the court, amounted to $ 33,874.95. The trustee, in his report of the 7th of May 1847, states, that "the whole of the real estate is incumbered by mortgages and judgments, to more than its value," and prays that "special notice may be given to the several mortgagees to file their claims." With this report the several liens are filed as exhibits, among which, the first in date, and designated [**2]  by the auditor in his account B, as claim No. 1, is a mortgage from Margaret Smith and her trustee, of the first and second part, to Marcus Dennison of the third part, dated the 15th of December 1840. This mortgage recites, that "whereas at the instance and request of the party hereto of the first part, the party of the third part has this day lent to her the sum of $ 16,000; for the term of ten years, at an interest of six per cent. per annum, payable quarterly, for which said sum of $ 16,000, there has been passed and delivered to the party of the third part a promissory note, of even date, herewith drawn by John Spear Smith, (son of said Margaret,) to, and in favor of, the said Marcus Dennison, or order, payable at ten years after date, and for legal interest on said sum, there have been passed and delivered to the said Marcus forty promissory notes, dated and drawn as aforesaid, for $ 240 each, payable quarterly in succession." For securing these notes, the mortgage conveys certain property situated in Baltimore city to said Dennison, which, by the will of said Margaret, was devised to the said John Spear Smith, and upon her death, in 1843, come into his possession. Upon the back [**3]  of this mortgage is the affidavit of Dennison, that the amount due on the 5th of December 1846, was $ 15,614.25, and also the following agreement:

"It is agreed, that in settlement of Marcus Dennison's mortgage, on the estate of John Spear Smith, that the amount due to him is adjusted at $ 11,495, with interest from 15th day of December 1840, till the day of sale.

JOHN GLENN, Permanent Trustee.

DAVID STEWART,

Solicitor for M. Dennison.

BALTIMORE, Nov. 12th, 1846."

After several intervening incumbrances, there is a mortgage, (designated as claim No. 6,) from John Spear Smith to Margaret Carter, wife of Robert Hill Carter, and Mary M. Smith, dated the 19th of January 1846. This mortgage recites, that "whereas the said John Spear Smith is, and stands justly indebted to the parties of the second part in the sum of $ 20,000, being a portion of the proceeds arising from the disposition of certain ware-houses on Spear's wharf, belonging to the parties of the second part, and appropriated to the use of the said John Spear Smith," and, to secure the payment of this sum, conveys to them the property previously mortgaged to Dennison.

The cause was then referred [**4]  by the court to the auditor in insolvency, who was directed to give notice to the creditors of the insolvent to file their claims, and to state accounts between the trustee and the creditors of the insolvent. The auditor reported by account B, as due the appellee, $ 15,614.05, and Margaret Carter and Mary M. Smith each $ 31.33; and by account C, stated at the instance of the counsel for the appellants, and rejecting the claim of the appellee entirely, the sum of $ 15,676.71 was allotted to said Margaret Carter and Mary Smith. On the 27th of May 1847, the court, by agreement of parties, ratified account B, except as to claim No. 1, and directed the appellee to file further proof in support thereof. After the filing of this additional proof, the appellants, on the 21st of June, filed separate pleas, in which they allege, that the claim of the appellee is on the note for the principal sum of $ 16,000, filed with his said claim, and the notes for the interest on said principal sum; and that said notes, and the mortgage given to secure the same, were made and delivered to the appellee, upon an usurious and unlawful contract, entered into after the 3rd day of October 1704, and they severally [**5]  plead the act of 1704, ch. 69, in bar of said claim and every part thereof. They also set forth in their said pleas, that while said notes and mortgage, to secure the sum of $ 16,000 and the interest thereof, were given to the appellee, only the sum of $ 11,495.05 was in fact loaned by him to the insolvent, in consideration of said notes and mortgage, and that but for the usury of said transaction, only the last named sum, with interest from the 15th of December 1846, would be due to the appellee. And the appellants, at the same time, severally excepted to the appellee's claim, No 1, in account B of the auditor, as being void on the ground of usury, and in their exceptions, again specially plead the usury thereof, in opposition thereto.

To these pleas the general replication was filed. And, by agreement, the testimony taken before the auditor in reference to the claim of the appellee, No. 1, was agreed to be read at the hearing of the auditor's report by either party, as if taken after, and in reference to the pleas and exceptions of the appellants. This testimony clearly establishes the fact, that the claim of the appellee was founded upon an usurious and unlawful loan, made [**6]  by him to the insolvent.

Upon this agreement and testimony, the claim of the appellee, with the pleas and exceptions of the appellants thereto, and the replications of the appellee, were submitted by the solicitors of the respective parties, and, on the 24th of June 1847, the court adjudged and ordered, that the exceptions and pleas of the appellants should be overruled, and the claim of the appellee, as stated in account B, should be finally ratified and confirmed, and that account C should be rejected. From which decree the appellants appealed.  

DISPOSITION:
APPEAL DISMISSED WITH COSTS.  

HEADNOTES:

On the 20th of October 1846, J S applied for relief under the insolvent laws, to the commissioners of insolvent debtors for the city and county of Baltimore, who granted him a final discharge, appointed his permanent trustee, and transmitted the proceedings to Baltimore county court. His real estate was then sold by order of said court, and the proceeds brought in for distribution. The cause was then referred to the auditor in insolvency, with directions to give notice to the mortgage and lien creditors to file their claims before a certain day, and to state accounts appropriating the funds to their payment. The auditor, in account B, applied a large sum to D's mortgage, filed in pursuance of said notice, being first in priority, dated in 1840, and purporting to secure the sum of $ 16,000, loaned for the term of ten years; but, by an adjustment made between D and the trustee, on the ground of alleged usury, the sum actually loaned was computed at $ 11,495, with interest from 1840. By this application, the fund was exhausted before reaching the mortgage of the appellants who thereupon filed the plea of usury against D's claim, which in account C was excluded. These two accounts being submitted, Baltimore county court ratified the first, allowing the claim of D, as adjusted, and rejected the second. Upon the motion to dismiss the appeal from this order, it was HELD:

That the order from which this appeal was taken, being one from the county court, in the exercise of its special jurisdiction over the estates of insolvent debtors, from which no appeal will lie, the motion must prevail.

By the act of 1805, ch. 110, and its supplements, the whole administration of the property of the insolvent, beginning with the sale and ending in distribution, is devolved upon the county court through their trustee, and their judgment in all matters appertaining to it is conclusive; because these are the exclusive subjects of the special jurisdiction conferred by that act.

The institution of a court of commissioners of insolvent debtors, by the act of 1816, ch. 221, and its supplements, was only designed to relieve the county court from the pressure of its increasing business, imposed by this extensive class of cases. It was but an ancillary tribunal, bound to report and return all its proceedings, and still subject, to Baltimore county court.

The object of the act of 1835, ch. 235, was to authorise Baltimore county court, ex officio, to require from the trustees of insolvents, who should "thereafter apply for the benefit of the insolvent laws," an annual report of the funds belonging to their trust, with a view "to cause distribution to be made among the creditors."

The 1st sec. of the act of 1836, ch. 133, extended this power to cases "pending in said court," in which the trustees had not distributed the fund, giving to such trustees, in "cases then pending," and limited to such, the right to apply "to said court, or some court of equity," for an audit, and directions to distribute or invest the funds.

The true construction of the provision in the 2nd sec. of this latter act, "that the power of the court to appoint an auditor "in insolvent cases, "shall be concurrent with that of the court of equity," is, that Baltimore county court shall have the power to appoint an auditor, in the investigation of insolvent cases, to the same intent that courts of equity appoint an auditor in the course of their equity jurisdiction.

But when the same section further confers, powers "concurrent with the courts of equity in the distribution of the funds of insolvent debtors," it assumes a power to exist which is not within the scope of chancery jurisdiction, and confers nothing, therefore, the provision is a nullity.

From a special limited jurisdiction, no appeal lies to any other tribunal, and this rule applies to the insolvent courts of this State, as courts of limited jurisdiction.

Upon the merits, it was HELD, that under the statute of this State against usury, there can be no recovery upon an usurious contract, in any proceeding instituted by the usurious creditor, either at law or in equity. If he becomes the actor and originator of the proceedings, he must fail as plaintiff; because there is no forum wherein he may enforce an agreement, declared by the law to be tainted and forbidden.

But where the debtor himself seeks relief, and brings his usurious creditor, with his contract, into a court of conscience, relief will only be extended to him, on his paying, or offering to pay, the principal and legal interest of the sum due; upon the principle, that he who seeks equity, to obtain relief, must do equity.

In this case, where the creditor was compelled by the court, to file his mortgage before it was due, and was placed in his present position by the act of the law, he cannot be regarded as the actor; but the subsequent mortgagees, who interpose the plea of usury and demand relief against him on this ground, are the actors, and their case is fully within the spirit, if not the letter, of the rule, that requires equity first from them.

It is the duty of a court of equity, in a case like this, to look at all the circumstances, and if the status of the party before them is involuntary, to assign him an equitable position in court, in relation to all the other parties, and not to make him the actor, to his own prejudice, where his standing in court will bear any other more favorable construction.  

COUNSEL:
On motion to dismiss the appeal and on the merits.

BROWN and BRUNE for the appellants, contended:

1st. That an appeal lies from the decree of Baltimore county court, of the 24th of June 1847.

2nd. That said decree should be reversed; because the appellee's claim being founded on an usurious and unlawful contract of loan, made between him and the insolvent, was, by such usury, rendered null and void, and the appellee was thereby debarred from setting up said claim against the insolvent, and also from recovering his said claim, or any part thereof, out of the proceeds of the property mortgaged [**7]  to secure the said loan.

Under the second point, they argued:

1st. That the note and mortgage, filed by the appellee as the evidence of his claim, were given upon an usurious and illegal contract, by reason of which he would be prevented from recovering on said note and mortgage, independently of the provisions of the act of 1845, ch. 352.

2nd. That the objection and defence of usury to the appellee's claim have been properly taken and pleaded, according to the requisitions of the law previous to the act of 1845, as well as under that act, even if its provisions should be held to extend to this case.

3rd. The appellants being subsequent mortgagees of the property affected by the usurious mortgage, may plead the usury affecting the mortgage of the appellee, so as to bar him from asserting his claim to, or lien upon the proceeds of the mortgaged property.

4th. The principle of courts of equity requiring a party, who seeks in them to be relieved from an usurious contract, to pay or tender the amount actually loaned by the usurious lender, does not apply to this case, so as to make valid the claim of the appellee in whole or in part.

5th. That the provisions [**8]  of the act of 1845, do not apply and were not intended to extend to a case like this.

6th. That if it should be held that the act of 1845, was intended to extend to a case like this, yet as the appellants, for a valuable and legal consideration, acquired their lien on the mortgaged property of the insolvent before the passage of that act, and when, by reason of the usury in the appellee's contract with the insolvent, the mortgage previously given to the appellee had no validity in law to give the appellee a lien on the property mentioned in said mortgage, or its proceeds, but, on the contrary, was declared by the law to be utterly null and void, the said act, under these circumstances, should be held to have no operation to make valid the security of the appellee, and invalidate the security of the appellants; because, in so operating, it would not only divest or impair legal and vested rights, but, at the same time, destroy the security and violate the obligation of the contract between the appellants and the insolvent, and would therefore be repugnant to the fundamental principles of right and justice, unconstitutional and void.

C. J. M. GWINN and DAVID STEWART for the [**9]  appellee, contended:

1st. That under the circumstances of this case, the appellee is entitled to be reimbursed and paid out of the fund, the actual amount of his advances to the insolvent.

2nd. That the decision of Baltimore county court, acting upon the distribution of the estates of insolvent debtors, is final and conclusive, and that no appeal lies therefrom to any other tribunal.  

JUDGES:
The cause was argued before SPENCE, MARTIN, MAGRUDER and FRICK, J. MAGRUDER, J., dissenting in part.  

OPINIONBY:
FRICK 

OPINION:

 [*168contd]  
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

FRICK J., delivered the opinion of this court.
The present appeal is from an order of Baltimore county court, passed in certain proceedings had before that court, in the case of John Spear Smith, an insolvent debtor, in relation to the distribution of the funds arising from the sale of the real estate belonging to the insolvent, among the various lien and mortgage creditors of the said insolvent.
The first mortgage in priority, dated in 1840, is from Margaret  [**10]   Smith, the mother, (who at that time was the owner of the property,) to the appellee, and purports to be for the sum of $ 16,000, lent and advanced to her for the term of ten years, at an interest of six per cent. per annum, payable quarterly; for which sum the said John S. Smith gave his promissory note to the appellee, together with forty other notes, covering the interest at the respective periods at which it should become due and payable.
John Spear Smith, subsequently acquired the property by devise from his mother, and mortgaged the same to various other creditors; and among these, last in order, to the appellants, Mary Carter, wife of Robert Hill Carter, and Mary M. Smith, his daughters, for $ 20,000, "a portion of the proceeds of certain property belonging to the appellants, and appropriated to the use of the said John Spear Smith:"--as appears by the mortgage, filed as part of the record in this cause.
On the 20th of October 1846, Smith applied for the benefit of the insolvent laws; and John Glenn, regularly and duly appointed his trustee, having made sale of the real estate, so 

 [*169]  belonging to said Smith at the time of his [**11]  application, brought the proceeds into Baltimore county court for distribution.
In the reports of the sales so made, the trustee states to the court, that the whole of the real estate of the insolvent is encumbered with liens and mortgages to more than its value; and prayed a special notice to such lien creditors to file their claims, for the purpose of having their liens settled and paid. The court passed an order, referring the reports to the auditor; and requiring him to give notice by advertisement, to the mortgage and lien creditors, to file their claims before a certain day; directing him, also, to prepare an account, appropriating the fund in the hands of the trustee, to the payment of the mortgage and lien creditors.
The several mortgages and liens being filed with the auditor, in compliance with this order, he proceeded to state the account, applying the fund, in the first place, and in the order of priority, to the payment of the claim of the appellee; and then, in succession, to the other mortgages, in the order of their date, so that on reaching the claim of the appellants, the fund was exhausted, and they were excluded from all participation.
The appellants hereupon [**12]  filed against the appellee's claim, the plea of usury, in due form; claiming, on that ground, another audit and account, to have the appellee excluded from the distribution, and themselves allowed to come upon the proportion of the fund, which would result from his exclusion. This account was accordingly stated, shewing, upon the rejection of the appellee's claim, a balance applicable to appellants' claim, of $ 15,676.
Before the statement of the first account, and prior to the sale of the property, on the ground of this alleged usury, an adjustment had taken place between the trustee and the appellee; and by agreement, the sum actually paid and advanced was computed at $ 11,495, with interest from 1840, and conceded to be fairly due by the trustee.
On the part of the appellants, testimony was taken to establish the usury; and thereupon, the two accounts being submitted, the court below ratified the first account, allowing the appellee his claim, as adjusted by the agreement with the trustee, 

 [*170]  and rejecting the second account. From this order the appellants appeal, and contend: "That the claim being founded on an usurious and unlawful contract of loan, between the appellee [**13]  and the insolvent, was thus rendered null and void; and that, thereby, the appellee was debarred from setting up any claim against the insolvent, or from recovering any part thereof out of the proceeds of the property mortgaged to secure said loan."
The appellee, on the contrary, maintains, that he is entitled under the circumstances of the case, to be reimbursed and paid out of the fund, the actual amount of his advances to the insolvent; and that the decision of Baltimore county court, acting upon the distribution of the estates of insolvent debtors, is final; and thereupon has moved that the appeal taken by the appellants be dismissed.
The majority of this court are of opinion that this motion must prevail, because the decision of Baltimore county court in the premises, is final and conclusive.
It arises out of a proceeding, originating and progressing entirely on the insolvent debtors' side of that court, under the special jurisdiction given in such cases by the act of 1805, ch. 110, and its supplements; and, in the course of distribution of the estate of an insolvent, under that act. By its provisions, the application of the party is to be made to the county court,  [**14]  and upon complying with its requirements, the court is to grant him a discharge. He is required to execute to a trustee appointed by the court, a deed of conveyance of all his property; and under their direction, the trustee is to make the sale thereof, and the distribution of the proceeds among his creditors. The whole administration of the property of the insolvent, devolves upon the court, through their trustee. He is authorized to to make sale of it, clear of all incumbrances; and out of the proceeds, is directed by the law, to satisfy all mortgages, judgments and liens, according to their priority. Under the 12th section, the court exercises the control over this distribution, by notice to all parties, to bring in and declare their claims, for that purpose. So that, beginning with the sale and ending in distribution, having the entire jurisdiction over the 

 [*171]  estate of the insolvent, their judgment in all matters appertaining to it is conclusive; because they are the exclusive subjects of the special jurisdiction conferred by that act. The court is therein restricted, to the specially delegated objects to which it refers;--the case of insolvent debtors. All the subsequent [**15]  changes, (and they are numerous, as regards Baltimore county court,) leave this jurisdiction over sales and distribution, precisely where it rested under the act of 1805. The institution of a court of commissioners of insolvent debtors, by the act of 1816, ch. 221, and the supplements to that act, were only designed to relieve the county court, under the pressure of its increasing business, from the additional labor imposed by this extensive class of cases in that court. It was but an ancillary tribunal, bound to report and return all its proceedings, and still subject, to Baltimore county court. And although the aid of these commissioners was required to carry the insolvent application through its several stages to a discharge, the county court still retained the whole control over the acts of the trustee.
The act of 1836, ch. 133, "For the despatch of business in Baltimore county court," is supposed to have produced the change on which this right of appeal is founded, by engrafting upon this special jurisdiction, equity powers; and upon the subject matter here in question, giving to the court concurrent powers with the court of chancery.
That act was only auxiliary [**16]  to the act of 1835, ch. 235; the object of which was to authorize Baltimore county court, ex officio, to require from trustees of insolvents, "who shall hereafter apply for the benefit of the insolvent laws," an annual report of the funds belonging to their trust, with a view "to cause distribution to be made among the creditors." Before this act, it was the practice of some trustees, to distribute the fund at their leisure; and occasionally, to omit it altogether. With this explanation, the propriety of the provision is manifest. It defined the extent and power of that court over their trustees, to bring them annually before the court to account. Now, the 1st section of the act of 1836, extended this power to cases "pending in said court," in which the trustees of 

 [*172]  such debtors had not yet distributed the fund; giving to such trustees, "in cases then pending," and limited to such, the right to apply "to said court, or some court of equity," for an audit and directions to distribute or invest the funds. The provision in the second section, "that the power of the court to appoint an auditor," in insolvent cases, "shall be concurrent with that of the courts  [**17]   of equity," if construed to have reference to insolvent cases in those courts, is not susceptible of any practical application; because the courts of equity, properly speaking have no jurisdiction in insolvent cases. If, however, it is interpreted to mean, that Baltimore county court shall have the power to appoint an auditor, in the investigation of the insolvent causes brought before them, to the same intent that courts of equity appoint an auditor, in the course of the exercise of their equity jurisdiction, the clause is then intelligible, and susceptible of practical operation. It comports with the title of the act: "To facilitate the dispatch of business in that court:" and being consistent with the reasonable intention of the legislature, such must be deemed the true construction. But when the same section further confers powers, concurrent with the courts of equity in the distribution of the funds of insolvent debtors, it assumes a power to exist, which is not within the scope of chancery jurisdiction, and confers nothing. All the power and jurisdiction in cases of insolvent debtors, had been before delegated to the county courts and orphans courts of the State; and the [**18]  courts of equity have no action or control over this branch of jurisdiction. Therefore, no such power existed, to which the grant of the act of 1836 could be made to apply; and the provision is a nullity.
In addition to this, it may be remarked, that in the distribution of insolvents' estates, the county courts always proceed according to equity principles. It was the duty and practice of those courts, before the passage of the act of 1836; (1 H. & G. 96, McCulloh vs. Dashiell,) and it is not improbable that the framers of this provision, at the time, overlooked this principle, to which all the county courts in the State, exercising jurisdiction in insolvent cases, must conform. The whole being one entire system, resting on the same principles, this enactment, 

 [*173]  in the design apparent on its face, prescribes nothing which Baltimore county court was not bound to perform, and which was not attained before it was enacted.
That from a special limited jurisdiction, no appeal lies to any other tribunal, (see 8 G. & J. 443, 448, Wilmington Rail Road vs. Condon; and Savage Manf. Company vs. Owings, 3 Gill 497.) And in its particular [**19]  application to the insolvent courts, as courts of limited jurisdiction, (see 5 Gill 88, Williams vs. Williams,) where the appeal of the trustee from an order of the county court, in the case of an insolvent debtor, was rejected by this court; while in the case of Ellicott vs. Ellicott, in 6 G. & J. 35, it had previously been decided, that a trustee, appointed by a court of chancery, in his character as trustee, may, for the benefit of the creditors, appeal to this court against an order in chancery.
The order on which the present appeal is taken, being one from the county court, in the exercise of its special jurisdiction over the estates of insolvent debtors, from which an appeal will not lie, this appeal is therefore dismissed.
The case, however, having been fully and ably discussed, as well upon the merits as upon this preliminary motion, (and the court, not entirely unanimous in their decision upon the motion,) we proceed to state the opinion formed upon the merits, in which they all concur, and from which it will result, that the appellants have sustained no prejudice, by this summary disposition of their case, upon the motion to dismiss [**20]  it.
There is no doubt in the mind of the court, that the note and the mortgage filed by the appellee as the evidence of his claim, was founded upon an usurious and unlawful loan, made by him to the insolvent; and that under our statute against usury, he would be debarred from a recovery on his contract, in any proceeding instituted by him for that purpose, either in law or in equity. "Where all usurious contracts are declared by law to be null and void, there can be no recovery, either at law or in equity, in a suit infected with usury, if the defence of usury be pleaded." Trumbo vs. Blizzard, 6 G. & J. 18.
Thus, then, if Dennison is seeking to enforce his lien upon the mortgage premises in a court of chancery, the plea of usury 

 [*174]  is a full defence to his application. He is met at the threshold, with the objection that his contract is void, and he is dismissed, even without redress, to the extent of the amount actually and bona fide due to him. He has made his contract with reference to the law, and is presumed to know, as one of its consequences, that no court of law or equity will lend its aid to sustain an infected contract. The door of justice [**21]  is barred against his application for relief, upon an agreement made in violation of the letter and the policy of the law. Whatever moral obligation may subsist between him and his debtor, the law creates and defines the legal operation of his contract, and denies any interposition, at his own instance, to enforce it. He is thus doomed to a passive position, and the certain loss of his debt, unless the way to relief is opened by the debtor himself, or in some other form. This the debtor may do by his own act, and give vitality to the obligation otherwise inert and void. If he seeks relief from his creditor on the ground of usury, claiming the legal dispensation from his contract; if the circumstances compel him to address a court of equity, to relieve his property from the incumbrance of the creditor's lien; if he brings this usurious creditor, with his contract, into a court of conscience; he is at once warned, that he must do equity himself before he can ask it of others. He is required to pay or tender the actual amount of money advanced, as a preliminary to any action on the part of the court. For "there is a recognized distinction between that and the case of a mortgagor,  [**22]  who goes into chancery seeking relief against the mortgage on the ground of usury; which will only be extended to him on his paying, or offering to pay, the principal and legal interest of the sum due, and this upon the principle, that he who seeks equity, to obtain relief, must do equity." 6 G. & J. 18, 24, Trumbo vs. Blizzard.
In such a case the debtor becomes the complainant, and is properly subject to this just and universal principle of equity; while, if he waits for the action of his creditor, it is otherwise. When he becomes the actor and the originator of the proceeding, he must fail as a plaintiff, either in a court of law or equity, and he must lose his debt; because there is no forum, 

 [*175]  wherein he may enforce an agreement, declared by the law to be tainted and forbidden.
Now, what is the attitude of Dennison here? Is he the actor as is contended by the appellants? Let it be remembered, that the term for which his loan was made has not yet expired; and, by the condition of his mortgage, the debt from the insolvent is not due to him until 1850. He has no claim in law or equity founded upon his contract, nor can he place himself, of [**23]  his own will and motion, in the position of plaintiff against his debtor. He is called then into his present predicament by the order of the court; in other words by the act of the law. In the administration of its policy in regard to insolvent debtors, the law has superseded the action of the creditors, and invested its trustee with the control and disposal of the insolvent's property. By the action of the trustee, the property is converted into a fund, which is brought into court for distribution, according to the respective equities of the creditors. If he stands aloof and declines to come in, his debt is forever gone. He has then no alternative. His security is withdrawn from his grasp by the act of the law, and he is warned to come in upon the fund, or be forever precluded from any claim, either upon the property or upon the fund. But for this interposition of the court, he might have stood off from any participation in the proceeding. He must have remained passive from necessity, for his mortgage debt was not yet due, and he was in no condition to act. And, even if due, anticipating the consequence of any movement on his part, he would, for his own interest, have awaited the [**24]  attack, which would place him on equitable grounds, and secure him his debt.
What then is his relation to the appellants, who are seeking to make him the actor in these proceedings? They are the alienees of the mortgagor, and stand in his place. They cannot claim to stand in a better position. Dennison has instituted no proceeding against them or the property. We have seen that he could not. He comes therefore into court upon the same terms and under the same authority with the appellants, and when he presents his claim, as required by the order of the court, which leaves him no option, the appellants interpose 

 [*176]  the plea and exceptions by which they attack and impeach it. Surely, by every sound analogy and reason in law, they are the actors. They demand to be relieved as against him, and thus bring their case fully within the spirit, if not up to the strict letter and meaning of the rule, that requires equity first from them. "Where the plaintiff has the assistance of a court of equity, to set aside an usurious contract, it must be on the terms of paying what was really advanced, with legal interest." 2 Brown Ch. 640, Scott vs. Nesbit. See, also,  [**25]  West vs. Beanes, 3 H. & J. 568.
We must bear in mind, that Dennison's security is the property mortgaged to him. Upon Smith's application for the benefit of the insolvent laws, the property is, by law, placed under the control of the trustee, and without the consent of the lien holders, converted into money. This fund brought into court is substituted for, and there represents the property. The legislature, by conferring on the trustee the whole estate and authority to sell it, never designed to divest the lien holders of their pre-existing rights, or to place them in a worse position than they sustained before his appointment. And when the trustee sells, and the money is brought into court, it is as if the property itself was there under the former existing priorities. Whatever preference the creditor had upon the property, he has upon the fund; and when a subsequent mortgagee comes in upon the fund, impeaching a preceding lien, when he proposes to make his own security available, by attacking the prior lien of another creditor, equity, in every view of such a case, must regard him as the complainant and actor, and before he receives equity, he is bound [**26]  to concede it to others.
To consider Dennison the especial actor in this proceeding, by selecting him among all the creditors, would be straining the law to a point, which the circumstances will not justify. He asserts no right to the rigorous exaction of his contract. The law has undertaken to abridge its terms, by making it solvendum in praesenti, when its limitation was extended, by express covenant, to the year 1850. And to call him into court before the expiration of his time, and before he himself claims, or can claim, of his own motion, the strict letter of his 

 [*177]  bond, entitles him, by every fair consideration, to the equitable abatement of the severity of the law.
This purports to be an appeal from equity. The assets of insolvents are always administered upon equitable principles. 1 H. & G. 96, McCulloh vs. Dashiel, (ante.) And yet it is claimed by the appellants here, to enforce the utmost rigor of the law. To do so, would be to violate every principle of equity; first, to coerce his appearance in court, and then strip him of every dollar of his immatured claim: Summum jus, summa injuria.
To allow him the full amount of his actual [**27]  advances, as the court below has done, is no novel application of chancery principles. It is a result reached upon the known pathways of equity. It is the duty and the proper province of a court of equity in a case like this, to look at all the circumstances, and if the status of the party before them is involuntary, and not of his own seeking, to assign him an equitable position in court, in relation to all the other parties; not to make him the actor in the proceeding, to his own prejudice, where he has not selected it himself, and his standing in court, will bear any other, and a more favorable construction. Upon these grounds, but for the previous disposition of the case on the preliminary motion, we should have sustained the judgment of Baltimore county court in the premises.
APPEAL DISMISSED WITH COSTS.  

DISSENTBY:
MAGRUDER (In Part) 

DISSENT:

 [*164contd2]  
[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

MAGRUDER, J., dissented in part, and delivered the following opinion:
Until the passage of the act of 1804, for the relief of insolvent [**28]  debtors, all applications were required to be made, by persons of that description, to the chancellor, and he alone was authorised to act upon such applications, and to grant the relief which was sought. The proceedings, preparatory to to the discharge, were very much as now, except that the chancellor only could order or sanction them.
These annual insolvent acts, created an insolvent's court, of which the chancellor was the judge, as he was of the land office, received compensation for his services therein, distinct from the salary paid to him as chancellor and judge of the land office, and had power to do some acts ex officio, and to frame issues for the trial of facts, when he thought them necessary. These were powers conferred upon him by act of Assembly, and a grant of them would have been unnecessary, if, in acting upon the application of an insolvent, he was acting as chancellor, and exercising any branch of chancery jurisdiction.
The necessary consequence of any application to him and discharge of the insolvent, was, that the estate given up by the insolvent, created a trust fund in the hands of his trustee, who possessed the same powers, had to perform the same duties, [**29]  and was responsible in the same way, that any other trustee for the benefit of creditors is. To the creditors the trustee was responsible, and, in the chancery court, might be made to render an account and complete his trust, and this without any additional powers conferred, by the insolvent or other laws, upon that court. To compel trustees, (no matter whether appointed by the chancellor, in consequence of an application by a debtor for his discharge under the insolvent law, or by the debtor himself, by deed, conveying property in trust for the benefit of his creditors,) to discharge their trust, was, and always had been, an acknowledged branch of chancery jurisdiction.

 [*165]  The regular course of proceeding when a cestui que trust, or any person interested in the trust fund, wished the trust to be completed, was, to file a bill, and this would be the commencement of a regular chancery suit, to be conducted as such, and, in the course of time, to be ended in a decree, by the chancellor distributing the trust fund. From this decree, any party who thought himself aggrieved, no doubt had a right to appeal, as well as from any other decree.
If, then, the chancellor was still [**30]  the person to receive insolvent's applications, and grant discharges, and the application in this case had been made to him, and he had passed the order now appealed from, there can, it is believed, be no doubt that an appeal would lie from that order.
The insolvent jurisdiction has been taken from the chancellor, though without taking from him any portion of his jurisdiction in cases of trusts, and to that court the parties interested in this trust fund, must have applied for relief, if no such power to grant them relief had been conferred upon any other tribunal. It would not, of necessity, belong to the tribunal which granted relief to the insolvent.
The county courts might have been invested with the power to appoint a trustee, take his bond, and grant a final discharge, without any power to call that trustee to account, and had certainly no such power in 1804. A law conferring upon them that power, would be an enlargement of their equity jurisdiction. This power, no doubt, has been conferred by a later act of Assembly, (1814, ch. 94,) giving to the county court, very extensive equity powers indeed.
It is alleged, that the power to distribute the trust fund among the creditors,  [**31]  as well as the power to grant the discharge, is in the county courts, and it seems to be thought by some, that in these acts, they are sitting as a court of common law. This can scarcely be true, nor is it true, as thought by some, that this is a common law court, possessing some chancery powers. It is one court, possessed of common law and chancery jurisdiction, but it would be as correct to say, that it is a court of equity, possessed of some of the powers of a court of common law, as to call it a court of law, exercising occasionally equity 

 [*166]  powers, when "sitting as a court of equity." These courts are not exercising common law jurisdiction, when settling an account between the trustee of an insolvent and the creditors, or ordering the trustees to render an account of the trust fund, and a common law court would find some difficulty in exercising such powers, even if the law directed them, in the discharge of these duties, to act as a common law tribunal. In 1st Bland, 67, it is said: "If the legislature directs any thing to be done, it either provides the means to be pursued to effect its object, or it is partially or wholly silent as to the manner of proceeding.  [**32]  If the prescribed means are such, as can only be exercised at common law or in equity, then the one or the other of those tribunals must be clothed with exclusive jurisdiction accordingly, or the enactment may be such, as to allow them to have concurrent jurisdiction. But, if its nature be such, that the prescribed mode can be executed by neither, or the right given be such, that, according to their several limited and settled modes of proceeding, neither of them can grant proper redress, they cannot, in any way, supply the deficiency; because, even upon English authority, a court of justice cannot be permitted, in any case, to legislate; and because, by the constitution of our republic, the three departments having been directed to be kept forever separate, the judiciary has been expressly excluded from every species of legislation, and is precluded from supplying any omissions of the legislature, however obvious and necessary it may be for attaining the object in view." Lord Eldon, in 2nd Jacob & Walker, p. 371, remarks: "If the powers of both, (equity and common law,) taken together, can give the king's subjects nothing but an action for damages, it is a defect which,  [**33]  whether it proceeds from mistake on the part of the legislature, or, if I may presume to say so, from negligent inattention, no court can supply. The legislature has not entrusted that authority to courts of justice. It is not said, that they can legislate, but that the act is to be carried into execution by the known rules of law and equity. What the legislature has directed to be done, or may have prohibited, the courts, as far as their known rules and principles will permit, will endeavor to enforce; but if their 

 [*167]  known rules and principles will not supply a remedy, if the legislature has mistaken its way, no court of justice can supply the deficiency."
The act of 1785, chap. 33, enables land-holders to have their lands marked and bounded. That law "provides the means to be pursued, to effect the object." If, however, this had not been done, if the law had merely authorised an application to the county courts, and had directed the courts, when such applications were made to them, to proceed to have the land marked and bounded, "the rules of the courts of common law or of equity, would have been insufficient to assure to the citizen any right which it was intended that [**34]  he should derive from that law:" the law would have been a dead letter, until the General Assembly made provision for carrying it into effect; yet such law, perhaps, would not have been more defective, than an act of Assembly to direct a court, without equity jurisdiction, to settle up insolvent estates. A court of common law, perhaps, might, by the old action of account, afford a partial, but it would have been a very inadequate remedy. The mode to be pursued, in order to a settlement of the estate of an insolvent applicant, is precisely the same, as it would be if the debtor, instead of applying for a discharge under the insolvent laws, had made an arrangement with his creditors, and had conveyed his property, or a portion of it, to an individual, in trust, to sell the same, and appropriate the proceeds of sale to the payment of his debts. In such a case, any party aggrieved may appeal, and I can perceive no reason for denying to a party, who supposes himself to be aggrieved, in the settlement of an insolvent's estate, the same right of appeal.
In the case of bankruptcy in England, this right of appeal may be denied, but our ancestors were not very partial to the bankrupt system [**35]  of England, and are not understood to have adopted any provision peculiar to it. The reasons which exist in England for denying in any such cases a right of appeal, do not exist here; and here, the right of appeal as given by law, cannot be abridged by provisions to be found in the bankrupt law of England, or in that which has existed in the United States.

 [*168]  My opinion then, is, that the legislature possesses the power, and may at any time exercise it, to take the right of appeal from all parties interested in cases like this; but, until denied by the legislature, the right exists, and I can discover no law which excepts cases of this description, from the remedy by appeal given to parties aggrieved, by the decisions of the county courts, sitting in those cases, not as courts of common law, but as courts of equity. I am therefore for entertaining the appeal.
My warrant for affirming the decree of the court below in this case, I find in Scott vs. Nesbit, 2 Brown Ch. 640. 

6 of 29 DOCUMENTS 

MARTIN SMITH vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 425; 1848 Md. LEXIS 8 

June, 1848, Decided 

PRIOR HISTORY:
 [**1]   WRIT OF ERROR to Baltimore City Court.

At the October term, 1845, of Baltimore City Court, Martin Smith, the appellant, was indicted for leasing a house to one Dorcas Smith with the knowledge that the said Dorcas Smith intended to keep therein a common bawdy house. The indictment is as follows:--

"The jurors, &c. do on their oath, present that Martin Smith, late, &c. on the second day September, 1845, with force and arms, at, &c. unlawfully, willfully, and knowingly, did let a certain house, there situate, of him the said Martin Smith, to one Dorcas Smith, with an intent that the said Dorcas Smith should afterwards, and during the continuance of such lease thereof, then keep and maintain the said house as a common bawdy house; and that afterwards, and during the continuance of such lease thereof, to wit: on the day and year aforesaid, and on divers other days and times, between that day and the day of taking of this inquisition, at the city of Baltimore aforesaid, the said Dorcas Smith did actually keep and maintain the said house, as a common bawdy house, to the great scandal of all the liege inhabitants of the said State, to the evil example of all others in the like case [**2]  offending, and against the peace, government, and dignity of the State. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Martin Smith afterwards, to wit--on the second day of September, in the year of our Lord, 1845, with force and arms, at the City of Baltimore aforesaid, unlawfully and knowingly, did let out a certain other house, there situate, which said last mentioned house, he the said Martin Smith, then and there had the control of, and the power of letting out, to one Dorcas Smith, with intent that the said Dorcas Smith should afterwards, and during the continuance of such lease thereof, there keep and maintain the said last mentioned house, as a common bawdy house; and that afterwards, and during the continuance of such lease thereof, to wit, on the day and year aforesaid, and on divers other days and times, between that day and the day of taking this inquisition, at the City of Baltimore aforesaid, the said Dorcas Smith actually did keep and maintain the said last mentioned house as a common bawdy house, to the great scandal of all the liege citizens of the said State, to the evil example of all others, in the like case offending, and [**3]  against the peace, government and dignity of the State."

To this indictment, the defendant pleaded not guilty, and the case being submitted to the court, the court (BRICE, C. J. NISBET and WORTHINGTON, A. J.,) declared the defendant guilty of the misdemeanor as above charged against him. The defendant then entered a motion in arrest of judgment and assigned for cause:--

1st. Because the indictment sets forth no crime under the laws of this State.

2d. Because the indictment sets forth no indictable matter.

The court overruled this motion, and imposed a fine of $ 20 and costs upon the defendant, and who sued out a writ of error to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Leasing to another a house, with the intent of its being used as a common bawdy house, is an offence indictable at common law.

There can be no doubt that the keeper of a house of this description may be indicted, and he who leases to another a house, with the intent of its being so used, is particeps criminis--an aider and abettor in the misdemeanor.

The indictment must contain a certain description of the crime, and a statement of the facts by which it is constituted; but it need not state when the lease commenced, or was to end.  

COUNSEL:
By WALSH for the appellant, who cited 1 Eva. Har. 502. 2 Chitty's C. L. 5. 13 Pick. 169. 17 Pick. 83. 2 S. & R. 298. 5 Iredell, 603, 606. 2 Hill, 558, and

By RICHARDSON, Attorney General, for the appellee.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*427]  MAGRUDER, J., delivered the opinion of this court.
The appellant in this case was convicted, in Baltimore City Court, of letting out to Dorcas Smith, a house in the City of  [**4]  Baltimore, with intent that she should keep and maintain the same as a common bawdy house, and which, afterwards and during the continuance of the lease, was kept as a house of that description.
It appears by the record, that there was a motion in arrest of judgment, and the following reasons were assigned. 1st. Because the indictment sets forth no crime under the laws of the State, and 2d. Because the indictment sets forth no indictable matter. The motion was overruled, and this court is now to decide, whether the court below erred therein.
It may be that none of us can recollect any case like this, which was prosecuted with success in any court of Maryland. But it cannot be inferred, from the mere circumstance, that a particular offence has never been punished, that there is no law to authorize its punishment. A jury may never have been furnished with the requisite proof, or if in some instances the proof was furnished, on which to ground such a prosecution 

 [*428]  and yet, no presentment was made, such neglect of duty is no evidence of the non-existence of a law, which made it the duty of the jury, to present it as a misdemeanor. An answer to what was urged on this subject [**5]  may be found in the Court's opinion, in the case of The State vs. Buchanan, in 5 H. & J. 317. A learned judge of a sister State, in answer to the argument, that the offence now under consideration, is "intangible by legal punishment," observed, "if any of the attributes of the common law, may be said to stand above the rest in point of excellence, its well known power of pursuing iniquity through all disguises, of stripping from crime the forms under which it seeks to mask itself, and dragging the offender from the dark recesses of fraudulent evasion, has seemed to me to occupy that position."
It cannot be denied, that the keeper of a house of this description, may be indicted at common law, and surely he who leases to another a house, with the intent of its being so used, is particeps criminis, an aider and abettor in the misdemeanor. It is true, that in the case of Brockway vs. The People, 2 Hill's N. Y. Reports, page 550, two judges decided, that for such an act the lessor could not be prosecuted, but with the reasoning of the judge who pronounced the opinion in that case, we are not satisfied. We cannot think that the act of furnishing a house [**6]  for such an iniquitous purpose, "is more remote, or indirect than the sending of an insulting and provoking message to another, for the express purpose of inducing him to return a challenge." Yet an indictment for sending such a letter has been sustained, see 6 East 464, and the correctness of that decision in not doubted by the court, in the case of Brockway. From that opinion too, one of the judges dissented, and we think his reasoning upon the point most satisfactory, although the precedents with which we have been furnished, would not authorize us to say, that the indictment must charge the owner of the house with being the keeper of it. We have also the decision in the case of Commonwealth vs. Carrington, 3 Pick. that such an act is a misdemeanor, see also 2 Wash. 5, and 5 Iredell 606.

 [*429]  We cannot, therefore, say that the offence charged in this case, is not one which is punishable by indictment.
Other objections to the indictment were taken at the bar, none of which are considered to be fatal. We cannot suppose that it was necessary to state when the lease commenced, or was to end. It would be in vain to prosecute, if in order [**7]  to support the indictment, this proof, it may be in the possession only of the offending parties, was required. Perhaps the phrase "let out," is not the most appropriate, but its meaning is quite plain.
It cannot be said, that this is a prosecution against Dorcas Smith, as well as the appellant. Her name, and what is alleged of her, are introduced of necessity, in stating the offence, for which the appellant is put upon trial. The concluding words are required in every indictment, and refer not to the acts of Dorcas, but to those of the appellant, which are charged to be against the peace, government and dignity of the State. Many indictments are to be found in the books, to which the same objection might have been made, and which seem to be sufficient. See for example, indictments for receiving stolen goods knowing them to be stolen.
It does not appear to us that any of the reasons assigned in support of this motion, require us to say, that the offence here charged, is not described with convenient certainty, so as to enable the court to impose the proper fine; or enable the defendant to make his defence, or to plead the indictment in bar to any subsequent proceeding. In [**8]  the case of The State vs. Buchanan, 5 H. & J. the court said, "an indictment must contain a certain description of the crime, of which the defendant is accused, and a statement of the facts by which it is constituted." We think the indictment in this case has these requirements, and that without calling in question, some of the principles recognized in that case, we cannot disturb this judgment.
JUDGMENT AFFIRMED.  

7 of 29 DOCUMENTS 

JANE REBECCA GRIFFITH, JAMES S. KEYS AND RUTH HIS WIFE et al. vs. PETER REIGART AND WIFE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 445; 1848 Md. LEXIS 10 

June, 1848, Decided 

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

On the 29th March, 1839, a bill was filed on the equity side of said court, by Margaret Hermange and Mary H. Hannon, for the sale of certain real estate lying in the city of Baltimore, which had been mortgaged to the complainants by one George Riston, and afterwards conveyed by said Riston to Henry B. Griffith, who had deceased prior to the filing of the bill, and whose widow and heirs were made defendants. The proceedings in the case prior to the decree are immaterial to the questions involved in this appeal. The decree for a sale of the mortgaged premises was passed on the 4th September, 1839. The property was sold on the 30th April, 1840, and on the 2d October, of the same year, the auditor stated his first account by which a large surplus of the proceeds, after satisfaction of the mortgage debts, was assigned to the widow and heirs of said Griffith. This account was not ratified, but ordered to stand for hearing, and on the 5th November, of the same year, the auditor stated a second account correcting an error in the interest allowed to the complainant, Margaret Hermange. The widow of Griffith then filed her petition,  [**2]  claiming her proportion of the proceeds of sale in lieu of her dower, and the administrators of said Griffith filed their claim for the refunding of over-payments made by them as administrators. No notice was given to creditors to file their claims, and no further auditor's account stated until the 15th April, 1845.

On the 2d April, 1845, the appellees, Peter Reigart and Catharine, (formerly Catharine Diffenderfer) his wife, filed in the cause their petition, in which they allege that said Griffith in his life time was indebted to the petitioner, Catharine, in the sum of $ 2,000, with interest, on his promissory note to her for that sum. That in the year 1841, after the death of said Griffith, his personal estate being insufficient for the payment of his debts, the said Catharine filed her bill in the Court of Chancery against the widow and heirs-at-law of the said Griffith, for the sale of certain real estate of the deceased, situated in Montgomery County, for the payment of her said claim. That on the 18th May, 1841, a decree was passed for the sale of said real estate, which was accordingly sold, but the proceeds were insufficient to pay said claim, leaving a balance of $ 948 [**3]  76, with interest from the 18th June, 1842, still remaining due, as will appear by the auditor's second report and account, dated the 4th January, 1843, and ratified by the Chancellor, on the 6th of the same month. The petition then charges that the surplus in the hands of the trustees in this case, which has been assigned by the auditor to the heirs of said Griffith, is applicable to the payment of the claim of the petitioners, and prays that an order to that effect may be passed.

To this claim set up in this petition, the widow and heirs of Henry B. Griffith, pleaded the statute of limitations.

On the 15th April, 1845, the auditor filed a third report, in which he states that the claim of Reigart and wife had been filed, but as the plea of limitations had been filed thereto, it had not been stated. On the same day the court again referred the case to the auditor with directions to state a new account in which the sum of $ 1,050, is to be reserved to answer the claim of Reigart and wife, and granted leave to the petitioners to take testimony before the auditor in support of their claim. Under this leave, the record of the proceedings on the bill filed in Chancery in 1841,  [**4]  by the appellee, Catharine, referred to in the petition, was then filed in the cause. By this record it appears that the bill in that case, was filed on the 20th January, 1841, by Catharine Diffenderfer, alleging that said Henry B. Griffith, was, in his life time, indebted unto the complainant in the sum of $ 2,000, on a certain promissory note for that amount made by the said Griffith, by the name of "H. B. Griffith & Co." and a certain William Street, as his surety, dated the 31st December, 1831, and payable to the order of complainant three months after date, as will appear by the note which is exhibited with the bill. The bill then particularly describes certain real estate, situated in Montgomery County, of which said Griffith, died seized and possessed, and after averring the insufficiency of his personal estate for payment of his debts, prays that the said real estate may be sold for the payment of the claim of complainant. The defendants to this bill were the widow and heirs-at-law of said H. B. Griffith, the same who were parties to the proceedings in Baltimore County Court. Two of the heirs who were infants answered by guardian, the other defendants by counsel, admitting [**5]  the facts stated in the bill, and submitting to such decree as the court might deem proper. Proof was then taken establishing the claim of the complainant, the insufficiency of the personal assets, and the relationship of the defendants. And on the 18th May, 1841, the Chancellor passed a decree "that the real estate in the proceedings mentioned, whereof Henry B. Griffith died seized, shall be sold for the payment of his debts," &c. The sales were then made and finally ratified in April and October, 1842. The auditor then filed two accounts, the second of which was ratified on the 6th January, 1843, and showed the balance before stated, of the claim of the complainant to be still due and unpaid.

Upon this proof, the auditor of Baltimore County Court filed his fourth report and account, on the 26th April, 1845, allowing the claim of the appellees, which by agreement, was, if recoverable, stated to amount to $ 1,126 06.

To this account the appellants filed exceptions. 1st. On the ground that it was barred by limitations. 2d. That the personal estate of Griffith was not yet collected and exhausted. These exceptions the court (LE GRAND, A. J.,) overruled and ordered the claim [**6]  of Reigart and wife as stated in said account to be allowed, and the said account to be finally ratified and confirmed. From this decree the present appeal was taken.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A decree of the Court of Chancery upon a creditor's bill, finally and conclusively establishes the claim of the complainant creditor, and the insufficiency of the personal estate to pay the same, and prevents the running of limitations against the claim, as a simple contract debt.

The case of Belt, Wright & Carroll vs. Diggs and others, decided at June term, 1836, is not in conflict with the decision in this case.  

COUNSEL:
GLENN and MCMAHON, for the appellants, insisted:--

1st. That the statute of limitations running against the claim until the filing of the petition in April, 1845, was a clear bar to it, unless there be something in the proceedings on the bill filed by Mrs. Reigart, in 1841, changing the nature of the original claim or removing the bar of the statute.

2d. That there is nothing in the proceedings in said chancery cause, changing the original nature of the claim of Mrs. Reigart, against said Griffith, as a simple contract debt.

3d. That the answers in that case, filed in April, 1841, are insufficient to take the claim out of the statute, and were never of any avail for that purpose, as it regards the answers put in by guardian for the infant defendants.

4th. That there was no sufficient proof of the exhaustion of the personal estate.

By DAVID STEWART and WM. GEORGE BAKER for the appellees.

As to the first objection, that the claim is barred by limitations, the appellees [**7]  contend that limitations do not bar, for the claim is not founded on the note of Henry B. Griffith, but on the decree of the Court of Chancery, a court of competent jurisdiction, made between proper parties, the same who are parties to the cause in Baltimore County Court, the widow and heirs of the deceased. It is not contended, that the decree in Chancery establishes any personal claim against the heirs and widow of the deceased, but that it establishes, finally and conclusively, a claim against all the real estate of which the deceased died seized, and the proceeds of all such real estate.

That the decree in a creditor's bill establishes the claim of the complainant in the cause, finally and conclusively, is settled beyond controversy. Strike's case, 1 Bland, 68. Strike vs. McDonald & Son, 2 H. & G. 261. Williamson vs. Wilson, 1 Bland, 441. Hammond vs. Hammond, 2 Bland, 359. Simmons vs. Tongue, 3 Bland, 353.

As to the second objection, not only does the decree establish the claim, but it establishes that the personal assets are insufficient for the payment of the debt. See same cases above cited, and McKubin vs. Brown, 1 Bland, 415. The ground of these decisions is, that [**8]  in order to obtain a decree for the sale of the real estate, both the claim, and the insufficiency of the personal estate to pay it, must first be proved. When a decree is passed, it shows that the claim has been proved, and that the insufficiency of the personal estate has been proved.

Besides, it is admitted in this cause, not only that the personal estate is insufficient, but that it has been more than exhausted; the administrators having been in the auditor's fourth account, allowed by agreement, $ 2,000, for over-payments made by them as administrators.

But it has been contended by the appellant's solicitors, that the decree in Chancery only establishes the claim in that particular case; that it does not change the original nature of Mrs. Reigart's claim, as a simple contract debt, with reference to the case in Baltimore County Court.

The general rule of evidence, in regard as well to decrees in equity as judgments at law, is, that they are binding on all parties and privies, as well in other cases in which they are adduced in evidence, as in the cases themselves in which such judgments or decrees are passed. Decrees in equity are binding on all who are parties [**9]  to the cause, and all claiming under them, or represented by them. Story's Eq. Pleading, 608. 1 Stark. Ev. 253. Manigault vs. Dreas, 1 Baily's Eq. (S.C.) 293. And there is nothing in this case to take it out of the operation of the general rule. The decree in question established two facts:--1st. The complainant had a just and valid claim against the deceased, Henry B. Griffith. 2d. That his personal assets were insufficient for the payment of the debt so established. Against whom were those facts established? Against the widow, the heirs and administrators of the deceased debtor, the parties defendant, and inasmuch as it was a creditor's bill, and the creditors were required to come in and prove their claims, against the creditors of the deceased also. By the establishment of these two facts, all the real estate of which the debtor died seized, became liable for the payment of the debt so established. The remedy applied by the Court of Chancery, was a decree for the sale of the Montgomery County lands, which were all the real estate of the deceased debtor, except that in Baltimore city, which had been previously sold by order of Baltimore County Court, but the remedy thus applied,  [**10]  did not limit the binding operation of the facts so established, as against the widow and heirs, merely to the lands in Montgomery County; for the complainant had no specific lien against those lands, as distinguished from other real estate of the debtor: her claim against the real estate arose not by contract, as by mortgage or other specific lien, but was given by act of Assembly, not against any specific portion, but against all and every part of the real estate; all is made amenable to the satisfaction of her claim.

If the Chancery proceeding be regarded as a proceeding in rem, it is submitted that from the character of the bill, being a creditor's bill, it is a proceeding against all the real estate of the deceased. The complainant is first bound to exhaust the Montgomery County lands; but the proceeds of those lands having been exhausted, the decree still remains operative to establish the debt and insufficiency of personal assets, as against all other real estate of which Henry B. Griffith died seized, and the proceeds thereof.

Further, assuming that the debt of the complainant is not made by the decree, so far a decree debt, as to constitute the decree, the foundation [**11]  of a further proceeding against the heirs as to other real estate of the deceased, it is submitted, that the application of proceeds of the sale towards the payment of the complainant's claim by the auditor's accounts ratified by the Chancellor, operates to remove the bar of limitations as to the balances then remaining due for three years from said ratifications, and before the expiration of three years from the ratification of the last auditor's account, the claim was filed in Baltimore County Court, the auditor's second account having been ratified 6th January, 1843, and the claim filed before 15th April, 1845.

It will be observed that according to the usual course of the court, the decree in the chancery cause requires notice to be given to the creditors of the deceased, that in conformity thereto notice was given, and inasmuch as no creditor produced a claim except the complainant, it must be presumed that the complainant is the only creditor, and in fact, no exception having been taken on the ground of there being other creditors, none can be taken in this court.

As to the third objection, the costs incurred by the exhibition of the claim are rightfully allowed by the [**12]  auditor; when the estate is solvent, as in this case, even the costs of re-stating the account by the auditor are to be paid by the estate, Dorsey vs. Hammond, 1 Bland, 468; but here the claim was filed before the auditor's account was stated; and the account was required to be stated, to state the claim of the administrator as agreed on: Besides in this case there is no ground to impute laches to the appellees in not sooner filing their claim, inasmuch as notice to creditors was not given, as in cases where the proceeds of the real estate of a deceased debtor are to be distributed, there ought to have been, according to the course of the court in such cases.

For these reasons it is submitted, that the order of the court below should be affirmed.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*451]  SPENCE, J., delivered the opinion of this court.
On the 29th March, 1839, Margaret Hermange and Mary H. Hannon filed their bill in Baltimore County Court, as a court of equity, for the sale of certain real estate, situated in the city of Baltimore, which had been mortgaged by George Riston to Margaret Hermange [**13]  and another, and afterwards conveyed by Riston to Henry B. Griffith, who died prior to the 

 [*452]  filing of this bill, and whose widow and heirs were defendants.
On the 4th September, 1839, a decree was passed for the sale of the real estate, which was sold on the 30th April, 1840. The auditor filed his first account on the 2d October, 1840, a second on the 5th November, 1840, and the third on the 15th April, 1845, before which time the claim of the appellees was filed in the cause.
This claim is stated to have arisen as follows:--
Catharine Diffenderfer, one of the appellees, who afterwards intermarried with Philip Reigart, the other appellee, was a creditor of Henry B. Griffith, deceased, on his note for $ 2,000. The personal estate of Henry B. Griffith being insufficient for the payment of his debts, on the 20th January, 1841, the said Catharine filed in the Court of Chancery a creditor's bill, setting forth her claim, and alleging the insufficiency of Griffith's personal estate to pay his debts. The widow and heirs of Griffith, by their answers, admitted the truth of the charges in the bill.
Under the commission to take testimony, the [**14]  execution of the note to the said Catharine, and the insufficiency of the personal estate of the said Griffith, were proved by competent testimony.
On the 18th May, 1841, the Chancellor decreed the sale of the real estate of said H. B. Griffith, in Montgomery County. By virtue of said decree, the lands were sold by the trustee. On the 25th October, 1842, the auditor's first account was ratified, which established the claim of the appellants, and his second, on the 6th January, 1843. This last account of the auditor shows that a large part of the complainant's claim is unsatisfied. It is to obtain the payment of this unsatisfied balance of this claim out of the surplus of the proceeds, after payment of the mortgage debt, of the real estate sold by the decree of Baltimore County Court, this application is made.
The widow and heirs of H. B. Griffith pleaded the act of limitations to this claim, and excepted to the auditor's account, which allowed the same. The court overruled the exceptions, 

 [*453]  and ratified the auditor's account, and from this order of the court thus ratifying the auditor's account, this appeal is taken.
The decree of the Chancellor [**15]  of the 18th May, 1841, decided the insufficiency of the personal estate of Henry B. Griffith to pay his debts, and the decree for the sale of the real estate for the satisfaction of this debt, is a final decision in favor of the claim of this creditor, on the ground that the decree can only be passed, upon the establishment of the debt. But it is said in support of the plea of limitations, that it is a decree in rem, and this is true; but, it at the same time ascertains and decides the indebtedness of the deceased, and the insufficiency of his personal estate to pay the same. If the decree in this case is to be viewed and taken as passed by a court of competent jurisdiction, to adjudge and determine the indebtedness, and the law subjects the real estate of all persons who die indebted, not leaving personal estate sufficient to pay their debts, to be thus applied, what sound objection can be advanced, that an adjudication thus made, should not be deemed and considered at the date of the decree, as a judgment, final and conclusive of the debt, and insufficiency of the personal estate to pay the debt?
It was insisted in the argument, that the decision of this court at June term,  [**16]  1836, in the case of Belt, Wright & Carroll vs. Diggs et al. was in conflict with this view of this question. But upon examination, it will be found that that case is distinguishable from the one now under consideration. The decree in that case was for the sale of specific property, which had been mortgaged for the payment of a specific debt for which the mortgagor was not personally liable, and the legal estate being in the mortgagee, the office of the decree was to do nothing more than by a sale, to divest the equitable interest, to pay the debt for which the mortgaged premises only were answerable. It would not be contended for a moment, that under a decree to foreclose such a mortgage, that the personal liability of the mortgagor, or any other property or estate than that embraced and described in the mortgage and decree, could be affected thereby. Whereas, the decree on a creditor's bill 

 [*454]  for the payment of debts is general, "the real estate or so much thereof as is necessary for the payment of the debts." The fund which the petition in this case prays may be applied to the payment of this debt, is the surplus proceeds of real estate, after the payment of the mortgaged [**17]  debt in the hands of the trustee; and, as we think, the statute of limitations is not a bar, we affirm the order of the court below.
DECREE AFFIRMED.  

8 of 29 DOCUMENTS 

GEORGE HARRISON AND SAMUEL CALHOUN, Partners trading under the Firm of DUNCAN, CALHOUN & CO. vs. DAVID GREEN, trading under the Firm of GREEN & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 478; 1848 Md. LEXIS 12 

June, 1848, Decided 

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

This was an action of replevin, instituted by the appellants on the 13th April, 1846, against the appellee for the recovery of sixteen packages of goods marked, "McCalla & Rankin, Georgetown, Kentucky," in the possession of the defendant as a common carrier.

The goods were replevied by the sheriff and appraised at $ 6,250. The defendant then moved to quash the writ, for the following reasons: 1st. Because the plaintiffs did not file with the clerk of the court a bond in a sum double the value of the goods replevied and delivered. 2d. Because it appears from the proceedings, that they filed a bond of only $ 500, and the goods replevied from the defendant and delivered to the plaintiffs, were appraised at $ 6,250.

This motion the court overruled, and the defendant then pleaded the following pleas:--

1st. Non cepit. 2d. Property in the defendant Green. 3d. Property in Samuel Brewer, agent of the four-day line. 4th. Property in the firm of Adams & Co. 5th. The defendant avows the taking, because he is a forwarding commission merchant and common carrier in the city of Baltimore, engaged in forwarding and carrying goods from said city [**2]  to the Baltimore and Ohio Rail-road Depot, at Cumberland, and on the 9th April, 1846, received the packages in question under a contract with Adams & Co., to forward the same to the Rail-road Depot at Cumberland, and there to deliver the same to the agent of the four-day line, viz: one Samuel Brewer, and did forward and deliver the same accordingly before the issuing of the writ original in this cause.

The plaintiffs replied to the 1st, 2d, 3d and 4th pleas, and demurred to the 5th. This demurrer being overruled, issues were afterwards joined on all the pleas.

1st EXCEPTION.--At the trial, the plaintiffs to maintain the issues on their part, offered in evidence the following receipt:

"ADAMS & CO'S EXPRESS."

"Eastern, Western and Southern Package Express, for the conveyance of merchandise, specie, baggage, &c. &c., and insurance effected, whenever required on any package, to its full amount of value. Offices:--9 Court street, Boston; 17 Wall street, New York; 80 Chesnut street, Philadelphia; 7 Light street, Baltimore; Pennsylvania Avenue, Washington.

"N. B.--Adams & Co. are alone responsible for the loss or injury of any article or property of any description [**3]  entrusted to their care; nor is any risk assumed by the owners of the New York and Norwich steamboats, the Norwich and Worcester and Boston and Worcester Rail-road Companies, or any of the Companies transporting their cars.

"Philadelphia, April 8, 1846.

"Received of Messrs. 'McCalla & Rankin,' sixteen packages, marked McCalla & Rankin, Georgetown, Kentucky, which we promise to forward to Cumberland, and deliver to the four-day line agent, (loss by fire, water, breakage, leakage and perils of the seas excepted.)     For SANFORD & CO."

"Which receipt was admitted to be in the hand-writing and given by Sanford & Co., common carriers in the city of Philadelphia, and also exhibited an endorsement on the back of the said receipt, as follows:--

"Messrs. Green & Co. at Cumberland, deliver the goods on the within receipts for four-day line to Duncan, Calhoun & Co.

MCCALLA & RANKIN, of Georgetown, Ky."

And proved by the testimony of F. C. McCalla and Harrison Rankin, competent witnesses, taken under a commission issued for that purpose, that the sixteen packages specified in the said receipt so endorsed, were the property of the said F. C. McCalla & Harrison [**4]  Rankin, partners trading under the firm of McCalla & Rankin, at the time the endorsement was made, and that said McCalla had signed the writing on the back of said receipt, in the name of said McCalla & Rankin, on the eleventh day of April, 1846, in the town of Cumberland, and handed said receipt then and there, with its endorsement, to the plaintiffs.

And then proved by George Shafer, a competent witness, that said Shafer, as the agent of the plaintiffs, who are merchants in the town of Cumberland, presented the receipt, with its endorsement, on the 11th April, 1846, to George J. Caldwell, the agent of the defendants, and that said Shafer then requested said Caldwell to furnish him the amount of the charges due upon the said packages, and offered to pay the same, and that said Shafer, at the same time, requested Caldwell to deliver said packages to him for the plaintiffs. That said packages were at that time in the possession of said Caldwell, as agent for the defendants. But that Caldwell refused to furnish said Shafer with the amount of said charges or to receive the money for the same, and positively refused to deliver said packages to the plaintiffs.

The plaintiffs then [**5]  proved by George J. Caldwell, a competent witness, that he is the agent of Green & Co. in Cumberland, and that said Green resides in Baltimore. That Green & Co. are in the habit of carrying goods sent through Sanford & Co. by Adams' Express Line, from Philadelphia to Baltimore, through from Baltimore to Cumberland. That witness received the sixteen packages in Cumberland from Green & Co., by rail-road on the 11th April, and that the packages were charged with freight as from Philadelphia.

The defendants then proved by said Caldwell, that the Saturday preceding the issue of the replevin the receipt, with its endorsements, was shown to him by George Shafer, but the witness said that the said endorsement was not accompanied by the direction to "Messrs. Green & Co."

The defendants further proved by said Caldwell, that he had spoken with Samuel Brewer, the agent of the four-day line at Cumberland, on Saturday the 11th April, to forward the said packages to Wheeling, and that said Brewer agreed to take said packages, and upon the ensuing Monday after said Brewer had agreed to take said packages, said Brewer had his wagon at the warehouse of Agnew & Co. where Caldwell had placed [**6]  them by the direction of Brewer, and where Green & Co. did business, with intent to take the same. And also that the said packages were in the warehouse so occupied, when the writ of replevin was executed. Said Caldwell also stated that he had delivered the sixteen packages to Samuel Brewer, the agent of the four-day line, before the replevin was served.

The plaintiffs then proved by Samuel Brewer, the agent of the four-day line, that he never had possession of the said sixteen packages, and that they never were delivered to him as such agent, and further proved by the return of the sheriff, that the said sixteen packages were taken out of the possession of Green & Co.

The plaintiffs also proved by George Shafer, that the direction of Green & Co., was contained in the endorsement on the receipt, when it was exhibited by him to Caldwell.

And thereupon the plaintiffs prayed the court to instruct the jury, that if they should believe from the evidence in the cause, that the said McCalla & Rankin were the owners and consignors of the packages in controversy upon the 11th April, 1846, and that the said McCalla & Rankin being such owners and consignors, had delivered the receipt [**7]  for the said packages, with its endorsement, to the plaintiffs in this cause on that day, and that the said plaintiffs had caused the said receipt, with its endorsement, to be shown to the agent of the defendants, and had offered to pay all charges due thereon, and that the defendants had refused to accept the amount of the said charges, and to deliver the said sixteen packages to the plaintiffs, and if they should further find that the said defendants, at the time of the execution of the writ of replevin, were in possession of the said packages, by virtue of the receipt of Sanford & Co., that it is competent for the said plaintiffs to maintain their action for the said packages, and that their verdict must be for the plaintiffs accordingly.

Which opinion and instruction, the court (MARTIN, C. J. and BUCHANAN, A. J.) refused to give, but instructed the jury that the delivery of the said receipt, with its endorsement, by the said McCalla & Rankin to the plaintiffs, although accompanied by an exhibition of the said receipt and endorsement to the defendants, and a tender to pay the charges due on the said packages, did not give the plaintiffs the right to sue in this action, and [**8]  that their verdict must be for the defendants.

To which refusal to grant the said prayer of the plaintiffs, and to the opinion and instruction of the court, the plaintiffs excepted, and appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The owners and consignors of certain packages of goods took from S. & Co. common carriers in the city of Phila. a receipt, by which said carriers agreed to forward said goods, directed to the owners at "Georgetown, Ky." from the former city to Cumberland, and there deliver the same to the four-day line agent. Upon the back of this receipt, the consignors afterwards wrote and signed the following endorsement: "Messrs. Green & Co. at Cumberland, deliver the goods on the within receipt for four-day line to Duncan, Calhoun & Co." and delivered the same to said D. C. & Co. G. & Co. to whom this endorsement was directed, resided in Baltimore, and were common carriers, and as such, were in the habit of forwarding goods sent by S. & Co. from Phila. to Baltimore, through to Cumberland. Held,

That the delivery of this receipt, with its endorsement to D. C. & Co. by the appellants, and an exhibition thereof by them to G. & Co. the appellees, though accompanied by a tender to pay the charges due on said packages, did not give the appellants the right to maintain an action of replevin for the goods.  

COUNSEL:
By JOHN T. EVANS and WM. PRICE for the appellants, who contended:--

1st. To maintain the action of replevin in Maryland, no further title is necessary in the plaintiffs other than a right to the possession of the property replevied, as against the defendant.

2d. That the possession of a common carrier's receipt for the conveyance of goods, forwarded by the owner of the goods on his own account, and given to said owner as consignor of the goods, endorsed over by the owner, with an order to the carrier or his agents, to deliver the goods contained in the receipt to a third party, and the exhibition of the receipt, with the order of the owner to the common carrier or his agents, by the party to whom it has been endorsed, accompanied by a tender of all charges due to said carrier, entitles the holder of the receipt, with the order, to the possession of the goods specified in it, as against the common carrier.

MCKAIG for the appellee,  [**9]  insisted:--

1st. That the appellants had neither a general or special property in the goods, and therefore, could not bring this action in their own names.

2d. The endorsement by McCalla & Rankin, on the bill of lading conveyed to plaintiffs no property in the goods, but was a mere order or authority to receive the goods, as the agent of the owners, was without consideration, and therefore, did not authorize the plaintiffs to institute the action of replevin.

3d. The plaintiffs never had possession of the goods, in virtue of which alone, a special property in the goods could have been obtained by them, and there is no pretence, that they had any general property in the goods,--they could not, therefore, maintain replevin for the goods.  

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

OPINION:

 [*483]  By the Court:
JUDGMENT AFFIRMED.  

9 of 29 DOCUMENTS 

ALEXANDER FISHER, WILLIAM D. MILLER, AND WILLIAM E. MAYHEW, JR. vs. WILLIAM F. JOHNSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 354; 1848 Md. LEXIS 4 

December, 1847, Argued 

June, 1848, Decided 

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

On the 4th of August, 1846, the appellants sued out a warrant of attachment, to recover from Samuel Comly, a non-resident, the sum of $ 3,511 66. The attachment was returned.

"Laid in the hands of William F. Johnson, on the 12th of August, 1846, and attached as per schedule. Comly not appearing, judgment of condemnation, nisi, was rendered on the 13th of the same month, and William E. Mayhew gave the usual confession, to make restitution within a year and a day, &c.

The appellants then sued out a writ of fieri facias, and on the 6th of March, 1847, the parties agreed as follows:--

It was admitted, that on the 4th August, A. D., 1846, the plaintiffs sued out of Baltimore County Court a writ of attachment on warrant, against the defendant, founded upon a certain draft for $ 3,500, dated the 14th July, A. D., 1845, and payable twelve months after date, drawn by the defendant, upon Messrs. Comly Bros., Baltimore, in favor of a certain T. J. Folwell, accepted by Messrs. Comly Bros., and by T. J. Folwell, endorsed to the plaintiffs. That the plaintiffs were, at the time of suing out said writ, commission merchants residing and doing [**2]  business in the city of Baltimore, by the name of Fisher, Miller & Co.; and that the defendant was, at that time, a citizen of the state of Pennsylvania, residing in the city of Philadelphia, as was also the payee of said draft, said J. J. Folwell. That the Messrs. Comly Bros. were, up to a short period before suing out said writ, (as hereinafter stated,) calico printers and manufacturers, residing and doing business in Baltimore county, upon a certain tract of land commonly known as the "Forkland Print Works," belonging to a certain William Fell Johnson, a resident of Baltimore county aforesaid; which tract of land, together with the improvements, consisting of mills, store, dwelling houses, and other buildings, the said Johnson had leased to the said Comly Bros., (that is to say, to certain Samuel Comly, Jr., and Nathan F. Comly, trading as Comly Bros.,) by lease dated the 2d October, A. D., 1845, duly recorded among the land records of Baltimore county. That under said lease, said Comly Bros. took possession of the said premises, and by the terms thereof, were to hold and enjoy the same for the space of nineteen years and six months from the date thereof, yielding and paying to [**3]  said Johnson, his heirs and assigns, an annual rent of $ 1,800, payable in semi-annual instalments of $ 900 each, on the first days of April and October in every year; which rent, said Comly Bros., by the terms of said lease, covenanted to pay, although there was no provision in said lease contained for re-entry or distress, or other remedy of any kind by said Johnson, in case of failure to pay the same, at the time and in the manner therein specified. That said Comly Bros. took possession of said premises under the said lease, at the time of the date thereof, and so continued in possession, engaged in their business of manufacturing as aforesaid, up to the month of March, A. D., 1846, at which time they failed in their said business, and stopped payment of their obligations. That on the 13th March, A. D. 1846, the said Comly Bros., it appearing by their books that they were then very largely indebted unto the defendant, sold to him, as appears by the entries and charges upon their said books, all the personal property on the said premises, except the furniture hereinafter mentioned, being certain machinery and fixtures in the mills, and certain goods in the store upon the said premises,  [**4]  the said defendant being credited on said books with payment of the same, according to an inventory and statement of the amount and value of the said personal property.

That subsequently, to wit: on the 30th May, A. D., 1846, the said Samuel Comly, Jr., and Nathan F. Comly, trading as aforesaid, as Comly Bros., applied for and obtained the benefit of the insolvent laws of Maryland. That under said application, certain Samuel H. Tagart and John H. Ing were appointed the permanent trustees of said Samuel Jr., and Nathan F. Comly, and on the 27th July, A. D., 1846, said permanent trustees made sale, under a standing rule of Baltimore County Court, of all the property of said insolvents which had been mentioned in their schedule, and come into possession of the said trustees, to wit: their interest in the lease aforesaid, from William Fell Johnson, which was purchased from the said trustees at said sale, subject to the payment by the purchaser of all rent then in arrear by one Joseph P. Paneoast, for the sum of sixty-five dollars; and said sum being paid to the said trustees, an assignment of said lease was, by them executed and delivered to said Paneoast, a resident of New Jersey.  [**5]  That said Comly Bros., after their sale as aforesaid, discontinued their business upon the said premises, but continued to reside in a certain dwelling house upon the same, until the 10th December, A. D., 1846, at which time they removed from the same, carrying with them certain furniture of the value of about $ 300, which had been, during the period of their residence upon the said premises, up to the time of their removal therefrom, as aforesaid, in the said dwelling house on said premises, undistrained by the said Johnson. That the said defendant, after the sale to him as aforesaid, suffered the said property so sold, to wit: certain machinery and fixtures in the mills, and certain store goods in the store upon the said premises, to remain upon the said premises; and the same were on the 5th August, A. D., 1846, seized upon and taken by the sheriff of Baltimore county, as and for the goods of the defendant, under and by virtue of the writ of attachment, sued out by the plaintiffs as aforesaid. That the said sheriff, by the directions of the plaintiffs, left the said goods, after the levy, upon the said premises, and appointed a deputy sheriff to take charge of and watch the same,  [**6]  having previously, according to law, made, at the time of said levy, an appraisement and schedule of said goods, and returned the same as levied per schedule. That said goods remained in custody of the sheriff, by his deputy, upon the said premises (being bulky and incapable of removal, without great labor and expense,) until the 16th December, A. D., 1846, when they were sold by the said sheriff under a writ of venditioni exponas, issued out of Baltimore County Court, on the 30th November, A. D., 1846, upon an absolute judgment of condemnation of said goods entered in this cause on the 27th November, A. D., 1846, a judgment of condemnation nisi having been entered in said cause on the 13th November, A. D., 1846, and no claim interposed or cause shewn against making said judgment absolute, it was accordingly, so entered as aforesaid; and that the gross amount of sales of said goods, as made by the sheriff under the writ aforesaid, was $ 3,980 46, out of which, said sheriff claimed for his poundage fees, the sum of $ 121 17, beside expenses of advertising and sale, leaving a nett amount in his hands, after deducting his poundage fees and expenses of sale and watching said goods, of [**7]  $ 3,366 89.

And it is further admitted, that there was due to said William F. Johnson, landlord of the said premises, for rent under the lease aforesaid, on the 1st April, A. D., 1846, the sum of $ 730, which sum remained due and unpaid up to the 1st October, A. D., 1846, when a half year's rent, to wit: $ 900 fell due under the lease aforesaid, making in all, the sum of $ 1,630, for rent in arrear, due on the 1st October, A. D., 1846, which sum remained in arrear and unpaid up to and at the time of the sale of said goods by the sheriff, as aforesaid, and their removal from said premises, which removal took place a few days after said sale. That before the sale and removal of said goods, and after the 1st October, A. D., 1846, the said William F. Johnson notified the said sheriff of his claim for rent as aforesaid, by placing in the hands of the said sheriff a distraint warrant for the amount of said claim for rent, and notice of the rent due him, accompanied by an affidavit, which warrant was not executed, or any proceedings taken thereunder by the said sheriff.

It is further admitted, that on the 6th March, A. D., 1847, the said Johnson filed a petition in said court in [**8]  the cause aforesaid, setting forth his said claim for rent, claiming to be paid the same out of the proceeds of sale in the hands of the said sheriff as aforesaid, and praying a rule upon the said sheriff to shew cause why the amount of said claim should not be paid to him, the said Johnson, out of the said proceeds. That a rule to shew cause, as prayed, was granted by said court on the said 6th March, A. D., 1847.

Whereupon the plaintiffs appeared on the said 6th March, A. D. 1847, and shewed for cause, against making the said rule absolute, that the said Johnson was not entitled to the sum of $ 1,630, as claimed by him as aforesaid.

1. Because said Johnson was not entitled, in law, to claim any portion of the rent due him out of the proceeds of sale in the hands of the sheriff as aforesaid.

2. Because said Johnson was not entitled to claim, out of said proceeds, such part of the rent due him as fell due after the levy of the sheriff, made as aforesaid.

3. Because said Johnson was not entitled to claim said rent, free from the payment of a rateable proportion of the sheriff's poundage fees and expenses incurred in making sale of said goods.

4. Because, for [**9]  other good and sufficient reasons, said Johnson was not entitled to claim and receive, out of the proceeds of sale as aforesaid, the sum of $ 1,630, as claimed by him.

Whereupon, it was agreed between the plaintiffs and the said Johnson, and the said sheriff, that all questions arising, or to arise out of the claim made by said Johnson in this cause, should be submitted to the court aforesaid, upon a written statement of facts; in comformity with which agreement, this statement is prepared by assent of said parties, and is herewith filed. And it is further agreed, that no objection shall be made by any party to this agreement, to the right and jurisdiction of said court, to hear and adjudge all questions arising upon the aforegoing statement of facts, together with all presumptions and inferences legitimately deducible therefrom, and to order distribution of the said funds in the hands of the sheriff as aforesaid. That nothing herein contained shall be construed, to deprive any party to this agreement of his or their right to an appeal from the determination and order of said court; and that upon such appeal, as well as at the hearing of this court, all objections to matters of [**10]  form are expressly waived.

The County Court, (LE GRAND, A. J.,) delivered the following opinion:

"The material and most important question which this court is now called upon to decide, is:--Does the statute of 8 Anne, chapter 14, refer to executions issued against property of a stranger, which may happen to be on the demised premises, as well as to executions issued against the property of the tenant? I confess, on looking at most of the text books and the reports therein referred to, I was inclined to the opinion, that the statute only intended to refer to executions issued against the goods of the tenant. Prior to the passage of the statute of Anne, by the common law, when an execution was levied upon the tenant's goods, the landlord lost his rent, and could not enter to distrain; although the landlord had the right to distrain the goods of a stranger, if found on the demised premises, yet he had not the right to follow them beyond the premises, as he had in regard to the goods of the tenant. If the stranger succeeded in getting his goods off the premises, the right of the landlord to distrain was gone. All the elementary works, with the exception of that of Archbold on [**11]  the law of landlord and tenant, as well as the forms, seem to contemplate the statute of Anne as only referring to executions issued against the goods of the tenant. This circumstance, connected with the apparent injustice of making one man pay the debts of another, inclined me to the opinion, that the statute of Anne was only intended to relieve the landlord from the common law principle. That the goods of the tenant in custodia legis, could not be distrained, or the rent of the landlord paid before they were so placed, and not to have reference to the goods of a stranger. From the character of the question, it would be reasonably supposed to have frequently arisen both in England and in this country; but such has not been the case. The only cases in which, so far as I have been able to ascertain, where the question has at all been considered, are those of Foster vs. Cookson, 41 Eng. C. L. 606, and Russell vs. Doty, 4 Cowen, 576. In the first of these there is a mere dictum of Justice Patterson, that the statute was designed to extend to all executions, whether issued against the goods of a stranger, or of the tenant, provided they were on the demised premises.  [**12]  In the other, the question arose under the statute of New York, (I. R. S. 437,) which provides that "no goods or chattels whatsoever, in or upon the demised premises, shall be liable to be taken by virtue of any execution."

The Supreme Court of New York held, that this statute did not refer only to executions against the goods of the tenant, but to those against the goods of a stranger also.

The language of 8th Anne, chapter 14, is almost identical in words with the New York statute, and is so in its substance. The words are: That no goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements, which are or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to be taken by virtue of any execution, on any pretence whatsoever, unless, &c., &c.

This being so, in deference to the dictum in Forster vs. Cookson, and the adjudication in Russell vs. Doty, I shall hold, the landlord is entitled to his year's rent. Of the rent, there was due six months on the 1st April, 1846, and six more months on the 1st October of the same year. The attachment was levied on the 4th August, 1846. An attachment, under an attachment [**13]  system, is not such an execution as is contemplated by the statute of Anne, but the fi. fa. which issued in the judgment is such an one.

It is therefore ordered, this 23d March, 1847, that the sheriff of Baltimore county pay to William Fell Johnson, or his counsel, the sum of $ 1,630, less $ 16 30; to be paid to clerk of Baltimore County Court, under act of 1841, ch. 271, (being amount of rent due him up to the 1st October, 1846,) out of the proceeds of sale now in his hands, realized from the sale under the fi. fa., issued heretofore in this case.

The plaintiffs--the attaching creditors--appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

Arrears of rent due a landlord, of which the sheriff had notice by a due warrant of distress, before sale, cannot be retained for the use of such landlord, by such sheriff, out of the proceeds of the goods of a stranger levied upon, while, on the demised premises, under a writ of attachment, to compel an appearance at law, the same goods having been duly condemned, and afterwards sold by fieri facias, under the judgment of condemnation.  

COUNSEL:
By W. F. FRICK and ALEXANDER for the appellants.

That the appellee, Johnson, was not entitled to the amount of rent paid to him under the court's order of the 23d March, 1847.

1st. Because the statute, 8 Anne, ch. 14, applies only to cases where the goods of the tenant are taken in execution; and not to a case like the present, where the goods of a stranger upon the demised premises, are taken by process of law.

2d. Because a proceeding by attachment, under our act of 1795, ch. 56, is not an execution within the meaning of [**14]  the aforesaid statute of 8 Anne; and the landlord, in such case, acquires no right to payment of his rent before a removal of the goods.

3d. That if the landlord acquires no right to payment of his rent, by and at the time of the taking of the goods under a writ of attachment, he cannot acquire any by proceedings subsequent to the writ; whereby the goods taken are condemned and sold.

4th. That the landlord, under the statute of Anne aforesaid, is not entitled to any rent, except what is due at the time of taking the goods, and not to rent subsequently falling due, while the sheriff is in possession; and therefore, that if the appellee in this case is entitled at all, he can recover only the rent actually due at the time of taking the goods by the sheriff, under the writ of attachment.

By WILLIAM F. GILES for the appellee.

1st. That under the statute of 8 Anne, ch. 14, sec. 1, the landlord is entitled to be paid his year's rent, without any deduction for poundage fees.

2d. That an attachment against the non-resident, or absconding debtor, is not an execution within the meaning of the said statute, but that the fieri facias which issues after judgment of condemnation [**15]  is.

3d. That therefore in this case, the landlord was entitled to his year's rent, due the 1st October, 1846.

4th. But if the court should be of opinion, that an attachment is an execution within the meaning of said statute, and suspended the landlord's right to distrain, then, as the possession of the premises was held by the sheriff, (by the appellants' direction,) up to the 10th December, 1846, and the proceeds of sales were in the sheriff's hands to be distributed; the sheriff was bound to pay the landlord, not only the one month's rent in arrear, when the attachment was laid, but for the use and occupation of the premises, from the taking of the goods under the attachment, until the sale under the fieri facias; and that it was fully equal to the amount of the rent which the court directed to be paid.

5th. That the statute applies to all cases where, under an execution, property is seized on demised premises, on which the landlord had a right to distrain; no matter to whom the property belongs, or against whom the execution may have issued.  

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

OPINION:

 [*362]  By the court,  [**16]  
JUDGMENT REVERSED.  

10 of 29 DOCUMENTS 

WILLIAM W. WILLIAMS vs. GEORGE H. WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 302; 1848 Md. LEXIS 43 

December, 1848, Decided 

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

The appellant executed a mortgage to the appellee, dated the 18th of March 1846, of certain real estate in the city of Baltimore, to secure the sum of $ 150, upon certain terms therein mentioned, and further reciting, that "to secure the punctual payment of said sum of money, according to the terms of the loan thereof, the said William W. Williams hereby consents and agrees, that at any time after the execution of these presents, a decree may be entered up for the sale of said lots of ground, and premises, hereby mortgaged or any part thereof, by the high court of chancery of Maryland, or by Baltimore county court, sitting as a court of equity, in compliance with the act of the General Assembly of Maryland, passed at December session 1833, entitled, An act relating to mortgages and the supplements thereto."

On the 13th of October 1847, the mortgagee filed a petition in the court of chancery, setting forth this mortgage, and praying for a decree for the sale of the mortgaged premises, under the act of 1833, ch. 181, and on the 21st of the same month, the chancellor passed a decree for a sale in the usual form; appointing a trustee, prescribing [**2]  the terms of sale, &c, from which the appellant, the mortgagor, appealed.  

DISPOSITION:
MOTION OVERRULED.  

HEADNOTES:

An appeal will lie from a decree of the court of chancery, upon a mortgage executed in conformity with the provisions of the act of 1833, ch. 181, relating to mortgages in Baltimore city.

Any interference with the right of appeal, wherever it exists, must be upon strong grounds, and a clear manifestation on the part of the legislature, that they designed to withdraw it.

In providing a summary mode of obtaining a decree, the legislature did not intend, by the act of 1833, ch. 181, to limit the general jurisdiction of the court of chancery, (from whose decrees, at all times, the right of appeal exists,) in cases of mortgages.

An appeal will not lie from a decree, which, upon its face, appears to have been made by consent of parties; but such an objection must be taken upon the final hearing, and not upon motion to dismiss.

The agreement for a decree in a mortgage, executed under the act of 1833, is to be regarded only as a consent, to dispense with the intermediate proceedings of subpoena and answer, in order to facilitate a decree, and not that the decree shall be binding at all hazards.

An appeal will not lie from a special and limited jurisdiction, unless, by the act creating such peculiar jurisdiction, the right is expressly given.  

COUNSEL:
On motion to dismiss the appeal.

By     for appellant, and

By JAMES MALCOLM, for the appellee.  

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

OPINIONBY:
FRICK 

OPINION:

 [*303]  FRICK, J., delivered the opinion of this court.
This is an appeal from a decree obtained in the court of chancery, upon proceedings under a mortgage, had in conformity with the provisions of the act of 1833, ch. 181, relating to mortgages.
A motion is made to dismiss the appeal, upon the proposition argued before this court, that under the true construction of the act, the decree is to be considered a decree by consent, from which no appeal will lie.
The court can find nothing in the act of Assembly, impugning the ordinary right of the party, to appeal from a final decree in chancery; or to justify the construction contended for by the counsel for the appellee.
The 2nd section of the act recites, "(in order to the facilitating the enforcement of mortgages of real estate in the city of Baltimore,) that in all cases of conveyances, by way of mortgage of lands or chattels [**3]  real, in the city of Baltimore, and where in such conveyances the mortgagor shall declare his assent to the passing of a decree, as hereinafter mentioned, it shall and may be lawful for the mortgagees, or their assigns, at any time after filing the same to be recorded, to submit to the chancellor, or to Baltimore county court or any judge 

 [*304]  hereof, the said conveyances, or copies under seal of said county court thereof and the said chancellor, or court, or judge thereof, may thereupon forthwith decree, that the mortgaged premises shall be sold at any one of the periods limited in said conveyances, for the forfeiture of said mortgages, or limited for a default of the mortgagors, and on such terms of sale, as to the chancellor, court or judge, shall seem proper; and shall appoint by said decree a trustee or trustees for making such sale, with requisition of bond and surety, for performing of the trust as is now usual in cases of sales of mortgaged property."
The third and fourth sections of the act provide, in substance, that after the arrival of the period limited for said sale, the mortgagees, their executors, administrators or assigns, before such sale, shall make [**4]  and file a statement of the amount of the mortgage claim remaining due, verified upon oath; and that such sale shall have the same effect if finally ratified, as if it had been made under decrees between the proper parties, and in the usual course of said courts; and upon report of such sale for its consideration, any allegations may be made, and proofs exhibited, to shew that the sales aforesaid ought not to have been made, and the court may reject, and set aside said sale.
Very sound reasons should be required to induce the court to refuse a party the benefit of an appeal; and any interference with the right, wherever it exists, must be upon strong grounds and a clear manifestation on the part of the legislature, that they designed to withdraw it.
Surely it could not have been the intention of the legislature by this act, to limit the general jurisdiction of the courts of chancery in cases of mortgage; more especially in one particular section and locality of the State. The subject is one of appropriate jurisdiction in that court, from whose decrees, at all times, the right of appeal is secured to either party. And by this act of Assembly pointing out a summary mode of proceeding,  [**5]  by which the mortgagee may arrive at a decree, by stipulating for it in his mortgage, it cannot be assumed to limit the general jurisdiction over that large class of cases, upon which this court, as an appellate court, has hitherto exercised its corrective influence.

 [*305]  The proposition is: that in passing decrees under this act the court of chancery exercises only "a special and limited jurisdiction," which in such cases excludes the right of appeal unless expressly given by the act that creates the peculiar jurisdiction; as in the cases cited in 8 G. & J. 443, Wilmington Rail Road Co. vs. Condon, and in 5 Gill 88, Williams vs. Williams. But in those cases the jurisdiction given to the county courts, as in many other similar cases, is manifestly limited and final; and not part of a general jurisdiction, which the act of Assembly leaves as it found it. It simply provides a summary mode of reaching the decree, by dispensing with the subpoena and answer, where the mortgagor shall, in his mortgage declare his assent, upon the terms therein stated. And such is the plan devised by the act. "to facilitate the enforcement of mortgages in the city [**6]  of Baltimore" as expressed by way of preamble and inducement to the act. In every other respect the instrument retains the character of a mortgage, open to all legal objections; not excluding any that may be properly made to the proceedings themselves under the mortgage, as not within the meaning of the act, and which may be a fit and proper subject for litigation and appeal.
But it is confidently urged that the party is here precluded from appeal; the decree when entered being a decree by consent. If this were objected to the decree upon a final hearing, and not upon a motion to dismiss, the objection might well be entertained. Still the court here, regard the agreement only as a consent to dispense with the intermediate proceedings, in order to facilitate a decree;--not that the decree shall be binding at all hazards. For such a purpose, and to estop the party from all objections, the court conceive, that the consent, as is usual, should be part of the decree itself, or endorsed upon it. And this view is supported by the authorities cited on the part of the appellee himself, in 1 Cow. 709.
The court say, "the decree purports to be made by consent. We must take [**7]  the fact as stated in the decree, and from a decree by consent, no appeal or rehearing lies." In Ambler, 229, Bradish vs. Gee, it is said "where a decree is made by consent of counsel, there lies no appeal or rehearing." And 

 [*306]  in the cases further cited in Dick., 38, 1 P. Wms. 734; 3 Gilb. Equ. Rep., 185, the decree itself was pleaded; shewing the evidence of consent was on the face of the decree. Such decrees are common in the Maryland practice, and of course, upon final hearing, such appeal is not entertained, where the assent and decree are one connected act. But here, in the case presented by the act of Assembly, the chancellor enters up a decree prospectively with reference to the possible default of the mortgagor, when in fact no such default may ever happen. So far the party has assented to be bound, by a decree, covering the terms and conditions of the mortgage; and has the party assenting to such decree no right to see that the terms are complied with? Upon such a doctrine the mortgagor would be precluded from shewing, that no decree ought to pass, upon a case made by the petition and mortgage, however defective the allegations [**8]  and the case may be stated. It is certainly his privilege to see, that the decree adopts the terms of the mortgage. And if it does not, can it be contended, that there is no appeal? It may be a question, how far the consent was given; or when given, whether the proceeding and the case was a proper subject for a decree; and finally, as before said, how far the decree corresponds with the terms of consent. If these terms are disregarded in the decree, can it be said to be by his assent?
It cannot be assumed, that the legislature thus constructively intended to abridge a right, so fully recognized within the general chancery jurisdiction, and, as to the subject under consideration, convert that court into one of special and limited powers; thus repealing the old and time-sanctioned provision in favor of justice and right, that "any person aggrieved by a decree in chancery shall have his appeal, 1721, ch. 14, sec. 3. The motion is overruled.
MOTION OVERRULED.  

11 of 29 DOCUMENTS 

FRANKLIN GARDNER vs. MARTIN LEWIS, PERMANENT TRUSTEE OF WILLIAM HOLTON, SR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 377; 1848 Md. LEXIS 53 

December, 1848, Decided 

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

This was an action of trover, instituted by the appellee, as permanent trustee of William Holton, Sen., on the 29th of July 1845, against the appellant, to recover certain goods and promissory notes, the property of Holton, the insolvent. The defendant pleaded not guilty, upon which issue was joined.

At the trial, the plaintiff gave in evidence, the record of Holton's application, for the benefit of the insolvent laws. (By this record it appears, that the application was made on the 12th of June 1845, and that the plaintiff was regularly appointed his permanent trustee, and bonded as such, on the 14th of the same month.) The plaintiff then further proved, by said Holton, the insolvent, (the witness having first executed to the plaintiff, as trustee, a release of interest, which was admitted to be valid,) that in 1845, witness resided in Baltimore, and was engaged in selling made up clothing, and dry good merchandise. That he had branches of his establishment at Washington city, and Petersburg, Virginia. That in May 1845, he removed his Baltimore stock to Norfolk, Virginia; that on the 3rd of June 1845, finding himself embarrassed, he consulted [**2]  Mr. Hack, a member of the Baltimore bar, who advised him to ask an extension of his creditors; that Mr. Hack with witness' assent, despatched written notices to the defendant, the plaintiff, and Hamilton Easter, merchants of Baltimore, stating that they were respectively invited to a meeting of said Holton's creditors, to be held at the office of said Hack, at 4, P. M., on the 4th of June 1845; that defendant was his largest creditor; that witness, on the morning of the 4th of June 1845, met the defendant, who said, "I have just been round to see what this meeting is about." Witness told him that he was perfectly solvent, that he only wanted time, but, if his creditors desired it, would surrender to them all his property. Defendant told witness there could be no difficulty with him, but that he was going under subpoena, as a witness, to Cumberland, and would leave Baltimore that afternoon at 4 o'clock, P. M.; that, however, he would send his clerk, Mr. Johnson, to the meeting, and that he would instruct Johnson to represent him in the most favorable terms.

That defendant, afterwards, on the same day, called at the dwelling of witness, and said that he had some business at Canton,  [**3]  and would only have time to get back in season for the cars for Cumberland; that it was impossible for him to attend the meeting of the creditors, but would send Johnson there. Defendant then advised witness to go that afternoon to Washington, there sell out, then to go to Petersburg, take an inventory, thence go to Norfolk, do the like there, then return to Baltimore; that there would be no difficulty.

That witness went to the meeting at Mr. Hack's office, and found there the plaintiff and Mr. Johnson, on the part of the defendant, and no other creditors, and Mr. Hack. Witness was asked, by Mr. Johnson, if he had any exhibit of his affairs, witness said he had none; witness is under the impression that Johnson said, that defendant had gone to Cumberland, and had sent him. Witness stated that he was entirely solvent, and asked of his creditors an extension for twelve or fifteen months. That Lewis, the plaintiff, said that nothing could be done without an exhibit, and so said Johnson. Johnson said that witness had better go at once to Washington, then to Petersburg, then to Norfolk, and make inventories; and it was calculated, by the parties present, that five days would suffice [**4]  for this purpose. Witness thinks that Mr. Hack asked the question, if, in the interim, whilst witness was preparing the exhibit, they would agree, that no legal proceedings should be had, until witness had prepared the exhibit; Johnson and Lewis agreed to this; that witness went, on the afternoon of the same day, to Washington; that on the next morning, whilst in the Washington store, engaged in treating with Tucker for the sale of the stock there, witness' son suddenly came in, and told him that Gardner had been at Norfolk on the previous day, and attached the stock of goods there, and turned him out of the store. Witness was surprised, and told Tucker that he feared that this proceeding of defendant had made him insolvent, and that he would have no right to go on with the sale to Tucker; and with a view to advise on this subject, proposed to go to a lawyer. Tucker recommended Mr. Hoban, whom they went in search of, but did not find at his office. That whilst in the Washington store, witness saw Gardner, on the 5th of June, pass the door; that witness went again with Tucker to find Hoban; and on reaching his office, saw Gardner there, who stepped out to meet witness, that witness [**5]  then said, "Mr. Gardner, I suppose you're come to see me?" He replied, "No sir." Then witness said: "You're come to see my goods then?" "No sir, I have come on quite a different business." Then witness said: "Then you went to Norfolk, to see them there -- you've turned my son out of doors, without clothing, and you've reported me as a fraudulent debtor." That witness was much excited, particularly at the treatment of his son. That Gardner told witness, "to command his feelings, and he had no doubt, that he could satisfy him; that he had done nothing wrong, taking a mercantile view of the transaction; that he only wanted his fair share with other creditors, and he had only seized the goods at Norfolk, to prevent others from doing it, and getting the advantage; that he and witness could manage it all satisfactorily; that if another attachment was issued, the goods would have to remain till November, when the summer goods would be out of season, and the winter goods eaten by moths; that he had not represented witness, as a fraudulent or absconding debtor, in the proceedings at Norfolk." That afterwards, on that day, (the 5th of June, Gardner again saw witness at the Washington store,  [**6]  having come there) with a Mr. Washington; that Tucker was present; that Gardner asked him for a release of the goods, taken under the attachment at Norfolk, and then all would be right. Witness said: "I will do what is right." Defendant said, that if Hamilton Easter found out the goods had been attached, he would be down upon them; that he had kept it a profound secret." That defendant then said: "I have thought of a plan, you had better sell me the goods that are here, and let me sell them to Tucker, that it would look better?" Witness declined this, and said, he would consult about giving the release.

After this, witness again saw Gardner at the Washington store, when he again asked him for the release. Witness told him that he had concluded to do nothing till he had consulted his creditors in Baltimore. Defendant insisted that the release should be given, and slapping his hand on his pocket said, "I'll be d  d if I am not cut and dried for you, and will take the property here. I know that you can sue me for it, but if it costs me five thousand dollars, I will seize the goods and they shall all perish, if you do not give me the release." Witness said he would do what was right.  [**7]  Gardner again argued and threatened, and said if there was another attachment, the goods would lie and be all ruined. Gardner also demanded some of the notes of Tucker that were to be given for the purchase money on the sale of the Washington stock, and said that he did not suppose the goods attached at Norfolk would be sold; he hoped defendant would get them again. Witness told him the Norfolk goods were worth at least $ 5000. Defendant said that Bloodgood thought they were only worth $ 3000 to 3500; that if they were sold, the sacrifice would be such that he would not be covered, therefore he wanted some of Tucker's notes to protect him. Tucker advised me to give the release and the notes, and I finally agreed to do so. Witness' motive was this, after Gardner and Washington had left the store, at the previous interview to this last one, Tucker had told me that Washington had asked him if he had any difficulties with Gardner, and that Tucker had told Washington that there were none with him, but with Mr. Holton. Washington then told Tucker that Gardner had taken out a replevin for the Washington stock; that he Washington had seen him do it. At this last meeting Mr. Hoban had come [**8]  to draw up the release. Witness signed the release drawn by Mr. Hoban, because witness was told, if he did not, the goods should be seized, and they should all perish. That witness gave defendant three of Tucker's notes, each dated 5th of June 1845, at 3, 6, and 9 months, for $ 300 each, without interest; that Gardner gave him by stipulation, $ 200 in cash, on the first note. This interview was at night. The examination-in-chief was here suspended, and the plaintiff proved, by another witness, the demand by the plaintiff before suit brought in July 1845, of the goods and notes claimed in this action, and that defendant replied that he had no property of the insolvent William Holton, Sen., in his hands.

Holton was then cross-examined. Witness told Gardner he thought he was solvent, and says he thinks he was; that the papers executed in Washington were read to him, and he understood them; that he knew that he was not obliged to sign them, and that he had a right to dispose of the goods at Washington as he did.

The plaintiff further proved by Oliver F. Hack, the same facts in reference to the calling of the meeting of creditors as stated by Holton; that no one attended but Holton,  [**9]  Lewis and Johnson; that Johnson said that Gardner was out of town, had gone to Cumberland, and had sent him to represent him at the meeting; that nothing was done at the meeting, as there was no statement of his affairs prepared by Holton. It was understood that Holton should go to Washington and Norfolk, and get a statement of his stock and affairs, and then it would be seen if time should be given to him. Holton and witness proposed that no legal proceedings should be had against him during this time, whilst making a statement, and Lewis and Johnson assented to this proposition. Holton said it would take five days. They all left my office under this agreement.

And the plaintiff further offered in evidence, a certified copy of the record in case of the attachment by the defendant at Norfolk, Va., on the 4th of June 1845, by which it appears that Gardner in his bill praying for the attachment, stated that Holton was indebted to him in the sum of $ 2413.35, as follows; on seven notes due between the 13th of June 1845, and the 5th of December 1845, the amount of which are stated; "which said several notes, (he avers,) are now lodged in the banks of said city of Baltimore for collection,  [**10]  and your orator is unable to file them here with his bill, as he left the said city in a hurry without having time to withdraw them, but will file the same at a proper time hereafter, and in the meantime files an account of said notes, marked A." Besides these notes, the balance of said debt amounting to $ 233.20, is by open account. The goods were taken under this attachment, and on the 7th of June 1845, delivered to Gardner, by virtue of the following order filed in the cause, on a copy of the process.

"Washington, 5th of June 1845.

Deliver the goods mentioned and referred to in the process, of which this is a copy, to Franklin Gardner, or order.

WM. HOLTON, SR.

To the officer in whose charge or custody said goods are."

Gardner then directed the goods to be delivered to his agent, Johnson, who took possession of them, and gave a receipt therefor, and on the same day, (7th of June,) the cause was dismissed by order of the plaintiff's (Gardner's,) counsel.

The plaintiff then further proved that the notes of Holton in favor of Gardner mentioned in the above proceedings, were discounted by the Union Bank of Maryland for defendant, with his endorsements thereon,  [**11]  and were held by the said Bank at the time the attachment at Norfolk was issued, and were afterwards paid by the defendant as they fell due.

And the defendant on his part, gave in evidence by Mr. Tucker, that he was treating with Holton for the purchase of the goods at Washington, on the 5th of June 1845; that Holton's son came into the store, and told him that Gardner had been to Norfolk, and attached the stock of goods there. Holton then said he was not sure of his situation, and of his right to sell the Washington stock to witness--that this proceeding might make him insolvent. That witness proposed to advise with counsel, went for Mr. Hoban, and not finding him, went again, when on approaching his office, saw him there with Gardner, who came to the door and talked with Holton. Holton asked Gardner why he came to Washington, if it was on account of his business? Gardner replied, "not particularly for that, though since I am here, I can attend to that also." Holton invited Gardner to come down to the store. Gardner came while the appraisement was going on. Holton executed the paper to Gardner--it was drawn by Mr. Hoban, and attested by witness on the day it bears date; the following [**12]  is the paper.

"Memorandum of an agreement, between Franklin Gardner and William Holton, Sen., made at Washington, D. C., on this 5th day of June 1845. Mr. Holton admits to be due Mr. Franklin Gardner, the sum of twenty-four hundred and thirteen dollars and thirty five cents, and hereby agrees, that the goods attached by said Gardner at Norfolk, in the State of Virginia, be owned by said Gardner, and received by him, as his own property, from the officer in whose hands they now are; and said Gardner agrees, that the notes of Mr. Tucker, given and dated this day in his favor, should be held in trust for the use of said Holton, in case the said property attached at Norfolk, pay the said debt due the said Gardner, when the same are disposed of by him, and only so much of said notes shall be the said Gardner's, in any event, as shall remain after sale of said Norfolk goods, necessary to make up the amount of said debt.

FRANKLIN GARDNER,

WM. HOLTON, SR."

"Witness,--Sam. W. Tucker."

There was a great deal of desultory conversation between Gardner and Holton, which witness cannot recollect. Gardner told Holton that he feared the goods at Norfolk would not be enough [**13]  to cover his claim, and wanted notes, and that he would pay over any surplus there might be. Some high conversation occurred on this demand. Holton said he wished to consult his creditors in Baltimore, and did not know that he would be right in giving the release till then. Gardner would threaten when Holton was excited, and argue when he was calm. Gardner said the delay might be too great, that what was to be done, was to be done at once; that even at that very moment it might be too late, and that some creditor might have laid a second attachment on the goods at Norfolk. The conversation went on alternately mild and excited. Gardner used some harsh expressions; said he was prepared for him; that he must close up this matter; that Holton had brought this difficulty on himself, by calling his creditors at an attorney's office. Finally Holton agreed to sign the paper, at the persuasions of witness, and to give three of witnesses purchase notes, which were for $ 300 each, Gardner giving Holton on them $ 200 in cash. Holton signed the paper; signed it willingly; that this was about midnight.

Witness, on cross-examination said, Gardner threatened Holton that he would close that business [**14]  up if it cost him $ 5000. Said he was cut and dried for him; that not an article of the Washington stock should be moved; that he knew Holton could sue him, and get damages, but he did not care. Holton said he was afraid the seizing at Norfolk had made him insolvent. The release was written on the 5th of June in witness' presence. Holton would get excited, when his ideas of doing justice would press upon him, and when Gardner would urge the giving the release.

And the defendant further proved, by Mr. Johnson, that witness was at Mr. Hack's office, where he went by direction of defendant, to see what was done; that witness was only instructed to go there and see what was done, and was not authorized to agree to any thing, and would not have felt himself authorized to agree to any terms; does not remember he entered into any stipulation or agreement to forbear proceedings; that it is some time since, and don't recollect very well, but has no remembrance of any agreement; witness got the goods from the sheriff at Norfolk, and brought them up to Baltimore; that they were sent to Philadelphia, and as he understood, sold there. Gardner did not tell witness not to enter into any arrangement;  [**15]  he merely told witness, that he, Gardner, would be absent, and witness to go there, as he, Gardner, could not attend.

The plaintiff then offered in evidence, the account of sales made by the defendant at Philadelphia, amounting to $ 2382.02.

And the plaintiff then offered the following prayers to the court.

1st. If the jury find from the evidence in the case, that Holton applied for the benefit of the insolvent laws, and obtained the same, and that plaintiff was duly and regularly appointed permanent trustee of said Holton, and legally bonded as such, and that before the institution of the suit, he demanded the property for which the action is brought, of defendant, and that defendant refused to deliver the same to plaintiff; and if they find that the said property was, in whole, or in part, sold by defendant, and proceeds appropriated to his own use; and if they also find, that said Holton, as testified by himself and Hack, called a meeting of his creditors at Hack's office, and that defendant told Holton, after receiving notice of such meeting, that he could not attend it, being obliged to go to Cumberland as a witness in a case there, but said that he would send his [**16]  clerk, Johnson, to represent him at such meeting in the most favorable manner, and if they further find, that in consequence of which Martin Lewis, one of the said creditors, and Johnson as agent of defendant, and Holton, did attend, and Johnson said he attended for defendant because he, defendant, had gone to Cumberland, and did not say, or intimate, that he was not authorized to act for defendant; and if they further find, that it was stated at the meeting, by Johnson, that nothing could be then done until Holton could make an exhibit of his affairs, and it was agreed, at Johnson's instance, that Holton should go to Norfolk and other places where his goods were, and make inventories of the same, and that no legal proceedings should be had until such inventories were made, and an exhibit was made of his condition by Holton; and if they find that defendant, after getting notice of said meeting, when he had his said interview with Holton, and when he directed Johnson to attend the said meeting of creditors, intended to go to Norfolk to attach the property of Holton there, and did go for that purpose, and did then attach them, as appears in the evidence, and designed concealed his intention [**17]  from said Holton and the creditors, under the notice aforesaid, and for that purpose falsely represented that he was going to Cumberland; and if they further find, that having attached the said property at Norfolk, he went to Washington, and there obtained, in the manner stated in the evidence of Holton, the order for the Norfolk goods and Tucker's notes, then the plaintiff is entitled to recover.

2nd. If the jury find the same facts as stated in the preceding prayer, as to the application of the insolvent, the appointment of the trustee, conversion by defendant, and demand and refusal; and if they further find, that at the time Holton, in the manner stated in the evidence of Holton and Tucker, agreed to transfer and assign said property to defendant, and did so transfer and assign, in the manner and under the circumstances stated in the evidence of Holton and Tucker, on account of the debt due by Holton to defendant, he, Holton, had no reasonable expectation of being exempted from liability or execution for, or on account of his debts, without applying for the benefit of the insolvent laws of the State, and that defendant had then, notice of the said condition of insolvency of [**18]  said Holton, that then such transfer and assignment was made, under a view, or under an expectation, on the part of Holton, of being or becoming an insolvent debtor, and with intent thereby to give an undue and improper preference to defendant, and therefore vested no title in said property in defendant; and if they further find, that when Holton became the debtor of defendant, he and defendant were citizens residing in Maryland, and have continued to be such up to the present time, and plaintiff is, in consequence, entitled to recover.

The defendant then offered the following prayers.

1st. If the jury shall find from the evidence, that on the 4th of June 1845, William Holton, Sen., was indebted to Franklin Gardner, the defendant, in the sum of $ 2413.35, upon note and open account, or that the defendant was responsible for said amount in part, on account of said Holton, as his endorser, and was a creditor of said Holton, for the balance of said sum; and that on the 4th of June 1845, said defendant caused an attachment to issue, out of the circuit superior court of law and chancery, for the city of Norfolk, in the State of Virginia, against the moneys, debts and effects of [**19]  said William Holton, Sen., who was then residing in the city of Baltimore and State of Maryland, that in virtue of said process of attachment, the goods of said Holton, in the city of Norfolk, which are mentioned in the declaration of the plaintiffs in this suit, were seized by the sheriff of said city of Norfolk in the State of Virginia; and that whilst so in the custody of the said sheriff, under said process, on the 5th of June 1845, the said Holton, at Washington, in the District of Columbia, executed the agreement of that date offered in evidence, and the order contained in the record of proceedings, offered in evidence by the plaintiff; that in virtue of said agreement and order, the said goods were taken into the possession of the defendant, and that the same were sold by said defendant, for a sum netting less than the debt so due by the said Holton to said defendant, that then the said plaintiff is not entitled to recover in this action in respect to said goods.

2nd. If the jury find that said Holton was indebted, as shown in the testimony, to the defendant, and that to enforce payment of the said debt, the judicial proceeding was instituted, as given in evidence by the [**20]  plaintiff, and that thereunder the goods, the value of which is claimed in this action, were attached, and in the hands of the proper officer, to answer the claim of the defendant, and that said proceeding was afterwards dismissed, by reason of the delivery in Virginia to the defendant, of said goods, with the assent of the said Holton, and in pursuance of the agreement between Holton and the defendant, executed at Washington, in the District of Columbia; and if they shall find that said agreement was so executed, and while said proceeding was pending, then the plaintiff is not entitled to recover in respect of said goods, notwithstanding the jury should believe, that the said agreement and assent were procured by urgency of the defendant, and by threats of taking the goods of the said Holton at Washington, spoken of in the testimony in the case.

3rd. If the jury find that said Holton was indebted, as stated in the aforegoing prayer, and that to secure payment of said indebtedness, the said Holton executed, at Washington, in the district aforesaid, at the date thereof, the agreement given in evidence by the defendant, and that the notes for which, in part, this action is brought,  [**21]  are the notes mentioned in said agreement, and were delivered to said defendant for security, as aforesaid, at Washington aforesaid, at or before the making of said agreement, then the plaintiff is not entitled to recover, as to the notes, although the jury shall find that said agreement, and said delivery of the notes, were procured by the defendant by urgency and threats, as stated in the aforegoing prayer.

The court, (LE GRAND, J.,) granted the prayers of the plaintiff, and rejected those of the defendant, who excepted, and the verdict and judgment being against him, appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

Reports of adjudged cases, are not evidence of what is the law of the State or country in which they are pronounced. The written law of foreign countries should be proved by the law itself, as written, and the common, customary or unwritten law, by witnesses acquainted with the law.

The rule of comity is overruled by positive law. If the laws of this State and another State should differ, it cannot be made a question here which shall prevail. Where there is no constitutional barrier, our courts are bound to observe and enforce the statutory provisions of our own State.

A nation will not suffer its own subjects to evade the operation of its own fundamental policy or laws, or to commit fraud, in violation of them, by any acts or contracts made, with that design, in a foreign country, and it will judge for itself how far it will adopt, or how far it will reject, any such acts or contracts.

H and G, citizens of Maryland, entered into an agreement in Washington city, D. C., by which the former admitted an indebtedness to the latter, and agreed, that certain goods attached by the latter in Norfolk, Va., should be the property of G, and directed an order to the officer, in whose custody said goods were, to deliver them to G; and also agreed, that certain notes then given by one T, in favor of H, should be held by G, for so much of said debt as the Norfolk goods failed to pay. G afterwards removed these goods and notes to Maryland, and an action of trover was instituted against him by L, the trustee in insolvency of H, (who had in the meantime applied for the benefit of the insolvent laws of Maryland,) alleging, that this transaction was in fraud of the creditors of H. HELD, that the validity of this agreement must be determined by the laws of Maryland.

Fraud and extortion in procuring a written agreement, if established, whether it be technically duress or not, will invalidate the instrument.

If an insolvent could himself successfully impeach an agreement transferring property, for fraud, the property remains in him, and is transferred to his trustee, who then acquires a right to sue for it, and even if the insolvent could not sue for it, being particeps criminis, yet the trustee may.

Whether a deed be fraudulently obtained from an insolvent, or be the result of fraud practised upon him, if thereby his creditors are defrauded, the trustee is the person to claim the property in their behalf.

By our laws, all the property of an insolvent, wherever situated, is conveyed to the trustee, and though other States may not so declare in regard to property for which the trustee brings suit in their courts, yet, if the property be brought back to Maryland, our courts will regard it as part of the trust fund, to which the trustee is entitled.

Where our statutes declare the deed of an insolvent fraudulent, although our courts cannot meddle with the property while without our territory, still here, it is regarded as part of the trust fund, and if it be brought into Maryland, they will entertain a suit for it, and in deciding such suit, will be governed by the statutes of Maryland, disregarding the lex rei sitae.

It is not necessary for the trustee, in order to recover in trover goods fraudulently obtained from the insolvent, to pay or tender to the defendant the money he paid to the insolvent at the time when the fraudulent agreement was entered into, and as a consideration therefor.

H, who was in embarrassed circumstances, called a meeting of his creditors, with the approval of the appellant, one of them, for the purpose of asking an extension of credit. The appellant said he could not attend, but would send J, his clerk, to represent him in "the most favorable manner." At this meeting it was agreed, that nothing could be done without an inventory of H's property, and that he, (H,) should go to Washington, and other places where his goods were, to make out one, and J and the other creditors agreed, that in the interim (five days,) no legal proceedings should be instituted against him. HELD:

That J, as his agent, was authorised to enter into this agreement for the appellant, and that it was a positive contract binding upon him, and founded in a sufficient consideration, both on the part of the debtor and the other creditors; and that an attachment issued by the appellant on the goods of H, in Norfolk, Va., the day after this agreement was made, was in fraud thereof.

When creditors assemble for such a purpose as above stated, there is a contract, inter se, necessarily implied, that each shall act in good faith and do nothing to frustrate the common object, a breach of which is a gross fraud.

The act of 1834, making void conveyances made by applicants for the benefit of the insolvent laws, does not apply to any case where the creditor or security receiving such conveyance, shall appear not to have notice of the condition of insolvency of the debtor.

The county court instructed the jury, that if they found that the debtor intended to transfer his property to a creditor by a certain agreement, and at the time of such agreement, he had no reasonable expectation of being exempt from liability or execution for or on account of his debts, without applying for the benefit of the insolvent laws, and that the creditor at the time had notice of the debtor's condition of insolvency, then such transfer was made under a view and intent of becoming an insolvent debtor, with intent thereby to give an undue and improper preference to such creditor, and vested in him no title to the property. HELD, that this instruction was properly granted.

When any transaction necessarily produces the effect which a statute declares fraudulent as against creditors, the court may pronounce such act fraudulent. Whatever is the necessary consequence of an act deliberately done, that the law presumes every man to intend.  

COUNSEL:
By NELSON, MAYER, and MCMAHON, for the appellant, and

By WALLACE and JOHNSON for the appellee.  

JUDGES:
MAGRUDER, J. delivered the opinion of this court. The cause was argued before DORSEY, C. J., SPENCE, MARTIN and FRICK, J.  

OPINIONBY:
MAGRUDER 

OPINION:

 [*391]  MAGRUDER, J. delivered the opinion of this court.
The appellee in this case was appointed permanent trustee of William Holton, Sen., an insolvent debtor, on the 14th June 1845, and on the 29th July of the same year, instituted this action in Baltimore county court. It is an action of trover, brought to [**22]  recover the value of goods and promissory notes, which, it is alleged, are the property of the appellee, and had been converted, by the appellant, to his own use. There was a verdict for the appellee, and the record contains exceptions, by the appellant, to two instructions given by the court, at the instance of the appellee, and because of a refusal, by the court, to give three instructions, as asked by the appellant himself.
It appears, from the statement in the bill of exceptions, that this is a controversy between two persons, each claiming to derive title to the property in dispute, from the same person (the insolvent;) both agree that on the 4th June 1845, Holton was the owner of the goods and promissory notes, and it appears, continued the owner until the appellee was appointed his trustee, and the title vested in him, unless, before then, the appellant himself had acquired a valid title to the things in controversy, from the insolvent himself. The plaintiff below made out his case, and all the doubt arising in it, is caused by the introduction into it, of the proof of title by the defendant. That title is impeached, and if successfully, then, the defendant has no right.  [**23]  It seems proper, then, to examine the questions in regard to that title, as presented by the prayers of the defendant below.
Before doing this, however, it is necessary to dispose of a question, which, although it is not expressly raised in any of the exceptions, meets us at every point in the case, and perhaps, would materially influence the decision of the case.
The defendant below insists, that the validity of his title depends, not upon the law of Maryland, but upon the law of Virginia; and with respect to a part of the property, on the law of the District of Columbia, inasmuch as the agreement which constitutes his defence, transfers property, at the time, without the territorial limits of Maryland, (most of it in Virginia,) and is an agreement between persons, who, although at the time, citizens of and residents in Maryland, were without 

 [*392]  its limits. For these reasons, the validity of it depends, with respect to the goods, upon the law of Virginia; and so far as it relates to the notes, upon the law of the District of Columbia; no part of it upon the law of Maryland. It is contended, moreover, by him, that, according to the laws [**24]  of Virginia, and of the District of Columbia, the proof furnished by him establishes a valid transfer, by the insolvent to him, of all the property.
Is there any law of Virginia known to us, which may make this a valid transfer of the goods in controversy? Any law of the District of Columbia, which can legitimate this transfer of the promissory notes now in controversy?
If the goods in controversy had not been withdrawn by the defendant below, from the protection of the laws of Virginia, and the plaintiff was in a court of that State, claiming title to them, and seeking redress for the alleged conversion; and if, as is now alleged, the Virginia law makes the transfer by the insolvent to the defendant below, valid, then the plaintiff would have been obliged to invoke to his aid the law of Maryland, and to ask the court below, to hear and decide the case, according to that law. What would have been the result, we are not to conjecture. The comity of nations, we are told, (see Story on Conflict of Laws, p. 38,) "is derived altogether from the voluntary consent of the latter," (the State, within whose territory it is attempted to make the law of another [**25]  State obligatory,) "and it is inadmissible, when it is contrary to its known policy, or injurious to its interests;" and it is "only in the silence of any positive rule, affirming, or denying, or restraining the operation of any foreign laws, the courts of justice presume the tacit adoption of them, by their own government; unless they are repugnant to its policy, or prejudicial to its interests." This also, he assures us: "A nation will not suffer its own subjects to evade the operation of its own fundamental policy, or laws; or to commit fraud in violation of them, by any acts or contracts made with that design, in a foreign country; and it will judge for itself, how far it will adopt, and how far it will reject, any such acts or contracts." See sec. 106.

 [*393]  In answer to all that is urged for the appellant, about the comity of nations, the appellee insists, 1st, that we have no evidence of the existence of this Virginia law, which his adversary would invoke to his aid; and 2ndly, that, if its existence was conclusively proved, it does not furnish us with the law, by which this cause is to be tried here, in a Maryland court. These suggestions will be considered.  [**26]  
We are so much in the practice of looking into the reports of decisions of the English courts, and of our sister States, in order to learn what is our own law, that it may be well occasionally to remember, that these reports of adjudged cases are not evidence to us, of what is the law of the State or country, in which they are pronounced.
We are in this case left in ignorance, whether this law of Virginia, which is to direct us in our decision, is that which is to be found in her statute book, or is a part of that unwritten law, which is said to be the birthright of every citizen, and which, in our own State it is declared in the bill of rights, to be alterable, to be sure, but unalterable, except by the legislature of the State. How are we to discover, that Virginia has, or ever had any law, written or unwritten, which would give validity to the agreement, made under the circumstances disclosed to us in this case? We are called upon to say, that although this agreement may be, without doubt, fraudulent and void, and must be so pronounced, if this cause be tried by Maryland law, yet that the result will be very different, (it will be quite a fair transaction,) if [**27]  from the law of Virginia, we are to learn its character. We have been repeatedly told, that our law of 1834 does not make any part of the law of Virginia. Possibly not. But it can never thence be inferred, that by no law of that State, is a transaction like this, declared not to be fraudulent. How then are we to learn, if it be needful for us to know, what the laws of Virginia, statute or common, say of a transaction like this? "The court of one State cannot, judicially, take notice of the laws and practices of another," 20 Pick. 467, 472. The written law of foreign countries should be proved by the law itself, as written. Washington C. C. Reports, p. 2. But the law of Virginia, which is to inform us, 

 [*394]  whether this agreement is there deemed a fraudulent or fair one, is probably nowhere to be found among the statutes of that State; at all events, no such statute has been shown to us, and if it be, in whole or in part, unwritten law, then the book last mentioned, in the same page, tells us, that "the common, customary, or unwritten law is to be proved by witnesses acquainted with the law." "They must be proved as facts." 1st Greenl. on  [**28]   Evid., sec. 486, see also sec. 409. So far, there is no difference of opinion, it is believed, anywhere. The oldest lawyers in this State cannot remember when, in regard to it, our courts entertained any doubt.
But in regard to the next inquiry, there is some conflict of opinion. In Mullikin's case, 1st Pennsylvania Reports, p. 125, Gibson, chief justice, speaking of the manner of proving a law of Maryland, says, "whether the property was bound by the proceedings in Maryland, when the attachment was laid, is a distinct and material fact which ought to have been expressly stated, because not only the existence of a foreign law, but the construction which is a part of it is determinable, not by the court, but by a jury." Now if this be true, surely reported cases are not to prove facts of this description. We can only know from them that the printer said, that the reporter said, that the judge said, that the law is, as he is made to say that it is. This is equally an objection to evidence by reported cases, if it be offered to the court. But Justice Story, in his Conflict of Laws, sec. 637, 638, after telling us that "the established doctrine now is,  [**29]  that no State takes judicial notice of the laws of a foreign country, but they must be proved as facts," proceeds, "but it may be asked whether they are to be proved as facts to the jury, if the case is tried at common law, or as facts to the court;" and answers, "it would seem as facts to the latter."
How this subject is understood in this court, will be seen in the case of Trasher vs. Everhart, 3 G. & J. 234. This inquiry however, is not very necessary in a case like this, in which no evidence is offered either for the court or the jury. Such being the case, we are told in 1st H. & J., 720, what is to be done by us. "No doubt the law of South Carolina, must 

 [*395]  govern the court in determining upon the operation and validity of this deed, if they are different from the laws of this State. But no proof has been adduced that the laws of South Carolina will make this deed a good and valid deed, and without proof the jury cannot find what the law of South Carolina is, the court must decide it according to the laws of this State."
We may be told about the lex rei sitae, to which the same answer may be given. It really does seem to be unreasonable [**30]  to ask any court of Maryland, to find out and give effect to any law elsewhere, the effect of which would be, that a citizen of Maryland who designed to take the benefit of our insolvent laws by crossing the line which separates this State from the District of Columbia, or by going into any adjoining State, (taking with him his property,) may rid himself of all that he owes, and then return to Maryland, and rid himself of all his debts.
But of what benefit would it be to the defendant below to prove that there is no law in Virginia, like some of our insolvent laws? "The rule of comity," Kent says, in his Commentaries, 2nd vol. 407, "is held to be overruled by positive law," and what is deemed the settled law of Maryland on this subject, some of the learned men who once occupied our seats, have long since told us. "If the legislative enactment of this State and another State should differ, it cannot be made a question here, which shall prevail. Where there is no constitutional barrier, we are bound to observe and enforce the statutory provisions of our own State." 5 H. & J. 100, Davis vs. Jacquin.
Having now ascertained, that [**31]  in the trial of this case, the law of Maryland alone is to govern our courts, we proceed to inquire, whether, according to that law, the court below expressed any opinion for which its judgment ought to be reversed. We are first to examine the defendant's proof of title. He has none according to his own showing, unless he acquired it by the agreement of the 5th June--the order of Holton the insolvent, to deliver to him the goods, and the delivery of them to his agent a few days afterwards. With that proof, also, have been connected the proceedings of the court in Norfolk. These proceedings, however, certainly gave to the appellant no title. 

 [*396]  They can be relied upon, only to show a good and valid consideration, for the agreement of the 5th June.
It is contended, that if the jury believe every thing which is proved, of these proceedings, the agreement and consummation of it, then the plaintiff is not entitled to recover in this action. It is believed that the three prayers of the defendant below may be considered in connection.
In noticing these several prayers, it may be assumed, that if the agreement was a fair and bona fide one, every thing stated in it [**32]  in regard to the title to this property, would be incontrovertible. But it is charged that this agreement was obtained by fraud; that it is the result of a system of fraud and extortion, and compulsion, practised by the defendant below upon his insolvent debtor, and ought to be avoided for that reason, and further, that even if binding upon the insolvent, it would yet be fraudulent and void, as against his creditors; that there is proof of an actual, as well as statutory fraud. What is said in regard to the latter, will be noticed when we come to examine one of the instructions, which the court gave at the instance of the plaintiff below.
These prayers require the court to say, that if the facts stated are proved,--the proceedings in the Norfolk court, the execution of the agreement, and the dismissal of the proceedings in Norfolk, in consideration thereof,--then the verdict of the jury must be for the defendant; notwithstanding any urgency by the defendant below, or threats of taking the goods at Washington, whereby the agreement was procured.
1st. Fraud or no fraud, (not statutory fraud,) is an important question in the case; upon the decision of this depends, in a [**33]  very great measure, the plaintiff's right to a verdict. There is certainly testimony tending to establish the charge of fraud and extortion in procuring this agreement, (the essential title paper of the defendant below,) which, whether it be technically duress or not, if established, may invalidate this instrument. 2 Greenleaf's Evidence 331. There may have been "a species of necessity, which acted upon and constrained the will, and being under the necessity of choosing one, he chooses the least pernicious of the two."--"It may be a case in which the 

 [*397]  rule cannot be said freely to exert itself, being rather passive than active; or if active, it was so, rather, in rejecting the greater evil, than in choosing the less?" Notwithstanding all this, it is insisted, that the defendant below must recover, because of the agreement, and the consideration for it, and the dismissal of the proceedings in Norfolk. The result of these proceedings, if brought to a decision, it is said, cannot be doubted, and this too, although we are furnished with no means of judging, but the ex parte statements of the defendant below, and these statements admitted to be erroneous,  [**34]  in, at least one essential point--the ownership of the notes. But how was the debtor benefited? He paid his debt, it is said; but it was paid to the wrong persons: he got his property released, but, not for himself; it was to become the property of the defendant below.
With all this evidence it is not quite clear that such an agreement transferred the notes and goods even as to Holton--at all events the court could not so determine. If Holton could successfully impeach the transaction, for fraud, the property was still his, until it was transferred to his trustee, who then acquired a right to sue for it. But if the insolvent could not sue, if he is to be regarded as particeps criminis, would it thence follow, that the trustee could not? Whether a deed be fraudulently obtained from an insolvent, or be the result of a fraud practiced upon him, if thereby his creditors are defrauded, the trustee is the person to claim the property in their behalf. In the latter case it is obvious, for the former the act of 1816, ch. 221, has provided. See, also, Kolb vs. Whitely, 3 G. & J. 188.
All the property of an insolvent, wherever situate, is conveyed to the trustee;  [**35]  and although it may not be quite certain that all other States will so declare, in regard to property for which the trustee brings suit in their courts; yet if the property to which the trustee thus becomes entitled, be brought back again to Maryland, it is not for our courts to say, what foreign courts would declare of the deeds of insolvents, so far as they transfer property, which, at the time, was without our territories, When Plater, in the case in 6 G. & J. 116, took the benefit of 

 [*398]  our insolvent laws, his claim against the government of Great Britain certainly was not within the limits of Maryland: yet this court had no hesitation in deciding it was a part of the trust fund, and the trustee was entitled to it. So too, if our own statutes declare that a deed of an insolvent is, (for reasons proved to exist in the case,) fraudulent, although our courts cannot meddle with the property while without our territory, still, here, it is regarded as part of the trust fund, and if it be brought into Maryland, they will entertain a suit for it; and in deciding it, will be governed by the statute of Maryland, disregarding the lex rei  [**36]   sitae.
With such proof in the cause, we must forget all that was said in the case of Davis and Calvert, 5 G. & J. 269, 304; and in various other cases, before we can condemn the decision of the court below, in regard to the three prayers of the defendant below.
It has been contended, that even although the agreement was fraudulent, and the plaintiff had a right to claim the goods and notes, still he could not recover, without proof that he paid or tendered the money, ($ 200,) which the defendant below paid to the insolvent, at the time of the execution of the agreement. Here we are reminded of the doctrine of Lord Mansfield, that trover is an equitable action, and for this reason only, (if for this reason,) it is believed, can a tender of this money be insisted upon. In order to a decision of this question, it seems to be quite unnecessary to ask, whether trover is an equitable action, or what, in later decisions, has been said on this subject. Equity does require in every case of usury, that the principal, with legal interest, be paid or tendered, before it will relieve, at the instance of the debtor. But can equity ever require a return, or tender by the [**37]  trustee, or the creditors in this case, of the money, which seems to have been the consideration of this agreement? The contest is between the creditors of the insolvent, and his grantee; the former alleging, that the money paid to their debtor, was paid by the latter in order to defraud them. Now if the fact be so, upon what principle of equity can a fraudulent grantee claim, that those who complain of the fraud, shall return money paid, not 

 [*399]  to the persons complaining, but to their debtor, in order to induce him to defraud them. Surely such a defence is against all equity. It is true, that he who asks equity must do equity. But what equity is there in asking of creditors, who claim to be defrauded by one of their number, that they refund all that the defrauding creditor deemed it expedient to use, in order to accomplish his design of defrauding them? It is quite enough that he be allowed to participate in the fund, when it is recovered.
We are next to examine, if there be error in the first instruction which was given by the court.
To this instruction it is objected, that the contract, into which Johnson, in behalf of the defendant below, entered, was not binding [**38]  upon the latter, because he had no authority to make such an agreement; and moreover, if he had the authority, there was no consideration for it: it was nudum pactum.
It is in proof, that a meeting of the creditors of Holton was proposed by him, and approved of by the defendant below. The meeting was, to be sure, for the relief of their common debtor, but with the hope of benefiting thereby, the creditors themselves. It was to ascertain, whether, by giving to Holton the indulgence which he asked, his creditors might not be secured the amount due to each of them. All parties, it was possible, might profit by it, and with a view to ascertain if such was likely to be the case, a meeting was contemplated. It could not but be known to those who knew of the meeting, and were interested in it, that, in order to a final adjustment of the business, it might be necessary again to assemble. Such was soon discovered to be the case, and a postponement was found to be necessary, not (as far as we can learn,) because so small a number attended as soon as the others did, but because if all the creditors had been then present, nothing definitive could be done, for want of an inventory [**39]  of the goods then at the several places named. Holton says Johnson remarked, that he (H.) had better go to Washington, &c., and make inventories, and that five days would suffice for the purpose; and Lewis and Johnson agreed, that in the interim (that is, 

 [*400]  according to their calculation, during five days thereafter,) no legal proceedings should be had. Here then, is a positive contract, that neither Gardner nor Lewis should seize any of the goods, by attachment or otherwise; and the attachment issued in Norfolk was in fraud of that agreement; so that the only question is, whether the defendant below was bound by such agreement, to which his agent was a party?
If this be regarded as an agreement with Holton, surely there was a sufficient consideration for it. The journeys which he agreed to take; the time during which he agreed to be employed, in and about the business which they required of him, and the money he must necessarily expend, in journeying to these several places, and while in them, made the agreement a binding one, if for no other reason, it can be invalidated.
But the defendant himself was not at the meeting, and [**40]  his agent, it is supposed, had no authority from him to enter into such an agreement. What then, was he authorised to do? He was to represent the defendant "in the most favorable manner," and this, to be sure, did not mean that he was to execute bonds, purchase farms, &c., for him whom he represented; but Mr. Johnson was at that meeting to be Mr. Gardner, while acting upon the business for which they had assembled; and a necessary part of that business surely was, not to dispatch it at once, that evening, when it was to be presumed that some delay would be necessary; and it was in proof that the defendant below supposed those inventories to be necessary, in order to enable the creditors to judge, whether for their own advantage and to secure their own debts, the indulgence asked by the debtor, (that is, that his creditors would not institute any legal proceedings against him, for twelve or fifteen months,) should be given him. Can it be said that such an agent was not authorised, at such a meeting, to act upon, or to make, in behalf of Gardner, every proposition which was made in the course of that evening?
For the contract entered into with the debtor, there was a sufficient [**41]  consideration. But when creditors assemble for such a purpose, is there no contract, inter se, necessarily implied, 

 [*401]  and a breach of which is a gross fraud? They convene to transact business, by which each hopes to save--some more, some less--money; and in order to the accomplishment of the object of each, it is essential that each should act with the utmost good faith, do nothing whatever, which, if done, would frustrate the object of the meeting. A negotiation is set on foot; and pending such a negotiation, can any one of the parties to it be allowed, with impunity, to practise such a deceit upon the others, and thereby wrong every other person, who, by the practice of such a deceit, suffers a pecuniary loss?
The defendant in the court below, according to the testimony, approved of the meeting, and told Holton, and of course, authorised him to say to the other creditors, that there could be no difficulty with him, and that the man who was to be there to represent him, would be there to agree to the most favorable terms.
But few of the creditors, however, attended, and is it usual, or expected, that all the creditors will attend such a meeting? If one chooses [**42]  to make a promise, which would be obligatory upon him, provided all of them did attend, is that promise utterly null and void, by reason of the absence of some from a particular meeting, and although the promise is not made to depend at all upon the number of creditors who attended, or the amount of debt which was represented? It is surely binding, until notice is given to all others really interested, that the party who promised is no longer to be bound. How else is such business to be transacted? How is any one of the parties to know, whether he is yet bound or not bound, if any one has the right, without giving notice, to absolve himself from his promise, and to act in direct violation of it? He may, indeed, by his promise, verbal or written, agree to be bound, only when a certain number of the creditors, or those holding a certain amount of debt, bind themselves also, but the promise being otherwise, he cannot act as if it were so.
Having promised to indulge, if others would, was he under no legal obligations to keep the promise, even one day after it was made, and when no one had authorised him to suspect that, to the the terms, any one of the creditors had any objection? 

 [*402]   [**43]  And who are the parties now complaining of the breach of faith by the defendant below, whereby they are damnified and deprived of their proportion of the assets of their debtor? All the creditors who are here, suing by him whom the law appoints to institute the suit, and to such an action, is it any defence to say, that any of the creditors lost their right to complain of the fraud, because they had not agreed to indulge their debtor a very few hours indeed after the defendant sanctioned the proposition made by the debtor? He practised a deceit; by the practice of it, he wronged and defrauded the other creditors, and has secured to himself thereby, considerable profits, which it is against equity and conscience that he should retain. Upon what principle then, can it be insisted, that the proceedings at Norfolk did not amount to a fraud, practised, both upon the debtor and his creditors, the defendant himself being one of them, and as such, entitled hereafter to claim his just proportion of the assets in controversy? Can he (the defendant below,) set up such a defence, in bar, to this action, when, but for the title so acquired, he would have no defence to this action?
As the case [**44]  is understood, the plaintiff below charged the defendant with more than one description of fraud. The allegation seems to be that the insolvent was sometimes a party designing to cheat his creditors, and then he is associated with the defendant, at other times as the party cheated by the defendant below, then acting single handed. The fraud alleged sometimes to be practised, is statutory, and at other times, other fraud.
In the second instruction given by the court below, the charge, is that the agreement, although the insolvent was particeps criminis, is declared to be fraudulent by our insolvent system. We will now examine this transaction in order to ascertain if the law of 1834, does not condemn it.
Certain conveyances, &c., made or allowed, or caused to be made, whether upon request or otherwise, shall be declared to be made with intent to give an undue and improper preference. Whose conveyances are by this act declared to be so made? The conveyances of applicants for the benefit of our insolvent 

 [*403]  laws. Are all conveyances &c., made by them, declared to be so? No: only those which are made in favor, or with a view to the advantage of or security, or with intent [**45]  to prefer, any creditor or creditors, security or securities, of such applicant; and provided such applicant shall have no reasonable expectation of exemption from liability or execution for, or on account of his debts, without applying for the benefit of the insolvent laws. The conveyance, assignment, &c., must not be for valuable consideration; and that law is not to apply to any case where the said creditor or security (receiving the conveyance, &c.,) shall appear not to have notice of the condition of insolvency of said debtor. The language of the act of Assembly, is certainly sufficient to comprehend the instrument, which the defendant below says is his title paper. The facts, which if they exist will make this paper fraudulent and void, must be proved to the satisfaction of the jury; only de jure respondent judices.
We are not now disposing of a motion for a new trial. We need not then stop to enquire what proof the record furnishes of a valuable consideration for this instrument of writing, or whether defendant below had notice of the debtor's condition of insolvency; whether the alleged promise to dismiss the proceedings in court, was any consideration for an agreement,  [**46]  which made the party promising, the owner of every thing which he could properly recover by prosecuting the suit. Neither are we to enquire whether there was any thing like certainty in the result of the suit, wherein the plaintiff in order to obtain an attachment and seizure of the goods, swore that he was the owner of the notes, which constituted so large a portion of his claim, when in truth he was not; and although not the owner, he was claiming the amount of them, when not one cent of that amount could rightfully be demanded by or paid to him; and without due diligence on the part of the owner of them, in demanding payment and giving notice of the non-payment, the defendant below never would be responsible for one cent of them. These and many other matters of fact might be considered by the jury, in judging of the matters in issue, which are now settled by their verdict, unless that verdict was the result of a misdirection or improper refusal to instruct the jury in 

 [*404]  some matter of law, needed to assist them in finding the matters in issue.
What question then does the second instruction present to this court? what are the objections to this instruction as given by [**47]  the court below? We are told in one of the points filed, that it takes from the jury the intent to prefer by the transfer of the agreement; puts the validity of the transfer solely upon the fact of the transfer, the want of reasonable expectation of being exempted, on the part of Holton, and the notice of his condition by Gardiner, and asks the court to declare that the intent to transfer is the legal consequence of these.
The jury are to find the intent to transfer, as stated in the testimony of Holton and Tucker, and in addition thereto, that at the time of the agreement, Holton had no reasonable expectation of being exempted from liability or execution for, or on account of his debts, without applying for the benefit of the insolvent laws; that the defendant had notice of Holton's condition of insolvency. If they found those facts, they were instructed, that such transfer was made under a view and expectation of becoming an insolvent debtor, with intent thereby to give an undue and improper preference to the defendant, and vested in defendant no title to said property.
It is not, and cannot be denied, that there was testimony before the jury, which had [**48]  a tendency to prove the facts of which they were to be satisfied.
There is no doubt, that if any transaction necessarily produces the effect which a statute declares to be fraudulent, as against creditors, the court may pronounce such act to be fraudulent. Whatever is the necessary consequence of an act deliberately done, that the law presumes every man to intend. It is said, Conn. Reports, 296, that "when the effect of an act, understandingly done, is necessarily injurious to the rights of another, the quo animo is not a matter of fact, it becomes an inference of law."
It is one question, whether the facts and circumstances, which, if they exist in a case, constitute a fraud, are proved to exist in that case. If their existence be shown, the law says, and it is the province of the court to pronounce the law 

 [*405]  to be, that they constitute a fraud. This appears by the authorities which were cited at the bar.
When the insolvent executed a deed, by which he designed to transfer to one of his creditors so large a proportion of his effects, and in satisfaction of the whole of his debt, and had at the time no reasonable expectation of being exempted from liability [**49]  or execution for, or on account of his debts, the court may well say, that such deed vested no title in the defendant, and if they find, that when Holton became the debtor of defendant, they were citizens, residing in Maryland, and have continued to be such up to the present time, the plaintiff is entitled to recover.
The instruction does not make the validity of the transfer to depend upon the fact of the transfer, but upon the want of reasonable expectation at the time of being exempted from liability or execution for his debts but by applying for the benefit of the insolvent laws, and the knowledge then had by the creditor of the condition of insolvency of the debtor.
JUDGMENT AFFIRMED.  

12 of 29 DOCUMENTS 

REVERDY JOHNSON vs. EDWARD H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 269; 1848 Md. LEXIS 41 

December, 1848, Decided 

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

Upon a bill filed by the Neptune Insurance Company, of Baltimore, the chancellor, on the 18th of May 1843, with the consent of parties, passed a decree for the sale of certain real estate of one Rebecca Dorsey, situated in Baltimore county, for payment of a mortgage debt due the complainants. David Stewart and Charles F. Mayer, Esqs., were appointed trustees to effect this sale, and the decree directed them to "proceed to make sale of the mortgaged property, having first given at least three weeks previous notice, inserted in some newspaper or papers, and such other notice as they may think proper, of the time, place, manner and terms of sale, which terms shall be," &c.; prescribing the usual terms, one-fourth cash, and the balance in equal instalments, at six, nine and twelve months.

This decree was afterwards entered for the use of the Baltimore Life Insurance Company.

On the 21st of April 1847, the trustees filed their report of sale, in which they state, that after due notice by advertisement in daily newspapers of the city of Baltimore, they offered the property for sale on the 15th of April 1847. That Reverdy Johnson, by the [**2]  bid of John S. Gittings, became the purchaser, at the price of $ 40 per acre, making for the whole purchase money the sum of $ 12,422.25. That they had twice before advertised the said real estate for sale, and, on both occasions, the sales, on or shortly before the days appointed, were, at request of Edward H. Dorsey, interested in the estate in place of said Rebecca Dorsey, deferred; the sale last stopped being one appointed for the 15th of October 1846. The usual oath of the trustees was annexed, that the sale was fairly and bona fide made.

With this report was filed, as exhibits, an advertisement of sale, describing the property, &c., proved to have been published once a week for three weeks, prior to the sale and on the day of sale, in two daily newspapers of the city of Baltimore.

Also two letters, dated the 15th of October 1846, directed to the trustees, the one from Edward H. Dorsey, in which he says, "the sale advertised by you, as trustee, being postponed from this day, at my request, the commissions and expenses are to be paid, as in case of a sale;" the other from John J. Donaldson, the president of the Baltimore Life Insurance Company, for whose use the decree [**3]  had been entered, requesting a postponement of the sale until further notice.

On the same day, (21st of April 1847,) the usual order of ratification nisi was passed by the chancellor; and on the 21st of June following, being the day on which the sale stood for final confirmation, objections were filed to its ratification by Edward H. Dorsey, who alleged himself to be the owner of the equity of redemption in the property sold under the decree: 1st. Because the price for which the same was sold is grossly inadequate, said property being fully worth $ 20,000. 2nd. Because proper and reasonable notice of said sale was not given. 3rd. Because there was no attendance of bidders at said sale, and no competition, in consequence of which said property sold far below its value, as stated in the first exception. 4th. Because various persons, who were anxious to purchase said property, and would have given, and would now give, a much larger price for the same, (one of whom, J. McHenry Boyd, Esq., a responsible person, would have given, and would now give, from $ 18,000 to $ 20,000,) were prevented from attending said sale by some mistake or misunderstanding in relation thereto, by reason [**4]  whereof said property was sold far beneath its value.

On the 24th of the same month, his honor, Nicholas Brewer, an associate judge of the third judicial district, to whom the proceedings had been certified by the chancellor, (Johnson,) passed an order finally ratifying and confirming the sale, after stating that the paper filed by Edward H. Dorsey, objecting to the sale, was signed by him, but that there was no affidavit by him or any other person, of any of the facts therein stated, nor any order asked for to take testimony to prove them.

On the 3rd of July following, a petition in due form was filed by said Dorsey, re-asserting substantially the same objections to the sale, and more at large, alleging, "that from want of proper and sufficient notice by advertisement, and from the impression getting abroad that said land was not to be sold, persons were prevented from attending or from bidding at said sale, who would have given from $ 18,000 to $ 20,000 for said land. That said trustees only advertised said sale once a week for three weeks, and once on the day of sale, in two daily newspapers in the city of Baltimore. That James McHenry Boyd, Esq., a gentleman of large [**5]  fortune, was desirous to become the purchaser, and would have given more than $ 18,000 for said property, but he had heard that the same would not be sold, and to satisfy himself of the fact, looked at one of the numbers of the paper in which the sale was advertised, and not finding the advertisement, supposed the same was withdrawn, and that the sale would not take place, and therefore did not attend the same. That Stephen Thompson, Esq., of Baltimore city, was present at the sale for the purpose of bidding, but believing that there was but one person bidding, and that said land was being bid in for the benefit of your petitioner, did not bid for the same, but has declared said land ought to have brought, at least, from $ 60 to $ 75 per acre, and he would have given a much larger price than that for which it actually sold. That there were not more than five or six persons at said sale, and that there were no bidders. To show the gross inadequacy of price at which said land was sold, your petitioner states, that he has been informed and believes, that the person who attended said sale and bid for Reverdy Johnson, Esq., the purchaser, was authorised to give over $ 18,000 for the land,  [**6]  and that soon after the sale, the purchaser was offered an advance of $ 8000 for said farm. That if an opportunity were offered, he could furnish proof of all the facts stated in this petition, and of the objections previously taken to the sale; and could also show, that he is the sole person interested in said land, except the mortgagee, for whose benefit it was sold The petition then prays, that the order of ratification may be opened, and an opportunity afforded for producing proof, and the trustees be required to answer said exceptions, and said sale set aside and a new one ordered, and for general relief.

This petition was verified in due form and accompanied by the affidavits of seven deponents, who resided in the neighborhood of the property, were well acquainted with it, and who severally state that it sold for much less than its actual value. The estimates of its value by these deponents vary from $ 60 to $ 75 per acre.

Upon this petition an order was passed rescinding the order of ratification, setting down the objections for hearing, with leave to the parties to take testimony before a justice of the peace, upon the usual notice, and ordering the trustees to file [**7]  their answers on or before a day certain.

The answer of David Stewart, one of the trustees, states: That he was prevented by sickness from attending the sale, but under the circumstances, would have acted as his associate trustee did, in making said sale, even at the very low price at which it was made; no discretion being allowed to the trustees, by any assent of the mortgage creditor, who was urging the sale, and it having been within respondent's particular knowledge, that the postponement of the sale, on the 15th of October 1846, had been assented to by the creditor, upon the undertaking of Dorsey, that no further delay should be asked for than that then agreed to be given, which was until the 15th of April 1847, and that in his view, therefore, the trustees had no right to afford any further delay, except with the consent of the creditor; and under the circumstances, respondent regarded the sale, appointed for the 15th of April 1847, as a peremptory sale.

Respondent further says, that in his opinion the property was then worth at least $ 20,000, and is now worth that amount; and this opinion is formed, in part from the price which respondent and his associate trustee [**8]  obtained, for a portion of the same property, sold at private sale, to Charles H. McBlair, at the rate of $ 75 per acre. This portion consisted of 80 acres, and was unimproved by buildings. He believes sufficient notice was given of the sale, by public advertisement, but he believes also, that there was a general impression among persons who otherwise might have been disposed to attend the sale, that some arrangement would be made, and that the sale would not proceed, how this impression originated, respondent cannot say, but it seemed to be a prevailing and accredited impression.

Charles F. Mayer the other trustee, separately answering, states, that the sickness of his co-trustee, devolved upon him the duty of conducting the sale alone. That said sale was appointed positively to take place, (after at least one postponement, and considerable delay on the creditor's part;) that respondent found on the day of sale, that the creditor, the cestui que use of the decree, was peremptorily resolved upon having a sale made, and in consequence, respondent felt himself under a peculiarly strict obligation to effect a sale, even at a price materially beneath respondent's estimate of the worth [**9]  of the property. With this persuasion of his duty, and under pressure of such a requirement, however painful the position, or the act, respondent allowed the estate to be struck off at the price of $ 40 per acre, as the highest bid, although if left to his own discretion, and to conform to what he deemed the reasonable valuation of the property, he would not, he believes, have allowed it to be sold at a less price than $ 60 per acre, that even, being less than respondent deemed it actually worth. In illustration of its value, respondent refers to the sale adverted to by his co-trustee, in his answer, which with other reasons, tended to impress upon respondent the worth of said property. He cannot say how many bids there were, but believes there were not many, he knowing of only two bidders, although from the manner of conducting auctions, there might have been more, without respondent's knowing the fact. The persons attending the sale, did not number more than ten or twelve; the two bidders referred to being John Patterson and John S. Gittings, the latter, the highest bidder, and the former making only one bid, at the beginning of the auction. He further states, that notice of sale [**10]  was given by advertisement in Baltimore, once a week, for three weeks, and on the day of sale, in two newspapers of that city, and as respondent believes in no more. Respondent believes, that at the time of said sale, said estate was fairly worth from $ 65 to $ 70 per acre, and that it is now worth that much.

The following is a brief summary of the testimony taken under the above order.

On the part of the exceptant, it was proved, by James McHenry Boyd, that witness knows the property in question, by reputation; he intended to attend the sale, and bid for the property, but was prevented, by being informed that the sale would be postponed. Deponent saw the advertisement; but after first seeing it, had been absent from town for some time, and had forgotten the precise day fixed for the sale. On his return, he enquired of one of his cousins, whether the day of sale were not at hand, who answered to the effect, that she had learned from the family of Dr. Waters, a neighbor of Mr. Dorsey, that the sale was postponed for a month, and witness then dismissed the subject from his mind. After receiving this information, he did not examine the paper with reference to the advertisement.  [**11]  He did occasionally look over the paper, but did not observe it. His reliance on his cousin's statement, coming directly from the friends of Mr. Dorsey, was such as to prevent him from making any further inquiry as to the time of sale, and to induce him to dismiss the matter from his mind. If deponent had attended the sale, he would have given $ 60 per acre for the property. He has no hesitation in stating, that if circumstances were such, that he was now free to be a bidder, he would now give that amount for the property. If the property were to day in the market, and could not be bought for less, he would give that amount for it. Deponent believes the market value of the property to be at least $ 60 per acre. His opinion is formed from what he knows of it, and from the opinions which he has heard others express, on whose judgment he relies.

William E. Thomas, is acquainted with the property, and has been repeatedly on it. Its value at a low estimate is $ 60 per acre. Deponent thinks this would be a low price at which to purchase the property at public sale. His opinion is derived from his knowledge of the place, it being good farming land. He does not consider the land in a [**12]  good state of improvement. If the land were well farmed, and the improvements in a good condition, the property would be worth $ 100 per acre. He estimates the value of the place at $ 60 per acre, in its present condition.

Daniel Warfield, knows the property by reputation. Did not attend the sale, because there was always so much contention about it, that he did not suppose the property would be sold. It has been in the market several years, and frequently withdrawn, and he supposed that Mr. Dorsey would not suffer it to be sold, if he could avoid it; would not have bid for the property, unless he could have been assured that Mr. Dorsey would have given peaceable possession, and there would have been no contest about it. Cannot say what is its value, but from representations he too had of it, he would give $ 50 per acre, could he have been assured Mr. Dorsey would have given peaceable possession. Deponent offered Mr. Gittings $ 50 per acre for the property, a short time after the sale.

Stephen J. Thompson, knows the property, has several times gone around the place, and examined it, with a view of acquiring information as to its value, with the view of purchasing it. Attending [**13]  the sale, but did not bid, because he was of opinion, as he believes some others were, that the property would not be sold; was strengthened in this opinion from having at various times attended, when the same property had been frequently advertised for sale; on one occasion, neither trustee or auctioneer appeared, and on others, the property had been withdrawn. From the small number, in attendance on the day of sale, deponent came to the conclusion, that the property would not be sold, but had no right to doubt the sale was a real one, after Mr. Gittings was called on by the auctioneer to sign. His previous impressions were, that it was bought in for Mr. Dorsey. These impressions did not arise from any thing which had been said by Mr. Gittings, the trustee, or the auctioneer, but from what had taken place on former occasions, when the same property had been advertised; from the small number in attendance, and from the low price which the property brought. During the offering, Mr. Dorsey passed through the exchange, but did not remain; he did not appear concerned about the sale, and did not remain until it was closed. The property was started by Mr. Patterson, at $ 10,000. Deponent [**14]  does not recollect of hearing any bid after that, until Mr. Gittings bid. The auctioneer stated, that the property would not be sold at less than $ 40 per acre, he having prior to that statement, called the property at $ 39.50 per acre, but deponent did not believe there was any bid, as he did not hear one. His impression was, that the $ 39.50 bid, was that of the auctioneer.

From all the circumstances attending the sale, his impression was, that the property was bought in for Mr. Dorsey. Had it not been for that impression, he would have bid for the property, as he went to the sale for that purpose. He would have advanced on $ 40, the price at which the property was knocked down. Deponent thinks that at a fair sale, the property should have brought $ 60 per acre. He knows of a sale of property in the same neighborhood, made since the sale in this case, on which there was a very inferior dwelling house, with good out-houses, the soil naturally inferior to Mr. Dorsey's, but more highly cultivated, at $ 61 per acre, at public sale. Mr. McBlair bought 80 acres of the original tract, of an inferior quality to Mr. Dorsey's, without any improvements, at $ 75 per acre. This purchase [**15]  was made by Mr. McBlair for a county residence, and one inducement was on account of the location, its fine prospect. The prospect from Mr. Dorsey's is superior to that from Mr. McBlair's. It is one of the most beautiful in Baltimore county.

John Swan, is familiarly acquainted with the property, lives on the adjoining farm, knows the quality of the soil, and its present state of cultivation, considers it land of excellent quality. It has been recently neglected, but with proper management and cultivation, would be easily restored to its original value. The situation is a very fine one. The property in its present condition, is fully worth $ 25,000. Deponent was at the sale, thinks Mr. Patterson started the sale at $ 10,000, heard and saw no more bidding. The auctioneer called out various sums, until he reached $ 34, Mr. Gittings then offered an advance of fifty cents. The auctioneer then remarked, that he had omitted to state at the beginning, what he ought to have done, that the property would not be sold under $ 40 per acre. At this moment, Mr. Dorsey called deponent out, to intercede with Mr. Donaldson, stating, that until within half an hour of the sale, he had confidently [**16]  expected to procure the money; before deponent returned, the sale was closed. Mr. Dorsey did not continue at the sale, he was alternately in and out, endeavoring to obtain some intercourse with Mr. Donaldson.

George Myers, owns a place on which he resides, nearly adjacent, and is familiar with Mr. Dorsey's property; has known it for forty years; thinks, in its present state, it is worth $ 80 per acre. If deponent were desirous of purchasing, he would willingly give that amount for the property.

Henry H. Williams, a few years ago, bought from Mr. Dorsey a portion of the original tract. Thinks the property ought to bring $ 25,000. In 1840 or 1841, deponent, who had the authority to sell it, was offered $ 25,000 for it, but Mr. Dorsey was not willing it should be sold at that price, stating that he could obtain a better price. In 1841 deponent sold a part of the original tract, at $ 62 per acre, on which there were no improvements or fencing.

James Powers, is a farmer, resides in the neighborhood of the property; has known it ever since he can remember; it has been one of the best farms in Baltimore county. The dwelling house is a fine one, in good order. There is a choice [**17]  supply of spring water of good quality on the place. In its present state the property ought to bring, at least, $ 75 per acre.

John Moke, is a farmer, resides about four miles from Mr. Dorsey's; has been a property agent in Baltimore county for some time; has known the property for upwards of forty years; it is considered one of the best farms in that section of the county. As it stands, deponent cannot put the value of the property at less than $ 75 dollars per acre: he thinks it ought to bring that price at public or private sale.

Peter W. Gibbons, is a farmer, lives about six miles from Mr. Dorsey; has known the property for twenty years; would suppose that, at a fair sale, any day, it ought to bring from $ 70 to $ 75 per acre.

Charles H. McBlair, resides on the place adjoining Mr. Dorsey's, being part of the original tract. Deponent has eighty acres, which he purchased of Mr. Dorsey in 1843. He gave $ 75 per acre for it. This property, at that time, had no buildings or improvements on it, and the fences were in a bad condition. Thinks Mr. Dorsey's farm, in its present condition, is worth from $ 18,000 to $ 20,000.

John S. Gittings, attended the sale on behalf [**18]  of Mr. Johnson, by whom he was authorised to bid as high as $ 60 per acre. After the sale, he was called upon by some individual, with whom he was not personally acquainted, who said, that if the title was clear, he would give an advance of $ 2000 on the purchase. Mr. Warfield offered deponent, if the title were clear, an advance of some small sum on the purchase. Mr. Johnson informed deponent that he expected to get the property for $ 40 per acre, but had made up his mind to give $ 60 per acre.

John Patterson, was the owner of a mortgage on the property; was present at the sale; went merely to cover his claim; made a bid of $ 20 per acre for that purpose. John H. Ormdorff designed purchasing the property, but did not suppose it would be sold, as he had spoken to several persons about it and had been informed it would not probably be sold, as Mr. Dorsey would make arrangements to pay off the mortgage. Thinks he saw the advertisement in the American. Would have given much more than the property sold for; would have given $ 20,000 for it, but relying on the information he had received, he did not think it necessary to go to the sale or examine the property.

Henry W. Bool, Jr.  [**19]  , was the auctioneer who made the sale. Thinks there were other bids, besides the starting bid by Mr. Patterson, and that made by Mr. Gittings. Thinks so from the price at which the property sold. After the sale, a gentleman told deponent, that if he had been at the sale he would have given about the amount the property sold for. Thinks he called the property at $ 39 per acre. He then called Mr. Mayer to the stand, and after consultation with him, announced, that if he could obtain $ 40 per acre, the property would be sold. Mr. Gittings bid that price and the property was knocked down to him. Prior to the sale, deponent had a conversation with Mr. Mayer, in which he stated to deponent, that the property ought to bring $ 40 per acre at least. Deponent thinks he made a bid on behalf of the trustees, near the amount of $ 39.

Messrs. Gittings, Patterson, Swann, and, including them, from thirty to forty persons were present at the sale. The sale was a fair one. Deponent did his endeavors to get the most he could for the property, he hung longer on Mr. Gittings' bid than he ought to have done. The company in attendance was the usual number. There never is a larger attendance at sales [**20]  at the Exchange, except on extraordinary occasions.

On the part of the purchaser, it was proved by John J. Donaldson, (whose testimony was objected to by the exceptant,) that he is the president of the Baltimore Life Insurance Company, the assignee of the claim for which the property was sold. He attended the sale. The property was offered in the presence and by the direction of deponent. As the sale was about to commence, Mr. Dorsey made application to deponent to suspend the sale, for the purpose of giving him time, which deponent refused, as the sale had been previously postponed. Deponent required the trustee to go on with the sale. The property had been advertised, at deponent's instance, in the autumn of 1846. At the instance of Mr. Glenn and Mr. Dorsey, who promised that the matter should be settled up in six months, the sale was postponed, and time was given to Mr. Dorsey to sell at private sale, which he stated was his object. Deponent then told him, that the property would be sold at the end of that time if the matter were not settled. Deponent did not see Mr. Dorsey from that time to the last day of sale.

Hugh Gelston, on the 31st of October last, purchased a part [**21]  of the same tract of land, consisting of thirty acres, at $ 36.50 per acre. There are no improvements on it, not even a fence. The soil is of a very good quality. It is on a point difficult of access. Separate from the consideration of great beauty of situation, and speaking in reference only to agriculture, and the expenses of putting the farm in order, deponent would consider many farms that have been sold within the last two years as good bargains as this one purchased by Mr. Johnson; deponent is not, however, taking into consideration in the above estimate of the value of the land, its advantages of location, for beauty of building sites, and nearness to the city; these things greatly enhance the market value of property. Taking these qualities into consideration, deponent thinks the land ought to bring much more than it sold for.

John S. Gittings, recalled for the purchaser, states, that he has, within a few days, made a purchase of about two hundred acres of land, at $ 45 per acre. This land is about a mile further from the city than Mr. Dorsey's, both lying west of the city. The soil perhaps is not so good, but it is heavily timbered. It is red land. There is a considerable [**22]  quantity of stone, fit for paving, on it, which was one inducement for deponent to purchase it. There are no buildings or improvements on this property. Deponent thinks if the place purchased by him were fairly brought into the market, it would bring as much per acre as that of Mr. Dorsey's. As a country residence, Mr. Dorsey's place is one of the most beautiful situations in the neighborhood of Baltimore. Deponent did not expect to give more for the property than about $ 40 per acre. During the sale, there were about thirty persons present in the rotunda of the Exchange. There was a small number about the stand, near the auctioneer, who appeared to be taking an interest in the proceedings. Deponent supposed that the bids for the property were real, until it had reached the bid of $ 37 per acre. He bid $ 36, and the auctioneer bid $ 37, which deponent thought a bid of the auctioneer.

A deed was also filed in the cause from Rebecca Dorsey, conveying to the exceptant the equity of redemption in the land, dated the 15th of February 1844.

On the 29th of July 1847, the following order was passed by his honor, Judge Brewer, acting as chancellor:

Objections were filed in this [**23]  case to the sale made on the 15th of April 1847, but the sale was ratified, because the objections were entirely of matters in pais, not signed by counsel, and not vouched by the affidavit of the persons objecting, or of any other person, and being filed in that manner, and on the day before the time for final ratification, the whole proceeding had the appearance of a mere design to delay the ratification. On a proper application, the order was rescinded, the trustees directed to answer the petition, and testimony directed to be taken, which was taken and returned, the trustee's answers filed, and the case heard. The 2nd objection, "because proper and reasonable notice of the sale was not given," is of no moment, as the notice which the decree required was given, and there is no evidence, that it was the custom to give any further notice in the case of sales in Baltimore, or in advertisements in the Baltimore daily papers.

The 1st objection is, gross inadequacy of price.

3rd. No competition at the sale.

4th. That persons who would have given a much larger sum for the property, were prevented from attending the sale by some mistake or misapprehension in relation thereto.  [**24]  The property sold for $ 12,000. The proof of its value varies from $ 50 to $ 80 per acre, and, on a fair average of the proof, it is worth nearly about $ 70.

The sale appears to have been conducted in the ordinary manner, without the least appearance of unfairness, which, indeed, the petitioner does not pretend to charge, and the property bought by an agent for the actual purchaser, and at auction at the Exchange, where such property is frequently, if not generally, sold. The practice of opening biddings has never prevailed in this State, and has not been contended for in this case. The principles which are to govern in its decision, seem to be well settled by abjudications of our own courts. In the case of Lawson vs. The State, 2 Bl. Ch. Rep., 639, Chan. Hanson says: "That he will never, knowingly, ratify an unreasonable sale." In page 644, he says, "with respect to sales under the authority of this court, the chancellor thinks himself bound to act as if the property was his own, or held by him in trust;" that is to say, he thinks that reasons that would induce him, as proprietor or trustee, to set aside a sale made by his agent, should determine him, as chancellor, to refuse [**25]  his approbation to a sale made by a trustee. Again, he says: "It is, undoubtedly, one object of each decree for a sale, to obtain the best price that can be obtained, consulting, at the same time, justice to all persons concerned, and attending to their wishes, as far as may be consistent with justice." In the case of Goodwin vs. Scott, Bl. Chan. Rep., page 647, Chan. Kilty says: "In this State it has been repeatedly declared, that in sales under a decree of this court, which are made subject to the chancellor's approbation and ratification, any circumstances showing that such sales are injurious to the complainants, or that better sales might reasonably and probably have been made, are sufficient to set them aside. This principle, to be just, should be reciprocal and mutual."

Chan. Bland, in the case of Andrews vs. Scott, page 644, 2nd vol., adopts these opinions, and says further: "That in this State, as well as in England, if there should be made to appear, either before or after the sale has been ratified, that there was any injurious mistake, the reported sale may be rejected; and again, "If, in any case, the trustee reports that there was an error, mistake, misunderstanding,  [**26]  and as to the terms or manner of the sale, it may be rejected at once." In the case of Glenn vs. Clapp, 11 G. & J., 9, this subject came before the Court of Appeals. In that case the property sold for $ 490, and was alleged to be worth $ 900, but the only evidence of value was the answer of the trustee. He says that the property was worth more than $ 490, but not $ 900; but supposing that to be the real value, the inequality in that case and this is nearly about the same. The property in both cases sold for rather more than half its value.

The court say, in their opinion, that they will not set aside a sale for inadequacy of price merely, unless the sum reported by the trustee is so grossly inadequate, as to indicate a want of reasonable judgment and discretion in the trustee; what proportion of the real value would be that gross inadequacy, or indicate that want of reasonable judgment and discretion, the court do not say, but seem to intimate, that it does not seem to exist in the case before them, and only admit it as a reduced price, to be viewed in connexion with some other just cause, to doubt the propriety of the sale. In cases of purchase and sale by and from [**27]  individuals, where applications have been made to set aside sales for inadequacy of price, the proportion of the real value has not been definitely fixed, though in one case the rule of the civil law is said to have been adopted, by which no consideration was deemed inadequate, that exceeded half the real value of the estate, Sugden on Vendors, 249; and the principle was held in another, not to apply to cases of sales by auction, which the Court of Appeals seem to intimate in the case of Magruder vs. Peter, 11 G. & J., 244. In those cases the inadequate consideration was considered an evidence of fraud. In cases like the present, it is only treated as an indication of want of reasonable judgment and discretion in the trustee, and perhaps would not therefore require so gross an inadequacy. It is not easy to determine how far the trustee should extend his discretion, but it may be considered a good general rule, not to sell the property at a great sacrifice; more especially on the first effort to sell, but to report the circumstances to the court for directions. In this case, the low price did not indicate that want of reasonable judgment and discretion as to the value,  [**28]  for the answer of one of the trustees shows, that he was well aware that he was selling too low, but thought himself bound to sell, as he was required to do so by the complainant; and it is of this that the petitioner's counsel complained in the argument, as a dereliction of duty or want of consideration in the trustee, contending that he had no right to consult the complainant at all, but should insist on getting what the property was worth. This, however, is going too far; the trustee did fix a limit below which he would not sell, although it should be required by complainant, and in fixing that limit, no doubt considered that his estimate of the value though much higher, might not agree with the estimate of others. There certainly is no impropriety in consulting the parties interested in the sale, or any of them, but the trustee ought to exercise a reasonable discretion and not be governed by either party. There are other circumstances in this case, which, viewed in connexion with the low price for which the property sold, and the fact of the trustee selling against his own opinion, at the instance of the complainant, disclose sufficient grounds for doubting the propriety of the [**29]  sale, and for setting it aside. First, there was no competition whatever, as is clearly proved, and secondly, there was evidently a mistake as to the sale taking place, which prevented a bidder from attending who wished to attend, and who would have given a much higher price for the property. It is contended for the purchaser, that this mistake was designed and caused by the petitioner himself, who spread the report that the property would not be sold, but this does not accord with the proof; the information was derived from a neighbor or friend of the petitioner, who did not profess to have received the information from the petitioner; and it was further proved, that this person who proposed to purchase, did not see the advertisement in the paper, and was informed it was not there; and it is also stated by one of the trustees in his answer, that he believes there was a general impression among persons, who otherwise might have been disposed to attend the sale, that some arrangement would be made. The purchaser, however, who is not in fault in any respect, is entitled to his costs.

It is thereupon, this 29th day of July 1847, adjudged and ordered, that the sale made on the 15th [**30]  day of April 1847, be and the same is hereby set aside and annulled, and the petitioner is ordered to pay to the purchaser his costs, to be taxed by the register.

From this order the purchaser appealed to this court.  

DISPOSITION:
ORDER REVERSED.  

HEADNOTES:

Where a decree required the trustees to give "at least three weeks previous notice, inserted in some newspaper or papers, and such other notice as they might think proper, of the time, place, manner and terms of sale:" HELD, that an advertisement of this sale, inserted once a week for three weeks, and once on the day of sale, in two daily newspapers, was sufficient notice, and that the trustees were not bound to advertise the property daily for three weeks previous to the sale.

A sale regularly conducted, and fairly made under the authority of a court of chancery, where a third party, a stranger to the proceedings, becomes the purchaser, cannot be disturbed on the ground of mistake, unless such mistake has been caused by the conduct of the purchaser, or can be traced to the creditor, for whose use the property was sold, or to the trustee.

Where there was a general impression in the community that the sale would be postponed, and this was known to the exceptant, it was his duty to communicate the fact to the trustees, and his failure to do so, would present an insuperable obstacle to the interposition of a court of equity, in his favor, to set aside the sale.

The English practice of opening biddings, as a matter of course, before the ratification of the master's report, has not been adopted in Maryland, and it is not expedient to introduce it.

The land in this case sold for $ 12,422.25. HELD, that the court would not be authorised to vacate the sale upon the single ground of inadequacy of price, even assuming the property to be worth $ 20,000; the estimate placed upon it by the exceptant.

Inadequacy of price, standing by itself, is not sufficient to vacate a sale, unless it be so gross and inordinate, as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud in the trustee.  

COUNSEL:
By ALEXANDER and MCMAHON for the appellant, and

By FARNANDIS and NELSON for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*285]  MARTIN, J., delivered the opinion of this court.
This case comes before the court, upon an appeal from an order of an associate judge, of the third judicial district, sitting for the chancellor, vacating a sale made to the appellant, on the 21st of April 1847, under a decree of the chancery court.
It appears from the record, that objections to the ratification of this sale, were interposed by the appellee, prior to its confirmation. But they were not sustained by the affidavit of the exceptant, or verified by that of any other person, and in this predicament, they were disregarded by the judge, to whom the application was preferred, and the sale ratified on the 24th of June 1847.

 [*286]  This order was, however, subsequently rescinded,  [**31]  and in considering therefore, the questions presented on this appeal, they are to be treated as uninfluenced by a final order of ratification.
The objections to the validity of this sale, as filed below, and relied upon in the argument of the cause, before this court, are in substance, as follows:
1. Because notice of the sale was not given, as required by the terms of the decree.
2. That in consequence of some mistake or misunderstanding, prevailing in the community, that the sale would not take place, various persons, who were desirous of purchasing the estate in question, were prevented from bidding for the same, and that in this way it was sacrificed.
3. That in consequence of this mistake, or misunderstanding, there was in fact, no competition at the sale.
4. That the price at which the property sold, was grossly inadequate.
There is no force in the first objection. By the terms of the decree, the trustees were required to give, "at least three week's previous notice, inserted in some newspaper or papers, and such other notice as they might think proper, of the time, place, manner and terms of sale," and the appellee has, in is petition admitted, that the trustees advertised [**32]  this sale once a week for three weeks, and once on the day of sale, in two daily newspapers in the city of Baltimore This certainly was legal notice of the sale. It is a misconception of the character of the decree, to suppose, that it imposed upon the trustees the obligation to advertise the property daily, for three weeks previous to the sale. The language of the decree does not warrant such a conclusion. And we should be indisposed to countenance a construction, which would operate most severely and injuriously upon the interests of a debtor, already embarrassed, by subjecting him to an onerous and useless expense.
The second objection is equally untenable. The appellant is a stranger to the controversy in which this proceeding originated. His position is that of a party, who having purchased 

 [*287]  in good faith, an estate, at public sale, regularly conducted and fairly made, under the authority and supervision of the court of chancery, now claims to have his contract ratified, as obligatory on both parties. And in a case thus situated, it is perfectly clear, that the sale cannot be disturbed upon the ground of mistake, unless the mistake has been generated by [**33]  the conduct of the purchaser, or can be traced to the creditor, at whose instance, and for whose use, the property was sold, or to the trustee to whom the control and management of the sale was confided.
The American cases are full and conclusive on this point; and the proposition is sustained by the most eminent of the English Chancellors, whose opinions are to be received as illustrative of the law upon this subject, when expressed with respect to applications for opening sales, after their absolute confirmation.
It will be found by consulting the authorities, that this principle is firmly established, not only as a rule of public policy and convenience, but one in which the debtor himself is directly and deeply concerned, as a means of rendering these sales productive, by imparting to them the character of permanence and security.
The principle is thus correctly and clearly stated by the vice chancellor, in the case of Woodhull vs. Osborne, 2 Edward 616.
"Where a stranger or third person becomes the purchaser in good faith, something more than a mere offer of a higher price must appear, to induce a re-sale: Such as fraud or misconduct of the master, or other [**34]  person, having the control of the sale, or surprise upon the party interested, or his having been misled as to the time and place of sale. Where circumstances of the latter description are relied upon, the party must show they proceeded from or were caused by the purchaser, or some person connected with or having the management of the sale. If he be of full age and under no disability, he cannot be permitted to allege his own negligence or inattention, as the cause of his surprise or mistake."

 [*288]  In Collier vs. Whipple, 13 Wend. 226, Mr. Justice Nelson, after citing, with approbation, the cases of Morrice vs. Bishop of Durham, 11 Ves. 57, and White vs. Wilson, 14 Ves. 151, says:
"These cases, without going further, sufficiently shew that fraud or misconduct in the purchaser, or fraudulent negligence in any other person connected with the sale, as the agent of the mortgagor, or of persons interested as judgment creditors, and also surprise created by the conduct of the purchaser, will induce the court to open the biddings." And at page 228 of the opinion, he distinctly expands the rule so as to embrace the master;--correctly [**35]  maintaining, "that surprise created by him on his conduct, is as injurious and as available in an application of this kind, as if caused by a purchaser; which all the cases concede is sufficient."
In Gardiner vs. Schermerhorn, 1 Clarke's Rep. 103, the language held by the vice chancellor, is equally strong.
And in the case of Williamson vs. Dale, 3 Johns. Ch. 292, the chancellor, in setting aside a sale, on the ground that the defendants were misled, though unintentionally, by the language of the plaintiff and his solicitor, said: "That he was not influenced by the alleged inadequacy of the auction price, and that in disturbing the sale, he pushed the doctrine to the utmost verge of an admissible interference."
In Morrice vs. the Bishop of Durham, 11 Ves. 57, Lord Eldon, after animadverting upon the decision of Lord Commissioner Ashhurst, in Watson vs. Birch, 2 Ves. Jr. 51, said:
"That the only case in which the biddings can be opened, after confirmation of the report, is, where there is some fraud or misconduct in the purchaser, or fraudulent negligence in another person, as the agent, of which it is against [**36]  conscience that the purchaser should take advantage." White vs. Wilson, 14 Ves. 151.
It cannot be pretended in this case, that the mistake, of which the appellee complains, is to be attributed to the conduct of the creditor, the trustees, the vendee, or their agents, and upon the doctrine enunciated in the cases to which we 

 [*289]  have referred, the purchaser is not to be treated as accountable for the consequences of the alleged mistake, however injuriously it may have operated upon the sale.
But what is the nature and origin of this alleged mistake? Mr. Stewart in his answer to the petition of the appellee, states:
"That he believes sufficient notice was given of the sale, which was by public advertisement, but he believes also, that there was a general impression among persons who might otherwise have been disposed to attend the sale, that some arrangement would be made, and that the sale would not proceed. How this impression originated he cannot say, but it seemed to be a prevailing and accredited impression."
How the impression to which the trustee refers, arose, or by whom it was propagated, is not distinctly disclosed by the testimony in the cause.  [**37]  But when it is recollected, that the exceptant, at the time he solicited the intercession of Mr. Swann with the creditor, for the purpose of arresting the progress of the sale, stated, "that until within half an hour of the sale, he had confidently expected to procure the money," the inference is legitimate, that the impression, mentioned by the trustee, "that some arrangement would be made, and that the sale would not proceed," was generated by the debtor himself, under the hope, sincerely and honestly entertained, that he would be able before the sale to raise a sum, sufficient for the payment of the mortgaged debt, and that in this way the sale would be arrested.
At all events it is difficult to believe under the circumstances of the case, that this impression in the community to which Mr. Stewart refers, was not known to the exceptant. If so, it was his plain and imperative duty to have communicated its existence to the trustees, that they might have guarded the sale against its influence, and an act of such remissness and negligence on the part of the debtor, would be regarded, irrespective of other considerations, as presenting an insuperable obstacle, to the interposition [**38]  of a court of equity.
It was indeed contended by the counsel for the appellee, that the knowledge of this impression was in the possession of 

 [*290]  one of the trustees, prior to the day of sale, and that he was obnoxious to the charge of a gross dereliction of official duty, by not adopting in connection with his co-trustee, such means as might be necessary to disabuse the public mind of this error, before the property was exhibited at public auction. But there is no foundation for this imputation. It is perfectly apparent on a fair construction of the answer of Mr. Stewart, that the information referred to, was not acquired by him until after the sale.
The third objection is in the following words: "Because there was no attendance of bidders at the said sale, and no competition, in consequence of which the said property was sold far below its value." This exception literally interpreted is of course in conflict with the undisputed facts in the cause, but the point of the objection is, that in consequence of the impression before referred to, with respect to the arrangement of this debt, and the arrestation of the sale, the sale was depressed, and competition prevented.  [**39]  
We have already seen, that the appellant is not to be considered as responsible for any injurious consequences, which may have resulted from the prevalence of this mistake.
But is it true, as maintained by the counsel for the appellee, that competition was hindered, and that persons disposed to become the purchasers of this property, were discouraged from bidding by a mistaken impression, that the sale would not proceed?
We think not. Mr. Boyd, certainly, was not detained from the sale, from any misapprehension of this kind. Notwithstanding he was informed by notice in the newspapers, that the sale was appointed for the 21st of April, he declined to attend, upon information derived entirely from those who lived in the vicinity of the appellee, that the sale would be postponed for one month. And upon this intelligence he acted, without seeking to be correctly informed upon the subject, by reference either to the debtor, or to the trustees. It is scarcely necessary to say, that to disturb a fair sale upon a ground like this, would be without precedent, and of the most mischievous tendency. 

 [*291]  The absence of this gentleman from the sale, was obviously the result of his [**40]  own remissness.
It appears from the testimony in the cause, that among the persons assembled at this sale, there was at least one of those gentlemen designated by the exceptant as disposed to become the purchaser of the property, at a larger price than that which was obtained for it.
Why, then, were there not more bidders?
The auctioneer after consulting with the trustee, announced his determination not to sell the property, unless forty dollars an acre was offered for it. This communication was calculated to stimulate competition. It was an annunciation that the sale was not formal,--that it would proceed,--and apprised those interested in the purchase, that it would be sold at forty dollars an acre, unless more was bid for it. The auctioneer states, that he paused upon the bid of Mr. Gittings, "longer than he ought to have done, under the hope of getting an advance." And yet there was no proposition of an advance upon that bid.
Under such circumstances, it is difficult to resist the inference, either that the property was not considered as intrinsically worth more than the sum offered for it by the agent of the appellant, or that there was an invincible repugnance to purchase [**41]  this estate, in opposition to the wishes of the debtor. The testimony of one of the witnesses on this point, is exceedingly significant. He says, "that he does not know the property, but if there had been no contention, and he could have obtained peaceable possession, he would have given for it fifty dollars per acre."
The last objection raises the question with respect to the alleged inadequacy of the auction price, at which this property was sold.
The testimony on the question of value, in this case, is chiefly composed of the opinions of witnesses, familiar with the property. But nothing can be more precarious and uncertain as a standard of value, than that created by these diversified and speculative opinions. Each opinion is constituted of different elements, depending upon the taste, habits, pursuits, and feelings of the witness.

 [*292]  The English practice of opening the biddings as a matter of course, before the ratification of the master's, report has not been adopted in Maryland. We have said in a former case, that it is not expedient to introduce it here. But if the biddings are to be opened, there is wisdom in the English rule, acted upon in [**42]  the chancery courts of New York, which provides, that a resale shall not be ordered, unless there is an actual advance upon the original bid.
The true test of value in these applications is to be found in the inquiry, with respect to the sum which the property would produce in the market upon a resale, and on this subject we have no reliable information, as there has been no proposition of an advance on the sum bid for this estate by Mr. Gittings.
It is however not necessary to pursue this inquiry. We are perfectly satisfied, that according to the doctrine now settled by an unbroken series of adjudged cases, that assuming this property to be worth the sum of twenty thousand dollars, the estimate placed on it by the exceptant, but to which we do not accede, the court would not be authorised to vacate the sale, upon the single ground that the consideration was inadequate.
In the case of Duncan against Dodd, 2 Paige Ch. 99, the property sold at a master's sale for half its value. A resale was ordered on the condition that the petitioner gave sufficient surety to the master, that the premises should produce an advance of fifty per cent. And in this strong [**43]  case the chancellor placed his decree upon the ground, that the property was the only dependance of two infant children, and that it was sacrificed through the misapprehension, or negligence, of their mother, or step-father.
After stating, that in such sales, it is essential to the interests of those whose property is sold, that purchasers should continue to retain full confidence in the safety of such purchases, and that they will not, as matter of course, be disturbed merely because a good bargain has not been obtained:--The chancellor said:
"If the defendants were adults, and the property had been sacrificed by their own negligence or inattention, I should not disturb the sale."

 [*293]  In the case of the American Insurance Company vs. Oakley, 9 Paige Ch. 259, the property, consisting of two lots, was sold together, for the sum of $ 21,000, when, as the affidavits in support of the application stated, "the premises were worth, and would have brought, $ 10,000 more, if the same had been sold in parcels."
On this ground the sale was rescinded. But the chancellor said:
"If the premises had been put up and sold in parcels, I think it is not a case in which [**44]  the court ought to have interfered with the sale, although the property was only sold for about two-thirds of its supposed value. **** If the property is duly advertised and fairly sold by the master, in the usual manner, to a stranger to the suit, mere inadequacy of price is not a sufficient ground for depriving the vendee of the benefit of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale."
In Williamson vs. Dale, 3 Johns. Ch. 290, the mortgaged premises were bid off at $ 2700, subject to a prior mortgage for the same amount; and the petitioners for a resale, stated the value of the property to be more than $ 12,000.
This sale was vacated on the ground of surprise. And Chancellor Kent, in pronouncing his decree, said:
"I wish to be distinctly understood, that I interfere on the ground of surprise, and that I do not lay any stress upon the alleged inadequacy of the auction price. Such a ground, unattended with other circumstances, is insufficient."
In the case of Cohen against Wagner, (6 Gill 97,) decided by the Court of Appeals, at the December term 1847, the property was purchased for [**45]  $ 13,000; and the exceptant, in his application for a resale, averred, that the property was worth $ 20,000. The application was rejected by the court, and on the question of the alleged inadequacy of the auction price, they said:
"Under the third exception a third ground is relied on, for withholding the ratification of the sale, for $ 13,000, of property alleged to be well worth fifteen or twenty thousand dollars, or more. From the views entertained of the effect which would 

 [*294]  result from the asserted inadequacy of price, if it, in truth, existed, it is deemed unnecessary to inquire, whether the assertion be sustained by proof? The practice of opening the biddings in chancery sales, upon the mere offering of an advance upon the purchaser's bid, has not been adopted in Maryland; and its non-adoption is founded on cogent reasons of justice and policy. The doctrine, that mere inadequacy of price in a chancery sale, where the sale has been made conformably to the powers and directions specified in the decree, is not of itself sufficient ground for vacating the sale, has been so frequently announced by the judicial tribunals of this State, that a special reference to authorities,  [**46]  to sustain it, is deemed unnecessary. A sale thus made will not be set aside, or its ratification refused, unless the court believe that such inadequacy was the result of fraud, surprise, mistake or unfairness in the sale." And in the concluding paragraph of the opinion, the court announce the principle, that to set aside a sale, upon the ground of mere inadequacy of price:
"It must be so gross and inordinate, as to furnish evidence of misconduct or fraud in the trustee."
This, unquestionably, is the sound and correct doctrine upon this subject. It is certainly true, that inadequacy of price is to be regarded as a strong auxiliary argument, in combination with circumstances calculated to cast doubt or suspicion upon the correctness of a sale. But standing alone, as it does in this case, it is insufficient to authorise an interference with the sale, unless, in the language of the court, in Cohen against Wagner, it is so inordinate, as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud in the trustee, to whom the management of the sale has been committed.
In the answer of Mr. Mayer, one of the trustees, to the [**47]  petition of the exceptant, he states: "That the sale was appointed positively to take place, after at least one postponement, and considerable delay on the creditor's part, and that he found on the day of the sale, that the creditor was peremptorily resolved on having a sale made, and he felt himself under a peculiarly strict obligation to effect a sale, even at a price materially beneath 

 [*295]  his estimate of the worth of the property. With this persuasion of his duty, and under the pressure of such a requirement, however painful the position, or the act, he allowed the estate to be struck off at the price of forty dollars per acre, as the highest bid, although, if left to his own discretion, and to conform to what he deemed the reasonable valuation of the property, he would not, he believes, have allowed it to be sold for a less price than sixty dollars per acre, that even being less than he deemed it actually worth."
And this paper has been relied on by the counsel for the appellee as evidence, that in prescribing the terms upon which this sale was to be made, the trustee permitted his own judgment and discretion to be controlled by the creditor. It was exhibited in strong [**48]  language to the court, as a written confession of indiscretion and misconduct in the trustee, which, if not mitigated by the consideration, that he acted under a gross misconception of his duty, would be regarded as amounting almost to official turpitude.
But we do not think that the conduct of the trustee is susceptible of this construction.
It appears that this debt was of long standing. That the property had been before twice advertised for sale, the last time on the 15th of October 1846. It is in proof, that on the last occasion the sale was postponed by the creditor, at the solicitation of the appellee, and upon his promise that the debt should be paid in six months, and under an assurance from Mr. Donaldson, that if the matter was not then settled, the property would be sold. And we are informed by one of the trustees, that it was within his particular knowledge, that the postponement of the sale advertised to take place, of Thursday, the 15th of October 1846, was assented to by the creditor, upon the undertaking of the petitioner, that no further delay should be asked.
The right of the creditor, under such circumstances, to demand that the property should be offered for [**49]  sale at public auction, cannot be questioned. A refusal on the part of the trustee to comply with so reasonable a request, would have subjected him to detrusion from his office by the court who appointed him.

 [*296]  But in yielding to the requirements of the creditor, he reserved to himself the privilege, which he undoubtedly possessed, of guarding this property from sacrifice, by fixing a limit below which it was not to be sold. And it is a mistake to suppose, that the trustee, in limiting his minimum price at forty dollars an acre, submitted himself to the rule and will of the creditor. His answer does not justify such a conclusion, and in this act we can perceive no manifestation of either misconduct or unfairness. It would be an extraordinary proposition to maintain, that on a sale like this, it was the duty of the to have designated a sum equal to the maximum value of the property, as the lowest price at which it should be sold. In Cohen vs. Wagner, where the sale was upheld, the minimum price fixed by the trustee was $ 12,500, in relation to property asserted to be worth $ 20,000.
It follows from the views thus expressed, that we think the judge below erred [**50]  in setting aside this sale, and his order is therefore reversed.
ORDER REVERSED.  

13 of 29 DOCUMENTS 

THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE UNITED STATES, vs. THE MERCHANTS BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 415; 1848 Md. LEXIS 55 

December, 1848, Decided 

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

This was an attachment issued by the appellee against the appellants, on the 11th of September 1841, and laid upon certain real estate of the defendant, lying in the city of Baltimore. The facts and pleadings in the case are fully stated, both in the opinion of this court, and of the court below, delivered at January term 1848, by his honor, JUDGE LE GRAND.

This proceeding, commenced by an attachment, which was issued at the instance of the plaintiff, on the 11th september 1841, to recover the sum of $ 151,342,72. On the 24th September the attachment was laid on certain real estate. At the following January term, being the first appearance term, there being no appearance, there was a judgment nisi. On the 25th January, under the 5th section of the act of the Assembly of 1832, ch. 280, the defendants appeared by their counsel; and on the 29th of April 1842, plaintiff filed its declaration, to which defendants on the same day filed their plea of non assumpsit. Afterwards, on the 10th June, defendants, under leave of the court, filed an amended plea, in which it is alleged the plaintiff ought not to maintain its action, inasmuch as the plaintiff,  [**2]  after the day of the issuing forth of the writ in this cause, that is to say, on the 31st day of March 1836, in a certain court of record, called the district court for the city and county of Philadelphia, in the State of Pennsylvania, impleaded the said defendant in a plea of trespass on the case, &c., for not performing the same identical promises and undertakings, and each and every of them in the declaration mentioned, and that such proceedings were thereupon had in said court in that plea; that afterwards, to wit, on the 23rd day of April 1842, the plaintiff, by the consideration and judgment of the said court, recovered on the said plea against the said defendants, $ 159,676.20, for its damages which it had sustained on occasion of the not performing the same identical promises and undertakings in the said declaration mentioned. That the said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void. Wherefore the defendants pray judgment, if the plaintiff ought to maintain its aforesaid action. To this plea there was a general demurrer filed on the 20th June 1842; and it is the questions arising under this demurrer, which the court is [**3]  now called upon to determine, and they are, as presented by counsel:

1. What is the effect, within this State, of a judgment rendered in a sister State?

2. What is the nature of the appearance of the defendants under the act of 1832, ch. 280?

3. What is the nature of the plea of defendants?

The first of these questions arises out of the first section of the 4th article of the Constitution of the United States, which provides, that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

In execution of this constitutional authority, Congress, on the 26th May 1790, provided, by enactment, the mode of authentication, and that "the records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given them, in every court within the United States, as they have, by law or usage, in the courts of the State from whence the said records are or shall be taken."

With perfect safety it may be observed, that there is no clause [**4]  in the federal constitution, the true scope and meaning of which has given rise to greater diversity of opinion, than has this one. It has passed under judicial review in almost every State in the Union, and it was found impossible to reconcile the various opinions held by learned jurists in regard to it. In the year 1813, it was considered by the Supreme Court of the United States, in the celebrated case of Mills vs. Duryee, reported in 7th Cranch, 481. In that case it was held, whatever effect the record would have in the State from whence it is taken, it must have the same faith, credit and effect in every other court, so that if it have the faith, credit and effect of evidence of the highest nature in the court from whence it is taken, it must have precisely the same faith, credit and effect in every other court in the Union.

With every disposition on the part of the several courts of the Union to comply with the doctrine laid down in that case, still, judging from the contrariety in the decisions of the several courts, and the subsequent decisions of the Supreme Court of the United States, the doctrine, in many instances, has been wholly misconstrued. In some cases it was [**5]  held to have established the principle, that the judgment of a State court carries with it, into every State, all its original attributes, energies and incidents, clothed with the authority of the laws under which it was pronounced, and that in relation to judicial proceedings, in no particular are the States to be considered as foreign to each other, and therefore no plea, other than that of nul tiel record would be allowed to an action on a judgment rendered in a sister State. And in support of this view, the case of Hampton vs. McConnell, 3 Wheaton, 234, has also been relied upon. In this case, the court re-asserted the doctrine to be, "that the judgment of a State court should have the same credit, validity and effect in every other court in the United States which it had in the State where it was pronounced, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court in the United States."

This decision was made in the year of 1818. In the year of 1839, the question was again brought under review of the Supreme court, in the case of McElmoyle vs. Cohen, 13 Pets., 312, in which it was held, that although [**6]  a judgment in the court of a State, is not to be regarded in the courts of her sister States as a foreign judgment, or as merely prima facie evidence of a debt to sustain an action of debt upon the judgment, it is to be considered only distinguishable from a foreign judgment in this; that by the first section of the fourth article of the Constitution, and by the act of May 26th, 1790, sect. 1, the judgment is conclusive on the merits, to which full faith and credit shall be given, when authenticated as the act of Congress has prescribed. It was also held, that there is no constitutional inhibition on the States, nor any clause in the Constitution from which it can be even plausibly inferred, that the States may not legislate upon the remedy on suits on the judgments of other States, exclusive of all interference with their merits; and, in accordance with these views, the court decided the plea of limitations, in an action instituted in one State on a judgment obtained in another State, to be a plea to the remedy, and consequently the lex fori must prevail in such a suit.

The late Justice Story, in his admirable Commentaries on the Conflict of Laws, sec. 609, deduces from all these [**7]  decisions, this doctrine: "By the Constitution of the United States," says he, "it is declared, that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And Congress, in pursuance of the power given them by the Constitution, in a succeeding clause, have declared that the judgments of State courts shall have the same faith and credit in other States, as they have in the State where they are rendered. They are, therefore, put upon the same footing as domestic judgments. But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered, to pronounce the judgment, nor an inquiry into the right of the State to exercise authority over the parties or the subject matter, nor an inquiry, whether the judgment is founded in and impeachable for, a manifest fraud. The Constitution did not mean to confer any new power upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States, domestic judgments to all intents and purposes; but only to give a general validity,  [**8]  faith and credit to them, as evidence. No execution can issue upon such judgments, without a new suit in the tribunals of other States. And they enjoy not the right of priority, or privilege, or lien, which they have in the State where they are pronounced, but that only which the lex fori gives them by its own laws, in their character of foreign judgments."

The view of Justice Story is sustained by the case of Cameron vs. The Adm'r of Wurtz, 4 McCord's Rep., 278, a case recognised with approbation by the Supreme Court of the United States, in the case of McElmoyle vs. Cohen, and also by our own Court of Appeals, in the case of Brengle vs McClellan, 7 Gill and Johns., 434.

The doctrine obligatory on us, on this subject, is undoubtedly contained in the authorities to which I have referred, and, if I rightly comprehend it, it is this:--By the first section of the fourth article of the Constitution of the United States, and the act of Congress of the 26th May 1790, it was intended, that the judgments of a State court should have to a certain extent, the character and validity of a domestic judgment, in every other State court in the Union. That is to say, they should have the [**9]  same faith, credit and validity, as in the State where they were rendered, so far as their existence and their conclusiveness on the merits of the original cause of action is concerned, and, therefore, not to be impeached, except on the ground of a want of jurisdiction, or of fraud. But, beyond this, they are to be considered as foreign judgments, and to be dealt with accordingly.

If this be the true doctrine, then there can be no difficulty in understanding several of the decisions cited in argument. The case in 13 Peters, 312, the one in 4th McCord, 278, and the case of Brengle vs. McClellan, 7th Gill & John., 434. All these cases, in my apprehension, are decided on the ground, that the constitutional provision and the act of Congress, only render the judgments of sister States domestic judgments, so far as their existence as judgments of the State rendering them, and their conclusiveness on the merits, are concerned.

And this being so, it necessarily follows, that in the distribution of assets, the lex fori must govern, for it prescribes the remedy, and as there is no constitutional inhibition on the States in regard to the remedy, and no legislation in this [**10]  State in regard to it, the lex fori is ascertainable only from the principles of the common law. That is to say, in the absence of any legislative enactment on the subject, (except for the purposes already indicated,) the rank and character in this State, of a judgment rendered in a sister State, is that affixed to foreign judgments by the common law. It is confidently believed, that these views are fully sustained by the latest decision of the Supreme Court of the United States, on the subject. In that case, (McElmoyle vs. Cohen, 13 Peters, 312,) it was held, that although by the act of Congress of 1790, judgments rendered in a sister State are made debts of record, yet they do "not carry with them into another State, the efficiency of a judgment upon property or persons, to be enforced by execution," "and that to give them the force of judgments in another State, they must be made judgments there," and that judgments out of the State in which they are rendered, are only evidence in a sister State, that the subject matter of the suit has become a record, which cannot be avoided but by the plea of nul tiel record. It was moreover held, that such judgments have not the [**11]  force of domestic judgments, beyond the jurisdiction declaring them to be judgments, but are only domestic judgments as to the merits of the claim, or subject matter of the suit. It was also decided, that such judgments, in States other than the one where they were rendered, do not take precedence of simple contract debts, unless they have assigned to them such precedence by the local law of such other States.

It is supposed, and it has been very ably argued to that effect by the counsel for the defendant, that the Supreme court, in deciding such judgments to have no precedence of simple contract debts, rested their decision in this regard, wholly on the supposed intention of the legislature of Georgia, as expressed in its enactment. To my mind it is clear, the court meant to assert the principle independently, of all legislation of the State, and to rest it for support on the principles of the common law. The doctrine and reasoning of the case of Cameron vs. Adm'r of Wurtz, 4 McCord, 278, are both adopted, and the court observe, in speaking of that decision, that it was "correctly placed upon the footing, that the first section of the fourth article of the Constitution [**12]  has effected no change in the nature of a judgment;" and if possible to prevent misapprehension, the court go on to observe, that if this case had not been before them, and the point had been then presented as an original question, they would have come to the same conclusion. And this seems to be the view taken by our Court of Appeals, in the case of Brengle vs. McClellan, 7 Gill & Johns., 443, where it is said, a judgment obtained in another State, "can rank only as a simple contract claim in the distribution of assets; the conclusive effect given to it by the Constitution and act of Congress, as a judgment not operating to place it upon an equal footing with a judgment obtained in Maryland, in the distribution of assets, but leaving it in this respect to the operation of common law principles, according to which it would be considered a foreign judgment, and be paid as a simple contract debt."

Now if it be true that neither the constitution nor the act of the 26th of May 1790, effected any change in the nature of the judgment, then it follows as a necessary consequence, that its character is precisely the same as though the Constitution had been silent on the subject.  [**13]  And this being so, the question is, in what light are foreign judgments viewed? There can be no doubt on this subject. They have always been considered in the light of simple contracts, and being so regarded, they cannot be held to merge the original cause of action, for it is of equal dignity. Indeed, the whole doctrine of merger proceeds on the idea, that the simple contract has been merged in one of a higher dignity and grade. To use the language of Chief Justice Tindall, in Smith vs. Nicholls, 35 Eng. C. L., 94, "the ground on which a plea of judgment recovered, bars the plaintiff from any further action, is, that the original nature of the debt, or damage, where it may be sought to be recovered, is changed; that he has a higher remedy: he has a judgment in a court of record on which he can issue an execution."

Now let us test this case by these principles, for the purpose of ascertaining whether there is any merger because of the judgment rendered in Philadelphia. Ch. Justice Tindall tells us that this takes place because "the original nature of the debt, or damage, where it may be sought to be recovered, is changed;" and the Supreme Court of the United States [**14]  have decided, that the Constitution "has effected no change in the nature of the judgment," adopting the language of 4 McCord, 278, which is, that beyond the limits of the State where it is rendered, it is regarded but as a simple contract. From this it is clear, there is no change in the nature of the original cause of action, and therefore there can be no merger. Again Chief Justice Tindall tells us, that merger takes place, because the party "has a higher remedy, he has a judgment in a court of record on which he can issue an execution."

The Supreme Court of the United States, both in the case of Mills vs. Duryee, 7 Cranch, and the case of McElmoyle vs. Cohen, tell us, that a judgment rendered in a sister State, is not such a judgment as one on which an execution may issue in a different State.

From this examination of the nature of a judgment rendered in a sister State, and what is necessary to work a merger, it must be apparent, that the judgment in Philadelphia does not work an extinguishment or merger of the original cause of action, which is the ground work of this case. And this view is fully and most distinctly taken in numerous cases.

In the case [**15]  of Smith vs. Nicholls, 35 Eng. C. L., 94, it is expressly decided, that a foreign judgment, (and I have shewn this to be such, in the attitude in which it is presented to us,) is nothing more than an agreement between the parties, to the extent of the debt or damage; and Judge Parsons, in the case of Bissell vs. Briggs, 9 Mass. R., 462, (a case recognized with the highest approbation by the Supreme Court of the State of New York, in 5 Wendall, 155,) says that such judgments, i. e., judgments of sister States, may be declared on "as evidence of debt or promises," thus showing that the original nature of the cause of action is not merged in the judgment.

But it is said, admitting this to be so, still the plea is good and the judgment a conclusive bar to this action, because it is used defensively.

It is undoubtedly true, that a distinction has been taken between suits brought to enforce a foreign judgment, and a suit brought against a party, who sets up such judgment as a defence to the suit. In the former, it is held, that no sovereign is bound to enforce a foreign judgment; but it is otherwise, where the defendant sets up a foreign judgment as a [**16]  bar to proceedings. Story's Conflict of Laws, sec. 598.

But does this case come within this rule? Is not what is meant by setting up a foreign judgment as a bar to the suit, the pleading of such foreign judgment as shows that the right has been decided to be with the defendant, or such an one as shows that he is exonerated from all liability? In such a case the matter is res judicata, and ought to be received as conclusive evidence of right. But this is not such a case; here, the judgment plead does not establish the right to be with the defendants, but with the plaintiff, it being nothing more, to use the language of Chief Justice Tindall, than an ascertainment of the amount of the debt, and as it does not merge that, by giving a higher remedy, it can be no bar to the action. This is precisely the doctrine asserted in Smith vs. Nicholls and in Hall vs. Odber, 11 East., 118.

Entertaining these views, it is not necessary I should consider at length the other questions raised in the case. I shall therefore merely remark, that the construction which I place on the 5th sec. of the act of Assembly of 1832, chapter 280, is, that the appearance authorized by it is, that the defendant [**17]  appears both to the capias and the attachment, the attachment not, however, being dissolved by the appearance, but remaining as a security; that it is impossible to obtain a judgment, after appearance in the attachment, without also obtaining a judgment in the other action, the one which commences with the capias.

As regards the matter pleaded, I think, independently of the principles of pleading, our Court of Appeals have decided it should have been pleaded puis darrein continuance, if it be a defence at all. 2 Harris and Gill, 491, and 12 Gill & Johns., 361. Moreover, I think it should have been pleaded in abatement, inasmuch as it does not show an absence of all cause of action; but goes upon the idea that the original cause of action is merged in the judgment, and that the remedy is on the judgment, and not on the original cause of action; and further, had the commencement and conclusion of the plea been those of a plea in abatement, instead of those of a plea in bar, as they are, it would have been bad on general demurrer, because it is not verified by affidavit, as is required by the 4th and 5th Anne, chap. 16. Such a plea may be treated as a nullity. 1 John. Cases, 397. [**18]  16 John. R., 307. 2 Dallas, 184.

Had the judgment merged the original cause of action, and had it been pleaded in abatement, it could have been verified by the affidavit of counsel. Lumly vs. Foster, Barnes, 334. 1 Bacon's Abridgment, Abatement, "O.," 33. Same Rep., 348, or it might have been exemplified by a record under the seal of the court, and authenticated under the act of Congress. 4 Halstead, 83.

Entertaining these views, judgment will be entered on the demurrer for plaintiff."

And thereupon, judgment on demurrer for the plaintiff was entered on the 26th of February 1846, for $ 300,000, damages and costs, to be released on payment of $ 196, 481.54, with interest from the 26th February 1846, and costs. From this judgment the defendants appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND PROCENDENDO AWARDED.  

HEADNOTES:

A suit was commenced, by an attachment, issued on the 11th of September 1841. The plaintiff filed a declaration in assumpsit on the 29th of April 1842, to which the defendants, on the same day, pleaded non assumpsit, and on the 10th of June 1842, under leave to amend, they pleaded, that the plaintiff ought not further to maintain its action, because the plaintiff, on the 23rd of April 1842, had recovered a judgment against the defendants in the district court for the city and county of Philadelphia, in the State of Pennsylvania, for the same cause of action, in a suit commenced in said court since the issuing of the original writ in this case, which judgment remains unreversed, and in full force and effect. HELD:

That this defence was directed against the right of the plaintiff to recover in the form of action adopted by it, and could not be pleaded in abatement, puis darrein continuance, but was properly interposed as a special plea, in bar to the further maintenance of the action.

It is not the priority in the commencement of one action that renders the judgment obtained therein, a bar to the recovery of a second judgment in another, but because the first judgment when given, whether in the action commenced first or last, extinguishes the original cause of action, and gives to the plaintiff in lien thereof one of a higher nature.

The pendency of another suit must be pleaded in abatement, but the plea of a judgment recovered, is not matter in abatement. It does not go to the form of the remedy, but to the right of the plaintiff.

The pendency of a prior suit for the same cause of action will abate a subsequent suit, but the converse of this is not true; the first suit will not be abated by the plea of another suit afterwards commenced, for the same cause of action.

If the matter presented by this plea had been, the pendency of a suit in another State for the same cause of action, it should have been pleaded in abatement, and verified by affidavit or supported by an exhibition of the record, and the proper place for such a plea would have been in the Pennsylvania suit.

Where matter of defence arises after the commencement of a suit, it cannot be pleaded in bar of the action generally; it must, if it arises before plea or continuance, be pleaded as to the further maintenance of the suit, if after issue joined, puis darrein continuance.

The right to assail a judgment, on the ground that the court pronouncing it had no jurisdiction of the subject or the parties, is undoubted, with respect both to domestic and foreign judgments.

But it is an acknowledged and fixed principle of universal obligation, resulting from the comity, and respect due from one judicial tribunal to another, that a judgment of a court of record of a sister State, is in itself prima facie evidence of jurisdiction; and it is not necessary for the party pleading such judgment, to set out affirmatively in his plea, the jurisdiction and facts upon which the power and authority of the court pronouncing the judgment depend.

At common law, the original cause of action is extinguished or merged by a judgment, which is conclusive evidence of indebtment between the parties, and final, unless reversed, with respect to the subject matter adjudicated; and in the absence of proof of any statutory modification of this principle, it must be assumed, that such is the legal effect of the judgments of their courts in the State of Pennsylvania.

The principles deducible from the authorities in regard to the construction of the 1st sec. of the 4th article of the Constitution of the United States, and the act of Congress of 1790, are:

1st. That if the judgment of the district court for the city and county of Philadelphia, pleaded in this case, would be regarded by the courts of Pennsylvania, as conclusive evidence of the existence of a debt due by the appellants to the appellee, it is so to be considered by the courts of this State.

2nd. That the original cause of action was extinguished by the judgment of that court; and

3rd. That an action of assumpsit cannot be maintained on the original demand.

The cases of Brengle vs. McClellan, 7 G. & J., 434; McElmore vs. Cohen, 13 Pet., 330; and Cameron vs. Wurtz, 4 McCord, 278, deciding, that the act of Congress of 1790, does not invest judgments of the States of the Union with a general extra-territorial operation, are not in conflict with the doctrines of this case.

The 5th sec. of the act of 1832, ch. 280, authorising a corporate body to appear to an attachment and contest the claim of the plaintiff, by "pleading or otherwise," clearly gave the right to the appellants to file the plea interposed by them in this case.

A plea which would be regarded as an answer to an action of assumpsit, if unaccompanied by an attachment, must be treated as valid, notwithstanding the controversy originated in a proceeding of that kind.  

COUNSEL:
By MEREDITH for the appellants, and

By MCMAHON and BROWN for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*426]  MARTIN, J., delivered the opinion of this court.
In this case an attachment on warrant was issued out of Baltimore county court, at the instance of the appellee,  [**19]  against the appellants on the 11th of September 1841, to recover the sum of $ 151,342.72, alleged to be due, upon an account stated, for money lent and advanced, and for money had and received.
The attachment was laid on certain real estate, in the city of Baltimore. And it appears from the record, that although the attachment was not dissolved by the execution of an approved bond, as required by the provisions of the act of Assembly, of 1832, ch. 280, yet the defendants, in pursuance of the privilege secured to them, by the fifth section of that act, appeared to the capias on the 26th of January 1842, for the purpose of contesting the plaintiff's claim.
On the 29th of April 1842, a declaration, in assumpsit, was filed by the plaintiff, to which, on the same day, the defendants filed their plea of non-assumpsit.
At the May term, leave was granted by the court to amend this plea, and on the 10th of June 1842, the defendants filed a special plea in bar, against the further maintenance of the action, in which they aver:
"That the plaintiff ought not to maintain its action, inasmuch as the plaintiff, after the day of issuing forth the writ in this cause, that is to [**20]  say, on the 31st day of March 1842, in a certain court of record, called the district court for the city and county of Philadelphia, in the State of Pennsylvania, impleaded the said defendants, in a plea of trespass on the case, for the not performing the same identical promises and undertakings, and each and every of them, in the declaration mentioned 

 [*427]  That afterwards, to wit, on the 23rd day of April, 1842, the plaintiff, by the consideration and judgment of the said court, recovered on the said plea, against the said defendants, $ 159,676.20, for its damages, which it had sustained on the occasion of the not performing the same identical promises and undertakings, in the declaration mentioned. And that the said judgment still remains in full force and effect, and not the least reversed, satisfied, or made void."
To this plea, a general demurrer was filed, on the 20th of June 1842. The demurrer was sustained by the county court, and the sole question presented for our consideration upon this appeal, is, that which relates to the validity of the plea, under the circumstances of the case, as exhibited by the record.
In the case of Duffy and Mehaffy, vs. Lytle, 5 Watts 120, [**21]  an action was brought upon a bond, in the district court of Lancaster county, in Pennsylvania. The defendant pleaded in bar, a former recovery for the same cause of action, obtained in a suit instituted subsequent to the action then in controversy. The plea was sustained, and we quote the opinion of the court, as containing a very full, clear, and correct exposition of the rule of pleading directly applicable to the question now under consideration. They say:
"The circumstance of this action, being brought upon the bond, previously to the one in which the judgment was entered, that has been pleaded in bar to the further maintenance in this, does not seem to furnish a sufficient reason, why the plea should not be held good: because, although the priority of an action may be a very good reason, why a judgment for the same cause shall not abate it, and why the first, when pleaded properly, should abate the second, as the plaintiff ought not to be permitted to vex and harass the defendant against his will, with two actions for the same cause; yet it is obvious that it is not the priority in the commencement of the one action, that renders the judgment obtained therein, a bar to [**22]  the plaintiff's obtaining a second judgment in the other; but because the first judgment, when given, whether it be in the action commenced first or last, extinguishes the original cause of action, and gives to the plaintiff, in lieu thereof, one of a higher order. Instead 

 [*428]  then, of the debt, as was the case here, being founded upon a bond, it became immediately upon the rendition of the judgment, though in the last action commenced, a debt of record, that could no longer be controverted. And, hence, the defendant could not, therefore, be said, to stand indebted to the plaintiffs by a bond or speciality, but by a judgment that had become a matter of record, which could not be questioned or denied."
The distinction between the plea of a pending suit, and the plea of a former recovery, was also considered in the case of Nicholl vs. Mason, 21 Wend. 341, by the Supreme Court of New York. The court said;
"The pendency of another suit for the same cause of action, must be pleaded in abatement of a suit subsequently commenced; but the converse of the proposition does not hold true. The original or first suit cannot be abated, by a plea that [**23]  another action for the same cause was afterwards commenced. But this doctrine does not overturn the plea. The defendant does not set up matter in abatement, but in bar of the action. He does not plead the pendency of another suit, but a judgment rendered. The plea does not go to the form of the remedy, but to the right of the plaintiff. It shows that the cause of action, which the plaintiff once had, is gone forever."
In the case of Le Bret vs. Papillon, 4 East 502, it was held:
"That when matter of defence has arisen after the commencement of the action, it could not be pleaded in bar of the action generally, but must, when it has arisen before plea or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after plea, and before replication, or after issue joined, then puis darrien continuance."
And in Semmes vs. Naylor, 12 G. & J. 358, the Court of Appeals declared the rule to be:
"That where the matter of defence has arisen after the commencement of a suit, it cannot be pleaded in bar of the action generally; it must, when it has arisen before plea or continuance, be pleaded as to the further maintenance [**24]  of the suit, and when it has arisen after issue joined, puis darrien continuance."

 [*429]  It is manifest, we think, on the principles enunciated in cases to which we have referred, that the several objections urged against the integrity of this plea; as that, it could not have been interposed, after the jurisdiction of the county court had attached by the issuing of the attachment; that the plea was in its nature, a dilatory plea, and should have been pleaded in abatement, puis darrien continuance, and verified by affidavit, or sustained by a production of the record, must all be overruled.
The plea has all the elements of a special plea in bar, and as its matter was not in esse, at the time the plea was interposed, and when there was filed to it a demurrer, and joinder in demurrer, it could not have been pleaded, puis darrien continuance. It was properly pleaded as a special plea in bar, against the further maintenance of the action. If the matter presented by the plea had been the pendency of a suit in another State, for the same cause of action, as in the Trenton Bank vs. Wallace, 4 Halstead 82, it should have been pleaded in abatement, verified by [**25]  the affidavit of the party, or supported by an exhibition of the record; and the proper place for such a plea, would have been in the Pennsylvania suit. But as we have already said, the plea before us is directed against the right to recover in the form of action adopted by the appellee, and has none of the characteristics, of a plea in abatement. And the defence relied upon by the appellant, was therefore properly introduced as a plea in bar, to the further maintenance of the action.
In the argument of this cause the counsel for the appellee contended, that the plea was to be treated as imperfect, on the ground, that there was on its face no avermement, that the court pronouncing the judgment in question had jurisdiction of the cause, and of the parties. This objection cannot be sustained.
It is certainly true, that unless the court rendering the judgment, had jurisdiction, both of the cause and of the parties, it would be treated as a nullity. It would be considered as merely void, and the party against whom it was used, could, by an appropriate plea, assail it, and put it aside, as utterly ineffectual and powerless. The right to attack a judgment, on the ground that the tribunal [**26]  pronouncing it was not 

 [*430]  invested with jurisdiction and authority; that it was inoperative and void, as being coram non judice, is undoubted, with respect, both to domestic and foreign judgments.
But in this case, the plea avers, that a judgment in personam was rendered by a court of record, styled the district court for the city and county of Philadelphia, in the State of Pennsylvania, in a suit, instituted by the appellee against the appellants, for the identical causes of action forming the subject of the present suit, and that in the said cause, judgment was rendered in favor of the plaintiff, And we consider it as an acknowledged and fixed principle of universal obligation, resulting from the comity and respect which are due from one judicial tribunal to another, that a judgment emanating from a court thus constituted, is in itself prima facie evidence of jurisdiction; and that it is not necessary for the party introducing the judgment to set out affirmatively in his declaration or plea, the jurisdictional facts upon which the power and authority of the court pronouncing the judgment depend.
In the case of Robertson vs. Struth, 5 Adol. & Ellis (N.S.) 942, [**27]  it was held, that in an action of debt, on a foreign judgment, it was not necessary to state in the declaration, that the court rendering the judgment had jurisdiction over the parties and the cause. Mr. Justice Patterson said;
"We presume the judgment of a foreign court is correct; and that if there was any objection to the judgment it should be raised by plea."
In Bissell vs. Briggs, 9 Mass. 462, Chief Justice Parsons, when speaking of the effect of a judgment rendered in New Hampshire, said;
"That where the jurisdiction had attached, which, until disproved, was always to be presumed, the conclusion of the judgment was absolute for all purposes."
In the case of Williams vs. Preston, 3 J.J. Marsh. 600, an action of debt was brought on decree pronounced by a court in Virginia, against the defendant, in rem and in personam.
On demurrer to the declaration it was objected, that it was not shown affirmatively, that the defendant was served with notice of the pendency of the suit against him in Virginia, or 

 [*431]  that he appeared to it, or defended it; and that the decree was void, and could not be the foundation of [**28]  a suit. The declaration was sustained. The court said:
"That it was not necessary to aver in the declaration, that the Virginia court had such jurisdiction, as would authorize it to render any decree, other than one in rem. The comity and respect which are justly due from one State to another, would not allow the court to presume, that the tribunal which pronounced the decree in that case transcended its jurisdiction." In the cases of Wheeler vs. Raymond, 8 Cow. 311, and Scott vs. Coleman, 5 Little 351, the same proposition is recognized and maintained.
The objections which we have thus far examined, are those which relate to the character and structure of the plea.
The question which remains to be considered, is, whether the cause of action upon which this suit was instituted, is to be treated as extinguished by the Pennsylvania judgment, upon the true construction of the first section of the fourth article of the Constitution of the United States, and the act of Congress of the 26th of May 1790.
In the consideration of this question, it is to be assumed in the case before us, that this would have been the legal effect of the judgment in [**29]  the courts of Pennsylvania. The cause of action here declared upon, would have been regarded as merged in the judgment, by the judicial tribunals of that State.
This is the rule of the common law, and we are not informed by the record, that there has been in Pennsylvania any statutory modification of the principles of that law, with respect to the doctrine of merger.
It is an acknowledged and familiar principle of the common law, that the original cause of action is considered as extinguished or merged by a judgment, when the judgment is held to be not merely prima facie, but conclusive evidence of the indebtment between the parties, and final, unless reversed, with respect to the subject matter adjudicated. And although there certainly has existed some diversity and fluctuation of judicial opinion, with respect to the true import of the clause in the Constitution, and the act of Congress, to which we have 

 [*432]  referred, yet we think, that according to the interpretation which has been authoritatively placed upon them, by the Supreme Court, the judgment set forth in the plea, must be regarded as possessing the same operation and effect to which it would be entitled [**30]  in the State of Pennsylvania. That is, that the judgment is to be here estimated in the scale of evidence, as creating a debt of record, conclusive with reference to the subject matter involved in the controversy in which it was rendered; not liable to be controverted or impeached, unless upon the grounds, that it was procured through the instrumentality of fraud, or that the court pronouncing it, was not clothed with competent jurisdiction; and necessarily producing an extinguishment of the original demand, and disabling the plaintiff from instituting upon that claim, an action of indebitatus assumpsit.
This question was considered, for the first time, by the Supreme Court, in the case of Mills vs. Duryee, decided at the February term, 1813, 7 Cranch 481.
It was an action of debt in the circuit court for the District of Columbia, upon a judgment of the Supreme Court of New York, to which the defendant pleaded nil debet.
The plea was adjudged bad. Mr. Justice Story, in delivering the opinion of the court, after quoting the clause of the Constitution in question, and the act of Congress, of the 26th of May 1790, said:
"It is argued, that [**31]  this act provides only for the admission of such records as evidence, but does not declare the effect of such evidence when admitted. This argument cannot be supported. The act declares that the record, duly authenticated, shall have such faith and credit as it has in the State from whence it was taken. If, in such court, it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court. Congress have therefore declared the effect of the record, by declaring what faith and credit shall be given to it. It remains only then to inquire in every case, what is the effect of the judgment in the State where it was rendered."
In the case of Hampton vs. McConnel, decided in 1818, 3 Wheat. 234, we have again the opinion of the Supreme Court, 

 [*433]  delivered by Mr. Chief Justice Marshall, in a case similar in its character, to Mills vs. Duryee.
It was an action of debt on a judgment of the Supreme Court of New York, to which nil debet, was pleaded.
The chief justice said;
"The court cannot distinguish the two cases. The doctrine held in Mills vs. Duryee, was [**32]  that the judgment of a State court, should have the same credit, validity and effect in every other court in the United States, which it had in the place where it was pronounced, and whatever pleas would be good to a suit thereon in such State, and none other, could be pleaded in any court of the United States."
In the case of McElmoyle vs. Cohen, 13 Peters 324, the Supreme Court upon examining the import of the Constitution, and the act of Congress to which we have referred,--Say:
"Though a judgment obtained in a State court is not regarded in the courts of her sister States, as a foreign judgment, or a merely prima facie evidence of a debt to sustain an action upon the judgment, it is to be considered as distinguishable from a foreign judgment in this, that by the first section of the fourth article of the Constitution, and by the act of May 26th, 1790, the judgment is a record conclusive upon the merits, to which full faith and credit shall be given, when authenticated as the act of Congress has prescribed." **** "By the law of the 26th of May 1790, the judgment is made a debt of record, not examinable upon its merits; but it does not carry [**33]  into another State, the efficacy of a judgment upon property or persons, to be enforced by execution."
Again, the court after quoting the act of Congress, ask what faith and credit is given in the States, to the judgment of their courts?
"They are record evidence of a debt, or judgments of record, to be contested only in such way as judgments of record may be; and consequently are conclusive upon the defendant in every State, except for such causes as would be sufficient to set aside the judgment in the courts of the State in which it was rendered. In other words, if a judgment is conclusive in the 

 [*434]  State where it is pronounced, it is equally conclusive every where in the States of the Union."
This point was directly decided by Mr. Justice Washington, a very eminent constitutional jurist, in the United States circuit court, for the third circuit, in the case of Green vs. Sarmiento, 3 Wash. C. C. 17.
The question arose on a plea of bankruptcy, to an action of debt on a judgment of the Mayor's court of New York.
The contract was made in the island of Madeira. The defendant was discharged by the bankrupt law of Teneriffe, in 1801. But [**34]  in 1797, a judgment had been recovered in New York against the defendant, in an action of assumpsit upon this contract.
The validity of the plea rested on the question, whether Teneriffe was to be considered as the place of the contract, notwithstanding the judgment; or, whether the contract, though made at Teneriffe, was not to be regarded by the court as merged by the judgment; and New York, the place of the judgment, to be treated as the place of the contract.
The solution of this question depended on the true interpretation of the Constitution of the United States, and the act of Congress of the 26th of May 1790.
The subject was examined with elaborate care, and great ability, by the judge who delivered the opinion. And the resolution of the court was, that the New York judgment was conclusive, and amounted to a complete extinguishment of the original contract, and that the certificate and discharge of the defendant at Teneriffe, afforded no bar to the plaintiff's demand.
In the case of Andrews vs. Montgomery, 19 Johns. 162, an action of assumpsit was brought upon a judgment recovered against the defendants, in the court [**35]  of common pleas of the county of Essex, in the State of New York.
The point in controversy was presented to the court upon a case stated. And it was ruled by Mr. Chief Justice Spencer, that the judgment was conclusive evidence of the debt claimed, and that an action of assumpsit could not be maintained upon it.

 [*435]  In delivering the opinion of the court, the chief justice, after animadverting upon the case of Hitchcock vs. Aicken, 1 Caine 461, and quoting, with approbation, the case of Mills vs. Duryee, said:
"We are bound to consider the judgment set forth in the declaration, as a debt of record due from the defendants to the plaintiff." ****
"The plaintiff has counted upon the judgment in New York as a simple contract, and, accordingly, it is set forth as a promise to pay the amount adjudicated. Now it is well settled, that assumpsit cannot be supported where there has been an express contract, under seal or of record." ****
"The judgment recovered, (19 Johns. 165,) in New Jersey, being admitted by the pleadings, and standing totally unimpeached, we are bound to consider it as fairly and justly obtained, and as establishing [**36]  a debt of record against the defendant. It is not therefore merely prima facie evidence of a debt, like a foreign judgment, but absolute and decisive of a debt. Assumpsit then will not lie upon it."
We have quoted largely from the prominent cases bearing upon this point, because the proposition submitted for our consideration, involves a question purely of constitutional law, depending upon authority. And we understand the principles deducible from the authorities, are:
1. That if the judgment in controversy would be regarded by the courts of Pennsylvania as conclusive evidence of the existence of a debt due by the appellants to the appellee, it is so to be considered in the courts of this State.
2. The result of this doctrine necessarily is, that the original cause of action was extinguished by the judgment, rendered in the district court for the city and county of Philadelphia, in favor of the appellee against the appellants.
3. And as a corollary from these propositions, that an action of assumpsit could not be maintained upon the original demand.
The case of Brengle vs. McClellan, 7 G. & J. 434, is not to be considered as in conflict with [**37]  this doctrine.
It was there held by the Court of Appeals, that a judgment of the State of Pennsylvania, conclusive between the parties 

 [*436]  in that State, and having priority over bonds, single bills, and simple contract debts in that State, as against the assets of the defendant in the hands of his executor, is considered only as a simple contract debt in the distribution of assets in this State, within the meaning of the act of Assembly of 1798, ch. 101, sub-ch. 8, sec. 17.
A proposition similar in character, was established in McElmoyle vs. Cohen, 13 Peters 330, and in Cameron vs. Wurtz, 4 McCord 278.
The correctness of these adjudications cannot be questioned. But it is perfectly manifest from the course of argument pursued in these opinions, that the doctrine enunciated was placed upon the ground, that the act of Congress of 26th May 1790, was not to be construed as investing the judgments of the States of the Union, with a general extra-territorial operation. The opinion in the case of Brengle vs. McClellan, is long. And we can only, in illustration of the statement, that this was the controlling view in the judgment of the [**38]  Court of Appeals, refer to their language, at page 440. They say:
"The doctrine has never been carried further, than to give to the judgment of another State the same conclusive effect, and obligatory force, in every State in the Union, that it had in the State where it was rendered. To extend the principle further, and to give to it all the latitude contended for in this case, would give to the jurisdiction of our sister States, an extra-territorial operation, and put it in their power to make laws for us, not only without our consent, but contrary to our interior policy, and municipal legislation."
This unquestionably is the correct interpretation of the act of Congress. Whether under the grant of power contained in the first section of the fourth article of the Constitution of the United States, the right resides in Congress to give to the judgments of the sister States, for all purposes, extra-territorial force, is not the question. This power has never been exerted by the national legislature.
And it is now settled, to use the words of the Supreme Court, in McElmoyle vs. Cohen, 13 Peters 325:

 [*437]  "That although by the act of Congress, the judgment [**39]  is made a debt of record, not examinable upon its merits; it does not carry with it, into another State, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another State, it must be made a judgment there; and can only be executed in the latter, as its laws may permit."
And again, at page 326, where it said:
"The judgment is put upon the footing of a domestic judgment; by which is meant, not having the operation and force of a domestic judgment, beyond the jurisdiction declaring it to be a judgment, but a domestic judgment as to the merits of the claim, or subject matter of the suit."
The doctrine of the case of Brengle vs. McClellan has not been controverted; but we do not understand it as impairing the position assumed by the counsel for the appellants, that the original cause of action is to be considered as extinguished by the judgment rendered in Pennsylvania.
On the contrary, the principles announced by the court in that case fortify this position.
It was there held, that if the judgment was conclusive, upon the merits, in the State where it was pronounced, it would be regarded as equally conclusive [**40]  in the Maryland courts.
And if it be true, that the judgment possessed in the State where it was rendered, the attribute of conclusiveness; that it had there the rank and dignity of a debt of record; that it was not re-examinable, and could not be controverted, with respect to the merits of the original demand; that the parties were precluded from going behind the judgment into an investigation of the original cause of action; and that, by the act of Congress of the 26th of May 1790, the same effect is to be attributed to the judgment, by the courts of Maryland, when it is introduced into the tribunals of that State as evidence, or relied upon in pleading, to which it would be entitled in the State where it was pronounced; and that it has all the operation and force in Maryland that could be claimed for it in Pennsylvania, as conclusive, in relation to the merits of the claim and the subject matter of the suit; it follows as an irresistible conclusion 

 [*438]  upon the undoubted principles of the common law, that it must operate here as an extinguishment of the original demand.
We think it therefore to be clear upon the true exposition of the first section of the [**41]  fourth article of the Constitution of the United States, and the act of Congress passed in execution of the power granted by the Constitution, and the doctrine of extinguishment, as established by the common law, that the appellee could not have maintained an action of assumpsit, upon the cause of action exhibited in the record, if the judgment set forth in the plea had been obtained in Pennsylvania, prior to the commencement of the suit. And we have already said, when considering the question of pleading involved in this case, that although the judgment relied upon as extinguishing the original claim, was obtained after the institution of the suit, the defendants were authorized to plead it specially in bar against the further maintenance of the action.
It has been stated, that the appellants appeared to this action, by virtue of the provisions of the fifth section of the act of Assembly of 1832, ch. 280. The language of the section, is:
"That when by virtue of this act, any attachment shall issue against the lands, &c., of any corporate body, the said corporate body may, in cases where a natural person, if defendant, might, by entering special bail to the action, dissolve [**42]  such attachment, dissolve the same by entering into bond with security, for paying and satisfying the judgment that may be rendered against said corporate body in the said cause; and said corporate body may appear in the said case of attachment, and by pleading, and otherwise, contest the claim of the plaintiff, although no dissolution, as aforesaid, shall have taken place; the said attachment however, remaining and continuing in full force and effect, and upon the issues or pleading on the part of the corporate body, judgment on the cause of action may be recovered against the said corporate body, as well as judgment of condemnation in the attachment."
And the counsel for the appellee have contended, that it was not the purpose and aim of the special privilege conferred by this statute, to let in a plea like that which has been pleaded by the appellants.

 [*439]  This position, we think, cannot be sustained. The corporation is authorized by the act to appear to the attachment, and contest the claim of the plaintiff, by pleading or otherwise.
The appellants appeared in this suit, and contested the claim of their adversary by interposing a plea, which, as we have seen, is to be [**43]  characterized as a plea in bar, directed to the foundation of the action; and it would be impossible to deny to the corporation the right of introducing a plea of this character, without interpolating into the statute new terms and provisions.
Under the act of 1832, if a bond is not given by the corporation, the attachment stands as a security for the debt, upon the contingency of the plaintiff obtaining against the defendant a judgment in personam. Barr vs. Perry, 3 Gill 313.
After the appearance of the defendant, two suits are placed upon the docket; and the questions in the action of assumpsit, are to be determined irrespective of the attachment.
A plea which would be regarded as an answer to an action of assumpsit, if unaccompanied by an attachment, must be treated as valid, notwithstanding the controversy originated in a proceeding of that kind. We think, therefore, that the judgment of the county court must be reversed.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  

14 of 29 DOCUMENTS 

ISAAC TYSON vs. THOMAS B. WATTS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 124; 1848 Md. LEXIS 28 

December, 1848, Decided 

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

The bill in this case was filed on the 24th June 1846, by the appellant against the appellee.

The bill alleged, that on the 8th July 1844, Thomas B. Watts entered into a written agreement with Thomas Petherick, of the State of Pennsylvania, which, after reciting that Watts had on his farm at Bare Hills, in Baltimore county, Maryland, copper and other minerals, which he was desirous to have explored and worked, and that Thomas Petherick was willing to undertake such exploration and working, declared, that T. B. W., for, &c., in consideration of one dollar paid to him by T. P., agreed to give to T. P., his heirs and assigns, full power to make such explorations and works on the said farm as he, T. P., might think proper for such purposes, and for the reduction and conversion of the minerals, and to carry away and dispose of the minerals or metals, subject to the following conditions, viz:

"That there should be reserved to Watts, his heirs or assigns, a seignorage of one full fifteenth part or share of all such minerals or metals, after the same should have been rendered fit for smelting, reduction or use, free and clear from all expenses [**2]  whatsoever." "That T. P., his heirs or assigns, should, on or before the 10th July 1845, commence proper explorations, for the purpose of ascertaining the mineral prospects on the said farm. That if the seignorage should be found to be less than the average rate of seignorage, or dues paid to the land owners on the ores raised in the great copper mining district of Cornwall, in England, such seignorage should be increased to such average rates, to be determined by the arbitration of two respectable and competent persons, (one to be chosen by each party,) after they should have made satisfactory enquiries on the subject. That on the 18th June 1845, T. B. W. agreed with T. P., by agreement in writing of that date, to make the proper explorations, for the purpose of ascertaining the mineral prospects on said farm, as provided in the agreement first aforesaid, and within the time therein limited for commencing such explorations, for which T. P. was to pay to Watts thirty dollars; fifteen of which were paid at the time. That the explorations were made according to a plan furnished by T. P., and were completed by said Watts about the 24th July 1845, when he was paid fifteen dollars, which,  [**3]  with ten dollars paid to him on the 16th July, made forty dollars, which he received for his work, besides four dollars and seventy-one cents, paid to him for, &c., connected with said work; that at the time of making the foregoing agreement, T. P. believed that Watts was the owner in fee of the property mentioned therein, and called his farm at Bare Hills; and believed also that the property was unincumbered, and that Watts had good right to enter into the agreement first aforesaid, and authority to carry out the same; but, in point of fact, as P. afterwards discovered, Watts was entitled, when he made said agreement, to the reversion only of the said property, after the life estate of his mother, Lydia Watts, then living thereon, and that his reversionary interest, even, was incumbered by a mortgage, which, &c., to secure, &c. That T. P., although disappointed in his expectations about the said mining privileges, in consequence of his misunderstanding of Watts' title, was nevertheless willing to take from Watts such title as he was able to give, even though the enjoyment of the privileges agreed to be conveyed to him, would be thereby postponed until after the decease of the tenant [**4]  for life. That on the 22nd December 1845, T. P. assigned in writing all his interest in the mining privileges, acquired under the contract aforesaid, to complainant; that complainant purchased from T. P., in good faith, looking forward to the enjoyment of the said privileges after the decease of the tenant for life, and that he accordingly demanded from Watts a conveyance of the said mining privileges, agreed to be by him, Watts, conveyed to T. P., according to the extent of his, Watts', interest therein; but Watts has hitherto refused to make the said conveyance, and affects to treat as a nullity his agreement with T. P. Prayer, for specific performance, and for general relief.

The complainant filed, with his bill, the several contracts and agreements therein referred to, and which, with the answer, are sufficiently stated in the arguments of counsel and opinions of the chancellor, and of this court, post.

At March term 1847, the chancellor, (JOHNSON,) delivered the following opinion:

The bill is for the specific performance of an agreement between the defendant, Thomas B. Watts, and Thomas Petherick, bearing date the 8th July 1844. It recites, that "Watts has on his [**5]  farm at Bare Hills, in Baltimore county, in Maryland, copper and other minerals, which he desires to have properly explored and worked; and that Petherick, residing at Philadelphia, in Pennsylvania, is willing to undertake such exploration and working; and then, in consideration of one dollar paid to him, Watts, by Petherick, he, Watts, his heirs and assigns, agreed to give Petherick, his heirs and assigns, full power to make such explorations and works on the said farm, as he, Petherick, may think proper for such purposes, and for the reduction or conversion of the minerals, and to carry away and dispose of the minerals or metals, subject to the following conditions, viz:

"That the said Watts reserves to himself, his heirs or assigns, a seignorage of one full fifteenth part or share of all such minerals or metals, after the same shall have been rendered fit for smelting, reduction or use, free and clear of all expenses whatever. That said Petherick, his heirs or assigns, shall, on or before the 10th July next, commence proper explorations, for the purpose of ascertaining the mineral prospects on the said farm; that if the seignorage above reserved, be found to be less than the [**6]  average rate of seignorage, or dues paid to the land owners on the ores raised in the great copper mining district of Cornwall, in England, such seignorage, above reserved, shall be increased to such average rate, to be determined by arbitration," &c.

There is then a provision, that Petherick should give references as to his respectability, prior to this contract, as it appears by the date of the paper, to wit, on the 18th of the preceding month of June, the defendant had agreed, for the sum of $ 30, to make for Petherick an excavation to the shaft sunk on the copper ore on the farm, which sum, with some small additional sums, were shown to have been paid, and it appeared by a paper, under the hand and seal of Petherick, dated on the 22nd of December 1844, but acknowledged on the 22nd of December 1845, that he had disposed of his interest under the agreement with the defendant to the plaintiff. The transfer thus signed, sealed and acknowledged by Petherick, and which is written upon the same paper upon which the agreement is written, is in these words: "I hereby acknowledge to have disposed to Isaac Tyson, Jr., of Baltimore, my right and interest under the annexed agreement. Pottsville,  [**7]  Pennsylvania, December 22nd, 1844."

The bill, which seeks the specific execution of this agreement, the rights under which are thus supposed to have become vested in the complainant, alleges, that Petherick, at the time of making the agreement, believed that Watts was the owner of an unincumbered fee-simple-interest in the property mentioned therein, and had a perfect right to make and carry out the contract; but that he afterwards discovered that he was entitled only to the reversion, after life-estate of his mother, then and still living, and that his reversionary interest was incumbered by a mortgage for a considerable sum of money. That Petherick, nevertheless, notwithstanding his disappointment in regard to the title of Watts, was willing to take from him such title as he was able to give, though the enjoyment of the mining privilege would be thereby postponed until after the decease of the tenant for life. That the complainant purchased from Petherick, in good faith, looking forward to the same period for the enjoyment of said privilege, and that he accordingly demanded from Watts a conveyance of the privilege of mining, to the extent of his interest in the property, but [**8]  that Watts refuses to make any conveyance whatever, affecting to treat the agreement as a nullity.

The defendant, in his answer, and in the agreement made by his counsel, rests the relief prayed by this bill upon several grounds:

1st. That all title to a decree for the specific performance of the agreement, has been forfeited by the laches of Petherick, in not commencing mining operations so soon, as by the contract he was required to do, no such operations having been begun at the present time.

2nd. That Petherick is now, and always had been, an unnaturalized foreigner, never having resided in Maryland, and for that reason, incompetent to receive, or transfer to the complainant a title to the lands, or the mining privilege aforesaid.

3rd. That prior to the alleged transfer to the complainant, Petherick had surrendered and abandoned to the defendant whatever rights he acquired under the contract; and that the defendant, on his part, released Petherick from all claims and demands he might have had against him in respect thereof; and that this was known to the complainant at the time he took the said alleged transfer.

4th. That the contract, as now expounded [**9]  by the complainant, is inequitable and unjust, destitute of mutuality and fairness, and as wanting in those qualities which should induce a court of chancery in the proper exercise of that discretion, which the rules and principles, applicable to such cases, give the court over the subject, to decree a specific performance.

An agreement was entered into by the parties, by which a number of letters were admitted in evidence, to have the same effect as if proved under a commission; and it was also admitted, in the same way, that Petherick is not a citizen of the United States, and that he never resided in the State of Maryland.

The chancellor does not consider it necessary to refer particularly to these letters, as, in his opinion, the case must turn upon grounds having no connexion with their contents, and upon which they can shed little or no light.

This, as has been remarked, is a bill for the specific performance of an agreement; and is therefore an application to the sound discretion of the court, which withholds or grants relief, according to the circumstances of each particular case, as it presents itself. The discretion, it is true, is not arbitrary and capricious,  [**10]  but sound and reasonable, adapting itself, and being governed, as far as practicable, by general rules and principles,--when those rules and principles are not in conflict with the justice of the case between the parties. There would seem to be no doubt, that when a court of chancery is called upon to exert its extraordinary jurisdiction, in compelling the specific performance of contracts, though it is not entirely exempt from those general principles of equity, which have been found, by experience, best and most surely to advance the aims and ends of justice, there is, nevertheless, more freedom in its action, than when exercising its ordinary powers. St. John vs. Benedict, 6 John's Ch. R., 111. Seymour vs. Dulancey, Ib., 223. Geiger, et al., vs. Green, 5 Gill Rep., 472. "Unless the court is satisfied, says Chancellor Kent, that the contract is fair and just, and equal in all its parts, and, founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed," and this seems to be the established doctrine upon the subject.

If an agreement is deficient in either fairness, justice, or certainty, its specific [**11]  execution will not be decreed, and hence a stronger case is required on the part of a plaintiff asking a decree, for the specific performance of a contract, than is required of him who resists such decree. 2 Story Eq., sec. 769, 770.

And, in addition to the elements of fairness, justice, and certainty, the agreement must be mutual, before the power of the court, to order its specific performance, can be successfully invoked, and, indeed, it may be well doubted, whether a contract can be considered, in any respect, fair and just, if it be not mutual. "I have no conception, (says Lord Redesdale, in 1 Sch. & Lef., 18,) that a court of equity will decree a specific performance, except where both parties had, by the agreement, a right to compel a specific performance, according to the advantage which they might be supposed to have derived from it."

The Court of Appeals, in the case referred to, of Geiger, et al., vs. Green, 5 Gill, 472, say, "it is established, that unless there is to be found in the contract the essential ingredient of mutuality, a court of equity will not compel its specific execution," and in that case, the bill was dismissed, because [**12]  of the absence of that indispensable ingredient.

The contract upon which the bill in this case is filed, and the specific performance of which it seeks to enforce, contemplated, not only the exploration, but the working of the mines of copper and other minerals, on the farm of the defendant. It recites the desire of the defendant to have them explored and worked, and the willingness of the said Thomas Petherick to undertake such explorations and working, and then, in consideration of one dollar paid to the defendant by Petherick, the former agreed to give to the latter, his heirs and assigns, full power to make such explorations and works on the said farm as he, the said Petherick, might think proper for such purpose, &c.; and after a reservation to the defendant of a seignorage, of one full fifteenth part of the minerals, Petherick, for himself, his heirs and assigns, stipulated that he would, on or before the 10th July next, commence proper operations for ascertaining, by explorations, the mineral prospects on the said farm.

Although, therefore, it was the manifest design and object of the defendant to have the minerals upon his farm worked, as well as explored, and although,  [**13]  for a small pecuniary consideration, he gave Petherick full power to such explorations and works, the only stipulation on the part of Petherick is, by a certain period, "to commence operations, for ascertaining, by explorations, the mineral prospects on the said farm." The engagement, therefore, on the part of Petherick was limited to the exploration; and he was not bound, according to my interpretation of the contract, to work the mines; whilst, therefore, the contract gives to him the power to work the mines, as he might think proper, the only corresponding obligation on his part was to explore, for the purpose of ascertaining the mineral wealth of the farm. There can be no doubt, I think, that the defendant never would have entered into this contract, if he had believed that the working of the mines was not secured by it, and that whether they should be worked or not, depended upon the discretion of the party with whom he was contracting. The contract, therefore, it seems to me, is deficient in that reciprocity of obligation, without which a court of equity will not decree a specific performance. It appears to me difficult to maintain, that the defendant could have obtained a decree [**14]  against Petherick for the specific execution of this contract to the extent, which he clearly had in view in entering into it; that is, to compel Petherick to work, as well as to explore, the minerals, even though the title of the defendant, to the farm, had been entirely unincumbered; and, if this is the case, that is, if there is a want of mutuality in the remedies, as well as the rights of the parties to the contract, it would be inequitable, as said by Lord Redesdale, in 1 Sh. & Lef., 18, to decree a specific performance at the suit of him who is not bound, as, if the rule were different, he might enforce, or avoid the contract, according as his interest might incline him, the one way or the other. It is much better in such cases of inequality of obligation, to refuse a specific performance, and leave the plaintiff to seek his compensation, if he has sustained damage, by an action at law; because, if equity acts at all, it must, as Chancellor Kent says, in 6 J. C., 232, "act ex vigore, and carry the contract into execution with unmitigated severity."

The contract, in this case, though varying, of course, in terms, and, in some respects, perhaps in substance, from [**15]  the contract in the case of Geiger vs. Green, decided by the Court of Appeals; yet, in other and in some very essential particulars, it very much resembles that case. In that case, the contract gave the complainant the privilege of digging and removing ore from the farm of the defendant, at twenty-five cents per ton for the privilege of the ground; leave also to build a house on said land, the workmanship to cost $ 100, the material to be got on the land of defendant, at the expense of the plaintiff.

This contract, the Court of Appeals say, is unequal in its stipulations, binding one party and not the other, and consequently unreasonable, and unfit to be carried into specific execution.

It seems to the chancellor, that so far as regards the chief inducement to the contract, on the part of the defendant in this case, to wit, the working and making the deposites of mineral profitable to him, it is precisely like the contract in Geiger and Green, because here, as in that case, the power to work the minerals is a privilege to Petherick, which he may or may not exercise, in his discretion; and, consequently, this contract, like that, is binding on one party, and not the other,  [**16]  and unfit, for that reason, to be executed.

This bill, however, was not filed by Petherick, but by his assignee; a party with whom the defendant made no contract at all, one who has entered into no stipulations with him, of any description, and who, although he has purchased the interest of Petherick in the agreement, has entered into no engagement to perform such stipulations, as the contract may be supposed to have imposed upon Petherick.

The chancellor thinks it would be difficult to maintain, successfully, that upon a bill filed by the defendant against this plaintiff, the latter could be compelled to perform those acts, which it was clearly the intention of the defendant to secure, when he made this contract; and, if so, the want of the element of mutuality, as between these parties, is supposed to be fatal to the right of the present plaintiff to a decree for a specific performance.

It being the opinion of the court, for the reasons stated, that the plaintiff is not entitled to relief, and that the bill must be dismissed, it is not thought necessary or proper to examine the other questions raised in the argument, and by the pleadings, and therefore no opinion is [**17]  expressed upon them. It may, however, not be improper to say, that there does not, in the confusion and discrepancies, which have been pointed out and commented upon in the statement of the chancellor, appear to be any ground for attributing unfair or dishonorable motives to the plaintiff.

The explanation which has been given in regard to these discrepancies, seems to me entirely to relieve the complainant from any such imputation.

Whilst, however, the court abstains from expressing an opinion with regard to the effect upon this case, which the circumstance of Petherick's being an alien may be supposed to have, or upon the question of his alleged laches or abandonment of the contract, as evidenced by the correspondence, it is deemed not out of place to remark, that the uncertainty of the provisions of the instrument which is sought to be enforced, would present a serious objection, if the other difficulties were removed. If this contract is to be enforced as against the defendant, the plaintiff should surely be required to perform the agreement on his part; but what can he be required to do, and when no time is fixed for working the mines; that this is referred to his own [**18]  discretion, and cannot be commenced until after the determination of the life estate of the mother of the defendant, she being still living. Upon the whole, the chancellor thinks, the want of the mutuality, the uncertainty, and the difficulty of enforcing this agreement consistingly with those principles of equity, by which the court must be governed in the exertion of its powers, forbid the relief asked for by this bill, and that it must, consequently, be dismissed.

The complainant in chancery appealed to this court.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

An agreement set forth, "that B had on his farm, copper and other minerals, and is desirous to have the same properly explored and worked"--that "P is willing to undertake such exploration and working." W, "in consideration of one dollar paid to him by P, agrees to give P the power to make such exploration and works, as P may think proper for such purposes, and reduction and conversion of the minerals, and dispose of the same;" that W reserves to himself one-fifteenth part of all such minerals and metals, after the same shall have been rendered fit for smelting, free and clear of all expenses; that P shall commence on or before, &c. HELD, upon a bill filed by the assignee of P, for specific execution of the contract, that P was only bound to explore the mines, not to work them, and that he only stipulated to explore them on or before a given day, and therefore specific execution, for want of mutuality in the contract, could not be decreed.  

COUNSEL:
By J. H. B. LATROBE and REVERDY JOHNSON for the appellant.

On the 24th June 1846, the appellant filed a bill in Baltimore county court, sitting in equity--subsequently removed to chancery--for the specific performance of an agreement, between the appellee and one Thomas Petherick, under whom the appellant claims. The bill sets out the terms of the agreement.

There was no oral testimony taken under the commission issued in the cause, which is therefore to be determined upon the bill and answer, the two agreements, the receipts, the assignment to Tyson, and the correspondence.

The answer sets up as a defence, certain conversations [**19]  between Petherick and himself, before the execution of the contract, but the conclusive reply to so much of the above as relates to Petherick's promises, antecedent to the agreement, is the agreement itself; to which, all that took place between the parties beforehand, was mere inducement; and beyond which we are not permitted to look, to ascertain their meaning.

The remaining grounds, on which the claim for a specific performance is resisted, are but two:

1ST. That Petherick, as an alien foreigner, "was not competent, at law, to receive a deed for the lands or for the mines;" or "to pass or transfer any right to the complainant."

2ND. That, even if this ground was not tenable, Petherick, before the transfer to the appellant, "actually surrendered, abandoned, and gave up, all his supposed rights acquired under the said agreement;" and the appellee "had released" him "from all claims and demands" under it. It is true, that fraud is charged upon the appellant, but this is not proved.

The first of these grounds involves a question of law, in regard to the extent of an alien's power, in the acquisition and transfer of land, or interests in land:--the second a question [**20]  of fact, as to the surrender of the rights acquired under the agreement.

First, then, as to the effect of alienage.

There can be no force in this objection; because, "That an alien can take by deed, and can hold till office found, must now be regarded as a positive rule of law, so well established, that the reason of the rule is little more than a subject for the antiquary." Governeur's Heirs vs. Robertson, 11 Wheaton, 366. Creigh vs. Radford, 3d Wheaton, 599. Orr vs. Hodgson, 4 Wheaton, 460. Bacon's Abr. Aliens C. Buchanan vs. Deshon, 1 H. & G., 289.

Second, as to the abandonment.

The evidence of this is presumed to be found in the correspondence; and in the fact, not denied, that the mine was not worked by Petherick or the appellant from the time that the exploration was completed, and the appellee paid for making it, up to the filing of the bill.

The correspondence consists of many letters. There are two filed by the appellant, and eleven by the appellee.

Bearing in mind, that we are examining them, with a view to see how far the charge of abandonment is sustained, we turn to a few of them; and pursuing the order of time, we go first to those filed [**21]  by the appellee.

Appellee's exhibit 5, p. 17, 15th August 1844. Petherick writes to Watts, (appellee,) and, after some remarks about the accounts of the latter, for the cost of the exploration, says, that he "intends to associate others with him (P.) in the prosecution of the mine."--And further, "I will trouble you to see Mr. David Stewart, and shew him your title, that he may prepare a deed in conformity with an (our) agreement, for the mine." And again, "I shall send regular miners to sink deeper the pit."

This letter is important, introduced, as it now is, by the appellee, because it shews a well understood purpose between the parties to consummate the agreement by a formal deed;-- just such a deed as is now claimed at the hands of the appellee; a deed to be prepared by the counsel of P. The letter contains, also, at W's request, a table of the seignorages paid in Cornwall; shewing that the rent for the future working of the mine, was looked to by W. and P. both.

Appellee's exhibit 6, p. 18, 22nd August 1844, Petherick to Watts. In this letter Petherick agrees to give Watts $ 60 for the work of the exploration, or $ 20 in addition to the $ 40 already paid. He directs [**22]  him to call on Mr. Stewart for the money, and says, "Don't forget to give Mr. Stewart the necessary papers to make out the deed, as I wish to have matters put in proper train for proceeding with the further trial."

Appellee's exhibit 7, p. 18th September 26th, 1844, Petherick to Watts. Petherick says in this letter: "The matter now rests, not from any neglect of mine, but to have the deed completed, which I expected could have been done before this, and I shall write to Mr. Stewart by this post urging him to expedite it. Notwithstanding my wish and intention to proceed with the works, still, as the matter now stands, if you are desirous to engage with the parties whom you mentioned, as being waiting to embark in the undertaking immediately, I shall not object to admit them, and to retire; provided they will immediately reimburse me my actual outlay, including my traveling expenses, and Mr. Stewart's bill; but not charging anything for my time and attention to the business. If you wish to avail yourself of this, please to inform me promptly, for my government in the matter, otherwise I shall, on having the deeds, associate friends with me in the business; which I believe will prove [**23]  a remunerative one. Requesting an early communication from you," &c.

Up to this time there was no abandonment, clearly; for we find P. offering to sell out to W. on terms, which W. never accepted.

Appellee's exhibit, No. 8, 23rd January, 1845, P. to W. In this letter P. again puts the delay on the failure to have the deed prepared; speaks of an arrangement he had made with a Cornish miner, to take an interest at Bare Hills, in the beginning of December; says he has done all that could be expected of him under the circumstances, and adds: "If however, you think this delay important, and have desirable parties to go into the business, I shall have no objection thereto, on the terms mentioned in my letter of the 26th September last, if you prefer it, and will give me reasonable notice for my government."

Appellee's exhibit 24th February 1845.--P. to W.. This letter is in answer to one from W., dated 20th February 1844, in which W. says, "I find you continue in the same mind to come on to work my copper mine." And then solicits a loan of money to pay off a debt due on the place. P. replies, "that it will not be convenient for him, at present, to make any advance beyond what [**24]  will be required in connection with the party," referred to the letter of the 23d January, who has not yet returned to the country. In a postscript, P. again says, "if it will be of any assistance to you, in raising the money, I shall be disposed to transfer my interest in the property, on the terms mentioned in the letter of the 26th September."

The next letter in the record is, filed by appellant, from W. to P., 9th May 1844, in which W. asks whether P. "intends to come on and work the mine or not, and at what time. If you have declined," he says, "please inform me by return mail."

At this time there had been no abandonment, clearly, in the estimation of W., nor does he produce any letter from P. announcing the fact that he had abandoned the agreement.

The next letter of P's, filed by the appellee, is the letter of 6th October 1845, in which, after accounting for his delay in replying, P. says: "I have been in communication with a gentleman residing at Baltimore, who is disposed to enter into the concern in your property at Bare Hills, under my agreement with you, which I think better for all parties, than for me to wait for the assistance of the person in Connecticut;  [**25]  " referred to in the letter, &c.

We have thus gone through the correspondence, with reference to the allegation of the answer, that P. had abandoned the agreement, and that W. had released him from its obligations;--and instead of the allegation being sustained, we find it utterly contradicted. At the date of Watts' last letter of May 1845, we find him recognizing the existence of the agreement; and there is no pretence, that after the letter of October 6th, in which Petherick speaks of a gentleman in Baltimore disposed to enter into the concern, under the agreement--a letter which is produced by Watts himself, and which shows that Petherick still held on to the agreement,--there is no pretence, that, after this letter, Watts ever denied the right of Petherick, until long after the latter had transferred his rights to the appellee, the gentleman in Baltimore, referred to.

We may safely say, then, that so far as the defence rests on the fact of abandonment, it must fall to the ground. There certainly was no actual abandonment, such as is alleged in the answer, and no "release" of the "claims and demands" which Watts, in the answer, says that he released; and the admission of [**26]  the existence of which, is an admission on his part, of the mutuality of the contract.

But it may be said, that the time which elapsed between the completion of the explorations and the filing of the bill, without anything being done in the way of working the mine, affords ground on which an abandonment may be inferred.

In the first place, the inference cannot prevail against the acts of the parties; and the correspondence shows, that, up to May 1845, Watts did not consider the contract abandoned; and that in October 1845, when Petherick spoke of selling to a gentleman in Baltimore, he, P., believed it to be in full force.

But the rule, with regard to time, as of the essence of contracts, is a very plain one. It is stated briefly, in Pratt, et al., vs. Law, et al., 9 Cranch, 456, 494, that time is made material to the specific performance of a contract, whenever, from the change of circumstances, a specific performance, such as would answer the ends of justice between the parties, has become impossible. Brashear vs. Gratz, et al., 6 Wheaton, 528. Garnett vs. Macon, 2 Brockenbrough, 245.

Even this, however, is in cases where time is limited by the terms of the agreement.  [**27]  But in this case there is no time limited, by the agreement, for the commencement of the working, as we have seen. The time to begin exploration is fixed, and that is all.

But what are the facts, as charged in the bill, and admitted by the answer, and which address themselves to a court of equity? Why, that at the time the agreement was made, and at the time the bill for specific performance was filed, Watts had no interest which could be prejudiced by the failure, on the part of P., to work the mine forthwith. Watts was the owner of the farm, in reversion after the death of his mother, the tennant for life, who was then living. The agreement which he made with P., bound him, W., only. It had no effect upon her interests. True, Watts says in his answer, that he had an understanding with her; but this is not responsive to the bill, and there is no proof of it; and, at all events, P. was without notice of it, so that, so far as P. was concerned, W. was agreeing to give to him a present interest in that which did not belong to him, an estate in the fee, while he was entitled to the reversion only.

It certainly does not rest with W., then, to complain of the failure of P. to [**28]  work the mine, during the mother's lifetime. As we have seen by the correspondence, P. again and again asked for a deed, in conformity with the agreement, and as a preliminary to going to work; a reasonable demand, which W. admits, in point of fact, by his answer, his obligation to grant, but for the alienage of P., and the alleged abandonment of the agreement:--these being the only grounds on which he resists the claim for specific performance.

If, then, he had no other title to convey to P. but a reversionary one, how can he, in a court of equity, complain of P's not working the mine during the life of the tenant for life, from whom he had no authority to work it; and when the failure to work it caused no injury to W.

All the cases where specific performance is resisted, on the ground of abandonment of the agreement, rest on the injury which is done to the party, against whom the bill is filed, by the neglect of the complainant. But, in this case, the party resisting was in no condition to be injured.

It may not be necessary, but reference is made to 2 Sugden, 28, for the law, and the cases illustrating it, in regard to the right of a purchaser to insist on such title [**29]  as the vendor may be able to give, although less than that stipulated for; and although no injury would be sustained by the purchaser in case the agreement were not executed. The law on this point was not denied in the argument below: see, also, 2 Story Eq., sec. 779, &c., on the same point, and cases there cited.

The fact, that the bill is filed by the assignee of P., with whom W. has made no agreement, is suggested by the chancellor in his decision; but it is not argued or dwelt upon. But the agreement is one which expressly includes the assigns of P.; and whatever weight the suggestion, under other circumstances, might be entitled to, it certainly cannot prevail against the assignee, who, by seeking to enforce performance of the agreement, recognizes the obligations of P. as binding on him, and admits that their existence is a necessary preliminary to the enforcement of the rights which he claims, as against the appellee. Specific performance will be decreed at the instance of a party entitled to the benefit of an agreement, though not a party to it. Hook vs. Kinnear, 3 Swanston, 418. Where a contract is signed by one party only, the other, by filing a bill for specific performance,  [**30]  makes it binding on himself. Martin vs. Mitchell, 2 Jac. and Wal., 427.

At the argument before the chancellor, the counsel for the appellee cited and relied upon, in addition to the defences of the answer, the case of Geiger and Green, then recently decided in this court; and the chancellor waiving, in his decision, the points of alienage and actual abandonment, decided that the present case was governed by the case of Geiger and Green, and dismissed the bill, because of the uncertainty and want of mutuality in the agreement. It becomes necessary, therefore, to look at the case in the light in which it has been considered by the chancellor, and test it by the law, as laid down by this court in Geiger vs. Green.

The principle settled in Geiger vs. Green, is, that "unless there is to be found in the contract the essential ingredient of mutuality, a court of equity will not compel its specific execution,"--and the contract, in that case, not containing this ingredient, the bill was dismissed.

Now, is the contract between P. and W., the same in this respect, with the contract in Geiger vs. Green?--Because if it is, there is an end of our case. Upon establishing a difference,  [**31]  upon shewing that our contract has the mutuality which the other wants, must our success depend.

The contract in Geiger vs. Green, is in the following words: "I hereby grant to Richard Green the privilege of digging and mining the ore on that part of my place joining Welderson and Price's, at twenty-five cents per ton, for the privilege of ground, leave also to build a house on said land, the workmanship to cost one hundred dollars: the materials to be got on my land at said Green's expense."

This was clearly nothing but a license, revocable at the pleasure of the grantor. It was a privilege to dig ore at a given rate per ton. There was no obligation on the part of Green to begin to dig; or, having begun, to continue. If he dug, he became liable to pay the rate agreed on, and this was the extent of his liability; and so this court decided. No time was fixed, during which the privilege should continue; and while digging, therefore, he was clearly a tenant at will.

The contract between Petherick and Watts, is a very different one. Its recital declares the desire of Watts to have his mines explored and worked, and the willingness of P. to undertake to explore and work them;  [**32]  --not merely to explore, observe, but to explore and work;--wherefore, that is, in consequence of P's willingness to explore and work, W. agrees to give "to P., his heirs and assigns, full power to make such exploration and works on the said farm, as P. may think necessary for such purposes." For what purposes? Why, for the purposes which Watts was desirous to effect, and which Petherick was willing to undertake, to wit, the purposes of exploring and working. Can it be questioned, then, for a moment, on a careful reading of this contract, that the consideration for it was P's willingness to undertake to work, as well as to explore? and as P. was a party to it, and signed it along with W., can there be a doubt that he was bound to work the mines, as well as to explore them? and if he was bound to work the mines, was not the obligation one which the courts would enforce against him? and if so, has not this contract the ingredient of mutuality, which the contract in Geiger vs. Green, is deficient in? The form of the instrument by which the undertaking to explore and work was made obligatory, is wholly unimportant. 2 Story Eq., 751.

In the decision of the chancellor in the present [**33]  case, he says: "Although it was the manifest design and object of the defendant to have the minerals upon his farm worked, as well as explored, and although, for a small pecuniary consideration he gave Petherick full power to make such explorations and works, the only stipulation, on the part of Petherick, is, by a certain period, to commence operations for ascertaining, by explorations, the mineral prospects on the said farm. The engagement, therefore, on the part of Petherick, was limited to the explorations, and he was not bound, according to my interpretation of the contract, to work the mines."

But can this interpretation be the true one? Upon its truth rests the whole of the chancellor's argument. The chancellor says, himself, most correctly, "that the manifest design and object of Watts was to have the minerals upon his farm worked as well as explored." Certainly; and does not the contract recite, as the inducement to its being entered into, the willingness of Petherick to work as well as to explore. How, then, can it be said, that, having been assented to by P. signed by him, and the execution of it commenced by him, the contract does not bind him to work as well as to [**34]  explore the mines. The chancellor says that it does not, because "the only stipulation is, by a certain period to commence operations for ascertaining by explorations, the mineral prospects," &c. But does the absence of any stipulation as to the time, at which the working shall begin, prove, that the agreement contains no obligation in regard to working? Unless it does, the chancellor's argument, it is most respectfully suggested, fails. We are sure it cannot have been intended by him to say, that, unless a time for beginning mining operations is fixed, no contract for mining privileges can be made which a court of equity will enforce. As we have already seen, a contract expressly stipulating for time may be made, and yet the time may not be of the essence of the contract; and, therefore, had the time for commencing the working, as well as a time for commencing the exploration of the mines, been fixed, the courts might have held that it was immaterial in a given case. Suppose, for instance, that accident, without injury to W., had prevented P. from commencing explorations till the 11th of July 1844, instead of upon the 10th July, the court would not have vacated the contract had it [**35]  been otherwise good, on that ground. If then, the fixing of a day for the beginning of the working, would not, necessarily, have caused the annulment of the contract had that day not been observed, so the failure to fix a day would not make the contract invalid; and if so, the argument that Petherick is not bound to work the mines, because no day is named by which he shall begin the working of them, must fall to the ground; and we are left to consider the contract as one binding P. to work, as well as to explore, the mines:--naming a day by which the exploration must commence, but leaving the time for commencing the working, after the explorations shall have ascertained the presence of copper, to be determined by circumstances, according to the recognized obligations of the contract.

In another part of his decision, the chancellor quotes the part of the contract already referred to, giving to P. the right to make such exploration and works as he may think necessary for such purposes, (referring, as we have seen, to the purposes of exploration and working)--as though it was to be inferred from this, that Petherick might work or not, as he deemed proper--a feature of the contract,  [**36]  in this view of it, which would deprive the contract, in the chancellor's estimation, of its mutuality.

But if we are right in our position, that the execution by Petherick of the contract, the inducement to which was the working as well as the exploration of the mines, imposed on him an obligation to work, as well as to explore--then this obligation is one which equity would certainly enforce--requiring from Petherick all reasonable diligence; preventing him from playing the dog in the manger; and vacating the contract, if, violating its spirit, he relied upon its terms to uphold him in doing Watts an injury:--or the courts of law would give to Watts damages, if he chose to resort to them, instead of seeking equity for redress.

But there are yet other points of difference between the contract in this case and the license in the case of Geiger vs. Green.--While the agreement with Green was without other consideration than the prospective payment for the ore, as raised, the agreement between Watts and Petherick required that the latter should make, at his own expense, and for Watts' benefit, those explorations which were to determine the mineral prospects of the farm; for,  [**37]  although the agreement recited the fact, that there was copper and other minerals on the farm, yet the ascertainment of their position, and the mode of getting at them, was evidently of great consequence to the owner of the land. It so happened, that these explorations cost but $ 60 or $ 70; but, whatever they might have cost, the rights of P. depended upon his making them at his own expense;--that they were sufficiently made for the purpose intended, is not denied; that it cost but little to make them, was fortunate for P., but having made them by the time stipulated, the rights which the making of them gave to him became vested, and a contract, involving mutual obligations, was the immediate result.

The chancellor, in his decision, cites the case in 1st Schoale and Lefroy, 18; but he omits a part of the opinion of Lord Redesdale; which appears to us to have an important bearing on this case. There is the same omission in the quotation, from the same opinion, which is given in the case of Geiger vs. Green. Lord Redesdale says, "I have no conception that a court of equity ought to decree a specific performance, in a case where nothing has been done in pursuance of an agreement,  [**38]  except where both parties had, by the agreement, a right to compel a specific performance," &c. The omission consists in leaving out the sentence, "in a case where nothing has been done in pursuance of an agreement," and results from the chancellor's having taken the quotation, probably, from the decision in Geiger and Green, and not from the reports. Now, in Geiger and Green, the words were doubtless omitted, because, in fact, unimportant; for there, nothing had been done, or was to be done, in pursuance of the agreement, in order to give it a binding character: the agreement there, was, as we have seen, nothing more than a naked and revocable license. But, in the present case, the contract was, by its terms, made to depend on something that was to be done by P., which having been done, the case in Schoale and Lefroy not only loses its force as an adverse one, but becomes an authority on the other side, on the point that we are now considering, to wit, that the execution of the contract, as far as required by its terms, by Petherick, gave him rights under it, which a court of equity will enforce by a decree for specific performance; and thus distinguishing this case, in this particular [**39]  also, from the case of Geiger vs. Green.

Again.--The agreement in the case of Geiger vs. Green, was perfected by the execution of the written instrument, which is set forth in the court's opinion. It looked forward to no further act of the parties for its perfection; and its effect was to prevent Green from being considered a trespasser, and to settle the rate to be paid for the ore dug by him. But in the case now before the court, Watts, "for himself, his heirs and assigns, in consideration, &c., agrees to give to Petherick, his heirs and assigns, full power," &c. The terms employed look to a further act. The object to be accomplished, a conveyance of a mining privilege in perpetuity, binding upon Watts, his heirs and assigns, could only be accomplished by a deed acknowledged and recorded according to law. The agreement was executory in its character. P. was to make certain explorations by a given day;--having made these, Watts was to convey to him, his heirs and assigns, the right to mine. When the explorations were made, the contract became executed, and Petherick's right to the conveyance perfect. The contract was not for the right to explore, but the right to mine: which [**40]  was to be given when the explorations were made, at Petherick's expense, by a given time. That such was the intention and understanding of the parties, is proved by the correspondence, where we find that operations are postponed on account of the non-execution of such a deed:--the failure to execute which is attributed, not to any objection on the part of Watts, but to the absence and engagements of counsel. None of the objections taken by the chancellor, were raised by Watts, when such a deed was asked for. Even when litigation commenced, the refusal was not put on such objections, by the answer which Watts filed under oath. They were afterwards suggested by the decision in the case of Geiger vs. Green, in which there was no agreement to give a deed. They are objections which amount, in fact, to a suggestion, that the consideration is inadequate:--not a suggestion made by the party to whom the consideration enures, when called upon by the proceeding in chancery to perform his agreement, but by counsel, in the argument of the cause.

We proceed now to enquire, whether, independent of that case, the present bill for specific performance should be sustained.

In the language [**41]  of Chancellor Kent, adopted by this court in Geiger vs. Green, and dwelt on by the chancellor, "unless the court is satisfied that the contract is fair and just, and equal in all its parts, and founded on an adequate consideration, it will not, by the interposition of its extraordinary power, order it to be executed."

Taking this to be the established law, the question is, whether the contract in question is such a contract as is here described?

That it is equal in all its parts, by which we understand mutual in its obligations, we have already argued.

Whether it is fair and just, and founded on adequate consideration, remains yet to be considered:--as well as to shew, that there is not that objectionable uncertainty in its provisions, upon which the chancellor, in his opinion, dwells.

In construing a contract, the court will look to the motives that led to it, and the objects to be effected by it. Davis vs. Barney, 2 Gill and Johnson, 382. The situation and true intent of all parties, and the subject matter, are to be considered in determining the meaning of a contract. Hollingsworth vs. Fry, 4 Dall. 345; and other cases referred to in Chitty on Contracts, 74.  [**42]  Now, the strongest evidence that we can offer of the fairness, justice and reasonableness of the consideration of the contract, is to be found in the fact, that Watts himself, in his answer to the bill, makes no objection to it, as we have already remarked, on any of these grounds. Bear in mind, too, that it was not an ordinary contract for the conveyance of land, or the performance of work, but it was peculiar in its character, relating to a subject about which it is not every one that is conversant, and which was entered into, as Watts also states, in his answer, in consequence of the knowledge of its subject matter, which Petherick possessed, and which, it is to be inferred, from what he says, was not possessed by every one. When a contract of this kind is sought to be enforced against a party most anxious to avoid it--aided, too, by astute and able counsel, we may well suppose, that if it was unfair, unjust, or wanting a proper consideration, these defences would be made in the answer, unless the party was prevented by the fact, that his answer was under oath. This part of our case, then, we are well satisfied, shall rest upon what we thus think to be the testimony of Watts himself.  [**43]  

But, as already said, the chancellor refers to the "uncertainty" of the provisions of the contract. This is a defect, apparent, if it exists at all, on the face of the contract, and requires notice here. It may be said, that the argument already applied to the fairness, &c., of the contract, would also apply to its certainty; but, in point of fact, as will appear in a few words of explanation, the contract is as certain, as the nature of the object to be accomplished, required, or properly permitted.

There can be but two objections to the contract, on the ground of uncertainty:

1. That no time is fixed upon for commencing operations.

2. That no amount of work to be done annually, or within a given time, is stipulated.

1. The first of these objections has already been considered.

2. With regard to the amount of work to be done in a given time:--this it would have been impossible to fix in any contract, which a prudent man would have entered into. It would depend upon circumstances wholly uncertain. Copper is often found in masses, and is afterwards traced, by faint indications only, through the earth. The product of a mine may, for a month, yield a handsome [**44]  return; afterwards, for several months, there may be no return at all for the labor that is expended. The labor of months may be thrown away on the hope, that indications will prove true. These are facts of notoriety. Few of the copper mines of this country have answered expectations. Copper mining here is a lottery. If the prospect was a good one, no stipulation would be required to induce the miner to push forward, and the seignorage would be large proportionally. If it was bad, a stipulation, which would require him to dig in the earth, without return to himself or the proprietor, would be oppressive and unjust; and even if it were contained in a contract, equity would relieve against it.

In fine, the contract which has been made is the only one which any one, having due knowledge, could, with prudence, make. And we contend that it is sufficient for all honest purposes, inasmuch as the courts will always interfere to enforce the performance of its obligations:--either in equity, by compelling it specifically, or in law, by giving damages for their infraction. In the meanwhile, good faith is always to be presumed; and until W. is, at all events, in a position to insist that [**45]  the mines shall be worked, which as reversioner he is not, any assumption that bad faith is intended, either by P. or his assignee, is utterly gratuitous. Indeed, the very filing of the bill to enforce the performance of the agreement, shows an appreciation of the value of the mine, that forbids the idea that it will be suffered to lie idle and unproductive.

We have thus gone over all the grounds of objection taken to the demand for specific performance, apparent either on the face of the record, or suggested in the argument below, or by the chancellor in his decision. We have shewn:--

1. That the alienage of P. is a matter that cannot be inquired into unless by office found; and does not affect the question now before the court, to which it is wholly collateral.

2. That in point of fact, there was no such abandonment of the contract as W. sets up; no such release from its obligations, as he alleges that he gave to P.

3. That no abandonment can be inferred from the delay which took place in working the mine, up to the filing of the bill, because the correspondence sufficiently accounts for the delay; and because, while P. and his assignee were both perfectly willing [**46]  to accept a conveyance of the reversionary interest, when it was found that W's mother had a life estate in the property, yet the absence of all right in W. to work the mine in his mother's lifetime, deprived him of the power to insist upon its being done, and made any postponement on the part of P. immaterial.

4. That the contract, the consideration of which was the working, as well as the exploration of the mines, was binding upon P. according to its terms, as soon as he signed it; that his obligations in regard to it were such as the courts would enforce, and that, therefore, it possessed that essential ingredient of mutuality insisted upon by the authorities.

5. That according to the appreciation of the parties, who were best qualified to judge, the terms of the contract were fair and just, and the consideration sufficient; and that there was all the certainty in its terms which the nature of its subject matter admitted; and all that the defendant below, who resisted its performance, required, even after the commencement of the present litigation.

Upon these views we ask a reversal of the chancellor's decree.

By T. PARKIN SCOTT for the appellee, who contended:  [**47]  --

1. The complainant, or his assignor, is not bound by the terms of the agreement to work the mines, but only to ascertain, "by exploration, the mineral prospects on the said farm." The agreement was drawn by Petherick, and he seems to have endeavored to secure to himself, "his heirs and assigns," full control over the mines, without incurring any obligation to work them, but only to explore;--thus holding out to the defendant, the delusive hope of revenue, with which to pay his debts, without the power to gather it.

The agreement is, in this particular, almost verbatim with the agreement in the case of Geiger vs. Green, decided by this court at December term 1846, and that case decides this. The decree dismissing the bill must be affirmed.

The counsel for the appellant seem to have felt the force of this authority, and therefore they have devoted themselves principally to distinguish the cause before the court, from the case of Geiger vs. Green.

It is most true that the agreement does recite, that Watts "is desirous to have the same (the mines) properly explored and worked," and it recites, that Petherick "is willing to undertake such exploration and working."  [**48]  But this agreement no where binds Petherick to work the mines. He drew the agreement, and made no such stipulation on his part. To Watts it is immaterial, whether this omission was by accident or by design, the effect is the same to him. But let us suppose that Petherick, and Tyson, his assignee, are bound by the terms of this agreement to work the mines; then the question arises, to what extent are they so bound to work the mines? Petherick was sometimes kept away by other business, he had to go to Virginia; other and important business kept him away, coal mining at Pottsville occupied nearly the whole of his time, and produced delay; his counsel, Mr. Stewart, neglected to attend to the matter. His English friend would not furnish funds for small transactions. Business at Pottsville prevented his making arrangements for carrying on the operations at Bare Hills.

Thus it seems that more profitable engagements elsewhere kept Petherick from Watts' copper mines. He knew he was not bound to work them; or, if he was bound, it was only to a nominal extent, that would not yield Watts any revenue; and yet Petherick had, as he supposed, secured to himself the exclusive privilege to work [**49]  the mines. Tyson also may have more profitable business,--he may have other mines, and not wish to overstock the market, whilst poor Watts is to suffer.

Is there any mutuality in this contract?

The appellant's counsel seems to think, that Watts is precluded from making this objection of the want of mutuality in the appellate court, because they suppose this defence was not taken in the answer, although they admit it was relied on in the argument below. The appellee's counsel conceives that his opponents are mistaken, both in regard to the fact and the law. It is true, that in the answer this defence was not taken by the use of the words "no mutuality," in speaking of the agreement: but the defence was substantially taken by the defendant setting forth the contract, and the circumstances under which it was made, and then denying that he is bound at law or in equity by the said supposed contract, to execute any deed. But even if this defence had not been thus taken by and in the answer, the want of this "mutuality" is patent on the face of the agreement; and the whole bill and the record shews a want of equity in the prayer of the bill and the relief sought. To grant the prayer [**50]  of this bill, would not be to do equal justice. 8 Cranch, 471, Pratt vs. Carroll, page 222 of 3 Peters' Cond. S. C. Reps. 1 Fonblq., 189, note (i.) Story Eq. Juris. S. 742.

It is objected by the appellant, that Watts was only entitled to the reversion of this property, after the death of his mother. There can be no dispute on this point;--tenant for life has no right to open new mines, without the assent of the reversioner or remainder man; and the reversioner or remainder man has no right to work the mines during the continuance of the life estate, without the consent of the tenant for life. But Watts asserts that he had the consent of his mother; and certain it is, he commenced the explorations, and opened the mine under Petherick's directions, without objection from his mother; and there is no allegation that she did object; and no allegation of any offer to prosecute the work, either by Petherick or by Tyson. Story's Eq. Juris., sec. 771; and from the fact that the explorations and opening of the mine was done whilst she was in possession, and without objection, and from the attendant circumstances and the relationship of the parties, we may reasonably conclude that she gave [**51]  her assent.

Time was of the essence of this contract. Watts was in debt; his debt was about to become due and payable, and he wanted means to pay it, as well as revenue for support. It is manifest, as well from the nature of the agreement,--the explorations,--the frequent regrets and apologies of Petherick in his letters, and his promises to send the miners on to the work,--that when it was made, Watts contemplated an immediate working of the mines. It would have been better for Watts not to have known of his hidden wealth in the bowels of the earth, if he could not make it available. Our worthy opponents had more profitable business on hand.

2. Petherick is an alien, and never resided in Maryland. The defendant, therefore, insists, that Petherick could not make a valid transfer of real estate to Tyson. It is not denied but that an alien may purchase, and hold until office found; but he purchases for the benefit of the king; here, of the State, and he cannot transfer.

"If an alien christian, or infidel, purchase houses, lands, tenements or hereditaments, to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee simple, but not to hold; for [**52]  upon an office found, the king shall have it," &c. Co. Litt., 2 b. 1 Thos. Co. Litt., 91.

"Many that have capacity to take, have no ability to enfeoff, &c., as aliens born," &c. Co. Litt, 42 b. 1 Thos. Co. Litt., 92.

The Supreme Court of the United States, in the case of Fairfax's Devisee vs. Hunter's Lessee, reported in 7 Cranch, and also in 2 Peters Cond. Reps., page 627, say, that an alien "may convey to a purchaser--although Co. Litt, seems to the contrary--yet it must probably mean that he can convey a defeasible estate only, which office will divest. This court, in Buchanan vs. Deshon, 1 H. & G., 289, has said: "An alien may purchase lands, and hold them against every one, except the State, until office found, or until the government shall exercise its authority over them." If, then, Watts was to convey either to Petherick, or to Tyson, his assignee, the estate conveyed could be claimed by the State, and thus Watts would be involved, and defeated or delayed in the enjoyment of the revenues from his mines, contemplated under this agreement. A court of equity, in its sound discretion, will not decree a specific performance of such an agreement, even if there was a "mutuality"  [**53]  in the contract, which there is not.

The court will observe that our case is entirely clear of the objection in the case of Jones vs. Belt, 2 Gill, 106. Watts does not object because he cannot give that which he stipulated for; but he objects because the contract, as drawn by Petherick, is not equitable; and the complainant has not performed his part, and may not, most probably will not, be able to perform; and because now, he, Watts, cannot obtain that consent of his mother and his mortgagee, which he once could have obtained, and which has been defeated by the acts of the complainant, who has bought up the mortgage.

3. If this agreement is not obnoxious to the objections of want of mutuality, and of incapacity on the part of the said Petherick and Tyson to perform it, yet this court will not now decree a specific performance against the appellee; because the delays, the failure so far to perform, or to offer to perform on the part of Petherick, and of Tyson, and the acts of Petherick in neglecting this, to attend to other more profitable business, amount in fact to an abandonment on their part, and have already occasioned much loss in revenue to Watts, withholding the means,  [**54]  with such revenue, to enable him to pay his debts, and particularly such mortgage debt, bought up and held by Tyson. The letters of Watts, produced by Tyson, shew a constant and continued complaint of the delay; and the letters of Petherick admit it, and attempt to excuse it, by stating other business engagements. Tyson is bound by Petherick's acts and declarations. 12 Gill & Johns., 35, Clary vs. Grimes. Tyson does not pretend to have sustained any loss. He knew of the difficulties in his way before his purchase from Petherick. He has, perhaps accidentally, misstated the dates and terms of the agreement. He has endeavored to deter others from contracting with Watts, misstating the dates of the contract, by alleging it to have been in 1840, instead of 1844. He did not pay any thing to Petherick for the contract; at least the assignment does not state any consideration, and there is no proof of his having paid any thing. He has no equity to sustain his claim.

For these reasons the appellee's counsel contends, that the decree of the chancellor ought to be affirmed.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*154]  MARTIN, J., delivered the [**55]  opinion of this court.
It appears from the record in this case, that a bill was filed in Baltimore county court, as a court of equity, on the 24th of June 1846, by the appellant, as the assignee of Thomas Petherick, against the appellee, for the specific performance of an agreement, alleged to have been made between the appellee and Petherick, in June 1844.
The agreement is in the following words:
"Whereas Mr. Thomas B. Watts, of Bare Hills, near Jones Falls, in the county of Baltimore, in the State of Maryland, has, on his farm at Bare Hills, above mentioned, copper, and other minerals, and is desirous to have the same properly explored and worked; and whereas Thomas Petherick, residing at Philadelphia, in the State of Pennsylvania, is willing to undertake such exploration and working, the said Thomas B. Watts for himself, his heirs and assigns, in consideration of one dollar, paid to him by the said Thomas Petherick, agrees to give to the said Thomas Petherick, his heirs or assigns, full power to make such exploration and works on the said farm, as he, the said Thomas Petherick, may think proper for such purposes,  [**56]  and for the reduction and conversion of the minerals, and to carry away and to dispose of the minerals, subject to the following conditions, viz:
"That the said Thomas B. Watts reserves to himself, his heirs or assigns, a seigniorage of one full fifteenth part or share of all such minerals or metals, after the same shall have been rendered fit for smelting, reduction, or use, free and clear of all expenses whatever. That the said Thomas Petherick, his heirs or assigns, shall, on or before the 10th day of July next, commence proper explorations, for the purpose of ascertaining the mineral prospects on the said farm.
"That if the seigniorage, above reserved, be found to be less than the average rate of seigniorage, or dues paid to the land 

 [*155]  owners, on the ores raised in the great copper mining district of Cornwall, in England, such seigniorage reserved shall be increased to such average rate, to be determined by arbitration."
There is then a provision in the contract, that Petherick shall furnish the appellee with satisfactory references as to his respectability.
The case was removed to the court of chancery. The only testimony taken under the commission [**57]  issued in this cause, was documentary in its character, and the controversy was submitted to the chancellor, upon the bill and answer, the two agreements, the receipts, the assignment to the appellant, and the correspondence. Upon the 2nd of April 1847, he passed a decree dismissing the complainant's bill, and the correctness of the opinion thus pronounced by the chancellor, is the question raised for our determination on this appeal.
In the case of Geiger against Green, decided by this court, at the December term 1847, a bill was filed for the specific execution of a contract, entered into between Charlotte C. D. Owings and Richard Green, bearing date the 10th of December 1838. The agreement was as follows:
"I hereby grant to Richard Green, the privilege of digging and moving the ore on that part of my place joining Welderson's and Price's, at twenty-five cents per ton, for the privilege of ground, leave also to build a house on said land, the workmanship to cost one hundred dollars, the materials to be got on my land, at said Green's expense."
In the examination of this agreement, the Court of Appeals said:
"It is true, that as this mine was worked,  [**58]  and ore raised from it by the appellee, an obligation to pay twenty-five cents for every ton that was produced, would be created. But the contract grants to the appellee the mere privilege of digging ore, and is not compulsory in its character; a privilege to be exercised or not, at his discretion; imposing no corresponding obligations; and if the appellee had considered the agreement into which he had entered injurious, and refused to work the mine, it is apparent from every part of this paper, that the proprietor possessed no power to enforce, in a court of equity, an observance 

 [*156]  of the contract. The practical operation of an agreement of this description, is, that while the appellee may use the mine, if he finds it productive, he may refuse to do so, upon discovering that his purchase is disadvantageous, and the owner of the property would be deprived for years of the revenue, which, under other circumstances, might be derived from it."
The court then say:
"A contract so unequal in its stipulations and bearing, which binds one party, while it leaves the other unfettered, as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal [**59]  engagements, and which must be regarded therefore as unreasonable and inequitable, can never be enforced in a court of equity."
When speaking of the agreement between the appellee and Thomas Petherick, the chancellor says:
"Although it was the manifest design and object of the defendant, to have the minerals upon his farm worked, as well as explored, and, although for a small pecuniary compensation, he gave Petherick full power to make such explorations and works, the only stipulation on the part of Petherick, is, by a certain period, to commence operations for ascertaining, by explorations, the mineral prospects on the said farm. The engagement, therefore, on the part of Petherick, was limited to the explorations, and he was not bound to work the mines."
We think, the interpretation placed upon this contract by the chancellor, is unquestionably correct.
The agreement recites, the desire of the appellee to have the minerals upon his farm explored and worked, and the willingness of Petherick to explore and work them, and that the appellee therefore grants to Petherick, in perpetuity, full power to make such explorations and works, as he may think proper for [**60]  such purposes, and for the reduction and conversion of the minerals; and yet, when that part of the contract is examined where the conditions are expressed, it is discovered, that Petherick has only stipulated for the explorations of the mineral prospects of the farm, on or before the period designated in the agreement.

 [*157]  As in the case of Geiger vs. Green, if Petherick had worked the mines, the appellee would have become entitled, by the terms of the contract, to a seigniorage of one-fifteenth, clear of all expenses; but if Petherick, in the exercise of the privilege granted by the agreement, refused to work the mines, it would be impossible for the appellee, without the interpolation into the contract of new conditions and stipulations, to have coerced its execution through the instrumentality of a court of equity.
After carefully collating these contracts, we think, the case at bar cannot be distinguished from the case of Geiger against Green. And that the agreement now under consideration, is obnoxious to the same objection, which was held to be fatal in the case to which we have referred.
Upon this ground, we affirm the decree.
As we consider [**61]  the case before us concluded by that of Geiger vs. Green, it has become unnecessary to express an opinion upon the other points raised in the argument of the cause.
DECREE AFFIRMED.  

15 of 29 DOCUMENTS 

JAMES H. CARTER vs. KEZIA CROSS, ADM'X OF ELLEN CROSS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 43; 1848 Md. LEXIS 20 

December, 1848, Decided 

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

This was an action of assumpsit, brought on the 18th March 1845, by the appellee against the appellant. The defendant below pleaded the general issue and the act of limitations.

The plaintiff to maintain the issues on her part, offered in evidence two instruments of writing, admitted to have been signed by the defendant, the first of which is as follows:

"BALTIMORE, March 22nd, 1838.

Received of Ellen Cross, through the hands of Daniel Hamer, two hundred dollars, to be applied to the payment of J. A. Cross' debts, in the city of Baltimore, at the rate of thirty-three cents in the dollar, on the signing of a final release; in case of their refusal, the money to be returned to said Ellen Cross, so far as the same shall not be accepted by said creditors.

Signed,

J. H. CARTER."

The second is in the following words:

"BALTIMORE, April the 2nd, 1838.

Received of Ellen Cross, through the hands of Daniel Hamer, three hundred dollars, to be appropriated as the former receipt of two hundred dollars.

Signed,     J. H. CARTER."

The certificate of the letters of administration on the estate of Ellen Cross,  [**2]  were admitted in evidence, by consent of counsel.

The plaintiff then gave in evidence by John Hurst, "that he was a member of the firm of Barry and Hurst in the spring of 1838, and that said firm were creditors of J. A. Cross, named in said receipts, to an amount between $ 900 and $ 1000. And further proved by said Hurst, that in the spring of 1838, the defendant called on said firm, and stated, that he had funds to settle a dividend of thirty-three cents in the dollar, upon the claims against the said J. A. Cross, and offered to pay said firm, at that rate, upon their claim, provided they would execute a final release to said J. A. Cross, which the said Hurst and his partner refused to do. That the said Carter subsequently, at various times, shortly before and since this suit was brought, stated to the said Hurst, that he had, shortly after the refusal of Barry and Hurst, as aforesaid, loaned the amount of money, so as aforesaid offered to them, to a certain Raymond, upon his bond, secured by one Anchor, or to Anchor, on his bond, secured by Raymond; that his motive for making said loan was, that he wanted to get rid of the money, as he did not know what else to do with it, and [**3]  he thought he was doing a favor to Ellen Cross, by loaning it out in that manner, as the security was then good. That he had taken the bond of said Raymond or Anchor, but the same had been mislaid by him, and Anchor had, shortly after such loan, died insolvent, and Raymond had gone away and proved worthless.

That in these conversations the said Carter never said, he had paid said sum of money to said Ellen Cross, or her administrator, but always said, he, the defendant, had not the money; he had loaned it away, and never would pay it, unless the law compelled him; and he said in said conversations, that he thought the money placed in his hands, was the money of said J. A. Cross, and was of that opinion, until he was afterwards shewn his, Carter's, receipts. And the plaintiff admitting, that said Carter had paid all the other creditors of the said J. A. Cross, their several proportions of the money placed in his hands, rested his case.

The defendant offered to the court the following prayers:

"1st. That upon the whole evidence, if believed by the jury, the plaintiff is not entitled to recover, because his cause of action was of more than three years' standing, before [**4]  the impetration of the original writ in this cause, and because there is no evidence to remove the bar of the statute of limitations."

2ND. If the jury find from the evidence, that the money sued for was advanced by Ellen Cross to the defendant, for the purposes stated in the two receipts named in the evidence; and if the jury further find, that the said Carter paid and satisfied all other creditors of J. A. Cross, meant to be provided for in said receipt, except Barry and Hurst, and that the said Barry and Hurst, in the spring of 1838, and after the said receipts, refused to accept their proportions of the money so advanced to the defendant, then there is no evidence in this cause, which can take the plaintiff's cause of action out of the statute of limitations, and the defendant is entitled to a verdict."

3RD. That the plaintiff is not entitled to recover interest on her claim, for any portion of time anterior to the date of the writ in this cause, because there is no evidence of any prior demand."

All of which prayers the court, (LE GRAND, A. J.,) refused.

The defendant below appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

An action was instituted in March 1845, upon receipts dated in 1838, for money to be paid to certain creditors of the administratrix of the plaintiff, and in case of their refusal to receive the fund, it was to be repaid to the intestate. In 1838, all the creditors were paid, except one, who refused to receive his proportion of the fund. The defendant, within three years, said, that he had, shortly after the refusal of the unpaid creditor to receive his proportion of the money, loaned the amount offered to him, and lost it; that his motive in making the loan, was to get rid of the money, and he never would pay it, unless the law compelled him. HELD, that these declarations were admissions, that the money had never been returned by the defendant; acknowledgments of a present subsisting debt due by him, and furnished no moral or legal excuse, why he should not pay the debt. The defendant's duty was to return the money, not risk it by a loan.

Under the circumstances of this case, the question of interest was for the jury, and the court refused to instruct them, that it could not be recovered anterior to the date of the writ.  

COUNSEL:
By BRENT for the appellant, and

By [**5]  J. M. BUCHANAN for the appellee.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*46]  SPENCE, J., delivered the opinion of this court.
This was an action of assumpsit, in Baltimore county court. The defendant pleaded non assumpsit. Non assumpsit, infratres annos, and actio non. On these pleas issues were joined.
[The judge, adverting to the evidence and prayers as before stated, proceeded to say:]
We have presented the prayers of the defendant at length, to shew that the error, or defect in the declaration, namely, that it contained no count on the promise to the administratrix, (a point or question which was relied on in the argument,) does not appear by the record, to have been raised or made in the county court, and upon which that court rendered judgment, and, of course, it cannot, under the provisions of the act of 1825, ch. 117, be permitted to be urged or insisted upon in the trial of this appeal.
The question which the two first prayers raises, is the force and effect of the evidence, to remove the bar of the statute of limitations.

 [*47]  The execution of the two receipts, of March the 22nd, and April the 2nd,  [**6]  1838, is admitted. The witness, on whose evidence the plaintiff below relied, to remove the bar of the statute of limitations, was John Hurst.
The receipts admitted in evidence, prove the receipt by Carter of the money, the object for which it was received, and Carter's promise to return it to Ellen Cross, in the event of the creditor or creditors of J. A. Cross, refusing to receive the composition of thirty-three cents in the dollar, and execute a release to J. A. Cross. Hurst's evidence proves the refusal of Barry and Hurst, to receive the composition and execute the release. The facts thus far referred to, occurred more than three years before the institution of this suit. But Hurst, in his evidence, further states, that Carter subsequently, at various times, shortly before and since this suit was brought, stated to said Hurst, that he had, shortly after the refusal of Barry and Hurst, loaned the amount of money offered to them, to a certain Raymond or Anchor; that his motive for making said loan was, that he wanted to get rid of the money.
That in these conversations Carter never stated, that he had paid said sum of money [**7]  to Ellen Cross, or her administratrix, but always said, he had not the money, he had loaned it away, and never would pay it, unless the law compelled him. This is a full admission on the part of Carter, that the sum of money which he offered Barry and Hurst, as a composition of their debt due from J. A. Cross, and which they refused to accept, was never returned or paid to Ellen Cross. Carter, in all the conversations detailed by Hurst, never said, he had paid the said sum of money to Ellen Cross, but always said, "he had not the money, he had loaned it away, and never would pay it, unless compelled by law." If the question rested upon these admissions of Carter, without any qualifications, could there remain a doubt, but that they were an acknowledgment of a present subsisting debt, from which the law would raise an implied promise, by which the bar of the statute would be removed? What excuse did Carter offer for not paying this money? that he wanted to get rid of the money, as he did not know what else to do with it, and he thought it was doing 

 [*48]  a favor to Ellen Cross, by loaning it out in that manner, as the security was then good;  [**8]  that he had taken the bond of Raymond and Anchor, but the same had been mislaid by him; Anchor had, shortly after such loan, died insolvent, and Raymond had gone away and proved worthless. The excuse offered for not paying the money, is a clear and unequivocal admission, that it never had been paid to Ellen Cross, but that he wanted to get rid of the money, which, in his receipt, he promised, under a certain contingency, to return to Ellen Cross, after that contingency did happen; he thought he was doing her a favor, instead of returning or paying her the money, to loan it out on securities, which very soon proved worthless.
Does the excuse set up by Carter, if taken as true, furnish a legal or moral excuse, why he should not pay the money? It was unquestionably his moral duty, when the money was refused by Barry and Hurst, to have performed his promise and discharged his legal obligation, by returning the money to Ellen Cross, as he contracted to do when he received it, and not to have loaned it out on securities, which very soon after proved worthless, without the knowledge or consent of Ellen Cross.
The acknowledgment of Carter, in the [**9]  language of this court, in Keplinger vs. Griffith, 2 G. & J. 296, "was a clearly implied admission, that the debt remained due and unpaid, and the excuse alleged for not paying it, furnished no real objection to the payment of it, if true."
The court committed no error in rejecting the defendant's third prayer, on the authority of Newson's Administrators, vs. Douglass, 7 H. & J. 417, and Fridge vs. The State, use of Kirk, 3 G. & J. 103, the question of interest was properly left to the jury.
JUDGMENT AFFIRMED.  

16 of 29 DOCUMENTS 

ADAM BODE vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 326; 1848 Md. LEXIS 46 

December, 1848, Decided 

PRIOR HISTORY:
 [**1]   ERROR to Baltimore city court.

The plaintiff in error, (the traverser below,) was indicted under the act of 1847, ch. 193, for selling spirituous liquors on the Sabbath day, in the form following, to wit:

"State of MARYLAND--City of Baltimore to wit: The jurors of the State of Maryland, for the body of the city of Baltimore, do, on their oaths, present, that Adam Bode, late of said city, yeoman, on the tenth day of September, in the year of our Lord eighteen hundred and forty-eight, the same day in the year aforesaid being the Sabbath day, commonly called Sunday, with force and arms at the city aforesaid, unlawfully did sell spirituous liquors to a person to the jurors aforesaid unknown, contrary to the form of the act of Assembly, in such case made and provided, and against the peace, government and dignity of the State. And the jurors aforesaid upon their oaths aforesaid, do further present, that the said Adam Bode, on the said tenth day of September, in the year of our Lord eighteen hundred and forty-eight, the same day in the year aforesaid being the Sabbath day, commonly called Sunday, with force and arms, at the city of Baltimore aforesaid, unlawfully did dispose of [**2]  spirituous liquor to a person to the jurors aforesaid unknown, contrary to the form of the act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

The traverser demurred to this indictment, but the court overruled his demurrer, convicted him of the offence, and adjudged and imposed a fine of $ 20 and costs. To review this judgment, the writ of error in this case was sued out by the traverser.  

DISPOSITION:
JUDGMENT REVERSED.  

HEADNOTES:

The act of 1847, ch. 193, prohibiting the sale of spirituous liquors on the Sabbath day, was intended to embrace only the licensed tavern keepers, and the licensed retailers of the liquors and cordials therein designated.

This act has no application to the importer, who is authorised to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown vs. The State of Maryland, 12 Wheat., 419.

The right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted.

An indictment founded upon this act will be defective, unless it describe the party accused, as a licensed tavern keeper or a licensed retailer of spirituous liquors, they being the class of persons, upon whom alone, the provisions of the act were designed to operate.

To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms, "licensed tavern keepers, and licensed retailers."

Where a statute contains an exception, so incorporated with its enacting clause that the one cannot be read without the other, the rule of pleading is, that the indictment must negative the exception; but where, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as a matter of defence.

But this rule has no application to an indictment under the act of 1847. That act, by its true construction, being confined and limited, in its character and prohibitions, to a designated class, there are no exceptions to be negatived, or to be pleaded by the accused, as a matter of defence.

The provisions of this act, with respect to the forfeiture of the license of the party convicted a second time for the same offence, clearly establishes the necessity of incorporating into the indictment a description of the party charged. 

COUNSEL:
By JOHN NELSON and REVERDY JOHNSON, for the plaintiff in error, and

By GEORGE R. RICHARDSON, Attorney General, for the defendant in error.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*328]  MARTIN, J., delivered the opinion of this court.
This is a writ of error directed to the city court of Baltimore, and brings before us the judgment of that court rendered against the plaintiff in error, upon an indictment, for violating the act of the legislature of Maryland, of 1847, ch. 193.
By the first section of this act, it is declared:
"That it shall not be lawful for any person or persons within this State, to sell, dispose of, or barter any spirituous [**3]  or fermented liquors or cordials of any kind, or in any quantity whatever, on the Sabbath day, usually called Sunday, and any person or persons violating the provisions of this act shall be liable to indictment in any court of this State, having criminal jurisdiction; and upon conviction thereof shall be fined a sum not less than twenty dollars, nor more than one hundred dollars, at the discretion of the court, for the first offence, and if convicted a second time for a like offence the license of the person or persons so offending, shall be declared null and void by the judge of said court."

 [*329]  And by the second section, it is provided;
"That it shall be the duty of the treasurer of the State, or such other person, whose duty it is to have the tavern licenses prepared, to have inserted in said licenses a clause, specially excepting the Sabbath day from the operation of said licenses."
It is perceived from an examination of this statute, that by the terms of the first section the judge, before whom the case is tried, is required, upon a conviction for a second offence, to forfeit the license of the party offending; and by the second section, it is made necessary [**4]  to incorporate into a tavern license a clause excepting from its operations, the Sabbath day; and it is perfectly apparent, from the character of these provisions, that the act only intended to embrace the licensed tavern keepor, and the licensed retailer of the liquors and cordials therein designated.
The act upon which this indictment was founded has no application to the importer, who is authorized to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown against the State of Maryland, 12, Wheat., 419. And the point raised in the argument of the cause, with respect to the right of the State in the exercise of its police power, to restrain the importer from a desecration of the Sabbath, by an exhibition of his merchandize for sale on that day, has therefore become a mere abstract and speculative question, upon which it does not become this court to express an opinion. The probability is, that a question of this character will never be presented for the adjudication of the judicial tribunals of the country.
The [**5]  right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted; and the only question to be decided by the court, is that which relates to the sufficiency of the indictment, in point of form, to authorise the judgment rendered by the court below, against the plaintiff in error.
The indictment contains two counts. The first, charges that the defendant unlawfully sold spirituous liquors on Sunday, 

 [*330]  contrary to the form of the act of Assembly; and the allegation in the second is, that the traverser, unlawfully disposed of spiritous liquors on the Sabbath day, to persons unknown, &c. But in neither count, is there to be found an averment, that the plaintiff in error was at the time of the sale of the liquors in question, a tavern keeper or licensed retailer, and his counsel have insisted, that the indictment is in this respect defective, because it should have appeared on its face, that the party accused, belonged to that class of persons, upon whom alone, the provisions of the act were designed to operate.
The indictment is, we think, open to this objection. The point [**6]  indeed has already been determined by the construction we have placed upon the act, under which this defendant was indicted. We have said, that according to the correct exposition of that act, it must be regarded as embracing only licensed tavern keepers and licensed retailers, and assuming this to be its true interpretation, it is perfectly clear upon the settled principles of pleading in criminal cases, that it was incumbent on the State, to bring the party charged within the purview of the statute, by a positive averment that he belonged to that class of persons, who only were restrained from selling upon the Sabbath, and against whom alone the penalties and forfeitures provided by the act, in case of its violation, were intended to be denounced. To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms "licensed tavern keepers and licensed retailers." The act is therefore to be read as if the words were, "that it shall not be lawful for any person within this State, being a licensed tavern keeper or licensed  [**7]   retailer, to sell," &c.; and treating this to be the true exposition and reading of the act, the proposition is, we think, incontrovertible that the indictment should have contained on its face a distinct allegation, that the traverser was within the class of persons thus described.
In the case of Spiers vs. Parker, 1 Term. R. 141, it was held, "that in an action for a penalty on a statute, the plaintiff must aver a case which brings the defendant within the act."

 [*331]  The rule of pleading in cases, where, after general words of prohibition, exceptions are created in the enacting clause of a statute, or in a subsequent clause or section, is stated with characteristic precision by Lord Mansfield, in Spiers vs. Parker, already adverted to. He said:
"There is a settled distinction between a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstances."
And Ashhurst, J., in the same case, said:
"The rule is, that a man who will bring an action for a penalty on an act of parliament, must shew himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter [**8]  of defence."
The same doctrine is announced in the case of Steel vs. Smith, cited by the counsel for the defendant in error, 1 Bar. & Ald. 38.
Bayly, J., remarked:--
"I cannot say that the proviso is a part of the same sentence, for if it had been omitted, the preceding sentence would have been entire. I admit that where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, there the exception must be negatived."
Lord Ellenborough held, that it was not necessary for the plaintiff to notice the exception in his declaration.
He said:--
"The sense of the enacting clause is perfectly complete, and the proviso is so distinct, that several sections might have been interposed between that and the enacting clause, without any prejudice to the sense. That there were no words of reference or of virtual incorporation, but this is a distinct and substantive proviso."
The principle enunciated by the cases to which we have been referred, is admitted, but it has no application, we think, to question of pleading raised on this indictment.
You certainly look to the language of the second section of the act, and to the [**9]  concluding words of the first section, as demonstrative of the intention of the legislature to include within 

 [*332]  its provisions only a designated class. But it is not a case where, after general prohibitory words, exemptions are carved out of the statute, either in its enacting clause or in its subsequent clauses.
This act is to be considered on its true construction, as limited in its character and prohibitions. Confined to a prescribed class. There were no exceptions to be negatived by the indictment; and it was not a case of exemption, to be interposed by the accused, as a matter of defence.
If, however, the case could be treated as an exception in favor of a particular class of individuals, and analogized to the adjudications on the game laws, and similar statutes, the indictment must have negatived the exception, because the exception would necessarily be incorporated into the enacting clause, as descriptive of the persons who could alone be guilty of violating the law.
The counsel for the defendant in error has contended, that the indictment is to be held sufficient, because the offence is charged in the language of the act. This is the doctrine as announced by [**10]  the Court of Appeals, in the case of The State vs. Cassel, 2 H. & G. 407, and in The State vs. Dent, 3 G. & J. 8. As a general principle, it is unquestionably correct.
But what is the offence created by this statute, as correctly expounded? It is not the sale of spirituous liquors upon the Sabbath. It is the sale of such liquors on that day, by persons who have been licensed to deal in the sale of liquors of this description, in conformity with the laws of the State. The character and qualification of the party charged, is a necessary element in the description of the offence. It is conceded that the offence is properly charged so far as regards the act done; the factum of the sale, as the words of the statute, have been pursued. But the objection of the counsel for the plaintiff in error to the indictment, is, that the offender has not been described. The distinction is manifest. The court is not informed from an inspection of this indictment, that Adam Bode is a licensed tavern keeper, or a licensed retailer of spirituous liquors. And the fatal defect is, that the party charged was 

 [*333]  not described as a person within the [**11]  purview of the statute, and capable of perpetrating the prohibited offence.
The necessity of incorporating into the indictment a description of the party charged, is illustrated by the provisions of the act, with respect to the punishment inflicted for this offence.
For the first offence the party is subjected to a fine of not less than twenty nor more than one hundred dollars; but it is provided, "that if he is convicted a second time for a like offence, the license of the person so offending shall be declared null and void by the judge of the court." And it seems to us that it would be impossible for the court to execute this part of the law, unless it appeared upon the face of the indictment, that the party charged was a licensed tavern keeper, or a licensed retailer, and in a predicament, therefore, to be visited with the forfeiture denounced against the commission of a second offence.
It follows from the views thus expressed, that we consider the indictment as defective, and upon that ground reverse the judgment of the city court.
JUDGMENT REVERSED.  

17 of 29 DOCUMENTS 

EDWARD M. KERR vs. MOSES POTTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 404; 1848 Md. LEXIS 7 

June, 1848, Decided 

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

The appellee filed his bill on the 8th September, 1846, alleging, that on the 23d January, 1846, the complainant and a certain Edward M. Kerr commenced, in the city of Baltimore, a wholesale and retail "Queensware and China business," under the name and firm of "E. M. Kerr & Co." That the business of said firm was large and heavy, and the liabilities and obligations outstanding and unpaid are very considerable, as are also the debts now due the same, and the goods and merchandise in its possession. That said Kerr has been extensively engaged in business on his private and individual account, and on or about the 21st August, 1846, stopped payment on some of his paper given for his individual liabilities, and is now greatly embarrassed and wholly insolvent. That such insolvency has not been occasioned by the operations and business of said firm, which have been profitable, but by transactions and business on his individual and private account. That since he became insolvent, he has applied and used a part of the property and means of the firm in payment of his individual debts, and that attachments have been issued by his individual creditors [**2]  against the property and effects of said firm, and complainant believes said Kerr will, unless restrained by this court, further proceed so to apply and use the property and effects of said firm.

The bill further charges that Kerr, when said business was commenced, agreed to furnish all the capital required in its management, to furnish and keep up a full stock of goods necessary and proper therefor, and was to sign all bonds, notes or other obligations for the payment of money or performance of any contract connected with said business, and was to pay all the debts and liabilities of the firm, and have the management thereof. That complainant was to act as salesman and general clerk, and was to receive, for his services, one quarter of the net profits, after deducting all expenses, and interest on the capital at the rate of six per cent. per annum, and was to receive for his support from said concern $ 83 33 per month, afterwards increased to $ 100 per month, which monthly payments were to be advanced from the net profits, and deducted from complainant's one quarter share thereof at the end of each year, and complainant was not to be held responsible for the debts and liabilities [**3]  of the firm, all of which were to be paid by Kerr. That immediately after the commencement of said business, complainant was held out to all persons dealing with said firm, as a partner, and as jointly liable with Kerr for the liabilities thereof. That Kerr caused signs to be placed at the store in Baltimore street in said city, which evidenced to all persons reading the same, that complainant and said Kerr were partners and jointly composed the firm of "E. M. Kerr & Co." That various circulars were prepared and issued by Kerr and complainant, sometimes by one and sometimes by the other, indicating the same fact, and that in various publications in newspapers in Baltimore and elsewhere complainant was held out as a member of said firm, and a partner of Kerr and as jointly responsible with him for the debts and liabilities of the firm. That though Kerr in his transactions with third persons, spoke of and held out complainant as his partner, and as a member of said firm, and has thereby, as complainant believes and charges, made him liable for all debts created in the regular and legitimate business of the firm, yet he has not, in other respects, treated complainant as a partner, and [**4]  has failed and refused to account to him of his one-fourth of the net profits, and to take an account of stock in trade in each year as he was bound to do under his said contract, and has retained exclusive possession and control of the books and effects of the firm. That Kerr has failed to meet all the liabilities of the firm as they matured, and in this respect has violated his said contract, and has failed to keep the business well stocked with goods, suitable for carrying on the same. That since the insolvency of Kerr on his individual liabilities, he has told complainant that he was jointly liable with himself for all the debts of the firm; whereupon, complainant insisted, that the means of the firm should be applied, in the first instance, to pay its liabilities, and a settlement be made, and complainant paid his share of the profits, which settlement and application, Kerr refused to make. That he is advised, and therefore charges, that he is jointly responsible as a partner for all the debts of the firm, exceeding, as he believes, the sum of $ 20,000, and if he is held personally responsible for them, he is entirely ruined and hopelessly insolvent. That he believes the property [**5]  and debts of the firm will be nearly, if not quite, sufficient to pay the partnership liabilities. That the business has been extremely profitable, and upon a full and fair adjustment of accounts, complainant will be entitled to a considerable sum over and above his said monthly payments; but that Kerr has refused to make such adjustment, or to come to any account in relation thereto. That by reason of the insolvency of said Kerr--his improper application of the partnership means to the payment of his individual debts--his refusal to account and to apply the partnership property in payment of the partnership debts, and his holding exclusive possession of the books and effects thereof, complainant is liable for a large amount of partnership debts, without the means of enforcing an equitable adjustment of the affairs of the firm, except through the interposition of this court. That Kerr has refused to apply the partnership property in payment of the partnership liabilities, but without the knowledge and consent of the complainant, has applied a portion thereof in payment of his individual debts: and complainant apprehends and believes he will continue to make such application, unless [**6]  restrained by this court, and will thereby greatly injure the partnership creditors, whereby the complainant will be totally ruined. That for these reasons he has become very desirous to put an end to said partnership, and has, in fact, applied to Kerr to dissolve the same, and all connection in business, and to come to an account in relation thereto, all which he has refused to do.

The bill then prays for the appointment of a receiver, an injunction restraining Kerr from selling, disposing of, or retaining from the receiver any of the partnership effects, or collecting any debts due thereto, for a dissolution of said partnership and for general relief.

On the same day, the Chancellor (BLAND) ordered the injunction as prayed, and the application for a receiver to stand over until the coming in of the answer and further order.

Kerr, in his answer filed on the 26th September, 1846, avers that he has been engaged in business in Baltimore, carrying on a wholesale and retail "Queensware and China business" since the year 1839, under the name, style and firm of "E. M. Kerr & Co." and was so engaged when this bill was filed. That this was the name of a pre-existing firm of [**7]  which respondent was the active member; but for a considerable period prior to the 23d January, 1845, he had become its sole owner and proprietor, and continued business under that name because it was well known and established, but in many instances, using indifferently his own proper name of "E. M. Kerr," and said name of "E. M. Kerr & Co." That on the 23d January, 1845, respondent and complainant entered into an agreement, which is exhibited--the true construction and effect of which he submits to the court, admitting that as far as the allegations of the bill agree therewith, they are true; but in so far as they differ therefrom, are untrue. But defendant denies that by this agreement, complainant became his partner, or thereby acquired any communion of property with defendant in the stock in trade, or in the rights, or credits, or effects of the firm; and he affirms that the allowance to the complainant of a share of the profits, was only a mode of compensating him for his services as clerk, and in lieu of clerk hire. That even the limited connection between the parties created by this agreement, was dissolved before the filing of the bill, by a notice from complainant to defendant [**8]  to that effect, as the agreement provided for. He denies that he has ever refused to come to a full and fair settlement with complainant,--but, on the contrary, avers that he has always been willing to account and settle with him. That complainant has in various ways and without authority, received and appropriated to his own use, more of the monies of the defendant, than his portion of the profits entitled him to receive.

The answer then specifies some special instances of such alleged appropriation, and then avers, that upon a fair settlement, the complainant will be found in debt to defendant. That all the goods purchased in the business, the notes made, and the credits given, were made and given in the name of defendant to whom, and to whom alone, the creditors looked for payment, the complainant at the time of the agreement being notoriously and utterly insolvent. He denies that he ever represented or held the complainant out to the public as his partner, or authorized or gave his sanction to any act which could have that effect. He avers that he has always paid his business notes, none having been permitted to lie over until after the service of the injunction, though he [**9]  admits that he had loaned notes to a considerable amount to a mercantile firm in Baltimore, which not being paid at maturity, attachments had issued upon them, and been levied upon certain credits of defendant in Pennsylvania, though if these accommodation notes should be paid by the persons to whom they were loaned, he yet hopes to go on prosperously with his business.

The agreement referred to in the answer, and exhibited with it, is as follows:--

"Articles of agreement, made and concluded this twenty-third day of January, in the year of our Lord one thousand eight hundred and forty-five, by and between Edward M. Kerr and Moses Potter, both of the city of Baltimore, and State of Maryland, witnesseth, that whereas the said E. M. Kerr has agreed with the said Moses Potter to employ him as salesman and general clerk in his store, No.     Baltimore street, in the city of Baltimore, and to allow him for the faithful performance of his services in that capacity, one-quarter of the net profits that may arise from the business, after deducting all expenses, and the interest on amount of the capital stock put in said business, at the rate of six per cent. per annum, and to pay [**10]  the said Moses Potter from the concern for his support, the sum of eighty-three dollars thirty-three cents per month, which said monthly payments are to be advanced out of the net profits coming to the said Moses Potter, and to be deducted from his one-quarter share of the net profits at the end of each year. In consideration of which allowance, the said Moses Potter hereby covenants and agrees with the said E. M. Kerr, to give his sole and undivided attention to the interest and prosperity of the business, and bring to its aid not only his own labors, but will, as far as in his power lies, enlist the good will and invoke the aid of his friends and acquaintances, both in town and country, in its behalf.

"And the said E. M. Kerr, on his part, covenants and agrees with the said Moses Potter, that he will to the best of his ability, and with a view to the profits of the said business, purchase and keep the concern well stocked with goods, suitable for the carrying on of the said business. And it is hereby declared to be the meaning of the articles of agreement aforesaid, that thereby the said Moses Potter is not made a partner in trade of the said E. M. Kerr, but that the allowance [**11]  of one-fourth of the net profits, after deducting the expenses of the business, and also deducting interest on the amount of the capital, at the rate of six per cent. is as compensation for the services of the said Moses Potter, in lieu of clerk hire. And further, that the said E. M. Kerr is to sign all bonds, notes or other obligations, for the payment of money, or for the performance of any contracts or engagements necessary to be entered into, for the conducting of the said business, unless the said E. M. Kerr should by special authority in writing, or by power of attorney, put and appoint some one in his place so to do. And also, that the said E. M. Kerr shall be at liberty, at any time during the three years aforesaid, to sell out his interest in, or take a partner or partners into the said business, if the selling out or introducing a partner or partners into the said business will not deprive the said Moses Potter of his aforesaid share of the net profits, after deductings above mentioned. And the said parties agree that either may withdraw from this agreement, by giving to the other six months notice in writing, of his intention so to do. And it is further understood by and [**12]  between said parties, that if during the term aforesaid, the said Moses Potter should die, and these articles of agreement at the time of his death being then in full operation, and not altered as to notice as aforesaid, in regard to withdrawal, then in such case, an account of sales is to be taken up to the time of his decease, and his proportional part of the profits, after the deductions as aforesaid, are to be paid to the legal representatives of the said Moses Potter;--the said account of sales to be made up as speedily after the decease of the said Moses Potter as the business season will allow. And it is further agreed that the inventory of the stock in said business, shall be taken each year at the following rates:

In witness whereof, the said parties have hereto signed their names and affixed their seals, on the day and year above written.

Signed and sealed, in the presence of

S. H. Tagart."

EDW'D M. KERR, [Seal.]

MOSES POTTER, [Seal.]

The following letter from Potter to Kerr, was also filed with the answer:--

"Baltimore, February 3d, 1846.

"Dear Sir,--You are hereby notified that I intend to and do hereby withdraw from the agreement [**13]  of the 23d January, 1845, in relation to the business to be carried on at No. 250 Baltimore street, at the expiration of six months from this date.     Yours, very respectfully,     MOSES POTTER.

To Edw'd M. Kerr, Esq. Baltimore."

Under an agreement for that purpose, a number of depositions and written evidence was taken and filed, to be used at the hearing of the motion to dissolve the injunction made upon the coming in of the answer. This evidence shows that the complainant occupied a position in the business, with the knowledge and consent of both parties, which made him as to third persons, a partner in the concern: and also, that the firm itself, if not actually insolvent, was in circumstances of great embarrassment; and that looking to the defendant's private engagements and responsibilities for other persons, his inability to carry on his business, and eventual insolvency, was almost inevitable.

On the 11th January, 1847, the Chancellor (JOHNSON) ordered the injunction to be continued until the final hearing,--and in his opinion accompanying this order, after stating the allegations of the bill and answer, and the effect of the proof taken, says:--

"The [**14]  motion to dissolve the injunction has been argued with much ability on both sides, and the duty now rests with the court to decide upon it.

"In support of the motion it has been urged, that as the case now presents itself upon bill, answer and proofs, the plaintiff has no standing in court, because no partnership has been established, either as between the parties themselves, or as to third persons, it being conceded, as the defendant's counsel was understood, that if a partnership existed, the injunction should stand.

"Looking to the agreement of the 23d January, 1845, I should have little difficulty in saying, that the parties inter sese, were not partners. It is true, there was to be a division between them of the net profits, in the proportion of three-fourths to one-fourth, and this stipulation, if unaffected by other provisions in the agreement, would clearly make them partners at least as to third persons; for it is not essential to such a relation, that there should be a participation in losses as well as profits. A contract to share the net profits in any proportion that may be agreed upon, will, to that extent, create a partnership, though the losses are to be borne [**15]  by one of them exclusively. Story on Partnership, 28, section 23. Gow on Partnership, 15.

"But in this case, the parties whilst they agree to share the net profits of the business, also expressly stipulate that such agreement shall not make them partners, 'but that the allowance of one-fourth of the net profits after deducting the expenses of the business, and the interest upon the capital, shall be considered as a compensation for the services of the said Moses Potter, in lieu of clerk hire.'

"It is clear therefore, that whatever may be the effect of this contract upon the rights of third persons, the parties inter se cannot be regarded as partners. It is said, however, that even with reference to strangers, these parties are not to be considered as partners, notwithstanding the agreement as to the division of the profits, and the distinction between a stipulation to pay a given sum for services in proportion to a given quantum of profits, and a specific interest in the profits themselves as profits, is adverted to in support of this proposition. This distinction, it must be confessed, is a subtle and thin one, but it appears to be recognized as established law. Hamper ex parte, 17 Ves., 404, 412. [**16]  Story on Partnership, sec. 49.

"The agreement, however, in this case is not for a given sum in proportion to the profits, but is for a share of the net profits, as profits. And though it is said in the agreement, that this shall not make the plaintiff a partner, but is to be paid him in lieu of his services as clerk, this stipulation, so far as third persons are concerned, will not prevent his being considered a partner; for as to them, no such stipulation can protect him from loss. Hamper ex parte, 17 Ves. 412. Taylor vs. Terme & Janffret, 3 H. & Johns. 505.

"If, however, the views of the defendant's counsel, in reference to the construction of the agreement, are correct, and the defendant looking to that paper alone, is not to be considered a partner to any extent, there are still circumstances in this case which impose that character upon him. The parties, it seems to me clear beyond dispute, were held out to the public as partners, in all the usual modes in which publicity is given to such associations. If this be so, then the relation existed, as to third persons, whatever may have been the private agreement of the parties themselves, unless with reference [**17]  to those persons who had knowledge of the particular terms of the agreement. Story on Partnership, sec. 49.

"A partnership thus clearly existing as to third parties, whatever may have been the relation of the parties inter sese, the question presents itself, has the plaintiff under the circumstances of this case, a right to call upon the court for an account, and an injunction to prevent any apprehended misappropriation of the partnership effects, until the account can be taken?

"The dissolution of the partnership does not in my opinion, work any change in the rights of the parties in this respect. Each partner has a right, notwithstanding such dissolution, to insist that the partnership funds, shall be applied in the first place to the payment of the partnership debts. This right is recognized and enforced in equity, as a privilege or lien, and through it, the equity of the joint creditors is secured, to have their debts paid, in preference to the separate creditors of the respective partners. Ex parte Ruffin, 6 Ves., 119, 126. Story on Partnership, sections 97, 326, 327. Collyer on Partnership, B. 2, ch. 1, sec. 1.

"This is an equity peculiar to the partners,  [**18]  at least so long as they remain solvent and the partnership is going on, and it is through this equity that the rights of the joint creditors are protected.

"In this case there would seem to be a peculiar propriety, in enforcing the priority which the partnership creditors are entitled to, through the privilege or lien which the partners enjoy, to have the funds applied to the satisfaction of the partnership debts. That the concern is insolvent or seriously embarrassed, is undeniable, and it is quite apparent that the defendant owing large sums on his own individual account, claims the right to apply the funds employed in the business to the payment, indiscriminately, of his private and his business engagements, to the manifest prejudice of the joint creditors. And this being so, the rights of those creditors to a priority of payment, will be defeated, unless the court, through the equity or lien of the plaintiff, as a partner, shall interpose for their protection.

"The partnership then being dissolved and the concern greatly embarrassed, if not actually insolvent, and the defendant being by his own admission, unable to meet his private engagements, his notes not paid at [**19]  maturity, and the process of attachment having, in some instances, been taken out against him, it would seem to follow, that it is the duty of this court to interpose at the instance of either of the partners, for the protection of the creditors.

"Unless protected in this mode, it may be doubted whether any protection can be afforded them at all, as the lien or equity does not attach to them, but to the partners, through whom the right of priority of the joint creditors is worked out and maintained.

"But independently of this right of the plaintiff as a partner, to insist upon the prior application of the partnership estate to the payment of the partnership debts, there is another ground upon which the bill may be supported. The plaintiff, as appears by the agreement, though not a partner, so far as he and the defendant were concerned, was yet entitled to one-fourth of the net profits of the business; and the connection being terminated and the business broken up, he is entitled to an account of those profits, and perhaps, a lien or preference in respect of them, over the private creditors of the defendant. 3 Kent Com. 25, note b, 4th ed.

"It has been argued for the [**20]  defendant, that the plaintiff has an adequate remedy at law upon this agreement, and therefore his application should not be entertained by this court. But is this so? To ascertain the net profits of the business, the partnership accounts must be taken, which could not be done conveniently, satisfactorily, and fairly by a jury, in the course of a trial at nisi prius. That matters of account are subjects over which courts of law and equity have concurrent jurisdiction is established, and it is well settled that the equity tribunals have no jurisdiction where a plain, adequate and complete remedy may be had at law. Richardson vs. Stillinger, 12 G. & J. 477.

"This then being a bill for an account, and of a character in which the legal remedy, if there be one at all, would be full of difficulty, inadequate and incomplete, the power of this court over the subject would seem to be clear. Being of opinion, that this court has jurisdiction over the subject, the next question which arises is, as to the extent to which the power of this court should be carried, at this stage of the cause.

"The bill prays for an injunction, and the appointment of a receiver, upon the ground [**21]  chiefly of the right claimed by the defendant, to apply the joint property of the concern to the payment of the claims of his private creditors; and the answer, though it emphatically denies the partnership, does not deny the claim of, or the exercise of this right; nor does it deny, but on the contrary admits, that if these private engagements of the defendant are pressed upon him, being engagements resulting from the loan of his paper to a mercantile firm in Baltimore, he will not only be broken up in his business, but rendered insolvent.

"This is a case, therefore, where the partnership, which certainly existed as to third persons, is at an end, the business suspended, and the right claimed and exercised by one of the partners, to apply the funds, which should be applied to the payment of the joint creditors, to the payment, indiscriminately, of them and his individual creditors.

"That a Court of Chancery will, under such circumstances, interpose by injunction, and put a receiver upon the property, is, I think, established by authority. Story on Partnership, sections 227, 228, 229.

"If the view taken by the court is correct, that these parties as to third persons,  [**22]  were partners,--that being partners, the complainant has a right to insist that the partnership effects shall be applied to the satisfaction of the joint creditors; that this right is recognized in equity as a lien, through which the equity of the joint creditors to have their claims first paid, can be enforced, it would seem to be the duty of the court to preserve the property from misappropriation by the partner in possession of the partnership effects, and to place those effects in the hands of a receiver, that the proper application may be made of the property, and the concern wound up. Gow on Partnership, ch. 2, sec. 4, 3d ed.

"It has been ingeniously urged in the argument of the defendant's solicitor, that the complainant can have no relief upon the ground of his liability to the creditors, or any equity which they may have through him, to have their claims paid in preference to the individual creditors of Kerr, because, having planted himself in his bill exclusively upon his title as a partner inter se, he must maintain himself upon that ground, and can resort to no other. But the complainant does in his bill, allege his liability as a partner to the creditors of the firm,  [**23]  and that if the application by Kerr of the partnership effects to his individual debts is permitted, the partnership creditors will be greatly injured, and he himself utterly ruined. And although the defendant denies that the complainant is a partner, he does not deny the injury to the creditors of the firm, if his individual debts are paid out of its property. It is true, the bill does not allege as a distinct ground of equity, the right of the partnership creditors to seek through the lien of the complainant as a partner, so far as they are concerned, a priority over the private creditors of the defendant; but the facts being stated, upon which this equity of the creditors rests, that equity may be enforced, though not expressly alleged in the bill, as a ground for the action of the court.

"This equity is not a matter of fact, which the party must allege, but a conclusion of law or equity, to be drawn by the court from the statement of facts which give rise to it. Gibson et al. vs. McCormick, 10 G. & J. 65, 109.

"Having then, after a careful consideration of the circumstances of this case, duly weighing the arguments of the counsel, come to the conclusion,  [**24]  that the plaintiff is entitled to relief in this court, and that justice requires the continuance of the injunction, I shall pass an order to that effect, and incline to the opinion, that a receiver should be appointed, as soon as a proper person is recommended, to the end that the affairs of the partnership may be wound up, and its property and funds collected and distributed, according to the rights of all parties concerned."

An application was then made for the appointment of a receiver; and the Chancellor (JOHNSON) on the 1st February following, passed an order for that purpose, accompanying which he delivered the following opinion:--

"The application for the appointment of a receiver in this case, has been brought before the court by the consent of parties, and their respective solicitors have been fully heard.

"Looking to the nature and extent of the injunction granted by my predecessor on the 8th September, 1846, and continued by my order of the 11th instant, it is difficult to see how the appointment of a receiver can be refused, without material injury to the parties concerned, unless indeed the injunction itself shall be essentially modified.

"It restrains [**25]  the defendant, Kerr, who is in possession of the property and effects of the concern, from selling or disposing of any of the goods and effects of the partnership, or collecting any debts due thereto, or negotiating any bill or note, or contracting any debt whatever on account thereof. In short, it puts a complete stop to the business of the firm, a condition of things, which cannot be continued without great deterioration and loss to all parties having an interest therein.

"If therefore I should conclude not to appoint a receiver to take charge of this property, and make it available to those, to whose benefit it should be applied, I should consider it my duty, either to dissolve the injunction or so to modify it 'as to avoid these injurious consequences.' The power of the court should never be exercised merely in inflicting injuries, though it sometimes happens in the application of principles designed to advance the general purposes of justice, the interests of individuals are made to suffer.

"The argument upon the present application for a receiver, has, no doubt necessarily involved the question of the propriety of continuing the injunction; a point heretofore adjudged [**26]  by the court, and I have, from a sense of duty, as well as from inclination, carefully reconsidered the grounds upon which I proceeded in passing that order, with an anxious desire to arrive at just conclusions upon the subject.

"It was my deliberate judgment formed then, and remaining still, that these parties, plaintiff and defendant, as to third persons, must be regarded as partners. Independently of other authorities, in support of this opinion, the case of Taylor vs. Terme and Janffret, 3 Harr. & Johns. 505, it seems to me is perfectly conclusive.--In that case the defendant Terme, was employed by the other defendant Janffret, as a clerk and book-keeper, and had no control or management of the business in any other capacity; and yet, because he received a share of the profits, instead of a stipulated salary, he was held liable as a partner, though the plaintiff only knew him as such clerk or book-keeper, and the note upon which suit was brought, was given by Janffret alone.

"It was admitted by the very eminent counsel who argued that case for the defendant, that the English decisions cited by the plaintiff's counsel, established the position, that where a person derives [**27]  a benefit from the trade in which another is engaged, by receiving a portion of the profits, he is liable as a partner, although he carefully stipulates, that he is not to be so liable, and the effect of the decisions was attempted to be obviated upon the ground, that being made since the revolution, they were not binding upon the court.

"Being then partners, to the extent of rendering both liable for the engagements of the concern, a dissolution having taken place, and insolvency impending, if not actually existing, and it being charged and not denied, that the defendant was misapplying the partnership funds, to the payment, indiscriminately, of his individual, as well as the partnership debts, it seemed to me a case was presented, in which it was the duty of the court to interfere. In deciding upon the motion to dissolve the injunction, authorities were cited to show, that each partner upon the dissolution of the partnership, has a perfect right, in the first place, to require that the partnership funds shall be directly and regularly applied to the payment of the partnership debts, and that as between them there is a lien, or at least an equity, which through the partners,  [**28]  may be applied in favor of creditors, though as to the latter it may not attach, by virtue of their original claims, in all cases. Story on Partnership, sections 97, 326, 327.

"The evidence clearly shows that the business of this concern is surrounded by serious embarrassments, if not insurmountable difficulties. The affairs of the partnership, under these circumstances, are brought into a Court of Chancery to be there administered, and this court, it is believed, has jurisdiction over the subject, not only as a matter of account between the parties, but upon that principle of equity, by which the partnership creditors, through the plaintiff, the suing partner, have a right to insist, that the partnership funds, shall be applied in the first place, to the payment of their claims, in preference to the individual creditors of the respective partners.

"That the separate creditors can only look to the surplus, after the satisfaction of the joint creditors in a court of equity, has been decided by the Court of Appeals, and, of course, is a position not open for controversy. McCulloh vs. Dashiell's adr., 1 H. & G. 96, 106. In the case of Hazzard vs. Hazzard, 1 Story 371, [**29]  cited by the defendant's counsel, the rights of creditors are not at all involved, as they are in this case, not only by the averments of the bill, which show the danger to which they are exposed, by the division of the partnership funds, to the payment of the separate creditors of the defendant, but by the silence of the answer in regard to that allegation, and its statements in reference to the attachments which those creditors were prosecuting against him. In Hazzard vs. Hazzard, the complainant put his right to an account, upon the distinct and sole ground of his being a partner, and Mr. Justice Story being of opinion that the parties inter sese were not partners, and consequently that the allegations and proofs did not correspond, dismissed the bill.

"In this case, the plaintiff not only asks for an account, as a partner, but he alleges the danger to partnership creditors from the conduct of the defendant, and his own danger and entire ruin, if by reason of the misapplication of the partnership funds by the defendant, those creditors are thrown upon, or have recourse to him, as we have seen they have a clear right to do. This case then, I think, is essentially unlike the [**30]  case decided by Judge Story.

"It has been argued, that the court should at any rate, do no more than restrain the defendant, from applying the joint property (if it be joint) to the payment of his separate debts, and that the joint creditors should be left, from time to time, as the circumstances may render necessary, to apply to the court for the protection of their interests. But would not this course be most inconvenient, and tend to multiply litigation to a very unnecessary extent?

"The joint creditors or plaintiff must be kept constantly on the alert, to prevent a violation of the injunction, which might be done to a great extent, without the risk of detection, and for every attempt of the separate creditors to secure the payment of their claims, to the prejudice of the joint creditors, a bill in equity would have to be filed. It would produce the same inconvenience, which the Lord Chancellor in ex parte Elton, 3 Ves. 238, deprecated.

"A case has been cited in this argument, which was not referred to, in the argument of the motion to dissolve the injunction, which in its essential features is very much like the case we are considering. It is the case [**31]  of ex parte Digby, and ex parte Buckston, in 38 Eng. Com. Law 495. The question in that case was, between the assignees under a separate, and the assignees under a joint fiat, and the rights of these assignees depended upon, whether a partnership was shewn to exist, between Shackleton and Blenkin. The business it appears was carried on in the sole name of Blenkin, and that Shackleton had been retained by him, as a clerk, or agent, at a salary of £  100 a year; but, that afterwards, by a new arrangement between the parties, Shackleton was to have a moiety of the profits of the business, as a compensation for his services. There was no agreement in writing, constituting him a partner, nor any entry in the books of the business, from which that circumstance could be implied; and it did not appear, that he brought any capital into the concern, or had any interest in the stock in trade, which was purchased with the separate money of Blenkin, and while the alleged partnership was going on, Shackleton carried on a separate trade, as a dealer in hops.

"Under these circumstances, the court impounded the separate fiat, to give effect to the subsequent joint fiat, being of opinion [**32]  that the arrangement constituted a partnership as to their liabilities, to third persons, and that even if the question was doubtful, a joint commission was never superseded by a separate commission, without sending the disputed fact of partnership to be determined by a jury. And in the case referred to, Sir G. Roye said, it appeared to him, the property was joint, and it was the duty of the court, to see how far the rights of all the creditors could be preserved, and that it was the habit of the court in such cases, 'to get the separate fiat out of the way of interfering with the joint fiat, or impeding the administration of the joint assets, for the general benefit of the joint creditors.' If this then, was a case in bankruptcy, depending in the English courts, there can be little or no doubt, that the assets of this firm would be administered under a joint commission, and applied to the payment of the joint creditors, in preference to the separate creditors of Kerr. It is said however, that in this case, there is neither the death of either of the parties, bankruptcy, or technical insolvency; and that the rule which gives joint property to the joint creditors, and separate property,  [**33]  to the separate creditors, only applies to such cases. There is, to be sure, in this case, neither death, bankruptcy, or technical insolvency, but there is actual insolvency, and an intention charged, and not denied on the part of the defendant, to treat the property of this concern as separate property, and to apply it accordingly. This, the Court of Appeals have said, in the case of McCulloh vs. Dashiell, 1 H. & G. 106, is contrary to the equitable rule, which declares that, the separate creditors can only look to the surplus of the joint fund, after the satisfaction of the joint creditors. Though I have given to this case a very careful consideration, and have had the benefit of able arguments on both sides, it is very possible I may have fallen into error in the conclusion to which my judgment has conducted me; but in that event I have the satisfaction to know, that the legislature of this State, affords the means, by which the party against whom the decision is made, may take that decision to a superior tribunal, where the error, if one has been committed, will be corrected. The act of 1835, chapter 346, and 380, gives the remedy in regard to the injunction, (upon [**34]  which the order for a receiver depends) but as that remedy has not been pursued, I consider it my duty to appoint a receiver, and shall pass an order for that purpose.

"Though the depositions taken and filed, since the last order have been read, they have not been adverted to in the foregoing observations, nor are they relied upon in support of the order about to be passed, because I am not satisfied, that they were so taken, as to make them evidence. George M. Gill, Esq. is recommended as a fit person to be appointed receiver by a large number of creditors, and it is understood there is no objection to him, he will therefore be appointed."

From these several orders, granting and continuing the injunction, and appointing a receiver, the defendant appealed to this court.  

DISPOSITION:
ORDERS REVERSED AND CAUSE REMANDED.  

HEADNOTES:

The appellant and appellee entered into an agreement in writing, by which the former agreed to employ the latter as salesman and clerk in his store, and allow him for his services, one-fourth of the net profits of the business, and which further declared "that thereby the said" appellee "is not made a partner in trade of the said" appellant, "but that the allowance of one-fourth of the net profits, after deducting expenses," &c. "is a compensation for the services of the" appellee "in lieu of clerk hire." Held,

That this agreement is conclusive, to show that the parties were not partners, inter se, and however the appellee may be held liable as to third persons, he has none of the rights and equities of an actual partner,--and therefore, has no more right to call for the interposition of a court of equity, on the ground of lien, than any other creditor of the appellant.

If he performed acts, or stood by and saw others perform them, which would render him liable to the creditors of the concern, the credit given was voluntary, and gave him no other equity than would result to any other person who should become responsible for the appellant's indebtedness.

There being here no controversy between creditors, but simply whether the appellee was the actual partner of the appellant, this case is not analogous to the case of ex parte Digby and ex parte Buckston, in 38 Eng. C. L. 495. 

COUNSEL:
By WM. SCHLEY for the appellant.

By GEO. M. GILL and JOHN NELSON for the appellee.  

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

OPINIONBY:
SPENCE 

OPINION:

 [*423]  SPENCE, J. delivered the opinion of this court.
The question upon which this case entirely depends, is, whether Kerr and Potter, stood in [**35]  the relation to each other of partners inter se. If they stood in this relation to each other, the order of the Chancellor granting the injunction, the order continuing the injunction, and the order appointing a receiver were all, and each of them correct, if not, erroneous.
In the examination of this question, all that class of cases in which courts of equity have adjudged the parties to be partners in relation to third persons, are left out of view. This controversy is one to which the creditors are not parties, but one in which Potter claims to be an actual partner of Kerr, and entitled to the rights and equities of a partner inter se. It can only be upon the hypothesis, that Potter is a partner of Kerr, and holding with him a community of rights and interests in the capital stock and effects of the concern, which creates his lien from which his equities arise. Otherwise his claim can present no other reason, or ground for the interposition of a court of equity, on the ground of lien, than that of any other creditor of Kerr.
We will enquire, whether upon the authorities, when applied to the evidence in this cause, Kerr and Potter, stood in the [**36]  relation to each other of partners inter se. Chancellor Kent, in the 3d vol. of his Commentaries, page 32, says "there is a just and marked distinction, between partnerships as respects the public, and partnerships as respects the parties; and a person may be held liable as a partner to third persons, although the agreement does not create a partnership between the parties themselves." At page 27, the same author says, "actual intention is requisite to constitute a partnership inter se." See 1 Story 371, Hazzard vs. Hazzard.
This is not one of those cases so frequently found in the books, where courts, to ascertain the intention of the parties, are obliged to form their conclusions by deductions, drawn by analogy from principles of law applied to the facts and circumstances. The parties themselves in their articles of agreement of the 23d January, 1845, have declared their intention in the 

 [*424]  most unequivocal language, as follows: "And it is hereby declared to be the meaning of the articles of agreement aforesaid, that thereby the said Moses Potter is not made a partner in trade, of the said E. M. Kerr, but that the allowance [**37]  of one-fourth of the net profits, after deducting the expenses of the business, and also deducting interest on the amount of the capital at the rate of six per cent. is a compensation for the services of the said Moses Potter, in lieu of clerk hire." We think this declaration and the explanation showing they are not partners inter se, in the articles of agreement are conclusive of this question. It was insisted in the argument, that if Potter were held liable for the debts of the concern, and not to be treated as a partner inter se, and entitled to all the rights and equities as such, would be unfair and fraudulent. The answer to this is, that Potter might have known that he was not the actual partner of Kerr, and if he performed acts himself, or stood by and saw others perform them, which would render him liable to the creditors of the establishment, the credit given was voluntary, and gave him no other equity than would result to any other individual, who had become responsible for Kerr's indebtedness.
But it was insisted, that this liability of Potter to the creditors, gave them an equity to come upon the partnership stock and effects, and the [**38]  case of ex parte Digby and ex parte Buckston, in 38 Eng. Com. Law 495, was relied on as maintaining this doctrine. This was a case in bankruptcy, and the controversy was between the assignees under the joint fiat, and the assignees under a separate fiat. A controversy in fact between the representatives of the joint creditors on the one hand, and the separate creditors on the other. The assignees under the separate fiat praying that the joint fiat might be annulled, and the assignees under the joint fiat that the separate fiat might be superseded. Now, as we have before stated, this is not a controversy between creditors, involving the question of joint and separate claims, but is simply one involving the question whether Potter was the actual partner of Kerr, and had a lien on the stock and effects of the concern. 

 [*425]  If this were an application, by a creditor charging that Kerr and Potter were partners in trade, and that he was a creditor of the firm, the dissolution and the insolvency of the firm, and the improper appropriation of the funds of the firm to the payment of the separate creditors, there might be some [**39]  analogy.
We think, therefore, upon the case as made by the bill, answers, exhibits and proof, there is error in the Chancellor's order awarding the injunction, the order continuing the injunction, and the order appointing a receiver.
In this case we do not decide any question as to the rights of creditors.
The Chancellor's orders are reversed, and the cause remanded, that an account may be stated of the profits, while Potter acted as clerk or salesman of Kerr.
ORDERS REVERSED AND CAUSE REMANDED.
DORSEY, C. J. dissented.  

18 of 29 DOCUMENTS 

WILLIAM MCCLELLAN vs. WILLIAM CROOK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 333; 1848 Md. LEXIS 47 

December, 1848, Decided 

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

The original bill in this cause, was filed on the 21st of July, 1843, by William Crook, the present appellee, against McClellan, the appellant, and one Sophia Ducatel, administratix of Alexis A. Delmas, deceased, for the sale of certain real estate, in the city of Baltimore, mortgaged by said Delmas, in his life time, to one Elizabeth Taggart, who afterwards assigned the mortgage debt to the complainant.

The bill states, that the mortgage was executed on the 19th of November 1836, to secure an indebtedness of $ 2000, owing by Delmas, the mortgagor, to the mortgagee. That Delmas afterwards, executed a second mortgage of the same property to Israel Griffith, of the city of Baltimore, and shortly thereafter died, leaving the whole debt to said Taggart unpaid, and about one-third of the debt due said Griffith, also unpaid. That afterwards, on the 28th of May 1839, the complainant paid said Taggart the whole amount of her mortgage debt, and on the 12th of February 1840, received from her an assignment, duly executed, of said mortgage, and her interest therein. That after this assignment, viz., on the 17th of December 1842, Griffith, the junior [**2]  mortgagee, upon a bill to which the complainant was not made a party, obtained a decree from Baltimore county court, as a court of equity, for the sale of the mortgaged premises, for the payment of the balance due on his mortgage claim. That under this decree, the property was sold to William McClellan, (the appellant,) for the sum of $ 1200, subject to the mortgage assigned to the complainant, of the existence of which the trustee distinctly informed McClellan, before and at the time of sale. The bill then prays for a sale of the mortgaged premises to satisfy the mortgage debt so assigned to the complainant, with interest, and for general relief.

The answer of McClellan admits his purchase of the property under the decree of Baltimore county court, and also the execution of the mortgage to Elizabeth Taggart, but insists that after the death of said Delmas, one Victor Vallette purchased the equity of redemption in said property, and paid said Elizabeth her mortgage claim, and thereby said property became and continues wholly acquitted therefrom. The answer further insists, that if said Crook should be considered lawfully entitled to proceed against said property in the hands of [**3]  respondent for payment of said mortgage debt, the said claim must be abated by allowance against said Crook for the rents of said property reasonably chargable against said Crook, for and by reason of his use and occupation of said property for several years past, and ever since the death of said Delmas. And the defendant accordingly charges, that said Crook has possessed and enjoyed, without paying rent therefor to any one, the said property for the period aforesaid.

The answer of Sophia Ducatel, simply denies that the said Delmas, to her knowledge, left any personal property whatever, or that any amount of money has come to her hands as administratrix of the deceased.

A commission was then issued under which testimony was taken, which it is not necessary to state. The auditor on the 13th of November 1844, reported two accounts, in one of which, (account A,) made under the instruction of the complainant's solicitor, he charged interest on the mortgage claim from the 19th of May 1839, to the date of the report, and credited the rent of the mortgaged property at $ 400 per annum, from the 25th of January 1843, the day when it was sold under the decree of Baltimore county court;  [**4]  leaving due the sum of $ 1938, with interest from the date of the report. In account B, made to meet the views of the defendant, the mortgaged estate was credited with rent from the 28th of May 1839, when the complainant became the assignee of the claim. On the 19th of the same month the auditor, at the instance of the complainant, stated another account (C,) wherein he charged the mortgaged estate with certain taxes and ground rents paid by the complainant, so that by this account there was due the complainant, the sum of $ 2129.80, with interest from the 13th of November 1844.

Exceptions were taken to these accounts by both parties, and the chancellor, (Bland,) on the 16th of December 1844, ratified and confirmed the auditor's report of the 19th of November, and the account C, accompanying the same, and decreed the property to be sold for the payment of the sum ascertained by that account to be due the complainant. From this decree the defendant, McClellan, appealed, and this court, at June term 1846, ordered and directed an audit to be made in this court in conformity with its views by a special auditor appointed for the purpose, who accordingly reported account (B,) in which [**5]  interest was charged upon the mortgage debt, yearly, and rent credited yearly, from the 14th of May 1839, to the 19th of November 1844, the date of the auditor's report; which was affirmed by the chancellor. The appellate court then, on the 26th of June 1846, passed a decree, reversing, with costs, the decree of the chancellor of the 16th of December 1844, and ratified and confirmed account B, stated by the special auditor under its direction, "and for the purpose of enforcing the payment of the claims therein mentioned, it is hereby further ordered, adjudged and decreed, that the said cause be and the same is hereby remanded to the court of chancery, and that unless the said William McClellan, the appellant, shall pay into the said court the sum of $ 485.49, with interest on the sum of $ 379.12, from the 19th of November 1844, until so brought into the said court of chancery, on or before the first day of April next, that then the said mortgaged premises be sold for the payment of the said sum and interest, under the orders and decrees of the said court of chancery, according to the usual course of the said court in such cases; and that Samuel H. Taggart and St. George W. Teackle,  [**6]  be, and are hereby appointed trustees to make said sale, they first giving bond to the satisfaction and approval of the chancellor, for the due execution of the trust reposed in them by this decree, and make report of such sales as usual in such cases, according to the course of the court of chancery."

The cause having been thus sent back under this decree to the court of chancery, the defendant, on the 27th of February 1847, filed his petition in the cause, alleging, that the plaintiff Crook, has, ever since the period to which the audit in this court is carried, (19th of November 1844,) occupied said mortgaged property without paying any rent to your petitioner, or in any wise accounting therefor to him, or being entitled to any abatement whatsoever for any ground-rent charges, or otherwise, and has refused to leave the premises although duly warned to do so, whereby, for a long portion of the time elapsed since the said period of the said audit, said Crook, (as properly notified by your petitioner,) has become answerable for double rent, which your petitioner accordingly claims. Your petitioner exhibits an account of rents due from said Crook, whereby it appears that no part [**7]  of the mortgage claim remains due to him; but on the contrary said Crook owes your petitioner the sum of $ 480.67, as of the 14th of February 1847. The petitioner then insists that the property is not liable to be sold, and prays that the sale may be stopped, and the cause again referred to the auditor.

Upon this petition the chancellor, (Johnson,) on the 31st of March 1847, after stating that the decree of the Court of Appeals had been filed in the cause, proceeds: "This appears to be a final decree, and simply remands the cause to this court, for the purpose of carrying the said decree into execution, and this, consequently, is the only authority which the chancellor has over the subject. It is therefore ordered that the within petition be dismissed; but, under the circumstances of the case, it is dismissed without costs."

From this decree the petitioner, McClellan appealed, to this court.  

DISPOSITION:
DECISION AFFIRMED.  

HEADNOTES:

Upon a former appeal in this case, this court passed a decree reversing the decree of the chancellor, and remanding the cause to the court of chancery, with directions to sell the mortgaged premises, according to the usual course in such cases, unless the appellant should pay into that court the sum ascertained, by an audit directed to be made in this court, to be due the appellee. HELD:

That this was a final decree, disposing of the entire subject in controversy upon the pleadings and proofs exhibited, and the only authority remaining to the chancellor over the subject was, to carry that decree into execution. He was necessarily confined to the limits prescribed to him, whatever further or ulterior equity might have arisen in favor of the appellant, after the passing of the original decree by the chancellor.

This decree has become the law of the case, and the chancellor cannot otherwise deal with the matters adjudicated by it, than in the form it prescribes.

Where evidence appears upon the record of a prospective or continuing equity, of the same character as that passed upon, this court will limit itself to an exposition of the principles involved, and remand the cause, to have the account stated in chancery within those principles; but if no such evidence appears, it will pass a definitive and final decree. 

COUNSEL:
By MAYER, for the appellant.

The Court of Appeals in passing its decree on the former appeal in this case, did not limit itself to a declaration of the principles upon which the parties should account, but went on to have an audit made of the accounts. These [**8]  could, in an appellate tribunal, allow no new testimony to be given to enlarge the basis of the account, but had necessarily to be confined to the data and the dates furnished by the case as audited, and as supplied with testimony, in the court of chancery. The difficulty encountered when the case returned to chancery, arose altogether from this court ordering an audit before itself, instead of remanding the case, with directions comprehensive enough to embrace matters of the same character as those already passed on in the court's opinion and decree, but ulterior in account to the latest periods included in the proceedings in chancery;--as then it was not here competent for McClellan to show, that Crook continued his tenant without actually paying rent, for a long space of time after the date up to which the audit in chancery on the testimony charged him, this court's audit was narrowed to that date, and so far fell short of justice to McClellan upon this court's adjudicated principle in the cause, a large subsequent rent indebtedness existing to McClellan on Crook's part. The chancellor, not denying the justness of the view taken by us of this court's principle, felt constrained [**9]  to dismiss the petition, because he regarded this court's decree so peremptorily restrictive, as only to require payment of the balance on this court's audit, and to exclude all further accounting in chancery in the pending cause. Under that interpretation, if we had paid money to Crook after the decree in chancery, and in anticipation of the account passed by this court, and enough, as the result might have showed, to extinguish what this court found due, we should have been shut out from relief, in that cause, at least. If rents accrued to us since Crook's occupation of the mortgaged property, how did such accrued indebtedness differ from the effect of so much money paid in satisfaction of this court's decree on the audit made here? The only question then would be, whether by petition we could claim relief; and in the cause then returned to chancery. The cause was in chancery when remanded for action by the court of chancery. It had possession of the case, even if the direction of the Court of Appeals were specific. If even the petition were not viewed as part of the original proceedings, but as a substantially new proceeding, founded on the decree and on the principles it adjudged,  [**10]  was it not a regular act on which relief could be claimed, as by subsequent event, and on the principle already conceded, expanded beyond the measure of this court's decree? The case then would have been analogous to that of supplemental matter, appropriate ordinarily for supplemental bill, which even after decree, may be filed to extend the relief on the enlarged ground of merits already adjudged, which the decree has awarded; and analogous, too, to the case of a supplemental bill for carrying into execution a decree, which means to enlarge the scope of relief according to subsequent circumstances, presenting themselves after the decree, but identical with those which were data for the measure of the actually decreed relief. 3 Daniels Ch. Prac., 157, 192. This court recognizes this petition as equivalent to a bill, even where it introduces a new party, and a distinct claim peculiar to that party. 1 Har. & Gill, 504, Baltzell vs. Foss. All then that remains for this court's deliberation, is, whether we should be driven to the cumbrous and costly formality of a bill, in place of using the direct and simple process of petition engrafted on the decree, and on the cause in possession,  [**11]  already and fully, of the chancery court. That point is settled by the decision of this court just referred to.

By THOMAS S. ALEXANDER, for the appellee.

On proceedings in chancery, in execution of a decree passed by the appellate tribunal, the decree passed on appeal becomes the law of the case, and binds the chancellor in regard to the entire subject of the writ. The chancellor is not at liberty to presume that the Court of Appeals has erred in regard to any question actually decided, nor can he moot any question as presented by the record, other than those which are discussed by the court above. He must take the decree passed, as a decree rightly and definitively settling every subject and every question properly presented by every subject in litigation in the suit, and therefore, in executing the decree, he must confine himself strictly within the limits prescribed to him. He must award the relief given in the very form prescribed.

I do not understand this general principle to be questioned by the appellant's counsel. His argument is, that the decree of the Court of Appeals, assumes as a principle the liability of Crook for rent during his occupancy; and the error [**12]  in the decree, is attributed to the defect in evidence, there being no proof that Crook did occupy for a day after the date, which is assumed by the Court of Appeals. Upon this statement, it appears that the decree is right, as founded upon the record. It disposes of the entire subject in controversy on the pleadings and proofs and nothing remains but to execute the decree.

The gravamen of the petition then is, that because of matters arising subsequent to the decree of the chancellor, and therefore not in issue at the time of the hearing of the cause by the chancellor, McClellan is entitled to an equity beyond that which has been awarded him. This is matter for a supplemental bill. Mitf. Pl., 61, 62. Story's Eq. Pl., sec. 328.

If there had been no appeal in the cause, and subsequent to the chancellor's decree, and before its execution, a new matter of equity had arisen to McClellan, he must have filed his supplemental bill, putting in issue the new matter, and claiming such further relief as that new matter entitled him to.

Upon appeal, the appellate tribunal is obliged to act on the record submitted to the chancellor. Is there error in the chancellor's decree? This [**13]  is the question, and it is to be resolved upon the very state of pleadings and facts which were laid before the chancellor. If then, after the decree below, and prior to the decree above, new matter arises, this must of necessity, form the subject of a supplemental bill, because it cannot by any form of proceeding, be brought under consideration of the Court of Appeals.

In some cases, where the liability for a further account is apparent on the face of the record, the Court of Appeals, instead of passing a definitive decree, have limited themselves to an exposition of the principles on which the account is to be taken, and remands the cause, with directions to the court of chancery, to state the account.

In other cases, where that further liability is not sufficiently apparent, the Court of Appeals pass a final decree, and thereby compel the party to make his new matter the subject of a supplemental bill. The case of Crapster vs. Griffith, 6 Har. and Johns., 144, is the very case now laid before the court. The claim there was for the hire of negroes, for time subsequent to the date of the auditor's report. The case decides that such hires may be recovered by a supplemental [**14]  bill, and I rely on the whole texture of the case to shew, that it is matter for a supplemental bill, and not for a petition.  

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

OPINIONBY:
FRICK 

OPINION:

 [*341]  FRICK, J., delivered the opinion of this court.
This court at the hearing of the former appeal between these parties, having directed an audit to be made in this court, thereupon remanded the cause to the chancery court, with directions to sell the mortgaged premises according to the usual course in such cases, unless McClellan should pay into that court, the sum ascertained by said audit in this court, to be due to the appellee.
The appellee, (Crook,) had been for a series of years, tenant of the mortgaged estate; and in the audit here referred to, the rents for which he had become chargable, were credited in favor of McClellan against the mortgage demand of Crook, up to the period on which the chancellor decreed, November 19th 1844. It is now averred, that Crook continued to occupy the premises as tenant, subsequent to the period thus assumed by the audit in this court, and that McClellan is consequently entitled to credits, in [**15]  reduction of the sum decreed under said audit, to be brought into the court of chancery. He accordingly files his petition in that court, shewing the amount of rents, which he claims to have accrued in his favor by Crook's occupancy since the allowance in said audit.
But the chancellor considering the decree of the Court of Appeals conclusive, and that his authority was limited to the execution of the decree, dismissed the petition. And the question presented upon the present appeal is, whether there is error in the opinion thus expressed by the chancellor.
This petition, can in no view, be considered as part of the original proceedings, but as substantially new matter of relief, predicated upon the principles of the decree passed by the Court of Appeals. That decree disposed of the entire subject in controversy upon the pleadings and proofs exhibited; and the cause was remanded to the chancery court, with instructions to the chancellor to enforce the decree; to direct the mortgage property to be sold, according to the usual practice of the court of chancery, unless McClellan within the time specified, paid into court, the sum adjudged by this court to be due. It was a final [**16]  

 [*342]  decree of this court, upon the appeal, and the only authority remaining to the chancellor over the subject, was to carry the decree into execution. He was necessarily confined within the limits prescribed to hin, whatever further and ulterior equity might have arisen in favor of McClellan, after the passing of the original decree by the chancellor. The grounds for this equity claimed for McClellan was, that Crook continued to occupy the mortgaged premises, beyond the day assumed by the Court of Appeals; and that the rents chargable for such subsequent occupation, ought to be allowed in reduction of the sum decreed by the Court of Appeals, because the decree admits in principle, the liability of Crook for rent during his occupancy. Hence it is argued that the chancellor might, on this principle settled by the Court of Appeals, have entertained the petition, and granted the relief; considering the petition as supplemental to the original case, or, even as a new proceeding submitting a continuing equity, depending on a principle already decided by this court, to belong to the relations between the parties in the cause.
But all this necessarily requires the [**17]  chancellor to open the decree of this court, which as before said, was intended to be conclusive on the chancellor. He must consider that decree as rightly and definitively settling every question, properly presented to the court, and his action upon it is strictly confined within the limits presented to him.
The matter now suggested by the petition of the appellant, was not in issue at the time of the chancellor's decree, but has arisen subsequently; even if within the principles declared by the Court of Appeals. Upon the record before the chancellor, and on the questions within that record, this tribunal has acted, and passed a definite decree, in relation to the entire subject presented to the chancellor, and to this court. Thus, the whole subject then in litigation, has been finally disposed of by the decree of this court. That decree has become the law of the case, and the chancellor cannot otherwise deal with the matters thus adjudicated, than in the form prescribed.
In presenting this case, upon argument by the counsel for the appellant, it is conceded, that "the difficulty arises from an 

 [*343]  audit and decree having been made in this court, instead of remanding the [**18]  case, with directions comprehensive enough to embrace matters of the same character as those passed upon, but ulterior to the period included in the chancellor's decree." But no evidence appears in the record, of such prospective equity and occupation by Crook, after the date assumed as the ground of decree. Where such liability is apparent on the face of the record, the practice suggested is the true one. And in such case, the court does limit itself to an exposition of the principles involved; and remands the cause, to have the account stated in chancery, within those principles. Such was not the presentation of this case, and therefore the decree was definitive and final.
As a final decree of this court, conclusive on the chancellor, he was right in rejecting the petition; and his decision is affirmed.
DECISION AFFIRMED.  

19 of 29 DOCUMENTS 

THOMAS C. DOREMUS, JAMES SUYDAM AND JOHN M. NIXON, SURVIVORS OF CORNELIUS R. SUYDAM, vs. JAMES M. MCCORMICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 49; 1848 Md. LEXIS 21 

December, 1848, Decided 

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

This was an action of debt, brought by the appellants against the appellee, as surviving partner of James M. Lightner, for $ 4012.01 1/4, in the debet and detinet. The plaintiffs counted on a judgment obtained in the State of Alabama, on the 27th July 1840, against the appellee and his deceased partner, for $ 3995.95 damages, with interest, and $ 16.6 1/4 costs. The defendant pleaded nil debet, and actio non accrevit infra tres annos. The plaintiff demurred to those pleas, and they were withdrawn by the defendant, and he then pleaded the following release, of which oyer was craved and granted:

"Know all men by these presents, that we, Thomas C. Doremus, Cornelius R. Suydam and John M. Nixon, composing the firm of Doremus, Suydam and Nixon, all of the city and State of New York, for and in consideration of the sum of one thousand dollars, paid us by James M. McCormick, of the city of Washington, the receipt whereof we do hereby acknowledge, have released, acquitted and discharged, and by these presents do acquit, release and discharge, the said James M. McCormick and James N. Lightner, of and from all debts and demands whatsoever, due or [**2]  owing to us, jointly and severally, from said McCormick and Lightner, jointly and severally, arising from notes, bonds, bills, judgments, or in any other way whatsoever, at any time heretofore, to this date; and we do further, jointly and severally, covenant and agree, to release all claim and lien on any land of said McCormick, in the State of Alabama, in consequence of any judgment, execution or other process thereon, and bind ourselves, to execute any deed or writing that may be necessary to release such land from any such claim, or lien, or process; and in case the said land shall have been sold under any such judgment, execution or process, then to refund and pay the said McCormick whatever sum or sums of money the same may have been sold for. Witness our hands and seals, this 2nd day of April, A. D., 1841.

April, A. D., 1841.

Signed, &c.

THOS. C. DOREMUS, (Seal.)

CHAS. R. SUYDAM,    (Seal.)

JOHN M. NIXON,     (Seal.)"

To this plea the plaintiffs replied, that the said supposed writing of release in the said plea mentioned, was obtained from the said Thomas C. Doremus, Cornelius R. Suydam and John M. Nixon, by the said defendant, by fraud, covin,  [**3]  and misrepresentation; that is to say, by the said defendant, falsely and fraudulently representing to the said Thomas C. Doremus, Cornelius R. Suydam and John M. Nixon, that the said defendant and the said James N. Lightner, were not able to pay, and could not pay to the said plaintiffs, more than the said sum of one thousand dollars of the said debt of the said defendant, and the said Lightner to the said plaintiffs: when the said defendant and the said Lightner were possessed of property sufficient to pay, and were able to pay, and could well have paid to the said plaintiffs the whole of their said debt, which the said defendant well knew; in confidence of which said false and fraudulent representation, the said Thomas C. Doremus, Cornelius R. Suydam and J. M. N., did execute the said writing, to wit, at the county aforesaid, wherefore the said plaintiffs say, that writing was and is void in law, and this they are ready to verify.

The defendant rejoined, that the said writing of release, so sealed as aforesaid, and in the said replication mentioned, was obtained by the said defendant fairly and honestly, and not by fraud, covin, or misrepresentation, in manner and form as the [**4]  said plaintiffs have in their said replication above alleged, and this the said defendant prays may be enquired of by the country, &c.

1ST BILL OF EXCEPTIONS. The plaintiffs to sustain the issue on their part, produced in evidence, upon the trial of this cause, a duly authenticated copy of the record of judgment, rendered in the county court of Coosa county, in the State of Alabama, on the 27th day of July 1840, in favor of the said plaintiffs, and against the said defendant and his deceased partner, (in his lifetime,) in manner and form, and to the tenor and effect set forth in the declaration; and then read to the jury the release pleaded by the defendant, and produced by him on oyer thereof prayed.

The plaintiffs then produced in evidence a letter from the defendant to the plaintiffs, viz:

"WASHINGTON CITY, May 28th, 1840.

MESSRS. DOREMUS, SUYDAM & NIXON,

Gentlemen:--You are aware, are this, of not only James M. McCormick being here, but also J. N. Lightner, and that we have made propositions to our creditors, and are settling off with them. We address you to say, that if you are disposed to settle on any kind of fair terms, that we will give you an equal [**5]  chance with the balance of our creditors. You can judge for yourselves, whether it is better for you to compromise and get something that you can realise on, or to be continuing a suit at a large expense, and then you can obtain nothing more, nor perhaps one-half as much as now we are willing to allow you. If you had have known your own interest when your agent first called on us, you would have acceded to our proposition and jumped at it; and should you ever do business with the south, you will make that discovery; you have some good debtors south; you can inform your agent here if you are disposed to make a compromise, and I can be found in the city.

Yours, &c.,

LIGHTNER & MCCORMICK,

Per J. M. McCormick."

The plaintiffs then proved by Z. Collins Lee, that in the spring of 1840, he was employed by the plaintiffs, as their attorney, to collect from the defendant and his then partner, Lightner, the debt due by them to the plaintiffs, for which the judgment declared on in this case, was afterwards obtained in Alabama. The witness brought suit accordingly, in Washington, to the March term of 1840, and the defendant, McCormick, was arrested under the writ. The witness [**6]  had several conversations and interviews with the said defendant, about that time, in relation to the said claim and the settlement thereof; said defendant uniformly represented to the witness on those occasions, that the affairs of the firm of L. and McC. were very bad. He spoke something of a house in Wetumpka, Alabama, which he said was worth about three thousand dollars, but said, that the firm could do little or nothing towards the payment of its debts. Witness offered to take fifty cents on the dollar in the notes of the firm, with the endorsement of the defendant's father. This the defendant refused, said he would give no notes and no security, and talked, witness thinks, of twenty-five cents on the dollar, as the utmost possible payment that the firm of L. and McC. could make. The witness thinks this, because he finds, that in a letter of his own to his clients, he enquires of them in regard to a settlement at that rate. The defendant further said, that the bankrupt act would soon pass, and would relieve them altogether. In consequence of these conversations, and of a letter from said defendant to the witness, dated June 2nd, 1840, the witness further proved, that on June 7th,  [**7]  1840, he wrote a letter to the plaintiffs, containing a copy of the said last mentioned letter of the defendant. The witness further proved, that after diligent search for the defendant's letter of June 2nd, 1840, so last mentioned, he had not been able to find the original, but that his own letter of June 7th, 1840, contained a true copy thereof. The said letter of the witness, and said copy of the defendant's letter, were then read in evidence by the plaintiffs.

BALTIMORE, 7th June, 1840.

Gentlemen:--I received last evening a letter from L. and McC., to the following effect:

"WASHINGTON, 4th June.

TO Z. C. LEE, ESQ.,

Sir:--I received yours of the 3rd to-day, and, in reply, am sorry to inform you, that I never have once surmised such a thing as to give Messrs. D., S. and N., our notes, with security, either in the south, east, north or west, and as to father, he will lose about $ 2000 by me already, and rather than he should lose one dollar more, I would go to jail and stay for twelve months, if necessary; but I have as good counsel as there is in this city, and he informs me, that, (even if the bankrupt law is not acted upon this session,) there will be no [**8]  occasion to go for one hour; Messrs. D., S. and N., have hunted me like a dog, and sued me here in Alabama, and even attempted to hold a poor innocent man, (because, unhappily for him, his name was McCormick,) to bail in their own State, although he had a different surname; and, even after all this, require more than any other creditor has required of us. I settled a claim of $ 2000 with a real gentleman a few days ago for $ 794, and then did not endorse a note, nor did he know either of the drawers of the same. D., S. and N. never once thought that I would appear here, but that the old man would have to pay it; but instead of one, both of us are here, and ready to stand the test, if forced to it. Although it is somewhat unpleasant, if it could be avoided, and for that reason I thought proper, without consulting Lightner, to offer them such a settlement as we can honestly afford them. We have settled a large amount of our debts since this suit, and if it had not have been for it, would have settled all, and we have not endorsed or given the first new note, nor do we ever intend to do so, as neither of us are worth anything, as we lost, by different ways, a great deal more than half [**9]  of our capital in business in Wetumpka, it would always be hanging on us. Now, to come to the matter respecting their claim, we have not got any kind of funds, (except the Trading Co's,) sufficient to pay them twenty-five cents in the dollar, in cash or paper. We contemplated securing them, by having some very valuable property assigned to them, which has cost us $ 2700, and upon which there is still due $ 900, making it stand at $ 3600, and which now, although rents have fallen at least fifty per cent., still rents for $ 400 per annum. This property is so secured, that it cannot be got at by any legal proceedings, and would now command about $ 2500 to $ 3000, on a moderate credit, and the property to be liable for the purchase money. If they would release us and pay costs of suits, we would have this fixed for them. This is the best proposition we can offer, and more than we have given any of the rest of our creditors, and the only one we will do. They made at least twenty-five or thirty per cent. on their goods; I know from the same kind of goods bought at the same time and brought to Wetumpka, and I said to Lightner at the time, that they did not expect to be paid, and knew it when [**10]  the notes were given at six, seven and eight months, when all goods bought for the south, are always purchased at twelve months; but, on the maturity of two of the notes, we proposed paying them one-half cash, and extending the balance three, four and five months, and while their agent, who was there, (had not sense enough to jump at it,) was pretending to reflect on it, the Trading Co. run off, while I, in endeavoring to secure $ 10,000, was nabbed like a runaway, when I went boldly through their own city and stopped there.

You have therefore the only proposition that is in my power I assure you, and a good one, if you accede to it, on your part; this is not as yet been made to any one of our creditors, and would answer your clients, I have no doubt. If you think you can accede to it, you can bring our notes down, and I will arrange it with you; if this does not suit you, please answer, as we can arrange other claims with it. This is a fair statement of facts, and I hope it may be satisfactory to you, and if I have expressed myself too warmly, I assure you it is not intended with any disrespect to you.

Very respectfully, &c.,

LIGHTNER & MCCORMICK,

Pr. J. M. McCormick.  [**11]  "

"This, gentlemen, you will perceive the whole case as made out by the debtors. The property referred to by them, is not located or described, I presume it is in the south. I shall await to hear by return mail your opinion and instructions, and will then repair to Washington, and make the best settlement in my power; early and final action is most desirable, and some compromise ought to be made, for I foresee that they will take the benefit, if pressed; my time is much occupied, and engagements in court, now settling here, engross me, of course I shall relinquish all, and expect from you additional compensation, when the matter is closed by me; they are so cornered by my plans at Washington, that I will make the best possible settlement for you, and therefore must give it immediate personal attention.

If twenty-five per cent. cash is offered on the debt and interest, will you take it in preference to the property? In your letter please inform me, whether I can hold a party to bail now in your State on a note or bond? (In haste.)

I am yours with esteem,     Z. COLLINS LEE.

P. S. I wish Pryor had returned me the original notes; I have copies, however, that will [**12]  answer.     Z. C. L."

The witness further proved, that afterwards, in the month of September or October, 1840, Doremus, one of the plaintiffs, passed through Baltimore on his way to Washington, for the purpose of making some settlement with the defendant. The witness then communicated to said Doremus, the representations which the defendant had verbally made, in regard to the ability of L. and McC. to pay their debts, and renewed to said D. the advice, to take twenty-five cents on the dollar, which was contained in his letter of June 7th. Sometime afterwards, the release, which the defendant has pleaded, was executed, and the witness dismissed the suit in Washington.

The plaintiffs then read in evidence a letter of the defendant to the plaintiffs, dated February 27th, 1841.

"WASHINGTON, Feb'y 27th, 1841.

MESSRS. DOREMUS, SUYDAM & NIXON, New York,

Gentlemen:--I have at length made an arrangement, at a sacrifice, to settle your claim, if you are disposed to accede to the terms that you agreed to when here, to take one thousand dollars, and allow me the benefit of the land, if sold, under your judgment against L. and McC., in Alabama. If you think proper to [**13]  accept of it, while I have it in my power of doing it, you will please either come on, (or send, or authorise some one, by power of attorney, to give the requisite release of all claims against said firm,) and I will pay over to you the money immediately. The land I can use to more advantage, in my settling the other debts of the firm, than I supposed when I offered it to you. Or, if you would rather release me and hold on to Lightner, I will give you six hundred dollars; but the land is mine, and you would have to allow me it, as before mentioned. If you would come on immediately, as there are a great many coming, you might see old Tip inaugurated. You will please let me know, if you do not think proper to come on, I cannot do any better I assure you, and have been greatly bothered to raise the other $ 500, as I told you that I only had $ 500, Alabama note. You can do as you think fit in the matter, you have your own proposition now offered to you, and all that I can do.

Very respectfully yours,

J. MCCORMICK,

In liquidation of Lightner & McC."

Also a letter from the same to the same, dated March 31st, 1841:

"WASHINGTON CITY, 31st March, 1841.

Gentlemen:  [**14]  --Annexed, you have the bill of costs in suit against us, paid by me, and have to inform you, that although I have suffered largely by Lightner, still he has me bound up in such a manner, that I could not agree to let you hold him responsible, and pay you the amount you ask, as he is as much interested in the amount to be paid nearly as myself, and I assure you, that it would be of no advantage to you, as there are judgments against him for ten or fifteen thousand dollars, besides large claims not yet sued on, and which are, some of them, confidential debts, and, moreover, his health is such, that I doubt if he ever recovers it, and if he does, it will be a long time; he holds no property that I know of, and his father is an insolvent debtor; so you see that prospects are not flattering. You have also enclosed the release, which I hope that you will agree to and acknowledge before the proper authorities. I have used every exertion to raise this sum for you, and I am sorry that it has incurred the great rate of discount, now between the Alabama funds and Virginia here, as I have not a cent left, and actually have to beg a friend, noways connected in family, for a portion of it, and how [**15]  I shall be able to pay it do not know. The bill of costs annexed includes all, clerks, attorneys and marshal. The release is plain and fair, I think, and hope that you will acknowledge it before a notary public, or some competent officer, and enclose immediately, together with an order to Mr. Brent, the clerk here, for to strike off the suit from the docket, and Mr. Riggs shall have a check for you for the $ 1000, upon the proper acknowledgment and presentation of the release.

I am very respectfully yours,

JAS. M. MCCORMICK."

The plaintiffs then further proved by Mrs. Caroline Asprill, that she is the sister of Lightner, the deceased partner of the defendant, and that she went to Wetumpka, (where the said parties carried on their business, under the firm of L. and McC.,) on the 31st day of March 1838, and resided there until July 7th, 1838, during which time both of the said partners boarded with her. At the end of that period, she returned to Baltimore. Her brother, the said L., came to B. in the fall of 1838, returned to Alabama, and, on the 27th of April 1840, came back to B. very ill, to the witness's house, whence, after a short time, he went to Cecil county, and [**16]  returned to the May convention in Baltimore. He then lay sick for a considerable time, at the house of the witness, and as she was obliged to give him constant attention, he lay principally in her own room. Sometime in May or June, 1840, McCormick, the defendant, came to the house of the witness to see her brother, his partner, and the witness proved, that she was present at a conversation between them, in regard to their business. Lightner asked the defendant how he was getting on with his settlements. The defendant produced a number of papers, and they talked over the business. The defendant said, that he had funds in hand to the amount of $ 8000, and that if they could settle, as he expected, with their Baltimore and New York creditors, and could arrange with Doremus, Suydam and Nixon, (the plaintiffs,) at sixty cents on the dollar, they would have $ 4000 left for a plank in Texas. The brother of the witness replied, that he should be in his grave before that would happen. The witness further proved, that she was intimate with the defendant, and that both the defendant and her brother were in the habit of speaking freely, to her and in her presence, of all their business. The said [**17]  defendant several times afterwards, between the date of the last mentioned conversation, and that of the release aforementioned, came to the house of the witness and spent the day; on one of these occasions, he said to his partner, in the presence and hearing of the witness, that he had settled satisfactorily with the Baltimore and N. Jersey creditors of L. and McC., and that D., S. and N., (the plaintiffs,) were the only remaining creditors.

The witness further proved, that in the spring of 1841, she saw and read a letter from the said defendant to his partner, her said brother, in which said defendant wrote, that he had settled with the plaintiffs at thirty-three and one-third cents in the dollar. For this letter, the plaintiffs proved, that diligent search had been made among the papers of the deceased partner, L., but that the same could not be found.

The plaintiffs further proved, by the said Caroline Asprill, that in April 1841, she had a conversation with the defendant, in which he informed her, that he had settled with the plaintiffs at thirty-three and one-third cents in the dollar. The witness further proved, that her said brother, L., died on June 29th, 1841, and [**18]  that the partnership of L. and McC. continued until his death. The last conversation between the defendant and L., was in February or March, 1841, the witness thinks, and that was the last time that the defendant ever saw Lightner.

The plaintiffs then offered to prove by the said witness further, that her said brother, upon being informed of the said alleged settlement by the defendant with the plaintiffs, at thirty-three and one-third cents on the dollar, which information he received, as aforesaid, in the spring of 1841, and during the continuance of the partnership, said to the witness, that the said firm of L. and McC. had, at the time of said alleged settlement, funds sufficient to have paid the debt due to the plaintiffs in full; and further stated, that said funds were, at the time of said settlement, in the hands of the said McC., as liquidating partner, the said McC. was not present at the time when said L. made said declarations. But the said defendant objected to the admissibility of the declarations of said Lightner, and the court, (PURVIANCE and LE GRAND, A. J.,) being divided in opinion, refused to admit the said declarations, and did not admit the same to go to [**19]  the jury.

To which refusal and the non-admission of said evidence, the plaintiffs excepted.

The plaintiffs below appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

HEADNOTES:

In an action of debt, against a surviving partner, he pleaded a release. The plaintiff rejoined, that it was obtained by misrepresentation and fraud; that the defendant had represented, the partnership was not able to pay, and could not pay, more than about one-fourth of the debt, when, in fact, it was possessed of sufficient property to pay the whole claim, which the defendant well knew, and that in consequence of the said false and fraudulent representation, the plaintiffs executed the release. The plaintiffs gave general evidence of the condition of the partnership affairs, as represented by the defendant to them, the alleged insolvency of the firm, prior to and at the time of the release, and that the firm continued until death of the other partner. The deceased partner, on being informed, prior to his death, of the settlement with the plaintiffs at one-third of their claim, said, that the firm had, at the time of said alleged settlement, funds sufficient to have paid the plaintiffs in full, in the hands of the defendant, as liquidating partner. HELD, that this declaration of the deceased partner, was evidence to affect the defendant as his survivor.

An innocent partner is constructively responsible for the fraudulent acts of his co-partner, when those acts are committed within the range and scope of partnership transactions.

The representation of any fact, or a misrepresentation of any fact, made in any partnership transaction by one partner, is considered as the act of all the partners, and will bind the firm.

The fraud alleged to have been practised in this case, as the means of procuring the release, was connected with a partnership transaction, and employed by one partner, as a false pretence, to obtain a paper, in the execution of which the firm was interested.

The composition of a debt, either as a creditor or as a debtor, is one of the acknowledged and frequently exercised powers of a partner. Is within the scope of his authority.  

COUNSEL:
By S. T, WALLIS for the appellants, and

By WM. SCHLEY for the appellee.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*59]  MARTIN, J., delivered the opinion of this court.
In this case, an action of debt was instituted upon a judgment, rendered in favor of the appellants against the appellee, and James N. Lightner, in one of the courts in the State of Alabama. The suit was brought against the appellee, as the surviving partner of the firm of Lightner and J. McCormick, and the judgment on which it was based, bears date on the 27th of July 1840, and was for the sum of four thousand and twelve dollars, and one-fourth cents.

 [*60]  The defendant pleaded in bar a release. This release was dated on the 2nd of April 1841, and recites: "That in consideration of one thousand dollars, paid to the appellants by James M. McCormick, they acquit, release, and discharge the said James M. McCormick and James N. Lightner, of and from [**20]  all debts and demands whatsoever, due or owing to the plaintiffs, jointly or severally, from said McCormick and Lightner, jointly and severally, arising from notes, bonds, bills, judgments, or in any way whatsoever, at any time prior to the date of the said release; and they further, jointly and severally, covenanted and agreed, "to release all claim and lien on any land of the said McCormick, in the State of Alabama, in consequence of any judgment, execution, or other process thereon;" and they bound themselves "to execute any deed or writing, that might be necessary to release such land from such claim, lien or process, and in case it should have been sold under any such judgment, execution or process, to refund and pay the said McCormick, whatever sum the same might have been sold for."
The plaintiffs craved oyer of this release, and by their replication alleged, that it was obtained from them by the defendant, by fraud, covin, and misrepresentation, that is to say, by the said defendant, falsely and fraudulently representing to the plaintiffs, that the said defendant and the said Lightner were not able to pay, and could not pay, more than one thousand dollars [**21]  of the said debt, when the said defendant and the said Lightner were possessed of property sufficient to pay, and were able to pay, and could well have paid, the whole of the said debt, which the defendant well knew; "in consequence of which said false and fraudulent representation, the plaintiffs did execute the said writing."
The defendant, by his rejoinder, traversed the fraud, and tendered an issue thereon to the country, in which the plaintiffs joined.
At the trial of the cause, the judgment and release were offered in evidence; the plaintiffs also introduced several letters signed by McCormick, in the name of the firm, anterior to the settlement and release; also certain statement made by the 

 [*61]  defendant to the counsel of the plaintiffs; and then proved substantially by Mrs. Asprill, (the sister of James N. Lightner,) that Lightner died at her house, in Baltimore, on the 29th of June 1841, and that the partnership of Lightner and McCormick continued up to the period of his death. They further proved by this witness, that the defendant had several interviews with Lightner, during his sickness at her house. That on one occasion, McCormick [**22]  produced a number of papers, and that McCormick and Lightner talked over their business, in the presence of the witness, who was intimate with both of them, and familiar with their affairs. And that in this conversation, McCormick said, "that he had funds to the amount of $ 8000 in hand, and if they could settle with their Baltimore and New Jersey creditors, as he expected, and could arrange with Doremus, Suydam and Nixon, at sixty cents in the dollar, they would have $ 4000 left for a plank in Texas." The same witness further stated, that McCormick afterwards told her brother, in her presence, that he had settled with the Baltimore and New Jersey creditors satisfactorily, and that the appellants were the only remaining creditors. And in the spring of 1841, McCormick wrote to Lightner, and likewise informed the witness, that he had settled with the appellants at thirty-three and one-third cents in the dollar.
The appellants then offered to prove by the witness, "that her brother, on being informed of the said settlement by the defendant with the plaintiffs, at thirty-three and one-third cents in the dollar, which information he received [**23]  in the spring of 1841, and during the continuance of the partnership, said to the witness, that the said firm of Lightner and McCormick, had, at the time of said alleged settlement, funds sufficient to have paid the debt due to the plaintiffs in full; and further stated, that said funds were, at the time of said settlement, in the hands of McCormick, as liquidating partner."
The appellee was not present when these declarations were made by Lightner.
The appellee objected to the admissibility of the declarations thus offered: the declarations were rejected by a divided court, and the sole question presented for our consideration by this 

 [*62]  exception, is, whether the declarations of Lightner were admissible and competent evidence for the plaintiffs, upon the issue joined between the parties in this cause?
It is conceded in this case, that the declarations in question were made by Lightner, during the continuance of the partnership between McCormick and himself; and it is apparent from the whole testimony in the cause, that the appellee, in procuring this release, acted for and represented the firm. The proof furnished by the letters of the appellee,  [**24]  is conclusive upon this subject. They prove, that the debt originally contracted was a partnership debt, for which Lightner and McCormick were responsible in solido, and that the Alabama judgment was rendered against them as partners. It will be seen, by an examination of the evidence exhibited in the exception, that the appellee, in his correspondence with the appellants, and in his negotiations with Mr. Lee, with respect to the settlement of this claim, invariably speaks of this debt as a partnership debt, and complains of the inability of the firm to discharge it. In his interviews with Lightner, pending these negotiations, McCormick referred to this claim as a matter in which Lightner was interested, informing him, "that if he could arrange with the appellants, at sixty cents in the dollar, they would have $ 4000 for Texas; the release, by its terms, professes expressly to discharge, not McCormick alone, but McCormick and Lightner, from all judgments, &c., existing at any period prior to its date; and it is perfectly clear, that if the predicament of these parties had been altered, and the suit had been instituted upon this [**25]  judgment, against Lightner, as the surviving partner, he could have interposed this release, assuming it to be valid as an absolute bar to the action. The release is to be regarded, as a contract between the appellants and the firm of Lightner and McCormick, obtained through the instrumentality of McCormick, as the active and liquidating partner. The action was properly brought against McCormick, as the surviving partner of the firm of Lightner and McCormick, and, as a general principle, the admissions of Lightner touching this release, would be considered as the admissions of the defendant, and therefore admissible evidence against him.

 [*63]  An approved writer upon this subject, says:
"As soon as evidence of the partnership is established, the acts, admissions, and declarations of one partner, in matters relating to the affairs of the partnership, will be evidence against the firm. In this respect, the partners are to be considered as one person, and therefore the rule will hold good, although the partner making the admission is not a party to the record." Coll'r on Part., sec. 779.
In the case of Boyce against Watson, 3 J.J. Marsh. 498, [**26]  the declarations of a partner, upon whom the capias had not been served, were admitted as evidence against his co-partners, and the court correctly held:
"That the confessions of a partner, are not admissible as evidence against his co-partners, on account of having been served with process, but of their unity as partners." And in Reimsdyk vs. Kane, 1 Gall. 630, Mr. Justice Story said:
"I admit, the answer of one defendant cannot in general be read against another defendant; otherwise such co-defendant would be deprived of the opportunity of cross-examination. But this rule is liable to exceptions, and, therefore, where the confessions of any party would be good evidence against another, his answer, a fortiori, may be read against the latter. In cases of partnership, the confession of one partner in relation to a partnership concern, is in general admissible on an action against the other. It is not evidence to prove the partnership itself, but that being once admitted, or proved aliunde, the confession is let in for all collateral purposes."
By turning to the pleadings in this case, it will be perceived, that the replication charges, that this [**27]  release was obtained from the plaintiffs, by the fraud and misrepresentation of the appellee. The specification of the fraud is, that the defendant falsely and fraudulently represented to the plaintiffs, that the defendant and Lightner were not able to pay more than one thousand dollars of the debt, when they possessed property sufficient to pay the whole of the debt, and that this fact was known to the defendant.
This fraud was traversed by the defendant's rejoinder, and the plaintiffs, as one of the items in their proof, conducing to 

 [*64]  show that the imputed fraud was perpetrated by the defendant, offered in evidence the declarations of Lightner, for the purpose of establishing before the jury, not only that the firm of Lightner and McCormick was, at the time of the settlement, abundantly able to pay the entire debt, but that this fact was known to the defendant, as he had ample funds in his hands, as the liquidating partner of the house.
There is no evidence in the case, indicating that Lightner was privy to the fraudulent misrepresentations imputed to the defendant; and the counsel for the appellee has contended, that this fraud, if perpetrated, is to [**28]  be considered as the individual act of the defendant, not within the scope and limits of his authority as one of the partners, and for which, therefore, the firm was not responsible. It was insisted, that fraud is, from its nature, necessarily a personal act, and that the partnership contract is not to be interpreted, as communicating to one of the members of the firm the power of implicating his associates, by his fraudulent misrepresentations. That the fraud complained of, is to be treated as the fraud of the defendant in his individual capacity, and not as the fraud of the firm of which he was a member.
This point was pressed upon the court with great force and power by the counsel, and assuming his proposition to be correct, it would follow as a corollary, that the declarations of Lightner, with respect to this alleged fraudulent transaction, would be considered as the declarations of a mere stranger, and as such clearly inadmissible.
But an insuperable answer to the proposition of the counsel for the appellee, is, that according to the established and acknowledged doctrine of the common law, an innocent partner is constructively responsible for the fraudulent acts of his [**29]  co-partner, when those acts are committed within the range and scope of the partnership transactions. The representation of any fact, or a misrepresentation of any fact, made in any partnership transaction, by one partner, is considered, Judge Story says, as the representation, or misrepresentation of all the partners, and will bind the firm. Story on Part., sec. 107.
Again the learned commentator says:

 [*65]  "The principle, (alluding to the doctrine, that the representations and admissions of one partner, within the limits of the partnership, are considered as the representations and admissions of all the partners,) extends further, so as to bind the firm for the frauds committed by one partner, in the course of the transactions and business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in the fraud;" for he remarks, it has been justly observed, "that partners, by forming this association, declare themselves to the world, as satisfied with the good faith and integrity of each other, and impliedly undertake to be responsible, for what they shall respectively do within the scope of the partnership [**30]  concerns." Story on Part., sec. 108.
This principle, thus announced by Mr. Justice Story, was directly affirmed by Abbott, as the chief justice of the King's Bench, in the case of Rapp against Latham and Parry, 2 Barn. & Ald. 795; and a similar doctrine was enunciated by the court, in the cases of Stone vs. Marsh, 6 B. & C. 551, and in Boardman against Gore, 15 Mass. 331.
What then was the character of the fraud alleged to have been practiced by the appellee, as the means of procuring this release? Was it not connected with a partnership transaction, and employed by him, as a false pretence, to obtain a paper, in the execution of which the firm was interested?
It is impossible, that any other than an affirmative answer can be returned to these questions.
The composition of a debt, either as a creditor, or as a debtor, is one of the acknowledged and frequently exercised powers of a partner. It is strictly within the scope of his authority. In the composition of this debt, the appellee presented himself to the appellants, as the representative of the firm of Lightner and McCormick, seeking to adjust and settle [**31]  a partnership debt. By compounding this large claim for the sum of one thousand dollars, the partnership was greatly benefitted. The appellants dealt with the appellee, not as an individual, but in his capacity of partner, and were entitled to consider his representations, with respect to the insolvency of the firm, as the representations of both of the partners.

 [*66]  Upon this ground, we think, the declarations of Lightner, as offered by the appellants, were admissible in evidence, and that the court below erred in rejecting them.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.  

20 of 29 DOCUMENTS 

NATHANIEL H. ELLICOTT, JONATHAN ELLICOTT, AND BENJAMIN ELLICOTT, CO-PARTNERS UNDER THE FIRM OF JONATHAN ELLICOTT AND SONS, vs. HENRY NICHOLS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 85; 1848 Md. LEXIS 25 

December, 1848, Decided 

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

This was an action of assumpsit, brought on the 16th January 1844, by the appellee against the appellants. The defendants pleaded non assumpsit and limitations, on which issues were joined.

At the trial of this cause, the plaintiff offered in evidence the following promissory note:

"ELLICOTTS MILLS, 5 Mo. 29th, 1838.

Twelve months after date, we promise to pay to Henry Nichols, thirteen hundred dollars, at six per cent. interest, for value received.

$ 1300.     JONATHAN ELLICOTT & SONS."

At the foot of which was written:

"Baltimore, May 18, 1842,--Received from R. Mickle, five dollars on account of the above note.

HENRY NICHOLS."

It was admitted that defendants traded under the firm of Jonathan Ellicott and Sons, at the date of the note.

The plaintiff also offered in evidence a letter of the plaintiff to Nathaniel Ellicott, and his reply thereto, viz:

"B."

"ELLICOTTS MILLS, 2 Mo. 4th, 1843.

HENRY NICHOLS,

Esteemed Friend:--Your favor of the 31st is received, and, believe me, when I tell you, that there is nothing moves me more, than an appeal to my sense of justice,  [**2]  my humanity, or my sympathy, without ability to afford relief. Was it in my power, in any way, to relieve you, it would give me as much gratification to do so, as you to receive it. Until the failure of Jonathan Ellicott and Sons, I believe they always paid to the uttermost farthing, and the poor or the needy was never turned empty away; and when they assigned their whole property for the payment of their debts, it was thought, that it would much more than do it, but such has been the disasters of the times, I have been as much disappointed as you, or any other person can be. I regret, that you did not purchase property for the amount of your claim; this you had the right and privilege of doing, and, in this way, the whole value of your claim would have been secured to you, dollar for dollar. Benjamin H. Ellicott and Robert Mickle, are the two trustees of the estate of Jonathan Ellicott and Sons, and they are the only parties that have had any thing to do with its settlement; all right and title, and control, at the assignment, having passed from me. Not having earned any money, but lost much, since the failure, I have been reduced to live by the kindness of my wife's connections,  [**3]  and, without them, should have been as destitute as you are, and, were it in my power to do so, I have the heart and the feelings to share their bounty with you. I do not see how I could accomplish any thing in the way of relief among the creditors; had I myself the ability, nothing would afford me more sincere gratification.

I am your friend sincerely,

N. H. ELLICOTT."

"HENRY NICHOLS, Darns Town, Md."

"C."

"SENECA MILLS, Jan'y 31st, 1843.

Dr. Sir:--I am compelled again to ask the favor of you, to try and help me; you have the advantage of me by law, but I trust not by conscience; you have had my labor for several years, and that of the hardest kind; night and day have I labored to save something for myself, and entrusted it to you, and now to be put off without one cent, is a matter to be better imagined, than of real feeling. Sir, will you put me off in this way, without trying to relieve me at all? you have friends and influence, will you treat me with cold indifference, and not try to help me? If you will only ask your creditors, I have no doubt but they would, with your influence, let me have something, as they have had the advantage of the law. I [**4]  think, the justice of my case will not let them rob me with a clear conscience. If you will only do for me what you can, I will be perfectly satisfied; I am sure you could, if you would, do something. I am not worth one dollar now myself, in reality, but I think, if I owed you the amount of my note, I would pay it, if it was only one dollar at a time; if you was in my situation, it would give me pleasure to do it for you, even should I want myself, though I will not ask you to suffer for me, I only ask your influence with your friends, to help me, as I must suffer, by placing more confidence in men than they deserve.

Yours very respectfully,

HENRY NICHOLS."

"Mr. NATH'L H. ELLICOTT, Ellicotts Mills."

The plaintiff further proved by Mrs. Nichols, that four years ago last fall, (1842,) she called upon Mr. Nathaniel Ellicott, one of the defendants, at the request of the plaintiff, about the money due to him, and to see if she could get thirty dollars from him; that she spoke to Mr. Ellicott all about the money, and how it was claimed by her brother, the plaintiff; he did not deny that he owed the money; said he was agent for Mr. Carroll in the big mill; that he was [**5]  dependent on his salary; that he was sorry for Mr. Nichols, and spoke very feelingly, but said he could do nothing for him, he was only one of the firm; he did not deny that the debt was due; did not admit it; said that plaintiff ought to have his money; said that he was poor; did not deny that the debt was due, and did not admit that it was. He did not admit or deny, that he or the firm was, at the time of the conversation, indebted to the plaintiff; he said nothing about that; said he was poor, and but one of the firm, and expressed a great deal of pity for the plaintiff. He said, he, (Nichols,) ought to have his money. He never denied he owed the money, and said that he ought to be paid. He never denied any assertion she made. Witness said the money was the hard earnings of his life, and asked Ellicott if he could do any thing for him? He said he was but one of the firm, that he was sorry for him; he never denied what she said, or said that the debt had been satisfied or paid.

The plaintiff then offered in evidence the following entry, in the schedule of Jonathan Ellicott and Sons, made to their creditors in May 1839.

"Jonathan Ellicott and Sons' note to Henry Nichols,  [**6]  for $ 1300."

The defendants then offered in evidence a release, dated 27th May 1839, from their creditors, (including the plaintiff,) reciting their inability to pay promptly all their debts, their desire of obtaining a discharge and release from all their creditors, upon assigning their property in trust for their benefit, their making such proposals to their creditors, the acceptance thereof by them; and that the said creditors, in consideration thereof, respectively release, &c., the said J. E. and Sons, from all contingent liabilities contracted severally with them, as well as from all claims, debts, due and to become due, from the said J. E. & S. to them; that if J. E. & S. fail to execute such deed of trust within sixty days, or if the said J. E. and Sons fail, within said sixty days, to obtain a release from all their creditors, then, in either event, the release to be void. This instrument was sealed by a great number of creditors.

The defendants also gave in evidence a deed of trust, of 19th July 1839, from them to Robert Mickle, as trustee, and that their co-partnership was dissolved on the 26th July 1839, by mutual consent, and public notice given thereof by advertisement,  [**7]  but offered no evidence, that the newspapers in which the notice was published, were taken or seen by the plaintiff.

The plaintiff then further offered in evidence by William Ross, that Hopkins and Brothers had a draft on Ellicott and Sons, and by them accepted, and the following entry, in the books of Hopkins and Brothers, and proved that it was in the handwriting of a deceased clerk of said last mentioned firm.

"Geo. R. Peak's draft on J. Ellicott and Sons, due May 13th, 16th, 1839, for $ 400, compromised and settled with J. Ellicott and Sons, on the 29th June 1840, for $ 300, or seventy-five cents in the dollar, exclusive of interest." The plaintiff further proved by Beale Howard, one of the creditors of Jonathan Ellicott and Sons, that he executed the release to them, but not before he obtained the amount of his claim, without interest; could not say at what time the money was paid to him, but that he thought it was about a month before he purchased some lots from Mr. Mickle, the trustee; that the deed from the trustee was given on the 18th January 1840, but that an agreement for the purchase was made previous to that time. Howard further stated, that he did not receive [**8]  the money for his claim from either of the members of the firm of Jonathan Ellicott and Sons, but that both Nathaniel and Benjamin Ellicott told him, to take his notes to a gentleman in Baltimore, who would give him the money for them. Witness did not recollect the name of the gentleman, but he got his money from him; Benjamin Ellicott taking him to the store, and pointing to it as the place he was to be paid.

The defendants then further proved by Mr. Mickle, that he had seen the plaintiff in this cause, who called upon him to enquire what was the condition of the trust property, how much he was likely to get for his claim, and when it would be settled; that on the 18th May 1842, plaintiff called upon him, and with the note upon which this action is brought, when witness paid him five dollars upon it, and took his receipt at the bottom of the note.

The defendants further proved by the same witness, that he advertised the mills, being a part of the trust property, for sale, in the fall of 1839, and again in 1840, and proceeded openly in a full execution of the duties of the trust; that he sold property, and distributed the proceeds of sale under the trust deed, and conveyed [**9]  the unimproved property for the claims of the firm of Jonathan Ellicott and Sons, and that during all this time, the plaintiff never informed him, that he objected to the release or the deed of trust, or that he meant to impeach either the one or the other.

The defendants further gave in evidence the two letters from C. Smith to R. Mickle, viz:

"I."

GEO. TOWN, May 23rd, 1842.

Dear Sir:--At the request of Mr. Henry Nichols, I address you with reference to a note in his favor, drawn by Jonathan Ellicott and Sons, due some two years since, and which he placed in your hands, when he was in Baltimore, as security for money advanced by you to him. His object is to realise something at once from the note, however small, and he has authorised me to sell it, if a purchaser could be found, at twenty cents on the dollar, rather than wait longer. You will confer a great favor, if you would advise me what the prospect is of finding a purchaser, and if not in your power to dispose of it, what probability there is of an early settlement of the concerns of the estate.

Mr. N. is much in want of money, and would be glad to hear through me, as soon as it may suit your convenience.  [**10]  

I am very respectfully, your ob't serv't,

C. SMITH."

"J."

"GEO. TOWN, July 14th, 1842.

R. MICKLE, ESQ'R,

Dr. Sir:--Your favor of the 13th, enclosing note of J. Ellicott and Sons, in favor of H. Nichols, for $ 1300, was received by me this morning. I have not actually concluded a sale of the note, but have partially arranged for the purchase of mill stones from Mr. Duvall, who thinks he can avail of the note at thirty cents.

I remain your very ob't serv't,

C. SMITH."

Also a letter from plaintiff to R. Mickle.

"H."

"SENECA MILLS, January 29th, 1843.

Dear Sir:--I take this opportunity to know of you, whether there is any chance of getting any thing for my note of the Mr. Ellicotts. I am hard pressed, and not able to labor as I have done, to make the money that I placed in the hands of N. G. Ellicott for safe keeping--which he promised to return to me at any time that I should want it, and in less than twelve months I was told that it was placed in the firm of Ellicotts, and I could not get it; that they had given up all their property, and appointed you their trustee, but would insure one-half to be safe:--now I understand that [**11]  there are preferred claims that will take all--this is hard, if fair, as those preferred claims surely get my labor, as well as the other property, and this money I labored hard night and day for, and made it all by strict honesty, which I have no doubt you have already understood from Margaret H. Weling, and Mr. Ellicotts also--and I now ask the favor of you to lay my case before the creditors, and they, I hope, will allow me some assistance, as it is but a small sum, and their's so large that they would never miss it; and it would at this time relieve me very much; and I hope you will help me also, if it should be but little it will do me some good--or advise me what to do.

I remain yours, very respectfully.

HENRY NICHOLS."

The defendants further proved by said witness, that the claims against the firm of Jonathan Ellicott & Sons, sold as high as eighty per cent. at first; that was the highest price. Some for seventy-five, sixty, and he knew of the sales of $ 30,000 of claims selling at sixty-six cents in the dollar. In answer to a question on the part of the plaintiff's counsel, the same witness answered, that he knew about the concerns of the Ellicotts; had heard [**12]  some of the creditors made objections to sign the release; but he never was informed by Benjamin H. Ellicott, that he could recollect, that he had to give creditors money to sign, or that he employed Vickers, or any one else, to give it for him; some of the creditors who wanted the arrangement carried out, he believed, did give something to procure the signature of an unwilling creditor; he thinks this was done by Ellicott & Brothers, as they were anxious to have the arrangement carried out.

The plaintiffs then proved by Mr. Wilson, that he acted for Mrs. Treakle, one of the creditors of J. Ellicott & Sons, and that he refused, for him, to execute the release, without getting the principal of her claim; that she obtained this, he thinks, some six months after the date of the release, when her name was affixed; that he does not recollect who paid the money, but thinks he received it in a check from Mr. Vickers.

The defendants then, further to prove the issue on their side, proved by Mr. Mickle that he was not the agent of Jonathan Ellicott & Sons, or acted for them in any other character than as trustee, under the deed of trust; that Nichols called on witness and enquired [**13]  what was the condition of the trust fund, and when the note, which he then presented to me, (which is the same sued on in this action,) would be paid? I told him there were liens on the lands, being preferred claims, which were to be paid off first. Told him that sales of trust property had been made, and gave him a general statement of the condition of the trust property, and that I was not prepared to make a dividend upon his note. The creditors of J. E. & Sons, generally, called upon him in regard to trust property, and about their debts; that plaintiff called, as they had, on me, telling him that I could make no dividend on his note; plaintiff then said he had no money to go home, and asked me to let him have five dollars to take him home, and that I might hold the note as security. The above statement is made by me, as an impression upon my recollection of the substance of what took place between Nichols and myself, on the day the note was presented. I have not a distinct recollection of the words used, either by myself or Nichols. When I first heard of this suit my recollection recurred to the conversation, and the call upon me by Nichols, above stated. I have never before heard [**14]  of it, and was surprised, knowing that his paper was on the release, and recollecting that he had said nothing to me about recurring to the personal liability of Jonathan Ellicott & Sons.

Whereupon the plaintiff prayed the court to instruct the jury:

If the jury believe that the defendants in this cause were partners in trade, on the day upon which the note sued upon was made, and that said note was signed by them, and that said Nichols wrote to one of the defendants the following letter, (see letter marked C, ante, 88,) to which said defendants wrote the following answer, (see letter B, ante, 87;) and if the jury further find, that in the fall of 1842, Ann Nichols, by direction of plaintiff, called upon said J. Ellicott, the defendant, and stated to him that the note now sued upon was for money lent to defendants, and was the hard earnings of his life of labor, and that Nathaniel Ellicott, in reply to such observations, said, that Nichols' was a hard case, he was sorry for him, he was but one of three partners, he could do nothing for him, he was poor and living on a salary; and, also, that he, Nichols, ought to be paid; and, also, from the letter written by Nichols to Mickle,  [**15]  given in evidence by the defendant, then there is evidence from which the jury can find, that said claim is not barred by limitations, although the firm of J. Ellicott & Sons was dissolved in July 1839.

2nd. If the jury believe the facts stated in the foregoing prayer, and if they further find that several of the creditors of J. Ellicott & Sons, did not sign their release within the time prescribed therein, but afterwards were paid their whole, or nearly their whole debts, to induce them to sign the same, that such release is no bar to this suit.

3rd. If the jury believe the facts stated in the plaintiff's first prayer, then the evidence takes the case out of the statute of limitations.

The defendants then prayed the court to instruct the jury:

1st. That if the jury believe from the testimony, that the plaintiff executed the release, as given in evidence; that he called upon the trustee as one of the creditors of Jonathan Ellicott & Sons, and presented his claim to him to be paid out of the trust funds; or if the jury believe that the trust property was advertised and sold, and the proceeds of sale distributed under the trust deed, also given in evidence by defendants,  [**16]  and the property therein mentioned, or portions of it, sold and deeded to creditors and others, in pursuance of the provisions thereof, and if the jury further believe, that, all this while, the plaintiff stood by and permitted the full execution of said trust by Mr. Mickle, and acquiesced therein, and never gave notice to him, or to the defendants, until the institution of the suit in this case, that he meant to assail said release on the ground, that it was not executed in time, or that money was paid to some of the creditors for their signatures, then the said plaintiff is estopped from taking these objections now.

2nd. If the jury find from the evidence, that some of the creditors who signed the release, did so after the period prescribed for the execution thereof, this does not, of itself, invalidate the release, and render it void as to all or any of the signing creditors: provided they shall further find, that the said deed of trust was executed within the time, and in the manner prescribed in said release.

3rd. That there is no evidence from which the jury can infer, that any one of the members of the firm of J. E. & Sons, by secret bargain, paid any money to the [**17]  creditors signing the release, for their signature thereto.

4th. If the jury find that J. E. & Sons, or any creditor, anxious to have the arrangement proffered to their creditors, carried out, did pay, or agree to pay, or to secure to one or two of the signing creditors, the principal of their debt, or seventy-five per cent. on the amount thereof, such payment or agreement to pay or secure, does render the release null and void, at the option of any of the signing creditors: provided they find that the deed was executed, as provided for by said release.

5th. That said release cannot be impeached for any fraud proved in this case, at law, and in this court.

6th. That the provision in said release, that it should be executed within the time prescribed therein, and that unless executed by all the creditors within the time limited it should be void, is a provision for the benefit of the defendants, which it was competent for them to waive; that they did waive it by executing the deed of trust; as stated in the evidence, if the jury believe it, and that in so waiving said provision, and executing said deed, the signing creditors obtained the same full and entire benefit thereof,  [**18]  as if every creditor had signed the release without any thing paid them, and within the limits of the time prescribed therein, and that, therefore, the plaintiff, as one of the signing creditors, cannot avoid said release on the ground, that it was not executed in time, or that money was paid to some of the creditors for signing it.

7th. That it is the province of the court authoritatively to interpret the letter of plaintiff to Nathaniel Ellicott, and his reply; and that these papers do not take the plaintiff's claim out of the bar of the statute of limitations.

8th. That no sufficient acknowledgment of a subsisting debt, at the time the acknowledgment was made, to prevent the bar of the statute of limitations to plaintiff's demand, has been proved in this case, although the jury may believe the testimony of Mrs. Nichols.

9th. If the jury believe that the partnership of Jonathan Ellicott & Sons, was dissolved in the manner stated in the proof; and that subsequent thereto, the conversation proved by Mrs. Nichols, took place with Nathaniel Ellicott, nothing that he said, can revive the plaintiff's demand, as against the other defendants in this cause.

The court,  [**19]  (LE GRAND, A. J.,) granted the prayers of the plaintiff, and refused those of the defendants, who thereupon excepted, and appealed to this court.  

DISPOSITION:
JUDGMENT REVERSED, AND NO PROCEDENDO AWARDED.  

HEADNOTES:

J, N & B, partners in trade, made their promissory note, payable to H, or order: after it was due for more than three years, and after the dissolution of the house, it is not competent for one of the partners to revive the remedy on the note against the three, so as to avoid the plea of limitations.

A plaintiff, who seeks to extricate a case from the act of limitations, must shew a new promise, within three years prior to the institution of the suit, either express or implied.

It is not the mere acknowledgment of a subsisting indebtment which removes the bar. Where a debt is admitted to be due, the law raises a promise to pay it, and it is this new promise, either made in express terms, or deduced from an acknowledgment as a legal implication, which is to be regarded as re-animating the old promise, or as imparting vitality to the remedy, extinct by lapse of time.

From the moment a partnership terminates, the partners becomes distinct persons with respect to each other, and, consequently, one partner can have no power to subject, by his acts or declarations, his former associates to new obligations.

The power of adjusting the unsettled affairs of a partnership, and, as a portion of this authority, the right to collect and pay the outstanding and subsisting debts of the firm, survives the dissolution, as a necessary power; yet, with this qualification, those who formerly were partners, stand to each other, after the dissolution, as if the association had never been formed.

By withdrawing from a joint debtor the protection afforded him by the act of limitations, he is subjected to a new liability. It practically and necessarily imposes upon him a new liability.

The case of Whitcomb vs. Whiting, 2 Doug., 652, adopted. Part payment of principal, and payment of interest, before the statute has attached, made by one joint debtor, is a payment by all, and takes the case out of the bar.

A defendant is not benefitted by the part payment of a debt, barred by the act of limitations, when the partial payment is made.

One co-promissor, who pays a debt barred by the act, against the consent of his co-debtor, cannot maintain an action for contribution against such co-debtor.

From an acknowledgment tainted by fraud, the law would infer no new promise.

The case of Ward vs. Howell, 5 H. & J., 60, does not decide any thing upon the subject of limitations. The remark of the court on that subject, is a dictum.  

COUNSEL:
By DULANY and MCMAHON for appellants,

By W. H. G. DORSEY and R. JOHNSON, for appellees.  

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

OPINIONBY:
MARTIN 

OPINION:

 [*96]  MARTIN, J, delivered the opinion of this court
In this case an action of assumpsit was instituted in Baltimore county court, by the appellee against the appellants, as 

 [*97]  partners, trading under the name of Jonathan Ellicott and Sons, for the recovery of a promissory note, given by the firm to the appellee, on the 29th of May 1838.
The appellant pleaded non assumpsit, and the statute of limitations, and it appears from the record, that the plaintiff at the trial below, to relieve the case from the operation of the bar, created by the act of limitations, relied, mainly, upon the letter of Nathaniel Ellicott, of the 4th February 1843, and upon the admissions and assumptions, supposed to have been made by the said Ellicott with respect to this [**20]  debt, in a conversation held with Mrs. Anne Nicholls, in the autumn of 1842.
It appears from the testimony exhibited in the bill of exceptions, that the firm of Jonathan Ellicott and Sons, was dissolved on the 9th of July 1839, and that Benjamin H. Ellicott, one of the partners, was empowered to collect the assets, and settle up the business of the partnership; and the dissolution of the firm, and the selection of Benjamin H. Ellicott, as an agent, to wind up the concerns of the house, was, on the same day, communicated to the public through the medium of the Baltimore newspapers.
The promissory note in controversy, was drawn by the appellants on the 29th of May 1838, payable twelve months after date; and it therefore appears, that the admissions relied on by the appellee, to take this case out of the statute of limitations, were made not only after a dissolution of the partnership, but after the statute had attached to the claim. And in this posture of the case, the counsel for the appellants have contended, that Nathaniel Ellicott had, at that period, no power to bind his former co-partners, by his acknowledgments and promises, so as to deprive them of the [**21]  defence of the statute of limitations. Upon the point thus presented for the consideration of the court, there has been, as on almost every question connected with the statute of limitations, a most embarrassing conflict of judicial opinions; but after a careful examination of the prominent cases bearing upon this subject, we have reached the conclusion, that the proposition advanced by the counsel for appellants is correct, and that on this ground the judgment of the court 

 [*98]  below must be reversed. We proceed to state the reasons by which we have been conducted to this conclusion.
In the case of Duval against Peach, decided in 1843, 1 Gill 172, the defendant relied on the statute of limitations, and asked the court to instruct the jury:
"That if the jury should find from the evidence, that the agreement was made, and the purchase money paid on the 30th of December 1826, and that the original writ in this cause did not issue until the 1st of March 1840, that then this action was barred by limitations, unless they should find some subsequent assumption or promise by the defendant, either to repay the money, or perform the contract."
The county court [**22]  granted this prayer. The action of the court below was ratified by this court, and they announce the principle:
"That in Maryland, to remove the bar raised by the statute of limitations, there must be such an acknowledgment of a subsisting debt, as is equivalent to an express or implied assumpsit or promise to pay."
In the case of Frey against Kirk, decided in 1832, 4 G. & J. 509, the statute of limitations was pleaded. It was proved at the trial, that the defendant admitted the debt was due, but said "the plaintiff might save himself the trouble of suing him, as he had taken the benefit of the insolvent laws." The discharge under the insolvent laws, to which he referred, imparted to him, in fact, no protection. But the statement was held insufficient to remove the bar; and the court said:
"Every acknowledgment to take a case out of the statute, should be of such a character, as that an implied promise may arise therefrom."
We consider it, therefore, perfectly clear, in accordance with the principles enunciated in the cases to which we have just adverted, that a plaintiff who seeks to extricate a case from the operation of the statute, must show a new promise [**23]  within three years prior to the institution of the suit, either express or implied. It is not the mere acknowledgment of a subsisting indebtment which removes the bar. Where a debt is admitted to be due, the law raises a promise to pay it. And it is this 

 [*99]  new promise, either made in express terms, or deduced from an acknowledgment, as a legal implication, which is to be regarded as re-animating the old promise, or, as imparting vitality to the remedy, which, by lapse of time, had become extinct, and thus enabling the creditor to recover upon his original contract.
In the case of Little against Blunt, 9 Pick. 488, 492, the court said:
"If the debt remained, the remedy was gone, and there was no subsisting cause of action. The new promise, therefore, is a new cause of action; for without it there was no cause of action. **** But it is not necessary to declare upon the new promise. According to the established rules of pleading, the plaintiff had the right to declare on the original promise, and when the statute of limitations was pleaded, he might reply the new promise. When the pleadings assume this shape, the original promise is, apparently, the cause [**24]  of action, but it is the new promise alone that gives it vitality; and that, substantially, is the cause of action."
In the case of Keplinger against Griffith, decided in 1830, 2 Gill and Johnson, 296, and recently recognised by this court, as authoritative, in the case of Cross vs. Carter, the Court of Appeals say:
"It was ruled by this court in Oliver vs. Gray, 1 H. & G. 204, that the acknowledgment of the debt, with a naked refusal to pay, or a refusal accompanied with an excuse, for not paying it, which, in itself, implies an admission that the debt remains due, and furnishes no real objection to the payment of it, is sufficient to take a case out of the statute of limitations;" and it has been supposed that the rule thus stated, is incompatible with the proposition announced by this court in Frey against Kirk, and Duval against Peach, that to take a case out of the statute, there must be a new promise, either express or implied. We do not think so."
The principle embodied in the fourth resolution, in Oliver vs. Grey, was probably transferred to that case, from the case of Swan against Sowell, 2 Bar. and Ald., 761, where  [**25]  Bayley, Justice, said:

 [*100]  "The question, in these cases, always is, whether the admission, where no express promise to pay is made, be sufficient for the law to raise from it an implied promise. If a party admits a debt, and does not say that it is satisfied, and refuses to pay it, alleging, at the same time, an insufficient excuse for not paying it, the law will, in these cases, raise an implied promise to pay the debt then acknowledged to be due."
And we consider the doctrine announced in Oliver vs. Gray, in Keplinger vs. Griffith, and in Swan against Sowell, as the mere enunciation of the principle, that if a party admits a debt to be due, but at the same time refuses to pay it, upon insufficient grounds, the law will raise a promise to pay it, in invitum, and against the will of the debtor. But so far from enfeebling, it fortifies the position, that nothing less than a new assumpsit, express or implied, will be sufficient to remove the bar interposed by the statute of limitations, after it has once operated upon the demand.
We have seen that the partnership of the appellants was regularly dissolved on the 9th of July 1839, more than three years anterior [**26]  to the period when these alleged acknowledgments were supposed to have been made by a member of the firm; and the doctrine upon this subject is fundamental, that from the moment the partnership terminates, the partners become distinct persons with respect to each other, and that consequently, one partner can have no power to subject, by his acts or declarations, his former associates, to new obligations, burdens or responsibilities.
In 3 Kent's Com., 62, it is said:
"The power of one partner to bind the firm, ceases immediately on its dissolution, provided the dissolution be occasioned by death, or bankruptcy, or by operation of law; though in cases of voluntary dissolution, notice is necessary, to prevent imposition on third persons, who might continue to deal with the firm. The partners from that time become distinct persons, and tenants in common of the joint stock. One partner cannot impose new obligations on the firm, or vary the form or character of those already existing."

 [*101]  In Bell vs Morrison, 1 Peters 370, Mr. Justice Story, when speaking upon this subject, says:
"By the general law of partnership, the act of each partner during the [**27]  continuance of the partnership, and within the scope of its objects, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore, bind the firm by his contracts, in the partnership business; but he cannot bind it by any contract beyond those limits. A dissolution puts an end to the authority. By force of its terms it operates as a revocation of all power to create new contracts; and the rights of partners, as such, can extend no further, than to settle the partnership concerns already existing, and to distribute the remaining funds."
It is unnecessary to cumulate authorities upon this familiar subject. The principle is fully established, that the power of adjusting the unsettled affairs of the partnership, and as a portion of this authority, the right to collect and pay the outstanding and subsisting debts of the firm, survives the dissolution, as a necessary power, liable as all partnerships are, to arbitrary and sudden terminations; yet with this qualification, and subject to this exception, those who formerly were partners, stand to each other, after the dissolution, as if the association [**28]  had never been formed.
The promissory note, which forms the subject of the present dispute, was a firm debt, drawn by the appellants during the continuance of their partnership, and for the payment of which, they were therefore originally responsible, in solido. This is conceded. But the counsel for the appellants have insisted, that the defendants were exonerated from their original responsibility, for this demand, by force of the statutory bar, in June 1842, and that they cannot be deprived of the protection afforded by the statute, and subjected to a new liability, with respect to this debt, by the acknowledgments and promises of a former partner, made subsequent to the dissolution of the partnership, and after the action of the statute upon the claim had been fully consummated.

 [*102]  In the case of Atkins against Tredgold, 2 Bar. and Cres., 23, Bayley, Justice, said:
"Here the statute appears to have attached, before the payment was made by Robert Tredgold, and therefore John Tredgold, being at that time protected, could not be subjected to any new obligation by the act of Robert."
In the case of Sigourney against Drury, 14 Pick. 391, [**29]  the court discriminate between a part payment by one of several promissors of a note, within the legal period, and a payment after the statute has attached; and say:
"We consider it a material circumstance, that the payment was made before the statute took effect, and do not mean to give any opinion, as to the effect of payment of interest or principal by one, to affect the liability of others, after the parties are, in fact, exonerated by lapse of time, and the operation of the statute. There is an obvious difference between the effect of a payment within the term, which shall continue an existing liability in force, and such payment made after the liability is barred, to revive and create a new liability."
The cases to which we have just referred, recognise the proposition, that by withdrawing from a joint debtor the protection afforded him by the statute, you subject him to a new liability, and it is this principle which is conclusive against the attempt of the plaintiff in this cause, to revive the action against the appellants, by the acknowledgments of Nathaniel Ellicott.
After the statute of limitations has operated upon a claim, it is supposed, in the eye of the [**30]  law, to have been satisfied. Those who formerly occupied the position of joint debtors, covered by a common obligation, no longer stand in that relation to the creditor, or to each other. There is no means of enforcing against them, the barred demand. The act, promise, or acknowledgment, which deprives the parties, thus situated, of the benefit of the statute, and subjects them to the payment of a debt from which they were exonerated, practically and necessarily imposes upon them a new liability. And it is perfectly immaterial whether this is accomplished by considering the new assumpsit, as creating an independent and substantive cause of action, upon which the creditor must specially declare, or as 

 [*103]  restoring vitality and vigor to the remedy, which, by lapse of time had become powerless and useless.
The power thus to implicate and bind the firm, is not to be considered as remaining in any one of the partners, after the expiration of the partnership. It would be a solecism to affirm, that the continuing power to adjust outstanding and subsisting debts, which we have seen survives the dissolution of the partnership, carries with it, as incidental, the authority [**31]  to revive, as against others, a demand, which, in legal contemplation, is presumed to have been paid, and which is not to be regarded as a subsisting debt, until it has been made so by a new promise.
The authorities upon this branch of the law, are numerous and contradictory, and it is proposed only, to examine a few of the leading cases, relied upon by those who maintain, that an acknowledgment of a subsisting indebtment, by one co-promissor or partner, will remove the bar with respect to the others, even after the statute has operated upon the claim.
The leading case on this subject, and upon the authority of which the more modern cases of Perham vs. Raynal, 2 Bing. 306, and Barleigh vs. Scott, 8 B. & C. 36, were determined, is that of Whitcomb against Whiting, 2 Doug. 652, decided in the King's Bench in 1781.
It was an action on a joint and several promissory note, executed by the defendant and several others. The defendant pleaded the statute of limitations, on which issue was joined. At the trial, the plaintiff established the note, and, to take the case out of the statute, proved payment of interest, and part of the principal,  [**32]  by one of the other parties to the note, within six years. Upon this evidence there was a verdict for the plaintiff.
Lord Mansfield, on discharging the rule for a new trial, said:
"The question here is, only, whether the action is barred by the statute of limitations? When cases of fraud appear, they will be determined by their own circumstances. The payment by one is payment for all, the one acting virtually for the rest; and in the same manner, an admission by one is an admission by all, and the law raises the promise to pay, when the debt is admitted to be due."

 [*104]  The correctness of this decision has been sometimes questioned in England, notwithstanding the commanding influence of the name of Lord Mansfield in Westminster Hall. But, we think, without just case. The vindication of the opinion is to be found in the explanation given to it, by Mr. Justice Bayley, in Atkins against Tredgold, 2 Bar. and Cres., 23, that the part payment of the principal, and the payment of the interest, relied on to take the case out of the bar, was made within the legal term, and before the statute had attached. Until the statute had barred the demand, the promissors [**33]  were subjected to a joint and common responsibility; and under such circumstances it might well be maintained, that a payment made by one of the parties to the note, was a payment made for the benefit of all. Willes, J., therefore properly remarked:
"That the defendant had the benefit of the partial payment, and must therefore be bound by it."
In the case of Brandham against Wharton, 1 Bar. and Ald., 468, Lord Ellenborough, after repudiating the authority of Jackson vs. Fairbank, 2 Hy. Blac. 340, says, with respect to the case of Whitcomb vs. Whiting, 2 Doug. 652:
"That the acknowledgment was not, indeed, by the party himself, but by one of the parties bound, and who could be called upon for contribution."
Can it be affirmed, that a defendant is benefited by the payment of a debt which he has not admitted to be due, and which, in law, he is under no obligation to pay? Or that one co-promissor who pays a debt barred by the statute, against the consent of his co-debtor, can maintain against him an action for contribution? We think not.
Upon this point, Mr. Justice Story, in a note to his Treatise on Partnership, sec. 323, says:  [**34]  
"It is not correct to assert, that payment by one partner, after a dissolution, of any debt, as a supposed partnership debt, binds the other partners. They have the right to say, that it never was, or was not at the time of the payment, an existing partnership debt. Suppose it had been already paid, or extinguished, how is the partner liable to pay it again. It is assuming the very point in controversy, to insist that a debt, once 

 [*105]  barred by the statute of limitations, is not extinguished, if voluntarily revived by the acknowledgment of one of the partners."
In Peaslee vs. Breed, 10 N.H. 489, the action for contribution was sustained upon the circumstances of the case. But the court say:
"Had it appeared that Peaslee was at any time discharged by the operation of the statute of limitations, and that he, or his administrator, after that, refused to avail himself of the defence, and voluntarily paid money which he could not at the time have been compelled to pay, it would have presented a very different question."
We infer, therefore, from the remarks of Willes, Justice, in 2 Doug. 652; from the reasoning of Lord Ellenborough [**35]  , in Brandham vs. Wharton; and from what was announced by Mr. Justice Bayley, in Atkins vs. Tredgold, that the decision in Whitcomb vs. Whiting, rested upon the fact, that at the period when the partial payment was made, the statute of limitations had not acted upon the demand, and that there was therefore, with respect to the debt, a continuing joint liability. It is upon this hypothesis alone, that one of the joint debtors could be considered as virtually the agent of the others.
In the case of Pease against Hirst, decided in 1829, 10 Bar. and Cres., 122, it appeared, that interest on the note had been paid annually by Hirst, one of the makers. The statute of limitations never attached. And it was held that it was not a bar, as interest had been paid on the debt within six years, by one of the four persons jointly liable.
In the case of Channell against Ditchburn, decided in the Court of Exchequer, in 1839, 5 Mees and Wel., 494, it was held:
"That payment of interest by one of the makers of a joint and several promissory note, though made more than six years after it became due, was sufficient to take the case out of the statute of limitations, [**36]  as against the other maker."
Parker, Baron, so ruled, but observed:
"That it does seem a strange thing to say, that where a person has entered into a joint and several promissory note with 

 [*106]  another person, he thereby makes that other his agent, with authority, by acknowledgment or payment of interest, to enter into a new contract for him."
With regard to this case, it may be said, that if the doctrine announced by the court be correct, the counsel for the appellants were warranted in invoking it, as an authority on the side of the proposition for which they contend. For the principle is established in the law of partnership, that after the dissolution of the firm, one partner cannot bind his co-partners by a new contract.
But we apprehend, that the error of the learned Baron consisted in his not discriminating between a payment of interest, made before and after the statute had attached. In the former case, a payment by one of the makers of a promissory note, might be regarded as a payment by all, because at the time of the payment, the parties were jointly liable for the debt, and one might therefore be considered as the agent of the other, with respect [**37]  to the debt.
The condition and relation of the parties is changed, as soon as the bar of the statute has become complete. They are no longer bound for the debt. It is impossible to maintain, that a partner or maker of a promissory note, is, in law, liable for the claim after the statute of limitations has operated upon it. He may become responsible, but it is by force of a new promise.
It was the opinion of Lord Tenterden, in Martin and Bridges vs. Elmore, 3 Car. & P. 83:
That the acknowledgment made by a partner, who was not himself liable at the time when he made it, was not sufficient to take the case out of the statute of limitations, so as to charge his co-partner.
The case of Goddard vs. Ingram and Wartnaby, decided in the Queen's Bench, in 1842, 3 Gale & David 46, was cited by the counsel for the appellee.
It was there held, that a payment made by one partner, after the dissolution of the partnership, on account of a partnership debt, and after six years had elapsed, without any acknowledgment of the debt, was sufficient to take the case out of the 

 [*107]  statute of limitations, as against the other partner, though the jury found that [**38]  the payment was fraudulently made, against his consent, and in concert with the creditor, to revive the debt. And it must be conceded, if that case could be regarded as authoritative, it would be conclusive upon the point now under consideration.
But we cannot recognise the ruling of Lord Denman, as containing the correct doctrine upon this subject.
In Whitcomb vs. Whiting, Lord Mansfield anticipated a case like this, and said, when cases of fraud appear they will be determined by their own circumstances. And certainly the legal proposition is perfectly clear, that from an acknowledgment tainted and vitiated by fraud, the law would infer no promise.
We have examined the record in Ward against Howell, reported in 5 Harr. and John., 60, and find that the point raised by this exception, was not presented in that case for the consideration and judgment of the Court of Appeals.
It was an action of assumpsit, brought by the appellees against the appellant, and Chandler and Raison, to recover the sum of $ 188.43, alleged to be due by them as partners.
The defendants confessed the promises alleged in the declaration, subject to the opinion of the court, on [**39]  the following statement of facts:
"It is agreed that the co-partnership existed between Peregrine Ward, Philip F. Raison, and Francis B. Chandler, from a period prior to the signing of the paper, hereafter mentioned, till the fall of 1814, at which time the said co-partnership was dissolved. That on the 17th of August 1815, after the dissolution of the co-partnership, and after the knowledge of such dissolution on the part of the plaintiffs, Philip F. Raison, one of the co-partners aforesaid, subscribed the paper hereto annexed, in the manner as thereby appears. It is submitted to the court, whether the signature of Philip F. Raison, made as aforesaid, is evidence to prove the existence of the debt against the said Peregrine Ward."
It appears that the single question raised by the case stated for the determination of the court, was, whether the admission 

 [*108]  of one partner, made after the dissolution of the partnership, was evidence to prove the existence of the debt against the other partners.
Upon this point the court said:
"The evidence was not sufficient to charge the partnership with a debt, though it would be sufficient to take the debt out of [**40]  the statute of limitations."
The observation of the court with respect to the statute of limitations, is, of course, a dictum; and the language used is so general, that we cannot assume that the learned court intended to intimate an opinion, that the admission of one partner would be sufficient to remove the bar, in a case where the statute had attached.
The question, then, is to be treated as an open one in Maryland; and we consider the safe and sound doctrine to be, both upon principle and analogy, that the acknowledgment of one partner, of a subsisting partnership debt, if made subsequent to the dissolution of the partnership, and after the statute of limitations has operated on the demand, is not evidence against his co-partners, so as to deprive them of the benefit of the statutory bar.
Upon this ground we reverse the judgment of the county court.
We desire to be understood as expressing no opinion, with reference to the sufficiency of the acknowledgments, relied on by the appellee to take the cause out of the statute of limitations; and the view we have taken of the defence, presented by that statute, renders it unnecessary to decide the various questions which were [**41]  agitated in the argument of the cause.
JUDGMENT REVERSED, AND NO PROCEDENDO AWARDED.
DORSEY, J., dissented.
The appellee afterwards, at the same term, moved for a writ of procedendo, to enable him to re-try the cause, and supply further evidence upon the subject of limitations. That motion is still depending.  

21 of 29 DOCUMENTS 

ANDREW ELLICOTT vs. THE UNITED STATES INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 307; 1848 Md. LEXIS 44 

December, 1848, Decided 

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

The original bill in this case was filed by Herman Stump, on the 24th of May 1834, against the appellees. The United States Insurance Company, alleging that he is the creditor of the company to a large amount, as the holder of its policies, exhibited with the bill; that the company has stopped payment, closed its operations, and is wholly unable to pay its debts, which are very large; that there has been gross mismanagement of its affairs by its president and directors, and that the conduct of said president and directors, in permitting members of the board of directors to obtain policies of the company, to an enormous amount without sufficient security to the company, has been grossly fraudulent to all the creditors of the company. The bill further states, that the company, although utterly insolvent, is giving up to the directors and others in whose misconduct or frauds, its insolvency originated, the effects of the company in payment of policies which have come to their hands, since the company stopped payment, and become notoriously insolvent; that the assignment or delivery by the company of any of its securities or [**2]  effects, since it became insolvent, in payment of any policy, is an undue preference of such creditor, and operates as a fraud upon the complainant and all the other creditors of the company; that the directors knowing that the company is utterly insolvent, are yet fraudulently transferring its effects to certain favored creditors to pay their claims in full, and that if they persist in this fraudulent and inequitable course, the whole property of the company will be given to a few creditors to the exclusion of the complainant and other creditors; and that the course they pursue is, not to receive or pay any policies except for those whose securities are held by the company, which they pay in full, and thus exclude all others. The bill, then, after various special interrogatories, prays for an injunction restraining the company, its officers, servants and agents, from transferring, assigning, releasing, or in any manner disposing of, or parting with any of the property or securities of the company, and from interfering with or in any manner diminishing the property, effects or funds of said company, and also from parting with the securities on which the complainant's policies were [**3]  issued. And that an equal and equitable distribution of the effects and property of said company may be made among all its creditors; your orator prays that your honors will appoint a receiver or receivers to take into custody all the property, estate and effect, of said company, and distribute and dispose of them under the direction and authority of your honors; and that said company may be ordered, and enjoined forthwith to deliver up to said receiver or receivers, all the estate, property and effects, books, papers, securities and credits of said company, and for general relief.

The court on the same day ordered the injunction to issue as prayed, and assigned a time for the defendants to show cause why a receiver should not be appointed, to take charge of all the effects of the company, and administer the same according to justice and equity.

Upon this bill and motion for a receiver, the company filed its answer, and after much evidence offered by affidavits, in support of the motion, and various recommendations by creditors of the company, of suitable persons for receivers, the court, (ARCHER, C. J., MAGRUDER and PURVIANCE, A. J.,) on the 31st of May 1834, passed the [**4]  following decree appointing receivers.

"Upon the application of the complainant and by and with the assent of the defendant, it is ordered, adjudged and decreed by the court, this 31st day of May 1834, that James Harwood, John B. Howell and Walter Farnandis, be and they are hereby appointed receivers, to take and receive the property, estate and effects of the said company." The decree then requires a bond with approved security from said receivers, in a penalty of $ 100,000, conditioned for the faithful discharge of their duties as receivers. "And it is further ordered and decreed, that the said United States Insurance Company, deliver up to the said receivers all the goods, chattels, lands, tenements, credits and effects of said company; and also all its books, papers and evidences of debts; and it is further ordered, that the said receivers institute in the name of said company or otherwise as the case may require, all suits and actions necessary, or which they may deem expedient, for the recovery of the debts due, or other property of the said company; and that they are hereby authorised to use the name of said company in any suit or action which they may deem it expedient [**5]  to institute. It is further ordered and decreed, that the injunction heretofore issued, be, and the same shall stand and remain till further order of this court. It is further ordered, that this court will require additional bonds to be given by the receivers, upon the application of the parties interested, for greater security in the discharge of their duties, should such application be made at any future stage of the cause, and there should be sufficient grounds laid for such application."

After various other proceedings in the cause, not material to this appeal, a petition was filed on the 5th of April 1835, by John Sullivin, and many other creditors, for the purpose of rescinding the appointment of receivers. This petition states, that the ground of appointment of the receivers was, as they are informed, the misconduct or negligence of the old president and directors, that since their appointment the old board have been removed and a new president and directors elected, and that they conceive the interests of the creditors will be promoted by rescinding the appointment of receivers, and putting the affairs of the company in the hands of the new board, for the reasons assigned.  [**6]  

To this petition the receivers filed a full answer, reporting all their proceedings in their office from their appointment until the time of their filing said answer in April 1835, and the court on the 23rd of May 1835, by its order and decree, dismissed the petition, from which there was an appeal to this court at June term 1835, which was dismissed by the appellants, (Sullivin and others,) at June term 1836.

From this period the receivers continued in their office, and in the discharge of their duties, under the order and direction of the court; and on the 1st of November 1840, they report a sale of property, which is confirmed by the court; and on the 18th of the same month, state by petition, that they will be prepared to make a dividend of the assets in hand, and pray for notice to be given to the creditors of said company, to produce their claims to them, the receivers. The court accordingly passed on the same day an order, directing said receivers to give notice by advertisement, to the creditors of said company, to produce their claims to said receivers duly authenticated, on or before the first day of June next, in order to receive the dividends due on their respective [**7]  claims.

On the 10th of September 1841, a special auditor was appointed by the court, to state the accounts in order to a distribution, who, on the 14th of October following, made his first report, recommending a dividend of 12 cents on the dollar; and on the 25th of the same month, a second special report, in which he states, that in April 1841, a claim had been filed under the order of the 18th of November 1840, requiring creditors to file their claims, by John Glenn, attorney for Andrew Ellicott, for $ 5000 on which a judgment had been obtained on the 21st of October 1837, by said Ellicott, against the United States Insurance Company, which with interest and costs amounted to $ 7249.41. At the time of filing this claim by Mr. Glenn, a short copy of the judgment was also filed, on which was endorsed; "This is claimed as a lien upon the real and equitable estate of this company, on lands," &c. This report further stated, that as part of the property reported as sold by the receivers, was real estate belonging to said company, amounting to more in value than said judgment, the counsel for said Ellicott claim to be paid the whole debt, interest and costs, and this question the auditor [**8]  submits to the court. A short copy of this judgment was filed as an exhibit with this report, showing that the same was rendered at September term 1837, of Baltimore county court, by confession for $ 5000, with interest from the 30th of April 1834, and costs.

To this claim for a lien, the said receivers and others creditors of the company excepted, and state as cause of exception, that long before the rendition of said judgment, to wit: on the 30th of May 1834, all the property and effects of the said company, were, by a decree of Baltimore county court, placed in the hands of receivers, for the purpose of an equal distribution amongst the creditors and the defendants enjoined from intermeddling therewith, or in any manner disposing thereof, and the said property being under the control and custody of this court, as a court of equity, no lien at law could be obtained thereon. And the receivers further excepted to this claim, because long before the rendition of said judgment, the receivers, under an order of said court, had given bond and taken possession of all the real and other estate of the said company; and said property being thus in the hands of a court of equity, no lien [**9]  at law could be obtained thereon.

The facts stated in these exceptions, were admitted by the counsel for Ellicott to be true; and it was on the same day (25th of October 1841,) agreed by the counsel for the respective parties, that the auditor's report then made might be confirmed, and that the claimant, Ellicott, reserve to himself the right of claiming the full amount of his judgment, as a preferred claim, out of any further funds which might thereafter come into the hands of the receivers, and that it should be so paid, if it should be determined by the court, that it was to be paid in full as a preferred claim or lien upon the property.

According to this agreement, the court ratified the auditor's report, and the dividend was paid accordingly. No further proceedings were had in the cause until the 7th of March 1847, when Ellicott, the present appellant, filed his petition in the cause, setting out his claim above mentioned, at length; that it was founded on a judgment obtained by the petitioner in Baltimore county court, against the said Insurance Company, on the 21st of October 1837, for the sum of $ 5000, with interest from the 30th of April 1834, and costs. And the [**10]  petition avers, that at the time of the recovery of said judgment, the said company was seized of real estate in the city of Baltimore, which was therefore bound by the lien of said judgment, and that the legal title to said real estate yet remains in the company, but that because of the appointment of the receivers under the order of the court in this cause, the petitioner was advised that he could not levy a fi. fa., or other legal process of execution on said real estate, and it was therefore agreed that he should file his claim in this cause, and pray for such relief as his case required. It further states, that a part of said real estate had been sold, and the proceeds distributed amongst the creditors generally, under the agreement of October 1841, (above stated,) that other parcels of real estate, and also personal estate are yet unsold, and that if the receivers have been in possession of the same, they must have received a large amount of rents and profits, which he claims to be bound by his lien. It then prays that the petitioner may be at liberty to proceed with his execution, or that the real and personal estate on hand may be sold by the receivers, and the proceeds applied [**11]  to pay his judgment, and that the receivers may discover whether they have been in actual possession of said premises, and that they may account for the rents and profits, which they may have received or might have received, and for general relief.

The answer of the receivers to this petition was filed on the 23d of March 1847, and they answering for themselves, the company, and the creditors of the company, admit the judgment of the petitioner, and state that under the bill in this cause, filed on the 24th of May, 1834, against said company, and after answer and hearing, they were, by the order and decree of this court, passed by consent in this cause, on the 31st of May 1834, and upon the recommendation of the complainant, and the various creditors of the company, appointed receivers of all the property of the company, for the purposes and objects of the bill, and the application for a receiver or receivers therein made; that by said decree, and injunction thereon, the company was enjoined from transferring, assigning, releasing, or in any manner parting with, any of the property of the company, or in any manner interfering with or diminishing the same. They also state, that [**12]  having been so appointed receivers, they duly qualified as such, on the 4th of June 1834, by giving an approved bond of that date, and immediately entered on the discharge of their duties as such, in collecting and getting possession of all the assets and property of the company; and that before the petitioner obtained his judgment, they, as receivers, had obtained possession of all the property and estate, whatsoever, of the company, and have, ever since their said appointment, continued as receivers under it; and that said decree has ever since remained in full force. They also state, that after they were so appointed and qualified as receivers, this court, having thus assumed the custody, control and administration of all the property of the company, continued to direct and control the administration of the same by various orders passed in this cause, before the petitioner obtained his judgment, to which they refer as part of their answer, more especially to the orders directing calls to be made on stockholders for instalments, and suits to be brought against delinquent stockholders, and also against certain directors of the company; to the order passed 1st of November 1834, directing [**13]  the advertisement to creditors to present their claims to the receivers, and the advertisement, in pursuance thereof; to the order of the 1st. of November 1834, authorizing the receivers to complete the payment of the purchase money due on the house occupied as the office of the company; to the orders sanctioning the compromise by the receivers of claims due the company, and to the proceedings on the application to rescind the appointment of said receivers. They also aver, that before and at the time when the petitioner obtained his judgment, he had notice of said cause, and of the proceedings under which they were so appointed receivers. They further admit that they obtained possession, as part of the property of the company, of a house and lot in South street, which was bought by the company in fee for $ 10,000, and on which, before the appointment of receivers, the company had paid $ 4375, but had not obtained the legal title thereto, and that the balance of the purchase money was paid by them, the receivers, under the order of this court, as shewn by their petition, and order of the court of the 1st of November 1834; that this house and lot were afterwards sold by them, and the [**14]  sale ratified by the order of the 19th of January 1841; and that as to all the rest of what is termed the real estate of the company, which came to their possession, and was held by them at the time of the judgment, they cannot without a particular examination of the file papers, state distinctly as to each parcel, what was the nature of the estate, or interest in it, held by the company, and whether leasehold or real, but will render a particular account of the same and of the rents and profits, if upon the decree upon this petition it becomes material to ascertain it. But they state that all of it, except the house and lot on South street, was received and held by the company, and so held when the receivers got possession of it, by way of mortgage or security to the company for the payment of debts due it. They further admit the filing of petitioner's claim, under his judgment in April 1841, under the court's order directing advertisement to creditors of the 18th of November, 1840, but they deny it was filed under any agreement made with the respondents before or at the time of filing the claim, but admit the agreement of 25th of October, 1841, (above stated,) and after again averring [**15]  that the court ever since their appointment as receivers, has continued to control and direct the administration of all the estate of the company, in order to its equal and rateable distribution, they refer to the court's order for distribution, and distribution made amongst creditors, rateably, under the special auditor's report of 14th of October 1841, and 21st of January 1842, subject to the above agreement of 25th of October 1841. The answer therefore insists, that the said claim of the petitioner was not, and is not, a lien on the real estate of the company, or any part thereof, in the hands of said receivers, or upon the proceeds, or rents and profits of any part of the same, and that he is not entitled to any priority of payment thereout, and that having received his full rateable share of the assets, as distributed under the order of the court, he is not entitled to any relief.

It was then, by agreement, admitted, that the respondents had obtained possession as receivers, of all the property and estate of said company, as stated in their answer before the petitioner's judgment was obtained; and that the petitioner had notice of this cause, and of the proceedings under [**16]  which said receivers were appointed, as stated in the answer, before he obtained his judgment; and that the petitioner's action, in which his judgment was obtained, was instituted by writ issued out of Baltimore county court, on the 1st of May 1834; and that the charter of the company shall be considered in evidence. By another agreement it was admitted, that a part, at least, of the real estate of the defendant, now held by the receivers, was held by the defendant under mortgages or pledges for the payment of debts due by the parties mortgaging or pledging the same to the defendant, and in no other way; that as to the residue, it is uncertain at this time whether it was held under mortgage, or pledge simply, or under a purchase, and it is agreed, that if the decision of the court on the present application, shall render such further report or answer necessary, the receivers shall be ordered to report a particular account or schedule of all the real estate of the defendant in their possession, and held by them and the said defendant, and produce the title papers thereof, and such other information as may be necessary, under the court's opinion, to dispose of this petition finally;  [**17]  and that the facts in relation to the house and lot in South street are as stated in the answer.

On this petition and answer the court, (LE GRAND, J.,) on the 7th of April, 1847, passed the following decree: The only question arising under this petition, is, when did the jurisdiction of this court, as a court of equity, so attach as to place the whole estate and assets of the defendant subject to the orders of distribution of this court? I have carefully examined the cases referred to in the argument of counsel, and also others, but regarding the decisions heretofore made by Baltimore county court, as binding on me, I do not deem it necessary to express any opinion, as to what would be my decision were the question for the first time presented.

This court has on several occasions decided, that on the appointment of the receivers, under the bill in this case, the whole control of the funds and estate of the defendant were vested in the court of equity; and as a consequence of this, it necessarily follows, under all the decisions, that no judgment obtained thereafter at law, can be entitled to a preference. It is therefore ordered, this 7th day of April 1847, that the petition [**18]  of Andrew Ellicott, filed on the 7th of March 1847, be and the same is hereby dismissed.

From this decree Ellicott appealed.  

DISPOSITION:
DECREE REVERSED AND CAUSE REMANDED.  

HEADNOTES:

Where the only object of a decree, appointing receivers and awarding an injunction, so far as disclosed upon its face, was to provide for the safe keeping of the effects of the defendant, and to prevent any fraudulent transfer thereof; and where such decree did not state that the ulterior intent of the court was, to make an equitable distribution of the funds, and contained no direction to the receivers, to give notice to creditors to file their claims, it was HELD:

That this decree imposed no restrictions upon creditors in prosecuting their claims, either at law or in equity, and a judgment subsequently recovered by a creditor, is as much a lien on the real estate of the defendant, as if the appointment of receivers had never been made.

But in equity, this lien attaches only to such interest in the real estate, as the defendant had therein at the time the receivers were appointed, and cannot be extended to the increased value of the property, resulting from payments of purchase money made thereon by the receivers.

No proceedings of the court requiring creditors to bring in their claims, for the purpose of receiving their distributive shares of the property of the defendant in the hands of the receivers, adopted after the rendition of the judgment, can operate retroactively to impair the validity of its lien.

A court of equity will not restrain a creditor from prosecuting his legal remedy against the personal representatives of his debtor, unless there is a decree under which the creditor has a present right to go in and prove his debt.

If the decree had stated the ulterior object of the court, in placing the effects of the defendant in the hands of receivers, to have been, that it might make an equitable distribution thereof amongst creditors, and had directed the receivers, to give the usual notice to creditors to file their claims, then any creditor who should institute or continue to prosecute a suit at law, to recover a judgment on his claim, would have been enjoined on application, and if no such application were made, the court would regard his judgment, if obtained, as an unwarrantable interference with the jurisdiction it had assumed, and reject it as a lien on the property, in the hands of the receivers.

A receiver is an officer of the court, but his appointment determines no right, nor does it affect the title of the property in any way; it will not prevent the running of limitations. His holding is the holding of the court, for him from whom the possession was taken. He is appointed on behalf of all parties, and if any loss arise from deficiency in his accounts, the estate must bear it.

The effect of his appointment, is not to oust any party of his right to the possession of the property, but merely to retain it, for the benefit of the party ultimately entitled, and when such party has been ascertained, the receiver will be considered as his receiver. 

COUNSEL:
By ALEXANDER for the appellant, who insisted:

1st. That the appointment of the receivers, and other proceedings in this cause anterior to the 21st of October 1837, did not displace the legal title of the said company, and therefore; the judgment recovered by the appellant on that day, was, at law, a lien on the lands held by the company.

2nd. That as the proceedings, anterior to the recovery of said judgment, did not transfer to the court of chancery an effectual and exclusive jurisdiction over the subject of this suit, the lien of said judgment ought to be respected and enforced in equity.

FARNANDIS and MCMAHON for the appellee, contended:

1st. That under the bill filed by Stump against the United States Insurance Company, alleging fraud, inequitable preferences, made, or intended to be made, and insolvency, and praying the injunction and appointment of a receiver, "in order to an equal and equitable distribution of all the effects and property of the company;" and by the decree, by consent [**19]  passed after answer filed, granting the injunction and appointing the receivers, upon notice to, and recommendations for the office, from the creditors of the company, in all those who availed themselves of the privilege of recommending, Bultimore county court, as a court of equity, assumed the possession, control and disposition of all the assets of the company, in order to the equal and equitable administration and distribution of them amongst the creditors of the company, or to enable it to make the same; and that after the court obtained by its officers, the receivers, the actual possession of all the property of the company, no creditor could, by a proceeding at law against the company, obtain a lien on any part of the property, so as to give him a priority in payment out of it over other creditors, and thereby prevent the equal and equitable distribution which was the object, or within the contemplation of the said proceedings in equity.

2nd. That by said bill, and decree by consent, and by the various proceedings in said cause, of the said court, and the creditors of said company, prior to the petitioner's judgment; and especially the proceedings for getting in all the [**20]  assets of the company, by suit or compromise, paying off liens upon the property, and reducing it into money by sale of it; for calling in all claims against the company, under which $ 195,000 of said claims were actually notified to, and registered with the receivers by the creditors; and on the application to rescind the appointment of the receivers; and by the payment of all the costs of the proceeding of Stump, on both sides, out of the fund of the company, the said proceedings in equity was recognised and adopted by said court, and the creditors of said company, as one for the equal and equitable administration of all its assets under which all creditors were entitled to come in:--that this, the original purpose and object of the court, by its said decree and proceedings, is conclusively illustrated by its subsequent proceedings down to the dividend in 1841, all of which flowed from and depend upon the jurisdiction assumed by the court, before the petitioner's judgment; and that therefore his judgment gained him no priority.

3rd. That the judgment of the petitioner having been obtained by the confession of the company, was itself a breach of the injunction, if it carried [**21]  with it the consequence of priority; and could therefore, give no such priority.

4th. That by the filing of his claim, under the notice to creditors to file their claims, in order to a dividend, the petitioner, (notwithstanding the endorsed reservation of his lien,) submitted himself to the jurisdiction of the court in that cause--and that, at all events, when he came in by petition in that cause, asking the aid of that court as a court of equity, and in the exercise of the jurisdiction assumed by it in that cause, to decree to him a priority by force of his said judgment, the court was not bound to allow, and ought not to have decreed him a priority alleged to have been gained by a proceeding at law, which was at war with the whole object and scope of the proceedings under Stump's bill, which was, in itself, a breach of the injunction on the part of the company; and which, if pushed to its fullest extent, and admitted to gain a priority, would have enabled some of the creditors to take away all the property of the debtor, not only from the numerous creditors who had made themselves parties to that proceeding, and had relied upon it for the satisfaction of their claims, but also [**22]  even from the complainant, and would thus have subverted the whole objects of the proceeding.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*319]  DORSEY, C. J., delivered the opinion of this court.
The only object of the court below in the appointment of receivers, so far as it is unfolded upon the face of the decree itself, was to provide for the safe keeping of the property and effects of the United States Insurance Company. And the design of the injunction, awarded by the decree, was to restrain the president and directors of the company from making any fraudulent and inequitable disposition of the funds and effects of the company amongst themselves or its creditors. No other, or ulterior intent, is declared by the action of the court, anterior to the date of the judgment, rendered in the county court in favor of the appellant. The injunction gave no intimation of a design to impose restrictions upon creditors, in the prosecution of their claims against the company, either in courts of law or of equity. And to infer the existence of such restrictions, in the absence of the annunciation of any ulterior intention of the court, would [**23]  work injustice to the creditors, by exposing their claims to the plea of limitations interposed, not only by the company, but by the creditors, inter se, in subsequent proceedings for the recovery thereof, or involving the distribution of the effects of the company.
The principle of equity, applicable to the case before us, is correctly stated in 2 Phillips' Cases 22, Rankin vs. Harwood. "The court will not restrain a creditor from prosecuting his legal remedy against the personal representatives of his debtor, unless there is a decree, under which the creditor has a present right to go in and prove his debt." The decree in this case was passed by the consent of parties; and was far short of that which the county court, doubtless, would have passed, had it been left uncontrolled by any such assent. The proper decree for the occasion, under the circumstances of the case, should have stated the ulterior object of the court, in placing the effects of the company in charge of receivers, to have been, that it might make an equitable distribution thereof amongst the creditors of the company: and the decree should have directed the receivers to give notice to the creditors, (in [**24]  the usual mode,) to file their claims with the clerk of the court. Had such a decree been made, any creditor who should institute, or 

 [*320]  continue the prosecution of a suit at law, for the recovery of a judgment on his claim against the company, would, on application to the county court, have been enjoined from so doing. And if no such preventive interposition were invoked, and a judgment were obtained, the court would regard it as an unwarrantable interference with the jurisdiction it had assumed, and reject it as a lien on the property in the hands of the receiver.
"The appointment of a receiver does not involve the determination of any right, or affect the title of either party, in any manner whatever." 1 Bland's, Ch. R., 213, Hannah K. Chase's case.
"A receiver is an officer of the court. He is truly and properly the hand of the court; but his appointment determines no right, nor does it affect the title of the property in any way; it will not prevent the running of the statute of limitations. The holding of the receiver, is the holding of the court for him from whom the possession was taken." 1 Bland's Ch. 431, Williamson vs. Wilson.
"A [**25]  receiver appointed by this court, (a court of equity,) is appointed on behalf of all parties, and not of the plaintiff or of one defendant only; therefore, if any loss arises from deficiency in his accounts, the estate must bear it. The effect of the appointment, however, is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may ultimately appear to be entitled to it; and when the party entitled to the estate has been ascertained, the receiver will be considered as his receiver." See 5, Lib. of Law and Eq., 435, and the cases therein referred to.
No proceedings of the county court, requiring creditors to bring in their claims for the purpose of receiving their distributive proportions of the property of the company in the hands of the receivers, adopted after the rendition of the judgment, can operate retroactively to impair the validity of its lien. It is not pretended that any fraud or collusion was practised in obtaining the appellant's judgment against the United States Insurance Company. The circumstances attending it repel any such inference. The suit was instituted before any application 

 [*321]   [**26]  had been made to Baltimore county court, as a court of equity, for the appointment of receivers to take charge of the property and effects of the company; and the judgment subsesequently was duly obtained. It follows, from what has been hereinbefore stated, that the appellant's judgment is as much a lien on the real estate of the company, as if the appointment of receivers had never taken place. But in equity, it is only a lien on such interest in the real estate, as the company had therein at the time the receivers were appointed. To extend the lien to the increased value of the property, resulting from the payments of purchase money made thereon by the receivers, under the order of the county court, would be against all equity and conscience.
This court will sign a decree, reversing, with costs, the order of Baltimore county court, passed on the 7th of April, 1847, dismissing the petition of the appellant, and remanding the cause to that court, that such further proceedings may be had therein, as are consistent with the aforegoing opinion, and as the nature of the case may require.
DECREE REVERSED AND CAUSE REMANDED.  

22 of 29 DOCUMENTS 

NATHANIEL WILLIAMS AND JOHN PRENTISS, Executors and Trustees under the Will of JAMES MOSHER, vs. ELIZA M. MOSHER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

6 Gill 454; 1848 Md. LEXIS 11 

June, 1848, Decided 

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

The appellee filed her bill on the 21st January, 1847, alleging that James Mosher, of Baltimore city, died in the year 1845, seized and possessed of a large and valuable real and personal estate, having first executed a last will and testament and five codicils thereto. That the appellants, named as executors in the first codicil, had taken out letters testamentary on the estate of the testator, and entered upon the discharge of their duties as executors. That complainant is the widow of James Mosher, Jr. deceased, a son of the testator, by whom she had three children, all of whom were alive at the date of the last codicil to the will. That by the true construction of the will, the surplus income of the testator's estate, after payment of all debts, legacies, annuities and other charges, was to be invested, and no distribution thereof made until the events therein mentioned should happen. But your oratrix is advised and charges, that by the legal effect and operation of the several codicils, and particularly by virtue of the fourth codicil or memorandum, ratified by the last codicil, the said investment of surplus income is rescinded and revoked,  [**2]  and the executors are requested and directed to appropriate a part of said surplus to your oratrix, for the benefit of her children, and out of the residue, if any, to allow $ 150 for the benefit of the family of Dr. Williams, which last provision is subsequently modified by the last codicil in the manner therein mentioned. That upon the whole effect and construction of said will and codicils,--and until the final settlement of the estate, that is until all the annuities shall cease and fall in, there is no other use or purpose to which the annually accruing surplus can be applied, than for the benefit of your oratrix's said children; and she charges that said surplus is equitably designed for the benefit of her said children, and ought to be so decreed as their rights. That if the executors have a discretionary power to determine what part of the same should be appropriated for the benefit of said children, a court of equity will, if necessary, compel them to exercise a sound discretion, by appropriating the whole, or a substantial part thereof, to that purpose.

The bill further charges, that the debts of the testator have been fully paid, and there will hereafter remain an annual [**3]  surplus in the hands of the executors, of no very large amount, which they are willing to apply to the benefit of the children of the complainant, if any discretion is vested in them, and they shall be protected in so doing by the authority of this court, at least until said annual surplus shall exceed the annuity bequeathed by the last of said codicils, for the benefit of the family of Dr. Williams. The bill then prays that the executors may account in this court for the personal estate and the income of the real estate of their testator received by them, and for an order directing said executors to appropriate the surplus income now in hand, or hereafter to arise from said estate, to your oratrix, to be applied by her for the benefit of her children, and for general relief.

Exhibit A, filed with the bill in the will of James Mosher, executed on the 13th February, 1840. By this will, the testator first devises to his wife, Elizabeth Mosher, in lieu of dower, and of her thirds of his personal estate.--First, a negro woman named Margaret, who, with her increase, is to be free after the death of his said wife, and to receive thereafter during life, an annuity of Twenty Dollars,  [**4]  to be paid by his executors out of his estate, unless his said wife should express in writing, her disapprobation of said Margaret's conduct. Secondly, he gives to his said wife during her natural life, his dwelling-house and office, in front thereof, situated on the south side of Fayette street, between Charles and St. Paul's street, in the city of Baltimore; the taxes and insurance on the same to be paid out of the income of his other estate and property: and in case said house should be destroyed by fire, then his wife, at her option, was to be furnished with another house, at a rent not exceeding $ 150, or be paid that sum in quarter-yearly instalments, out of his general estate, for the remainder of her life. Thirdly, he gives to his said wife during life, an annuity of $ 200, over and above the annuity or ground rent of $ 100 50, secured to her by his marriage contract, which annuity of $ 200, with the ground rent aforesaid, is to be paid to her in quarter-yearly instalments.

Then, after the bequest of freedom to his negro woman, Belinda and her increase, upon certain specified conditions, the will proceeds: "I give and devise unto my friend, Nathaniel Williams, Esq. and [**5]  my nephew, George R. Mosher, both of the city of Baltimore, the whole of my estate and property, real, personal and mixed, not herein otherwise specifically disposed of, and all debts, rights and claims whatsoever, to which I shall be entitled at the time of my decease, to have and to hold the same, to them and the survivor of them, and the heirs, executors and administrators of the survivor, in trust for the purposes hereinafter expressed."

The will then gives the said trustees the power of leasing or letting out any part of the real estate, for such time and on such conditions as to them shall appear most beneficial, and directs them, in case Lewis Nickerson, the grandson of his wife, should be living at the time of his death, "to make, if in their discretion it be necessary, some provision for him, say about Fifty Dollars per annum, if the same shall be justified by the condition of my estate, to assist in educating, raising and fitting him for some useful trade;" "the provision for him may be continued so long during his minority, as the said trustees may think proper." He then directs said trustees to pay to his niece, Isabella Mosher, so long as she remains unmarried, an [**6]  annuity of $ 100, in semi-annual instalments, out of the interest arising on a single bill of her brother, George R. Mosher, for $ 4,500 so long as said debt, or enough of it to raise said annuity, shall remain unpaid, and afterwards out of his general estate.

He then further directs said trustees to pay out of the income of his estate the sum of Twenty-five Dollars, towards educating each of the three younger children (naming them,) of Charles Nickerson, the son of his said wife, until they respectively attain the age of fifteen years. He then relinquishes his right, if he acquired any by marriage, to certain property on south Liberty street, in said city, and devises the same to Jane L. Nickerson, the daughter of his said wife. The trustees are then directed to apply annually the sum of $ 200, towards the maintenance and support of the family of William Mosher, a son of the testator, during his life, no part of which is in any event to be applicable to the payment of any debts contracted, or to be contracted by said William. And in the event of the death of his said son, William, leaving his present wife surviving him without a child, the trustees are directed to pay her out [**7]  of his estate, an annual sum of $ 200, in such instalments as may be convenient, so long as she remains the widow of said William; "if in the opinion and judgment of said trustees, or the survivor of them, the same shall be necessary for her comfort and support, and not otherwise." The will then proceeds: "I will and desire that the clear income of my estate, if any thing remain after the application annually, or otherwise, of the several sums of money hereinbefore charged thereon, shall be invested in such manner as my said trustees, or the survivor of them, shall think proper, and so on from time to time, until a final distribution of my estate be made as hereinafter directed. Upon the decease of my aforesaid son, William, I will and desire that a distribution of my estate be made among all my grand-children, to wit: the children of my late son, James Mosher, and the children of my aforesaid son, William, provided any child he shall have, all my said grand-children to take per capita, reserving, however, in the hands of the said trustees for future distribution, if necessary, so much of my estate as will be sufficient to countervail and pay the several annuities or sums of money,  [**8]  hereinbefore provided for the several annuitants or persons hereinbefore named, until the same shall have ceased, when a final distribution shall be made in manner aforesaid, and I hereby authorize and empower the aforesaid trustees and the survivor of them, to make any sale, disposition or deed of conveyance of my estate and property, that may be requisite and proper for making such final distribution, and for otherwise carrying into full effect the provisions of this my will." The said Nathaniel Williams and George R. Mosher are then appointed executors.

By the first codicil to this will executed on the 11th August, 1841, the testator appoints John Prentiss, of Baltimore County co-executor and devisee in trust with said Nathaniel Williams, in place of said George R. Mosher, who had recently died, and authorizes said executors to pay annually out of the testator's general estate the sum of $ 100, to his niece, Isabella Mosher, so long as she remains single and unmarried, provided said annuity cannot be raised from the debt owing from her brother mentioned in the will, and also an annuity or yearly sum not exceeding fifty dollars, to Jane L. Nickerson, the daughter of his said [**9]  wife (in case she should survive her mother and need assistance) so long as she remains single and unmarried, and also to contribute, in their discretion, during the continuance of their trust the annual sum of ten dollars, towards the support of free schools in the city of Baltimore.

By a second codicil executed on the 30th November, 1841, the testator gives an additional annuity of $ 200 to his wife during life, and also an additional annuity of $ 100 to his niece, Isabella Mosher, during her single life, and directs that the several annuities mentioned in the will should take effect from the time of his decease.

By a third codicil executed on the 13th December, 1841, he revokes the previous disposition made of his servant, Margaret, and manumits her absolutely at the expiration of six months from the time of his death, and gives her a legacy of twenty dollars.

The following memorandum was signed by the testator on 3d of June, 1842, in presence of Neilson Poe. "It is the desire of James Mosher, that if his estate should accumulate beyond the amount required to pay the legacies and bequests in his will, his executors, in their discretion, shall appropriate a part of [**10]  the surplus to Mrs. Eliza M. Mosher, for the benefit of her children until the estate shall be finally settled, and fifty dollars for the benefit of the family of his son Dr. William Mosher, and should such an accumulation accrue from the death of his wife, he desires that his executors will appropriate occasionally, according to their best discretion, the amount of $ 200 per annum, for the benefit of the children of Charles V. Nickerson, that is, for their support and education, until they shall have been provided for by learning some useful trade or profession, or shall have arrived at the age of seventeen years."

By a fourth codicil, duly executed on the 1st May, 1843, the above memorandum was confirmed by the testator and adopted as a part of his will, excepting the sum bequeathed for the benefit of the family of his son William, which was revoked, and the sum originally given in the will for that purpose, was increased to $ 600, on the same terms and conditions as are prescribed in the will for the original bequest.

The anwers of the executors, filed at the same time with the bill, states that they have paid the debts of the deceased and settled up his estate in the [**11]  Orphans court. They further state, that as trustees, they are desirous to settle an account before this court, and herewith file a statement of all their receipts and payments, for and on account of the said estate, and are content to make any distribution, in the discretion of this court, of the balance in their hands. They, however, suggest a doubt whether the complainant is entitled to any payment from said estate for the purposes set forth in her bill, until all or a part of the annuitants are deceased, all being at this time living.

The cause was then referred to the auditor, who on the 25th March, 1847, filed his report and account, in which he charged the trustees with the amount admitted to have been received by them, and credited them with commissions at five per cent. on the amount collected by themselves, and one-half per cent. on the residue, consisting of certain ground rents, for the collection of which they had paid to an agent, a commission of seven and a half per cent. the tax of ten per cent. being deducted and assigned to the State; with sundry disbursements made by them in the discharge of their duties, &c. leaving a balance in their hands of $ 470, subject [**12]  to the order of this court, which the auditor suggests, with the future annual surplus of the estate, should, upon proper proof as to their necessities, be paid over to the complainant for the use and benefit of her children. The allowance claimed by the trustees for a fee paid their solicitor for preparing their answer to the bill was rejected.

To this report the defendants excepted. 1st. Because the auditor awards to the complainant the surplus in the hands of the trustees; whereas, they submit, whether the true construction of the will and codicils of the testator entitles her to such surplus in the present condition of the annuitants who are all in full life, and whether, therefore, these defendants would be justified in paying over the same to her. 2d. To the rejection of a solicitor's fee of fifty dollars actually paid by them for drawing their answer and making up their account in the case. 3. To the allowance of only five per cent. commission on the amount of proceeds actually collected by them, there being for further security two trustees, whereas the business is almost necessarily done by one, and inasmuch as the Orphans court of Baltimore County, with a knowledge of [**13]  the trouble and care required for an exact attention to the estate, allowed for the part of the estate administered before them a commission of eight and a half per cent. 4th. Because the auditor only allows one-half of one per cent. on certain small ground rents, and which require for their collection, an old experienced collector who does not think himself over paid by seven and a half per cent., and only consents to continue to take the trouble because he was accustomed to do so for the testator, and being specially urged thereto by the trustees. 5th. Because the auditor allows tax on the commissions, on behalf of the State, although the testator died on the 27th March, 1845, immediately after which the duties of these defendants commenced, and the act under which the allowance has been made only began to take effect on the 2d June following.

This report and the exceptions thereto being submitted, the Chancellor (JOHNSON) on the 9th April, 1847, passed the following order:--

"The report of the auditor in this case and the exceptions taken thereto, having been submitted without argument, by an agreement filed on the 7th instant, the proceedings have been since read and [**14]  considered. It is the opinion of the Chancellor, that the memorandum to the will of the late James Mosher, and which is adopted and confirmed as a part thereof by his last codicil, executed on the 1st May, 1843, appropriates in the event which has happened, a part of the surplus of his estate, after paying the previous charges thereon, to Mrs. Eliza M. Mosher, the complainant, for the benefit of her children, until the estate shall be finally settled. In order, however, that a sound discretion may be exercised upon the subject, in determining what portion of such surplus shall be so applied, it would seem proper that evidence should be introduced, showing the situation and wants of the children to be benefitted by such appropriation.

"The Chancellor does not think, as stated in the bill, that until the final settlement of the estate, there is no other purpose to which the annual surplus of the estate can be applied; on the contrary, he thinks that the provision in the will of the deceased, that the clear income of his estate, after the payment of the sums charged upon it, shall be invested in such manner as his trustees may think proper, would attach to such surplus, and continue [**15]  to control its application, until the period for the final distribution shall arrive, according to the direction of the will. The distribution of the surplus appearing to be in the hands of the trustees, will therefore be reserved, until some proof shall be offered in regard to the conditions and necessities of the children of the complainant. The other exceptions on the part of the defendants, are not in the opinion of the Chancellor well taken, and will be overruled. It is thereupon ordered this 9th April, 1847, that the report of the auditor of the 17th March, 1847, so far as relates to the charges against and the allowances made to the trustees, be, and the same is hereby ratified and confirmed; and it is further ordered, that the application of the surplus in the hands of the trustees be suspended, until further order, and that the parties have leave to take depositions in reference thereto, before a justice of the peace, upon giving three days notice to the opposite parties, or their solicitor; provided, that the depositions so to be taken, be filed in the Chancery office, on or before the 20th May next. All exceptions at variance with this order, are overruled and rejected.  [**16]  "

From this order, the defendants appealed, and at the same time, stated the following grounds upon which their appeal was taken:--

It is the desire and intention of the defendants to appeal to the Court of Appeals from the Chancellor's decree, in overruling the exceptions taken by them to the report of the auditor, in the following particulars:--

First, wherein the auditor disallowed the fee of Fifty Dollars paid to their solicitor.

Second, wherein the auditor only allowed the defendants five per cent. commissions.

Third, whereas the auditor only allowed the defendants one-half of one per cent. on the amount collected by them through a collector.

Fourth, wherein the auditor makes a deduction of ten per cent. from the defendant's commissions, on behalf of the State.

The defendants decline to appeal from the decision of the Chancellor, in favor of the complainant.  

DISPOSITION:
ORDER AFFIRMED.  

HEADNOTES:

The appellants were appointed executors and trustees under the will of J. M. who died on the 27th March, 1845. Held, that the commissions of these trustees were subject to the tax of ten per cent. in favor of the State, imposed by the act of 1844, ch. 187, though that act did not go into effect until the 2d June, 1845.

The auditor allowed the trustees five per cent. commission upon certain rents of the trust estate, collected by them in person, and one-half per cent. on others, for collecting which, they had previously paid an agent seven and a half per cent. and rejected their claim for a solicitor's fee, paid for preparing their answer in this cause. Held, that these allowances and this rejection were properly made.  

COUNSEL:
By N. WILLIAMS for the appellants, and

By R. J. BRENT for the appellee.  

JUDGES:
The cause was submitted without argument to the court--DORSEY, C. J., SPENCE, MARTIN and MAGRUDER, J.  

OPINION:

 [*463]  By the court:
ORDER AFFIRMED.  

23 of 29 DOCUMENTS 

ALFRED Y. DAY vs. THE STATE OF MARYLAND, ON THE SUGGESTION OF THE COMMISSIONERS OF LOTTERIES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 321; 1848 Md. LEXIS 45 

December, 1848, Decided 

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

This was a bill of discovery under the act of 1847, ch. 284, sec. 2, by the State, upon the suggestion of the commissioners of lotteries, against the appellant, filed on the 10th of April 1848, alleging, that the State, at the instance of the said lottery commissioners, had, under the act of 1846, ch. 109, instituted before a justice of the peace, for the city of Baltimore, six separate actions of debt against the appellant, to recover the fines imposed by said act, for the violation of the third section thereof, and that said actions are now depending before said justice for the trial thereof. The bill further states, that said actions are brought against said Day, for insurances of certain numbers of lottery tickets, in which illegal business he is largely engaged, and which he conducts exclusively with persons of color; and that the insurances for which said actions were brought, were made with persons of that description; and that at the time of making the same, he delivered to said parties several memorandums, exhibited with the bill, and received money from them; that said memorandums need an explanation which cannot [**2]  be given by the parties to whom they were delivered, because of their incompetency as witnesses; and that it is material to the proper decision of said actions, that the said Day should discover, on oath, when and for what consideration, and to whom the said memorandums were given, and what is their meaning. The bill then prays for a discovery from the defendant of the true purport and meaning of said memorandums, and to what description of persons they were issued; that is to say, whether white or colored, and what consideration he received from such persons for them.

To this bill the defendant demurred, and assigned the following causes of demurrer.

1st. That the complainant hath not, in and by the said bill, stated such a case as doth or ought to entitle him to any such discovery, as is thereby sought and prayed for from this defendant.

2nd. That the actions of debt instituted by the said State against this defendant, as stated in the said bill of discovery, are for penalties for supposed violations of the laws of this State, and that this defendant cannot therefore be held to make discovery concerning the same.

This demurrer, the court, (LE GRAND, J.,) on the [**3]  22nd of May 1848, overruled, and "ordered, adjudged and decreed, that the said defendant do put in a good and sufficient answer to the said bill, on or before the 10th day of June 1848."

From this decree the defendant appealed to this court. The acts of 1846, ch. 109, and 1847, ch. 284, referred to in the proceedings in this case, are sufficiently set out in the opinion of this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

The 2nd section of the act of 1847, ch. 284, compelling a party, against whom proceedings may have been instituted under the act of 1846, ch. 109, for the recovery of the fines imposed by the latter act, for insuring lottery tickets, or dealing in foreign lottery tickets, to answer on oath any bill of discovery which may be filed against him in the premises by the commissioners of lotteries, in the name of the State, is a constitutional enactment.

The 3rd section of the bill of rights, furnishes no foundation for the novel proposition, that the whole common law, as then existing in Maryland, was made a part of the constitution, and that no part thereof could be abolished or changed by a mere act of legislation.

The 19th section of the bill of rights plainly shows, that the power was confided to the legislature, which has been exerted by it in the passage of the act of 1847, ch. 284.

Actions of debt instituted before a justice of the peace, for the recovery of the fines imposed by the act of 1846, ch. 109, are civil actions, and not criminal cases or prosecutions, and therefore the act of 1847, ch. 284, is not in conflict with the 5th article of the amendments to the constitution of the United States.  

COUNSEL:
By WM. F. GILES, for the appellant, who contended, that it was a principle of the common law, that no man could be compelled in a criminal proceeding to give evidence against himself; to which principle the inhabitants of this State become entitled by virtue of the 3rd section of the bill of rights. That by the 19th section of the bill of rights, no man can be convicted, except there be a witness or witnesses against him, or upon voluntary confession. That the 20th section of the bill of rights, applies only to civil cases, and did not authorise the passage of the act of 1847, ch. 284; and that this act is a violation of a fundamental principle of right and justice, inherent in the nature and spirit of our social compact; and that the legislature in its passage exceeded [**4]  its rightful authority; and therefore the said act is unconstitutional and void.

J. M. CAMPBELL, for the appellee insisted, that the act of 1847, ch. 284, is warranted by the 20th section of the bill of rights.  

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

OPINIONBY:
DORSEY 

OPINION:

 [*323]  DORSEY, C. J., delivered the opinion of this court.
By the first section of the act of 1846, ch. 109, it is enacted "that the dealing in foreign lottery tickets is absolutely prohibited 

 [*324]  in this State; and any sale or other disposition of, or offer to sell, or otherwise to dispose of, any such tickets or parts of such tickets, or any substitute therefor, directly or indirectly, shall be punishable by a fine of fifty dollars for each offence, to be recovered before any justice of the peace, by action of debt, in the name of the State, instituted against the offending party, on the suggestion of the commissioners of lotteries." And the third section of the act enacts, "that all insuring of lottery tickets, or parts of lottery tickets, or numbers or certificates of numbers of lottery tickets, either foreign or domestic, is absolutely prohibited in this State;  [**5]  and any person directly or indirectly, making or offering, or agreeing to make any such insurance or insuring, or receiving any consideration for insuring for or against the drawing of any ticket or tickets in any lottery, whether authorised by law or not, or receiving any money, goods, or thing in action, in consideration of any agreements to repay any sum or sums of money, or to deliver the same, or any other goods or thing in action, if any ticket or tickets, in any lottery whatever, shall prove fortunate or unfortunate, or shall be drawn or not drawn, on any particular day, or in any particular order or otherwise, howsoever, or promising or agreeing to pay any sum of money, or to deliver any goods, or thing in action, or to do, or forbear to do, any thing for the benefit of any other person or persons, with or without consideration, upon any event or contingency dependent upon the drawing of any ticket or tickets, or number or numbers of any ticket or tickets in any lottery whatsoever, shall, for each of said offences be punishable as is provided by the first section of this act, in regard to the offences there described."
By the second section of the act, of 1847, ch. 284, which [**6]  is a supplement to the aforementioned act of 1846, it is enacted, that "upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party, from whom it is sought to be recovered, shall be bound to answer on oath, any bill of discovery which may be filed against him in the premises, by the commissioners of lotteries, in the name of the State, either in the high court of chancery, or in any county court, as a court of equity." Under these enactments the 

 [*325]  commissioners of lotteries, having, in the name of the State, instituted before a justice of the peace for the city of Baltimore, six several actions of debt, for the recovery of fines incurred under the third section of the act of 1846, filed a bill of discovery on the equity side of Baltimore county court, to obtain from the defendant certain information and disclosures in relation to certain memoranda issued by him, and by reason of which he had become liable for the payment of the fines, for the recovery whereof the said actions of debt were prosecuted. To this bill of discovery, the appellant interposed a general demurrer, which was overruled by the county court,  [**7]  and a judgment rendered against him. The only question which arose under that demurrer, in the court below, or which arises under this appeal, is, was the second section of the act of 1847, ch. 284, a constitutional enactment?
On the part of the appellant, numerous decisions have been referred to, to prove, what, in the absence of any special legislation, upon the subject, nobody denies, that at common law, no person can be compelled to give testimony, which would show that he had been guilty of a crime or misdemeanor, or subject him to any fine, penalty, or forfeiture. And that a court of equity will not compel a discovery, in aid of a criminal prosecution, or a penal action. That the legislature possessed the right of passing the enactment complained of, unless inhibited from doing so by some provision in the constitution of Maryland, or of the United States, appears not to be denied. The appellant insists that such inhibition is found in the third section of the declaration of rights; by which he asserts that the whole common law, as then existing in Maryland, was made a part of its constitution, and that no part thereof could be abolished or changed, by a mere act [**8]  of legislation. For this novel and extraordinary proposition, it is only necessary to say, that the third section of the declaration of rights, furnishes no foundation.
The nineteenth section of the declaration of rights, which is as follows; "that no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised 

 [*326]  in this State, or may hereafter be directed by the legislature," also fails to support the position sought to be maintained by the appellant. The concluding words of the section plainly shew, that the power was confided to the legislature, which has been exerted by it, in the passage of the act of 1847.
There is no other part of the bill of rights, or constitution of Maryland, which the appellant can invoke to his aid, in the case before us. And there is no part of the constitution of the United States, which gives the slightest color to the principle, for which the appellant contends; unless it be found in that part of the fifth article of the amendments thereto, which declares, that no person "shall be compelled in any criminal case, to be a witness against [**9]  himself." If the proceedings pending before the justice of the peace, be criminal prosecutions or criminal cases, then is the judgment of the county court clearly erroneous, if that clause in the constitution of the United States, extend to state legislation. But what are the proceedings before the magistrate, in relation to which the bill of discovery before us, has been filed? Not criminal cases or prosecutions, but civil actions, actions of debt inter partes, and although the object of their institution, is the recovery of fines or penalties, yet in contemplation of law, they are as much regarded as civil actions, as if instead of actions in debt, they had been actions for money, had and received. For this doctrine, see the case of Acheson vs. Everett, Cowp. 382. The judgment and order of the county court, appealed from in this case, is affirmed.
JUDGMENT AFFIRMED.  

24 of 29 DOCUMENTS 

VINCENT K. COPES, ADM'R OF JOHN G. COPES, vs. OBED PEARCE, AND ELILABETH, HIS WIFE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 247; 1848 Md. LEXIS 39 

December, 1848, Decided 

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

The appellees filed their petition in the orphans court of Baltimore county, on the 23rd of February 1846, alleging, that the appellant, as administrator of the estate of John G. Copes, deceased, had settled up said estate, and on the 17th of February 1846, had rendered to said court an account, whereby it appears that there remains in his hands, due said estate, the sum of $ 2085; and alleges, that said Elizabeth is one of the distributees of said estate, and is entitled to one-fifth thereof, as an heir at law of the intestate, and prays that said administrator be required to make a legal distribution of the money aforesaid.

This petition the appellant answered, on the 26th of the same month, admitting that he had rendered an account of his administration, to which he refers for the particulars thereof. "But this defendant, (not admitting that said Elizabeth is entitled to claim as a next of kin and distributee of said John G. Copes, but leaving her to prove that she is such next of kin, and entitled, as distributee, of any distributable estate that may hereafter appear of said deceased as distributable,) avers, that the [**2]  balance of said account, as rendered by him, is not claimable by any distributees of the deceased, inasmuch as respondent is a creditor of the deceased to an amount, exclusive of interest, of at least $ 1400, which claim he insists is to be satisfied out of said balance."

The claim of the administrator, the principal items of which are stated in the opinion, was then filed, and a mass of testimony taken, of which, all that is material to the case is also extracted and set out in full in the opinion of this court, delivered by his honor, Judge Frick.

The court below, on the 18th of August 1847, passed a decree, rejecting and disallowing the claim of the administrator, and ordering him to proceed to make distribution of the estate of his intestate, remaining in his hands at the rendition of his last account, among the parties entitled thereto. From this decree the present appeal was taken.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

In cases of pedigree, the declarations of a deceased person, and of the deceased members of the family, are admissible to prove, per se, not only the issue, but the marriage, and the rule of evidence admitting such declaration, is not subject to the qualification, that cohabitation must be first shown to raise the inference of marriage.

It is upon the ground of necessity that these declarations are admitted, as an exception to the general rule excluding hearsay evidence, cases of pedigree being often incapable of proof, and depending entirely upon reputation.

The term "pedigree," embraces not only descent and relationship, but also the facts of births, marriages and deaths, and the times when these events happen.

Cohabitation alone, proved between parties, as man and wife, is sufficient to raise the presumption of legal marriage, when the parties have been long dead, and any declarations made by them, as to their being or not being married, may be used to strengthen or weaken this presumption.  

COUNSEL:
By CHARLES F. MAYER for the appellant, who, upon the question of the relationship of Mrs. Pearce to the intestate, (the only point in the case involving questions of law,) insisted, that the appellees have not proved that Elizabeth Pearce is a next of kin of the intestate,  [**3]  and entitled to a distributive share of the estate.

The appellee, Mrs. Pearce, claims here as a sister of the half-blood to the intestate, by a marriage of Giles Copes, the father, prior to that of which the intestate and the appellant were the issue. No testimony, whatsoever, of such prior marriage is furnished; and the only reliance for showing that, is the declaration of Giles Copes, as well as to show, that Mrs. Pearce was his daughter, and of that first marriage. No cohabitation is shewn to raise inference of marriage, nor even the reputation of marriage; nor that Mrs. Pearce was the reputed daughter of that marriage. It will be difficult to present any case, I think, (particularly where the facts are not ancient,) Starkie, 1101; 3 Marsh., 3; where declarations of a party have been received to prove identify and legitimacy of issue, without some preliminary proof by co-habitation, or by some facts apart from the declarations, of a marriage, to which to refer the issue. As to marriage, (the basis first to be laid,) these declarations are received as testimony only corroborative, where, by proved facts, as co-habitation, a presumption of marriage has been raised. Buller, N.  [**4]  P., 294, 112. The Berkely Peerage case, which has defined the principle of hearsay for proof of pedigree, (4 Camp. N. P. R., 401,) will not be found to warrant the admission of declarations to prove, per se, not only the issue, but a marriage too. There, there was preliminary testimony of the claimant being the reputed son of the party making the declaration, and under whom the estate was claimed by direct inheritance. The only question there was, as to legitimacy of the issue. In that case, too, there had been co-habitation and recognition, after a certain period of the party, as a legitimate issue of the alliance. Here there is no preliminary testimony whatsoever on which to engraft the declaration of Giles Copes, not even testimony of Mrs. Pearce being the reputed daughter. Further, the claim here is made under the intestate, and not, as in the Berkely case, under the person making the declaration. Can one standing in no relation to the right involved, by mere declaration regulate that right, and oust or impair the interest of one, who is, by unquestioned proof, entitled, and as by such proof appears, wholly entitled? This is a point of important bearing, and the distinction I submit,  [**5]  is, I think, worthy of some reflection.

Attempts are made to shew a recognition of Mrs. Pearce as a sister, by the intestate and the appellant, and there is testimony to their calling her habitually, "Sister Betsy." But this argues no positive belief of there being a kindred between them, as such kindly designations prevail between foster-brothers and sisters at times, and between those who have been educated in one family and intimately associated. But whatever force that term, "Sister Betsy," may have, it is neutralised by counter-testimony here; one witness saying, that both appellant and intestate always called her Mrs. Pearce; and another, that when Mrs. Pearce was spoken of as entitled to inherit from him, the intestate scouted the notion, and considered her to have no more claim than the witness, a stranger, herself had. At furthest, however, the testimony as to this designation of her, would only show what these brothers, then very young, were taught, from some source or cause unexplained, to believe as to Mrs. Pearce. They must, from the testimony, have been very young when they so called her, as it appears she lived but a short time with them, after the marriage of which [**6]  these brothers were born; and was herself married. And this designation of her prevailed only while she lived with Giles Copes.

We contend, then, that there is no testimony to retrench the admitted right of the appellant, as a next of kin, and to make Mrs. Pearce one. There is a moral right here to all these positions, because, as Mrs. Potee shows, the intestate wished and expected none but his brothers, Vincent, (the appellant,) and Richard, to have his estate. And this view of the deceased has the same force, whether dictated by affection, or by his recognising no other rightful kindred than these brothers.

By C. D. BARNITZ for the appellees.

The argument of the learned counsel on this point is novel and ingenious. The conclusions, however, are not warranted by law. Vide 1 Greenl. Ev. S., 103, 104, and in note 2, where objections against this kind of testimony are most strongly urged. We have also received an impression different from the counsel's for the appellant, from examining the cases referred to. "The fact that a father, (Buller N. P., 112,) by his testimony, (which is equivalent to declarations under certain circumstances,) is allowed to bastardize his children,  [**7]  after cohabitation is proved, does not show co-habitation the chief requisite in a case of this kind." But we will turn to the testimony. Mrs. Eleanor Latchum testifies, that she "often heard Giles L. Copes speak of his first wife, as the mother of Mrs. Pearce." "Often heard him say, he was married to Mrs. Pearce's mother." "He appeared to be very fond of Mrs. Pearce. Vincent Copes and Betsy lived together with Giles. After Mrs. Pearce's marriage, she visited the family of Giles Copes. All treated her kindly, (John Vincent and Richard,) called her 'sister Betsy.' They appeared extremely fond of her, and John treated her with great respect, as much so as brother could treat a sister," &c. Mrs. Hale knew Giles L. Copes, the father of John G. Copes, for twenty years. "Has often seen Betsy Pearce at his house." "She called him father. Has heard him say Betsy Pearce was the daughter of his first wife. Vincent acted towards her as a brother to a sister." "Giles called her children grand-children." Mrs. Sarah A. Copes was the last wife of Giles L. Copes, whose testimony will tend to diminish the share due her own child. She gives every particular relating to the marriage of Giles Copes, in [**8]  Virginia, to the mother of Mrs. Pearce, as related by himself; also the birth of Mrs. P., &c. She also speaks of her recognition by the family. Sarah A. Dorsey, "Mrs. Pearce went to see John at different times when he was sick. On the Friday before he died, he asked for her by the name of 'sister Betsy,' and asked why she had not been there, he always appeared glad to see her. Has heard Vincent call her sister Betsy." Mrs. Beamer, "Mrs. V. Copes introduced Mrs. Pearce as her sister."

It therefore appears that Mrs. Pearce lived with Giles Copes, as a daughter, before marriage, was treated and recognised by Giles as a daughter, and by John and Vincent himself, as a sister. That after marriage she visited the family, and was still treated as a lawful daughter and sister; and her children, as grand-children, by Giles L. Copes; and always up to the death of John, with the respect due a sister. Giles narrates, time and again, the fact of his marriage with the mother of Mrs. Pearce; the time of the birth of his children in lawful wedlock; and the fact of Mrs. Pearce being the youngest child of his first wife.

The witnesses all agree to these facts.

The minutest particulars [**9]  being given by the last wife of Giles L. Copes, the father of John and Mrs. Pearce. Thus much for a defence to the insinuations of him who lived in the same house, eat at the same table, and grew up under the care of her, on whom, until assailed by her own brother, the breath of suspicion never rested.

MAYER in reply:

We are inveighed against, because we put Mrs. Pearce to proof of her kindred with the deceased. Our legal right to do this is clear; our moral justification I have already indicated, in the proved fact, that the deceased never regarded her as entitled to share his property at his death, and died in the faith, that Vincent and another brother, (Richard,) would succeed to all he should leave. We believe and insist, that Mrs. Pearce is but a foster-sister of the deceased, and has no claim as next of kin. The record made by Giles Copes, father of the deceased, in his (Giles') bible, does not note Mrs. Pearce as a daughter, nor any marriage prior to that of which the deceased and Vincent were the issue. But there is no evidence of any such marriage, of which Mrs. Pearce may be esteemed an issue. No testimony by witnesses, to a marriage, nor by co-habitation, is adduced.  [**10]  Declarations, without co-habitation, have never been received as evidence of marriage. They have been admitted to fortify the presumption of marriages from co-habitation, but only in that light and force. Stark, 4th Pt., 224. 3 Halsted, 249. Cowp., 593. In no case will it be found, that declarations of a party have, per se, sufficed to prove his marriage. Here brothers claim from a brother, and their kindred is undisputed; they do not recur to Giles Copes to prove their relationship, by asking of his reported declarations the enumeration of his children. On what principle is his declaration to prove a marriage, and introduce another heir to impair an established claim of admitted kindred? Why is not some testimony of this prior and first marriage adduced? If the ceremony of the marriage could not be substantiated, why not some proof given of co-habitation? The event is not so ancient as to make such testimony impracticable, or not likely to be attained, and hearsay testimony is allowed in matters of pedigree, only from consideration of the necessity of the resort to traditional intelligence, because the facts are too remote to be reached by living testimony. 3 Marsh, 326, Briney vs.  [**11]  Haun.

We do not, by challenging Mrs. Pearce's claim as next of kin, dishonor the memory of Giles Copes, the father of the deceased. His designation of her as daughter, proves not that she was in fact his daughter. It may have been a term of affection and not of kindred, 3 Halsted, 249; but, at all events, it is not proof of kindred. Giles treated Mrs. Pearce as a daughter, and that is all that is to be deduced from the testimony. The cases show that declarations, such as are referred to him, have never been available to prove more than age, or time of birth, a marriage being first, actually or presumptively, proved. Cowp., 593. This, too, is not a case strictly of pedigree, where declarations of far-off relations have been admitted, to show early relationship, and where a deduction of kindred was required, from a remote propositus. This is the case of a direct derivation of brother from brother. But even in pedigree tracings, marriages are shown by co-habitation, and not left blank, as here, and to be supplied by a declaration.

We insist, that there is no adequate testimony of Mrs. Pearce's relation as sister.

Perhaps the vague form of the decree, may not submit this [**12]  point of kindred for decision, but it is desirable that the court should lay down the principles that bear upon it, so as to preclude doubt and litigation hereafter, under any future action of the orphans court in this case.  

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

OPINIONBY:
FRICK 

OPINION:

 [*254]  FRICK, J., delivered the opinion of this court.
Pearce and wife, by their petition to the orphans court of Baltimore county, represent, that Vincent K. Copes, the administrator of John G. Copes, deceased, had settled all debts due to, and from the estate, of which he is the administrator, and that there remained in his hands a large amount for distribution; that in right of the wife, as half-sister of the deceased, they are entitled to a distributive share of said estate, and pray the court to order the administrator to distribute the balance among the parties entitled.
The administrator, (who is a full brother of the deceased,) in answer to the petition, puts the petitioners to proof of Mrs. Pearce being next of kin; and further claims a large amount to be due him from the estate, which amount would, in a great degree, exhaust the balance [**13]  in hand.
The administrator, in the course of his administration, and before the petition was filed in this cause, had presented to the orphans court, for its sanction, the account which is now the subject of controversy, the claims under which may be classed and specified as follows:
1. For money lent, $ 159.50.
2. For balance due on an alleged partnership, between the intestate and his administrator, as survivor of John G. Copes & Co., and M. V. K. Copes & Co., $ 883.49.
3. For a balance of wages, as clerk to the intestate in a grocery store, $ 83.33.
4. For bricks furnished to the deceased, and for a balance due at brick-yard, after the partnership (in making bricks) had ceased, $ 36.19.
5. For commissions on sales of brick for the deceased, and collections upon sales made by the deceased himself, subsequent to the partnership, $ 262.49.
6. For attendance of administrator's wife upon the deceased, $ 20.
To this account, (amounting to $ 1445.15,) there is attached the probat, in the usual form, by Vincent K. Copes, the creditor; and the probat then further certifies, "that at the same time appeared James Carney, and made oath on the holy 

 [*255]   [**14]  evangely, that the goods, wares, &c., charged in the matter in the within account, were sold and delivered, as charged to John G. Copes, and at the prices therein charged."
This is the character of the testimony, upon which the appellant relied in the first instance, before the orphans court, and the account was, of course, rejected.
The claim being thus repelled, the appellant sought to establish the several items of the account, by producing the books of the intestate in evidence, and by other testimony of witnesses, which is too voluminous to permit even an abstract; but having had the careful revision of the court, (separating what is illegal and incompetent from the mass,) we shall recur to, in such particulars, as are requisite and necessary in connection with the opinion here expressed.
The orphans court upon this testimony, disallowed the whole claim of the appellant, rejecting every item, and directed the administrator, (the appellant,) to make distribution of the estate of his intestate, remaining in his hands, among the parties entitled thereto, and from this order the present appeal is taken.
The claim upon the alleged partnership accounts, although not the [**15]  first in order, seems to be the first in importance and amount. The parties were both brick makers in the city of Baltimore, and the operations of the intestate were carried on in two distinct brick-yards, between the years 1836 and 1840, until abandoned for a time in the latter year, when the intestate became engaged in the grocery business, from which the appellant deduces another claim for hire and service as clerk. It may be gathered from the testimony, that a partnership of some sort subsisted between the parties, by the declarations of the intestate, made to several of the witnesses. But when it commenced, during what period it was to continue, whether it related to one or both of the brick-yards, or what were its terms, are left uncertain. No particular period is assigned to this partnership by any witness. The declarations of the intestate produced in evidence, were in 1837, '38 and '39. The appellant himself has located it between the 6th of April 1838, and the 27th of February 1839, and upon this assumption an account has been stated between the parties, by Stephen Lawson, an 

 [*256]  accountant, who says in his deposition, that the appellant "came to witness with [**16]  the books, and stated that he was the surviving partner of his brother, John G. Copes, and he wished him to state an account from the books between the parties, taking this statement of the commencement and the termination of the partnership." Upon this statement of the appellant, that he was the surviving partner, not from the evidence on the books of its limitation, or of any terms of partnership, Lawson states this account. It is to be observed here, that these books produced to Lawson, are the private account books of the intestate, all the entries being in his own handwriting, not the slightest trace of any partnership account can be found in them, but the heading on two consecutive pages of one of the books, thus: "John G. Copes & Co.," and "Major V. Copes & Co.," in which some insignificant items of cash are charged, to the one $ 72, to the other $ 44, for the space of the three first months in 1839, and there, without any credits on either side, or without further trace of these accounts, they close. It is part of the appellant's statement to Lawson, that he was the surviving partner of both of these firms; and to support his claim for an account,  [**17]  within the period designated by himself, all the private accounts, books, of the intestate are produced and invoked to his aid, and the result of the accountant's labor is, that the sum before mentioned is generally due to the appellant, without distinguishing between the two firms, or what amount on each. To arrive at these results, Lawson says, for instance, that "he was regulated by the brick-yard account, by the sales shewn there of bricks by the deceased, and paid for to him." This "brick-yard account," purports to be the sales by the intestate, running continuously from June 1835 to January 1839, without interruption, or a sign or memorandum of a partnership sale. They are all ostensibly on the intestate's own account, and the extract from these sales to be carried to the partnership credit, for the period assigned to the partnership, has nothing to rest upon but the instructions given by the appellant to Lawson.
The books produced are six in number. There is no evidence that they are the books of a partnership. On the contrary, 

 [*257]  other witnesses discountenance the pretension. The intestate, it is proved, had two brick-yards. They may be the books of a [**18]  separate concern. Another accountant, Prettyman, who was called to examine them, says, "that he sees nothing in the books to indicate a partnership;" and Caton, the witness first brought to explain the books, says, "he could, in any case, only make out an account so far as the books go." "There might have been prior and subsequent transactions not in the books." That they contained no satisfactory evidence of a partnership, or of partnership accounts, is conclusive from the testimony of Lawson, an accomplished accountant, that the appellant "answered such questions as he put to him," and that he took his statement as to his being surviving partner, and as to the period within which the partnership was limited. In all this, the evidence to sustain the partnership by the books is, so far, totally deficient.
To support the first items in appellant's account for moneys loaned, the intestate's cash book is produced shewing the entries to that effect. It is rather singular that there should be an hiatus in this cash account from April 1838, to April 1839, the very period assigned for the partnership, and that it is manifestly produced by the abstraction of one  [**19]   or more leaves from the book. The debits include the sums of $ 100, and $ 28, as borrowed from the appellant, and charged now as the first items in his present account; and the whole debits on the page added up, are said to be "carried over"--no credits appear after the 16th of April '38, and the continuation of the account, no where appears. Peyton Rose a bookbinder, to whom the book is shewn, "concludes that the book is not perfect, and thinks from the appearance at that place, that the sheet has been taken out, because that section shews it has not as many sheets as the other; without counting it, when the book is closed." But another new book of similar form and dimension, just purchased from a book-store, is produced, by Henry Baehler, a witness for the occasion, and is found to have the same precise defect; and is of course used to repel the guilty presumption as regards the other. We think it unsatisfactory from Baehler's own account of his agency in the 

 [*258]  matter. "He was requested by Vincent Copes, to buy a book of that size;" and was not told why he was to buy the book. He went into the store and asked for a book of the size, and got this. Expects [**20]  Vincent Copes will pay witness for his outlay for the book, as he asked him to buy it. We forbear comment upon this clumsy attempt to allay suspicion. For still the testimony of Rose remains, and the conclusive indications from which he points out the abstraction of the leaves. Besides this the balance of account was to be "carried over," from the former page. Whereto? is significantly asked by the counsel for the appellees. It does not appear; and without this continuation of the account, is it to be presumed in favor of the appellant, that the intestate is entitled to no credits? How was the court to proceed, without the deficient leaves of the cash book? That book purports to be an account of the entire cash transactions of the intestate. From that account the appellant extracts the proof of part of the charges made in his account. The credits after the 16th of April '38, disappear with the abstracted leaves. Not by the agency of the intestate; because he could have no inducement to destroy testimony going to discharge his own liability; the credit side of his account. The inducement lay the other way; in the way of the appellant, who was in possession of the books, and [**21]  whose interest it was, that the credits, if any, should not appear. This court cannot say, that the hiatus in the cash account if filled up, might not afford an answer to all the claims of the appellant, up to the period of its resumption, April 20th 1839; particularly as it covers most of the time selected by the appellant as the period of the partnership. The books produced are otherwise effaced and mutilated, and even if the erasures do not bear upon the present enquiry, of which we cannot judge, yet, the glaring deficiency in the cash book, and the unsuccessful attempt to account for it, throws a suspicion upon the whole claim; which is not weakened by the original form of probat in which the account was first brought to the notice of the Orphan's court. It will be remembered, that James Carney was there produced by the appellant, who made oath "that the goods and wares charged in the account were sold and delivered 

 [*259]  at the prices therein charged," and this gross perversion is presented to the court by the appellant, as evidence that his claim is "just and true," when not a single article of merchandize is the subject of that account. Upon being afterwards examined,  [**22]  Carney testifies, "that having been an apprentice of the intestate in the year 1838, he was called upon by Vincent Copes, to go before the magistrate, to testify to the partnership, of which he had heard intestate speak in his lifetime; that he thought he was asked with reference to this fact of partnership only; but that he knows nothing about the books or business of the partnership, and does not know whether one was indebted to the other." This was certainly an inauspicious commencement of the proof, the sequel of which is here developed.
An examination of Lawson's account, further discloses, that the appellant does not appear to have paid anything into the concern; and proceeds upon the assumption, that John wound up the business, and received all the money of the firm. And yet, this is distinctly negatived by a witness of the appellant, Joseph Sanks. He says "he became acquainted with John Copes in 1840, when he bought out Gordon's grocery store. Vincent was then settling up the business of John's brick-yard. John then stated that Vincent was in partnership with him in the brick business, and was then settling it up."
Here [**23]  then the onus is on the appellant in 1840, at the close of the partnership; and we may presume safely that it was not permitted to remain unsettled until the death of the partner, with such a balance as is claimed by the appellant in his favor; particularly as we find him afterwards, (as is inferred from the subsequent charges in his account,) acting in different subordinate relations to the intestate, as his clerk at one time, and as his salesman and collector at another.
And further to sustain this conclusion, that these and other matters of account were settled between the brothers, before the death of John, we have the concurrent declarations of both parties in confirmation of it. Samuel Harner says, that the intestate told him about a year before his death, "that he did not owe a dollar in the world," that "he did his business according 

 [*260]  to his means." And to Dorsey, a few weeks before his death he said, "that he did not owe $ 10, except his doctor's bill." In connection with this, we take the declarations of the appellant to Reese, "that a day or two before a public sale of some of intestate's property, he had a conversation with appellant about settling [**24]  up the intestate's estate; and appellant said he would have very little to pay for the debts of his brother; that he was not indebted over $ 100; that there were some small balances on the books in his favor, but the whole indebtedness would not amount to $ 100." And a closer examination of these books confirms this statement. In I. C., No. 3., is to be found an account opened in favor of appellant for "night-watching," in 1842, amounting to $ 107, at $ 1.25 per night, on which a small balance still appears due. In April 1843, in the same book, there is a credit to the appellant of $ 3.34, for three days; and in J. C., No. 1., there is a further credit to him, in 1843, of $ 66 and some cents, for 60 days service at $ 1,11, on which account a small balance remains in his favor. And these may well comport with the appellant's declarations to Reese, before the idea occurred to him, of reviving the partnership, with the settlement of which he had been charged in 1840; while at the same time they are utterly irreconcilable with the pretension, that the intestate could be indebted to his brother in an amount so large as this account proposes, and yet be struggling in his service [**25]  by day's work, and night-watchings, at periods subsequent to this alleged claim, for about one dollar, each day.
The whole pretence is at variance with any theory that can be set up in the appellant's favor by a resort to the books of the intestate, as we find them; and is, in our opinion equally fatal to his subsequent charges in the account for commissions on sales and collections. That he was also in the employ of the intestate, some time in 1844, is in evidence. In what character only appears from the testimony of the several persons named in his account, to whom he either sold and delivered bricks, or collected the amount when sold by John; and upon which the commissions are charged that make up the residue of his claim against the estate. One item, selected 

 [*261]  from the rest, will serve to shew the character of these claims, and in the opinion of the court is decisive of the whole.
On the 28th December 1844, the balance of the stock of bricks (121,225) is sold to Phillips; and we take his account of it as we find it in the evidence. "He first made a proposition to John Copes (the intestate,) for a purchase of all the bricks then in the yard. The proposition [**26]  was not accepted. Then made a second proposition to him in presence of Vincent. This was accepted by both parties. At this time Vincent was attending more or less to John's business, and it was understood he was to count the bricks as John was unable to attend to the business of the yard from sickness. He always considered himself dealing with John Copes. The bricks were counted by witness and Vincent, in one day, as he thinks, from 10 A. M., to 3 or 4 P. M. The counting he considered the delivery." For this day's work we have the charge in this account of 10 per cent commission, being $ 92.55, and 25 cents per thousand for the delivery, $ 30.30, making together the sum of $ 122.85; and the rate and charge of commission is the same upon the remaining items; while the previous work done in the employ of his brother, and settled in his lifetime, appears to have been at the rate of $ 1.11 per day. In the cases of sales to Allwine, Phoebus and others, from an examination of their testimony, the bargain and purchase appears to be made from intestate, occasionly with, and at other times without, the agency of Vincent. In recurring further to the sale's book [**27]  of the deceased, it will be seen that the accounts of Kenny, Jenkins, Sisco, and so on, upon which the commissions for collections are charged in this account of appellant's, are all marked, "closed by the deceased." How closed, and for what purposes, we are left to infer. It is of course an entry after the death; and not a word of explanation is offered to shew by whom; except from the fact that the books are produced by the administrator, (the appellant.) The very first account in the sales book, page 1, is an account with Major "V. Copes," in which may be found the credit of bricks proved to have been furnished by him for the intestate, while he stands charged with others to counterbalance this item. Then follow the accounts said to 

 [*262]  be "closed by deceased;" but this account, at the bottom, has evidently had some explanation or memorandum, which is now totally erased and illegible. Whether closed or not, cannot appear; and although it involves only a small portion of the account, (the sale or exchange of bricks on his own account,) how are the court to dispose of it? How can they say, that books thus mutilated, are reliable testimony for any purpose [**28]  in a court of justice? Not a paper, or a single voucher produced by the appellant, in support of the claim which he would extract from them. He proves by oral testimony, the receipt of the intestate's money, and the books are referred to for the proof of its being paid over. Not one word however, is found in them of his agency or commissions. And if such agency existed, nothing to repel the presumption that the commissions were paid, or retained, as usual, in accounting for the collections. All is referred to these books. And with the manifest evidence, from actual inspection, that they have been revised since the death of the intestate; with no satisfactory explanation of the subsequent mutilations; we cannot impugn the judgment of the court below, that rejected them altogether. Without expressing any other doubts or suspicions than are conveyed by the decision itself, we feel bound to affirm the order and decree of that court, disallowing the whole claim of the appellant, and directing him to proceed to distribution, among the parties entitled.
The next question is, whether the said appellees, in right of Elizabeth the wife, are entitled to share in the distribution of the estate?  [**29]  She claims to be the half-sister of the intestate, by a former marriage of Giles L. Copes, the father, and by the answer of defendant, not admitting or denying it, is put upon the proof of the fact. Sarah A. Copes, the last wife and widow of Giles is produced, and says: "That she often heard Giles speak of being married to Mrs. Pearce's mother, as his first wife, and of the children of that marriage, of whom Betsy was the youngest of three; and that he was married in Accomac county, Virginia. That his first wife died, after three or four years, and he married the second, with whom he lived between twenty and thirty years;" and she speaks of herself 

 [*263]  as the third. "Giles always called Betsy Pearce his daughter, always spoke of her as his daughter, and called her children, his grand-children." Other witnesses speak to the same, or similar declarations, by Giles, "that Betsy was the offspring of his first marriage, that she lived with Giles as his daughter before her marriage; and that all the brothers by the second marriage called her 'sister Betsy,' and treated and recognized her as a sister."
Some evidence was produced [**30]  designed to weaken the force of these declarations, by giving to Mrs. Pearce the relation of foster-child and sister, in the family. But it is purely argumentative, and in no view can be considered as impeaching, contradicting, or weakening, the testimony of the other witnesses.
At first view we should have held these declarations as amply sufficient to establish the legitimacy of the claim of Elizabeth Pearce, but that it is strenuously insisted by counsel: "that co-habitation must be first shown, to raise the inference of marriage; and that the authorities do not sanction the admission of declarations to prove, per se, not only the issue, but the marriage." We have examined the cases cited for this doctrine, and can come to no such conclusion. Buller's N. P., 294, 112. 4 Camp. N. P. C. 401. Cowper, 593. Co-habitation alone, proved between parties as man and wife, is sufficient to raise the presumption of legal marriage, when the parties have been long dead. 2 Ph. Ev. 286. It may not be possible, from the nature of the case, to supply additional proof. If there are any declarations of the parties besides, as to their being or not being married, these are [**31]  afterwards to be used, to strengthen or weaken the presumption arising from their co-habitation. This is the meaning conveyed by Buller and by Philips. The claim of legitimacy will be found to be based upon co-habitation, as the first proof offered, not the first required. See the case in Buller N. P., page 112, and Wilson vs. Mitchell, 3 Camp. 393; coverture being the defence set up in the case And the Berkeley peerage, case warrants no such doctrine, as it was cited to sustain. Lord Mansfield, (page 415,) expressly says: "In matters of pedigree, it being 

 [*264]  impossible to prove by living witnesses, the relationship of past generations, the declarations of deceased members of the family are admitted; from the necessity of the thing, the hearsay of the family as to marriage, births, and the like, are admitted." And he adds more, "that if the father is proved to have brought up the party as his legitimate child, this amounts to a daily assertion that the son is legitimate." Here is authority sufficient to sustain the pretensions of Mrs. Pearce. Any other, would in fact be to repudiate the rule which admits these declarations, [**32]  as the best, and in some cases, the only evidence, the nature of the case admits of. It is upon this ground of necessity, that they are admitted as an exception to the general rule in relation to hearsay evidence; cases of pedigree being often incapable of direct proof, and depending entirely upon reputation.
The rule which emphatically embraces this case, is distinctly laid down in all the elementary writers on evidence, without any such qualification as is contended for.
"The declarations of a deceased person, as to the fact of his marriage, or to prove that a child was born before or after marriage, are admissible in evidence on a question of pedigree;" and even "the declarations of deceased members of the family, whether relations or connections by marriage, are admissible evidence to prove relationships, deaths or marriages." 2 Ph. Ev., 284, 287. "The term pedigree embraces, not only descent and relationship, but also the facts of birth, marriages and death, and the times when these events happen." Greenl. Ev., 117.--See, also, page 116. And it is therefore clear, that these authorities fully sanction the admission of the declarations of the answer, to prove,  [**33]  per se, not only the issue but the marriage.
The declarations of Giles Copes are full and explicit, with regard to his marriage, and the birth of Elizabeth, the appellee; and his whole subsequent conduct, and the course and bearing of the brothers, is an entire corroboration of them. Nothing short of actual proof of marriage and birth, by witnesses actually present, could be more convincing and conclusive; and we therefore affirm the right of the appellees to a distributive share of the personal estate of the intestate.

 [*265]  The necessity of a thorough examination of the voluminous testimony, has extended the opinion in this case, beyond the limits we desired to prescribe to ourselves. We confine ourselves, therefore, to a single remark, upon the influence sought to be produced upon the decision of the court by the production of the bible of Giles Copes, omitting in the family record the names of his children by this alleged first marriage, while it records the second, and the issue derived from that union. It has been satisfactorily proved by Sarah, his widow, that there was in the family of Giles, another bible, which is in the possession of the appellant;  [**34]  and this, of itself, might suffice to negative the inference, for which only the one is introduced. But this intended negative pregnant, cannot be brought to weigh against the repeated, unimpeached declarations in evidence, in the affirmative. What the bible contains is evidence of his declarations, as if written in any other book, or upon any other piece of paper. What it does not contain, cannot be used by inference, to falsify his uniform declarations on other occasions. If the proof were doubtful, or defective, the inference here sought might have some weight. But to give it any importance, under the existing state of the proof, would be to denounce all that Giles Copes has declared; and reject the competent and sufficient evidence that establishes the right of the appellees, to claim in this cause. The decree of the court below, is therefore affirmed.
DECREE AFFIRMED.  

25 of 29 DOCUMENTS 

SAMUEL CROCKETT vs. MARGARET PARKE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 237; 1848 Md. LEXIS 36 

December, 1848, Decided 

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

Upon the application of the appellant, a writ of certiorari issued out of Baltimore county court, directed to Samuel D. Price and John Wise, two justices of Baltimore county, commanding them to bring before said court certain proceedings had before them, instituted by Margaret Parke, the appellee, against the appellant, under the act of 1793, ch. 43, for a forcible entry and detainer.

The principal informality in the proceedings before the justices, alleged in the application, was, that the jury, before they had agreed upon their inquisition, separated without consent of the appellant, and afterwards came together and signed the inquisition.

The court, upon the return of the writ and after examination of the proceedings, ordered the same to be superseded and the clerk to return the proceedings to the justices, and the sheriff to proceed in execution of the writ of restitution.

From this order the present appeal was taken by the appellant, which the appellee moved this court to dismiss.  

DISPOSITION:
APPEAL DISMISSED.  

HEADNOTES:

An appeal will not lie from the judgment of a county court superseding a writ of certiorari, by which proceedings before magistrates, under the act of 1793, ch. 43, against a tenant holding over, were brought before said court.

The right of appeal, given by the 6th sec. of the act of 1785, ch. 87, is confined to judgments of the county court in civil suits, actions or prosecutions originating therein, and does not extend to its judgments, when acting as an appellate tribunal, or when exercising a quasi appellate jurisdiction.

The uniform judicial interpretation of this act, from its passage to the present time, has denied the right of appeal from judgments of county courts, on appeals from judgments of justices of the peace, rendered under the acts of Assembly for the speedy recovery of small debts, on motions for new trials, for the postponement or continuance of a cause, or any other matter resting exclusively in the sound discretion of the county court.  

COUNSEL:
By STEWART and GWINN for the appellant, and

By T. P. SCOTT for the appellee.  

JUDGES:
The cause was argued before DORSEY,  [**2]  C. J., SPENCE, MARTIN, MAGRUDER and FRICK, J.  

OPINIONBY:
DORSEY 

OPINION:

 [*238]  DORSEY, C. J., delivered the opinion of this court.
On the motion to dismiss the appeal before us, the only question for our determination is, does the sixth section of the act of 1785, ch. 87, warrant such an appeal? If it does, then the motion to dismiss must be over-ruled; if it does not, then the present appeal must be dismissed. In 2 Tidd's Prac., 1188, it is said, "that whenever a new jurisdiction is erected by act of Parliament, and the court or judge that exercise this jurisdiction, act as a court or judge of record, according to the course of the common law, a writ of error lies on their judgments; 

 [*239]  but when they act in a summary way, or in a new course different from the common law, then a writ of error lies not, but a certiorari." If this be true, and of its correctness there cannot be a doubt, it is apparent, that the county court, in acting on the proceedings brought before it by the certiorari, exercised a jurisdiction of an appellate character. After the exertion of that limited appellate power, all cognizance of the subject matter by the county court was at an end. Unless [**3]  it be derived from the act of 1785, there is no act of Assembly which, in terms, or by any reasonable implication, gives to this court any authority to review such a proceeding of the county court. On the contrary, the provisions of the act of 1793, ch. 43, furnish the strongest grounds for the rejection of any such implication. It is entitled, "an act to provide a summary mode of recovering the possession of lands and tenements, holden by tenants for years, or at will, after the expiration of their terms." And the expedition with which its enactments are required to be executed, is inconsistent with the right of appeal, by which this case has been brought before us. The recognition of such a right would, for the most part, if not wholly, defeat every object of the act of Assembly, contemplated by the legislature in its passage.
To the possession of such an appellate power, this court can prefer no claim, unless it be derived under the sixth section of the act of 1785, ch. 87, which enacts, "that any party or parties aggrieved by any judgment or determination of any county court, in any civil suit or action, or any prosecution for the recovery of any penalty, fine or damages, shall [**4]  have full power and right to appeal from such judgment or determination to the general court." The appellate powers of the general court, upon its abolition, were transferred to the Court of Appeals. To give to this section of the act of 1785 a literal construction, its terms are certainly broad enough, not only to confer on this court the jurisdiction it is now called on to assume, but to invest it with full appellate powers, over every judgment or determination, of any nature or description, which may be pronounced by a county court, "in any civil suit or action." Literally to interpret this act of Assembly, and the 

 [*240]  right of appeal exists from all judgments or determinations in civil actions of a county court, on motions for new trials, for the postponement or continuance of a cause, for the amendment of pleadings, or any other matter resting exclusively in the sound discretion of the county court. And yet from the passage of the act of 1785, down to the present day, its judicial interpretation has denied, in such cases, the existence of the right of appeal. So also a like denial to the appellate power of this court, has again and again been pronounced by this court,  [**5]  on appeals brought before it from the judgments of county courts, on appeals from the judgments of justices of the peace, rendered under the acts of Assembly for the speedy recovery of small debts. And a principle, equally decisive against the right of appeal in the case before us, and against the literal construction of the act of 1785, was adjudicated by the Court of Appeals, in the case of the Wilmington and Susquehanna Rail Road Company vs. Condon, 8 G. & J. 443, and in the case of The Savage Manufacturing Company vs. Owings, 3 Gill 497.
From a careful consideration of the 6th section of the act of 1785, ch. 87, and the adjudications upon it, which have been made by this court, we are of opinion, that the right of appeal thereby given, was confined to judgments or determinations of the county court, in civil suits or actions, or prosecutions originating therein, and did not extend to its judgments or determinations, when acting as an appellate tribunal; not, as in the case before us, where it was exercising a quasi appellate jurisdiction. The appeal in this case is dismissed.
APPEAL DISMISSED.  

26 of 29 DOCUMENTS 

SARAH BROWN AND OTHERS, vs. SARAH R. RAMSEY AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 347; 1848 Md. LEXIS 50 

December, 1848, Decided 

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

A petition was filed in chancery, on the 14th of September 1842, by Slater Brown, alleging the death of a certain Joseph England, of Cecil county, in 1828, seized of real and personal estate, leaving a last will and testament, duly executed on the 20th of October 1827; (a copy of which is exhibited with the petition,) of which the petitioner, together with Joseph Townsend and Jeremiah Brown were appointed executors; that his two co-executors have died, and that, although the contingency has happened, upon which the executors were authorized by the will to sell the real estate therein mentioned, yet as doubts exist whether the testator designed that the surviving executor should exercise the power of sale, which is expressly confided to their joint discretion, the interference of this court is asked to decree a sale, and appoint a trustee for that purpose, and to distribute the proceeds, under the direction of the court, according to the provisions of said will.

The testator by his will, referred to in this petition, and filed with it, bequeathed to his wife, Hannah England, one-half of all his personal estate, and during her natural life,  [**2]  one-half of the income of his real estate, with the use of certain parts of his dwelling house, and other privileges. A dwelling house, situated in the city of Baltimore, he devises to one Sarah Galbraith; the will then proceeds thus:

"Item. I give and bequeath to Micah Oldham, daughter of my sister, Margaret Rowles; to Ann, Sarah and Elizabeth, daughters of my brother Elisha England, by his former wife, and by his latter one, Isaac, Mary, Joseph, Elisha, Samuel and Hannah; to Hannah Haines Kirk, daughter of my brother, John England, deceased, the sum of one dollar each, to be paid to them within one year after my decease.

"Item. after the decease of my beloved wife, I do hereby order and direct, that the whole of my estate, real, personal and mixed, be sold to the best advantage, either at public or private sale, as my executors, hereafter named, may judge most proper, and the money arising thereon, to be disposed of as follows: the sum of one hundred dollars I give and bequeath to the asylum, lately instituted by the Society of Friends, near the city of Philadelphia, and after which sum is paid, the residue is to be equally divided and paid to the following named persons,  [**3]  viz:

"To the children of my sister Hannah Brown, deceased, Sarah, Levi, Deborah, Jeremiah and Slater.

"To the children of my sister Rachel Reynolds, Elisha, Joel, Sarah, Susanna.

"To the children of my brother, Elisha England, deceased, George and John.

"To the children of my brother, John England, deceased, Isaac, two shares, Samuel J. England, and the children of his daughter, Sarah Kirk, deceased, namely, John and Hanna, share and share alike, with the exception of Isaac's two shares, aforementioned.

"Lastly, I do hereby nominate, constitute and appoint my cousin, Joseph Townshend, of the city of Baltimore, my brother-in-law, Jeremiah Brown, and my nephew, Slater Brown, executors of this my last will and testament, with full and absolute power to sell and convey every part of my estate aforementioned, in legal form, hereby revoking and annulling all former wills by me made.

"In witness whereof, I have hereunto set my hand and affixed my seal, this twentieth day of the ninth month, 1827.

JOSEPH ENGLAND. (Seal.)"

Upon this petition, the chancellor, (BLAND,) on the 16th of September 1842, passed a decree, directing a sale of the farm on which [**4]  the testator lived at the time of his death, and a frame dwelling house in the city of Baltimore, and appointed a trustee for that purpose, and directed him to "bring into this court the bonds taken on the sale, together with the purchase money, when received, to be applied, under the chancellor's direction, after deducting costs," &c.

The first sale of the property, under this decree, was set aside by the chancellor, and a resale ordered, which was accordingly made and finally ratified by the chancellor on the 16th of February 1846, and the proceeds brought into court by the trustee, and the cause referred to the auditor, for the purpose of stating an account distributing the same.

On the 4th of June 1846, the auditor made his report accompanied by two accounts, A and B. Account A was stated on the assumption that the testator meant, that each set of children referred to should receive one-fourth of the residue of the net proceeds, to be divided between them in the manner stated in his will, which the auditor submits is the true construction thereof. Account B was stated on the assumption, that the devisees ought to take share and share alike, with the exception of Isaac [**5]  England, to whom two shares were assigned.

Exceptions to account A were filed by Sarah Brown, Levi Brown, Deborah Brown, Jeremiah Brown, Slater Brown, Isaac England, Samuel J. England, John Kirk and Hannah Kirk, who approved of account B. But the chancellor, on the 10th of November 1846, overruled these exceptions, and ordered account A. to be ratified and confirmed, and directed the trustee to apply the proceeds accordingly. From this order the above named exceptants appealed to this court.  

DISPOSITION:
DECREE REVERSED, AND ACCOUNT (B) RATIFIED.  

HEADNOTES:

A testator, after various dispositions of portions of his property, directed, that after the death of his wife, the whole of his estate, real, personal and mixed, should be sold, "and the money arising therefrom to be disposed of as follows:" one hundred dollars to a charitable purpose, "and after which sum is paid, the residue is to be equally divided and paid to the following named persons, viz: To the children of my sister, H B, deceased, Sarah, Levi, Deborah, Jeremiah and Slater. To the children of my sister, R R, Elisha, Joel, Sarah and Susannah. To the children of my brother, E E, deceased, George and John. To the children of my brother, J E, deceased, Isaac, two shares, Samuel J, and the children of his daughter, S K, deceased, namely, John and Hannah, share and share alike, with the exception of Isaac's two shares, aforementioned." HELD:

That the words, "share and share alike, with the exception of Isaac's two shares," are not to be confined to the last sentence, but apply to the whole clause, and that the children here mentioned are to take per capita, and not per stirpes. By dividing the fund into as many equal parts as there are legatees, counting Isaac twice, the proportion of each legatee is ascertained, and the distribution designed by the testator effected.  

COUNSEL:
By JOHN C. GROOME and H. MCCULLOUGH for the appellants, and

By CONSTABLE for the appellees.  

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

OPINIONBY:
MAGRUDER 

OPINION:

 [*350]  MAGRUDER, J. delivered the opinion of this court.
In the case now before us, the late chancellor, by his order, dated 10th of November 1846, ratified an account reported by the auditor, in which he distributed, in the manner therein 

 [*351]  stated, a fund then in that court, and brought into it by one of its decrees. The appellants allege, that in the distribution of that fund they received a smaller proportion than that to which [**6]  they are entitled. Whether there be any ground for this complaint depends upon the construction of one of the clauses of the will, which produced this controversy.
It appears by the record, that one Joseph England, by his will, bearing date the 20th day of 9th month 1827, after many dispositions of portions of his estate, directed a sale to be made of a part thereof when his wife died, and the clause in regard to the distribution of it, which gives rise to the controversy, is in these words: "After the decease of my beloved wife, I do hereby order and direct that the whole of my estate, real, and personal, and mixed, be sold to the best advantage, either at public or private sale, as my executors, hereafter named, may judge most proper, and the money arising therefrom to be disposed of as follows: the sum of one hundred dollars, I give and bequeath to the asylum, lately instituted by the Society of Friends near the city of Philadelphia, and after which sum is paid, the residue is to be equally divided and paid to the following named persons, viz.:
To the children of my sister, Hannah Brown, deceased, Sarah, Levi, Deborah, Jeremiah and Slater.
To the children [**7]  of my sister, Rachel Reynolds, Elisha, Joel, Sarah, Susanna.
To the children of my brother, Elisha England, deceased, George and John.
To the children of my brother, John England, deceased, Isaac, two shares; Samuel J. England, and the children of his daughter, Sarah Kirk, deceased, namely, John and Hannah, share and share alike, with the exception of Isaac's two shares afforementioned."
There is no controversy in regard to the amount of the fund. The question is, what proportion is each legatee to receive? The auditor in the account which the chancellor ratified, assumes that the testator meant that each set of children should receive one-fourth of the residue of the net proceeds, to be divided between them, (each set of children.) This construction, 

 [*352]  the chancellor adopts, and a different distribution would give to the parties appealing, a larger sum than they thus obtain, hence this appeal.
"Wills," it has been said, "are hard to be understood; often, without legal advice, they are unintelligible, and with it, are of doubtful construction. Many testators fail to make themselves understood." This may be the misfortune of [**8]  the present testator, or of some of the object of his bounty. With all the consideration we have been able to give to this will, we cannot find in it the intention that this fund shall be distributed as it has been in chancery.
Some of the testator's brothers and sisters were dead. Those yet living were to receive no part of this fund. It appears by the will, that there had been, at least, one sister, (Margaret,) who had a daughter still in being, and yet is not admitted to a participation in this fund. With respect to the brothers and sisters thus spoken of in this clause of the will, and among whose children he distributed the fund, other clauses of the will show, that they had other children than those here provided for. Nothing like a distribution per stirpes is so manifest as to furnish an apology for adding or expunging words, which may be essential in order to make such a distribution. This fund is distributed by one clause of the will, and the words, "share and share alike, with the exception of Isaac's two shares," are not by any means to be confined to the last sentence, but seem to be introduced, because when the clause was commenced, it had not occurred to [**9]  him, that "equally divided," was not correct, if Isaac was to have two shares; or it is very possible, that his determination to give to Isaac two shares was formed after this clause was commenced, and after, perhaps, he had (such is often the case,) excluded some, whom, when he said, "equally divided," he intended to name in the clause.
If the testator, in naming the subjects of his bounty, had not also mentioned their parents, it is scarcely to be doubted that such a distribution as the chancellor has made of the fund, would be contrary to the testator's declared intent. So if instead of inserting the names of their parents before the objects 

 [*353]  of his bounty, the clause had said, "to Sarah, Levi," &c., naming all of them, (the children of my sister Hannah,) to Elisha, Joel, and other legatees, in the second sentence, (children of my sister Rachel Reynolds,) and in the same way, had given to his other legatees, this certainly would not have indicated an intention, that the fund should first be divided into four parts, and then each of those four parts to be distributed as the chancellor has directed. Yet it is thought this change in the structure [**10]  of the sentences, would not vary the disposition of the property. Much greater liberties are often taken with the words which are to be found in a sentence of a will, but by no transposition of its words, can this will be made to direct a division of the fund, first into four equal parts, and then another division of each of those parts, into as many parts as are necessary to make the persons named in each sentence, with the exception of the last, take the same amount.
"The residue is to be equally divided," and for what purpose? The will does not say, with a view to another division, but to be "paid to the following named persons." One division then, (not two,) is to ascertain the sum, which each of those persons is to receive. We are then to look to the number of persons, who are named in this clause, as objects of the testator's bounty; we are to notice whether there be any who are to receive more than the others, and learning from the clause, that Isaac is to receive two shares, or twice as much as any other, and with respect to all the shares, that they are to take "share and share alike," that what is given to them is to be "equally divided" among them, and then by dividing [**11]  the fund into as many equal parts as there are legatees, counting Isaac twice, we get the proportion of each. Such, it seems to the court, is the manner in which the testator designed that this fund should be distributed.
The counsel for the appellee, has given us a reference, to the case of Alder vs. Beall, 11 G. & J. 123. In that case the will was, that the residue of the testator's estate, should be divided "between the children," (not some, but all of them,) "of his sister Ann, and the children (all of them,) of his sister Penelope, and it was such a bequest as the testator might make 

 [*354]  without any knowledge of the names or the number of them." No intention is expressed that the estate be equally divided, or that the legatees should take it share and share alike. It was a bequest to the children of one sister, and a bequest to the children of another sister, and one class of children, (although each of that class is to have a joint interest in so much as is bequeathed to that class,) is to have no interest in the part given to the other class.
DECREE REVERSED, AND ACCOUNT (B) RATIFIED. 

27 of 29 DOCUMENTS 

DAVID SINDALL, AND JANE, HIS WIFE, vs. JAMES MASON CAMPBELL, THOMAS P. CONWAY, DORCAS SPARKS, AND CATHARINE CONWAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 66; 1848 Md. LEXIS 22 

December, 1848, Decided 

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

The bill in this cause was filed on the 31st August 1842, by the appellants against the appellees. It alleged, that Thomas Conway was seized in fee of a lot, describing it, died intestate about the 16th August 1810, leaving a widow, Dorcas Conway, (now Sparks,) and three children, Jane, Thomas P., and Catharine; that Thomas, the father, had also certain leasehold property; that the appellee, Dorcas, administered on his estate, paid all his debts, and administration of his personal estate finally settled on the 26th July 1821, and the leasehold estate passed over to his distributees; that on the 8th June 1831, Dorcas, Thomas P., the appellants, and Catharine, joined in a sale and deed of one of the lots, at the request of Thomas P., who received the purchase money therefor to his own use, and afterwards, on the 13th April 1841, acknowledged a deed of release of all his interest and estate, as one of the heirs and distributees of his father, to Jane Sindall and Catharine Conway; that the said Dorcas, before her intermarriage with Sparks, conveyed all her estate to J. F. Moranville, on the 24th August 1816, in trust for her [**2]  sole use, for life, with remainder, equally to be divided amongst the said Thomas P., the appellants, and Catharine; that the trustee M. is since dead, without heirs; that the appellants and Catharine, are each seized in fee of one undivided half part of the lot held in fee simple, subject to the dower of the said Dorcas therein, and a like interest in the other lots, and also an estate in other lots, dependent on the life of the said Dorcas; that the said Dorcas and Catharine are, and ever have been, since the death of Thomas Conway, in the receipt of the whole of the rents and profits of the said lots, and have refused to account for the same; that the said property is not susceptible of an advantageous partition amongst those interested, and that it would be to the advantage of all parties interested therein, that the same should be sold for a division; that in this the appellees refuse to unite or join in any sale or partition. Prayer, for an account, sale, and distribution, &c.

After answers on the 1st May 1843, Baltimore county court decreed a sale for a partition by trustees.

The trustees reported a sale, which was finally ratified. Dorcas Sparks died, and James Mason [**3]  Campbell, her adm'r c. t. a., was made a party.

The cause was then referred to the auditor, the proof taken before him is sufficiently stated in the opinion of the judge of this court.

The auditor reported a statement of rents received by Dorcas Sparks, from 20th July 1821, and 8th June 1831, and from that time to September 1843.

And also an account between J. Mason Campbell, administrator of Dorcas Sparks, debtor, and David Sindall and wife, of the 25th May 1844, in which he allowed the appellants two-ninths of the rent, from 20th June 1821, to 8th June 1831, $ 582.08, and for one-third of the rents, from 8th June 1831, to September 1843, $ 927.44, and credited him with $ 26.70, amount allowed out of sale for dower interest of said Dorcas.

The auditor reported, he had made the foregoing account under instructions from the appellants, not being able in the present state of the cause to make up a full account, without undertaking to decide questions which properly belonged to the county court.

A sale made in June 1843, was also distributed by the auditor.

The defendant, Campbell, excepted to the account of 25th May 1844, because it allows to the complainants [**4]  the dower interest of Dorcas Sparks, upon a pretence of their being creditors, which, if it were true, would not entitle them to more than a proportion of her estate, against which there are other unsatisfied claims now lodged with this exceptant, as her administrator. That the statement of rents is unsupported by evidence, is erroneous, both in assuming the receipt of a greater amount than was received, and in allowing no discounts, and also in going back to a period not warranted, either by the pleadings or proofs, for commencing to charge said receipts.

That it allows Sindall and wife a greater amount than is due them.

On the 30th May 1846, the auditor reported other accounts.

In one of which sales made by the trustees, to amount of $ 755, were distributed as follows:

________________________________________________________________________________
1. Expenses,		$ 178 28	
2. To David Sindall and wife, for	
   one-half balance,	$ 288 36	
   Deduct one-half rent received by	
   them, and payable to Catharine	
   Conway,	39 52	248 84	
	
3. To Catharine Conway,	288 36	
   Add above rent received by D. S.,	39 52	327 88	
	
		$ 755 00	
________________________________________________________________________________

________________________________________________________________________________
In Account A:--	
  Statement of rents received up to to September	
  1843, as per statement 25th May 1844,	$ 5401 71	
	
  David Sindall and wife's proportion,	1509 52	
  Amount of credits claimed, &c.,	439 58	
	
  Amount due D. S. and wife,	$ 1069 94	
________________________________________________________________________________

 [**5]  

________________________________________________________________________________
Account B:--	
  David Sindall and wife's proportion of rents	
   for three years next before filing the bill, one-	
   third of $ 880,	$ 293 33	
  Do. from filing bill to September 1843, one-third	
   of $ 880,	70 67	
	
	364 00	
  Deduct repairs and taxes, one-third of $ 68.58,	22 86	
	
  Due D. S. and wife,	$ 341 14	
________________________________________________________________________________

________________________________________________________________________________
Account C:--	
  Amount due D. S. and wife, up to February	
   1842, per letter 3rd March 1842,	$ 61 65	
  Rents since received, one-third of $ 336.50,	112 17	
	
	173 42	
  Deduct repairs, one-third of $ 68.58,	22 86	
	
  Balance due Sindall and wife,	$ 150 56	
________________________________________________________________________________

The complainants excepted to accounts B and C; that account B excludes all rents which fell due and were collected by Dorcas Sparks, more than three years before the filing of the bill.

That account C, assumes a settlement and full payment between complainants and Dorcas Sparks, up to the date of the letter from Jane Sindall to the said Dorcas Sparks, offered in evidence by the defendants in this cause.

The defendants excepted to accounts A and B. That it allowed the rents for more than three years. That it does not allow [**6]  taxes and other expenses on the property. That it does not allow for the education of Jane Sindall.

To account B, that it allows for three years against the settlement between the parties, and allows nothing for collections to Mrs. Sparks' estate, and he again excepts to allowance for dower interest of Mrs. S. to complainants, $ 28.

On the 9th June 1846, the county court, (LE GRAND, A. J.,) decreed, that the accounts between the estate of Thomas Conway and the trustees, of the 25th May 1844, and 30th May 1846, be ratified, except the allowance to Mrs. Sparks, dower interest to the complainants, the amount of which is decreed to the defendant, J. M. Campbell, as a part of her estate. That accounts A and B be overruled, and account C ratified, and defendant, J. M. C., as administrator of D. C., pay the same, with interest from 3rd December 1844

From this decree the complainants appealed.  

DISPOSITION:
DECREE AFFIRMED.  

HEADNOTES:

A father died in 1810, leaving a widow and three children. He was owner of freehold and leasehold property. The widow received the rents and profits, educated the children, and, in 1816, married again, settling her portion of the estate upon herself for life, with remainder to the three children. In 1821, she settled her final administration account, and passed the leasehold titles to the children. In 1824, one of the daughters married, and, with her husband, continued to live with the mother, as before. In 1831, all the parties interested united with one of the children, to sell a portion of his father's estate. He received the purchase money, and released his interest in the residue to his two sisters. The estate was worth about $ 200 per annum. In 1842, the married sister furnished an account, admitting, in 1839, '40, and '41, the payment to her of sums of money monthly, accompanied with a letter from her, stating, that "in 1839, it was agreed, I should receive a part of the rent out of my father's estate." In that account, she claimed a small balance, and offered to pay her proportion of taxes. HELD, upon a bill filed in 1842, for a partition and sale, that under such circumstances, the widow and mother, with the consent and acquiescence of the children, received and distributed the rents of the property up to 1839; that she was not intruder into, nor a voluntary trustee over the estate.

That in such case the land being sold, and account of rents taken, the allowance to the widow, in lieu of dower out of her husband's freehold estate, was not to be postponed to the claim of the children for rents and profits.

That the letter written by the married sister to her mother, in 1842, must be presumed to be written as the agent of her husband, and with his approbation and consent.

A memorandum filed in a cause, objecting to the competency of testimony, not signed by counsel, is not an exception within the act of 1832, ch. 302, sec. 5.

Where equity and law have concurrent jurisdiction over the same subject matter, the plea of limitations is equally available in both tribunals. In such case, equity follows the law.

Long acquiescence and lapse of time in obedience to the statute of limitations, is a bar to a bill for an account.  

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

By J. M. CAMPBELL for the appellee.  

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

OPINIONBY:
FRICK 

OPINION:

 [*70]  FRICK, J., delivered the opinion of this court.
The bill in this cause, was filed [**7]  on the equity side of Baltimore county court, by Sindall and wife, the wife being one of the children and heirs at law of Thomas Conway, deceased, against Dorcas Sparks, the widow, and Thomas and Catharine, the other children of the deceased, for a partition and sale 

 [*71]  of his real and leasehold estate, and an account and payment of rents. Conway, the intestate, died in 1810, and Dorcas, the widow, being the administratrix, settled her final account with the orphans court in 1821; "whereby she passed over the title and right of possession to the leasehold, (which was the larger portion of the estate of the deceased,) to the aforesaid distributees of said intestate." The widow, who, in the meantime, intermarried with Sparks, (about the year 1816,) previously made a deed of trust, by which she reserved to herself only a life estate in all her property, and gave it in remainder to her three children above mentioned. In 1831, all the parties, at the instance of Thomas, joined in a sale and deed of one portion of the property, who received the whole purchase money to his own use, and afterwards executed a deed of release of all his interest [**8]  and estate, as one of the distributees of his said father, to his sisters Jane and Catharine, so that at the time of filing the bill, there were but two of the children of said Conway interested in the estate. In the course of the proceedings below, the widow died, and James Campbell became her administrator, and as such, was made a party in the cause.
On the 31st of August 1842, the daughter and her husband, who were married in 1824, filed their bill against the mother and sister, alleging their possession and receipt, through the whole preceding period, of the rents and profits, and claim, that the mother, who it now appears alone received the rents, is liable to account therefore in a court of equity, as trustee for said Sindall and wife.
Upon the answer, a decree for the sale of the property was passed and executed, but it is not necessary for the purposes of this opinion to particularize more than one of the sales, which was of fee simple property, made in the lifetime of the widow, Dorcas Sparks. An allowance was made her of one-tenth of the nett proceeds of said sale, in lieu of her dower, to which the complainants assert a right of preference under [**9]  the equities claimed in the bill, against the said Campbell, her administrator.

 [*72]  The answer of the defendants denies, that they refused to complainants their proportion of the rents, although, from the nature of the case, they are unable to bring in any account, except for a few years back; and such account stated between the mother and the complainants, covering three years preceding the date of this proceeding, is accordingly filed. They also produce a letter and account, covering nearly the same period, from Jane Sindall, acknowledging the receipt of rents during that time, which the defendants rely upon as a settlement between the parties, and a concession of all claims antecedent to that date. And further, to all claims anterior to the date of that account in April 1839, the defendants rely upon the plea of limitations.
Upon the case presented, we do not feel authorised to regard Dorcas Sparks, the appellee, as an intruder, assuming, as a voluntary trustee, the control over the property, and the rents and profits, for which an account is claimed in the proceeding before us. It is impossible to examine the account furnished by Jane Sindall, the complainant,  [**10]  admitting, from April 1st, through the years 1839, 1840, 1841, the payment of sums of money monthly, coupled with the expressions in her letter, "it was agreed on, in April 1839, I should receive a part of the rent out of my father's estate," without concluding, that the subject matter to which the agreement refers, had not been left to slumber through the long period intervening from the death of her father, or the settlement of the estate before the orphans court. Whatever disposition was made of the previous rents received, by distribution to the parties, or appropriation by the mother, may fairly be presumed to have been acquiesced in by her. Not the slightest pretext of any preceding outstanding claim is there intimated. In the account rendered with the letter, she states the sum of $ 61.25 still due to her upon the account; and adds, "if you are willing to settle, send the tax bill and receipt of expenses, and I will pay my share; if you are not, let it stand to be settled with the other property." This letter bears date the 3rd of March 1842, and in the subsequent month of August, the present proceeding for a sale and distribution of the property was instituted. To this proceeding,  [**11]  

 [*73]  as contemplated by the said Sindall and wife, this latter expression must be presumed to refer.
We may here, in support of our views, invoke the deed of trust executed by the mother in 1816, in contemplation of her second marriage, by which all her property, and her interest in the estate of their father, was secured to these children, to take effect after her death; and to the sale in June 1831, by all the parties, of a part of the father's estate, which Thomas took in full of his share, and afterwards executed to his two sisters a release of all his interest in the estate. Further we find from the testimony of Catharine, that Jane, the complainant, lived with her mother, from the period of her father's death, until 1832, although married to Sindall in 1824. The mother educated her. She received a good education. She was taught millinery; her mother paid for it. Her mother educated two of her children; one for about six months, and the other for about two years. Such is the testimony of Catharine Conway; and moreover, in speaking of her own position at the home of her mother, "she thinks $ 100 little enough per annum for the board, clothing and [**12]  education she received."
Does not all this indicate the spirit of concession and amity, in which the widow and children of Thomas Conway then acted, in the adjustment of their respective interests in the estate of the deceased? From the accounts stated by the auditor, it would appear, that allowing for taxes and deficient collections, the whole annual amount of the estate was not much over $ 200; and from the testimony before referred to, we are informed they all lived together, even after Jane's marriage, up to the year 1832. That the mother was therefore in the enjoyment of the rents and profits, by mutual consent, for a common advantage, in which all shared, while, under the same roof, is certainly no forced construction of the relations under which they then lived.
And yet this court are required to raise the violent presumption, that the mother was all this time receiving these rents, against the consent of the parties, and, under such construction of misconduct, hold her liable to account as a stranger and intruder.

 [*74]  The case of Strike and McDonald, 2 H. & G. 191, and Diffenderffer and Winder, 3 G. & J. 311, have been referred [**13]  to, and relied on as supporting the complainants' pretensions. But in both those cases, the conduct of the parties was pronounced by the court grossly fraudulent and corrupt in the motive. The possession there being founded in fraud, a strict and rigid responsibility was of course enforced against them. It is true this court, in the case of Drury vs. Conner, 1 H. & G. 220, adopt the broad doctrine, that "whoever enters upon the estate of an infant, is considered in equity as entering as guardian for such infants;" "and the infant may, by bill, after he comes of age, recover the rents and profits." But, in that case, it is to be observed, in the application of the doctrine, that the father died, having in his possession slaves belonging to his children. The administratrix took the negroes into possession, and claimed and held them as her own. The case of Dormer vs. Fortescue, 3 Atk. 130, from which this doctrine of constructive trust is adopted, qualifies it thus: "that where there has been a mere adverse possession, without fraud or concealment, or where there has been any degree of laches on the part of plaintiff, the account shall only be taken [**14]  from the filing of the bill." There is no allegation in the bill before us, that Jane was a minor; nothing in the testimony to shew, that she was not of age in 1821, when the final administration account was settled, or, in 1824, when she was married to Sindall; and supposing her infancy before that period, the claim which she and her husband now assert is of nearly twenty years' standing, since the marriage and through the whole time of their coverture.
We have therefore come to the conclusion, that the letter and account from Jane Sindall, is the evidence of a settlement at that date between the parties. We have not been unmindful, that in dealing with this document as a settlement, we must assume the concurrence of the husband. And, for the purpose of this decision, we have no difficulty in considering her the agent of Sindall in stating the account. It is impossible he should be ignorant of the material facts of his wife's rights, and her claim to share in the property, for the sale of which he is 

 [*75]  complainant in the bill. She was in the receipt of money from her mother, monthly, through a period of three years. She acknowledges it by rendering an account,  [**15]  and requires the bills of taxes and repairs, to settle at once, or let them stand over to be settled, under the proposed bill for a sale and distribution. Can it be presumed, that all this was transacting between mother and daughter, without the knowledge of Sindall? To assume this, and that she wrote this letter without his privity, would justify the further presumption, that she might have filed the present bill in his name, and without his knowledge and privity--the one is as probable a presumption as the other--and the sister Catharine, who lived and was in constant intercourse with complainants throughout the whole period, testifies, that Sindall and his wife appeared to be perfectly satisfied, up to the date of the wife's letter to the mother, and never, up to that time, demanded any arrears of rent; but that Sindall and wife, both were willing that the mother should receive the rent and divide it. This, she says, took place about five years preceding, which would locate it within the year 1839, the period of the agreement adverted to in Jane Sindall's letter, and imply the full concurrence and acquiescence of David Sindall, the husband, in that agreement.  [**16]  
That prior to this agreement, some understanding or arrangement prevailed with regard to these rents, to which Sindall himself was privy, if not a party, is manifest from the statement in the bill, that in 1831, he, Sindall, and his wife, joined with the widow and other children in a sale of a portion of the property, the proceeds of which sale were allotted to Thomas Conway; and that Thomas afterwards, in 1841, (ten years having elapsed,) executed to Jane, the complainant, and Catharine, her sister, a release of all his interest, as one of the heirs and distributees of the father. It is further alleged, that when the mother settled the final administration account in the orphans court, "she passed over the title and right of possession of the leasehold estate to the distributees of said Conway, deceased;" so that Jane, the complainant, had the control of her portion, if she had chosen to assume it. Can it be supposed, that while they were thus parting with the property, 

 [*76]  and executing assignments and releases between themselves, and Sindall himself a party, that nothing was said or agreed on with reference to the rents that had accrued?  [**17]  With these facts before us, it would be assuming too much to say, that the widow was wrongfully withholding and appropriating them, without the consent and concurrence of both Sindall and wife, the complainants in the cause.
In connection with this letter of Jane Sindall, it will be perceived, that the testimony of Catharine Conway is relied on in support of our views. It is stated upon the return of the commission, that this testimony is excepted to by complainants, and the memorandum to that effect is signed by the commissioner, but not by the solicitor for complainants. We are therefore not called upon to examine her admissibility, or look for the grounds of objection. By the act of 1832, ch. 302, sec. 5, it is provided, that no point relating to the competency of witnesses, or admissibility of evidence, shall be raised in the appellate court, unless it plainly appears by the record, that such point had been raised by exceptions filed in the cause in the court below. This memorandum is not signed by counsel, and is not such an exception as this court here can notice.
The view of the court, that there was between the parties, shortly before the filing of the bill, an [**18]  adjustment of the claim for rents, disposes of the objection, that the plea of limitations, here asserted in behalf of the widow, cannot avail her in bar of a trust. In this view, the plea is out of the case; but, from the importance attached to it in the argument, and as a prominent point in the case, is entitled to the consideration of a few remarks from the court:
Viewed as a bill to account, if there could be an action at law for the same purpose, the statute would be a bar to a suit brought in equity. It is a settled principle, that chancery follows the law; and, acting in obedience to the statute, the plea of limitations is as available in equity as at law, in relation to the same subject. 2 G. & J. 311.
In all cases of concurrent jurisdiction at law and in equity, the statute is equally obligatory in both courts. 3 Gill 146. 20 Johns. 583, Murray vs. Coster. Here was a complete 

 [*77]  concurrent remedy at law, and in such case the account will not be sustained in chancery, merely to save the bar of the statute. It was competent to the complainants, on the case made in their bill, to have recovered these rents from time to time,  [**19]  in an action of indebitatus assumpsit. And, if having the legal right, instead of resorting to his action for money had and received, the complainant files his bill, the same rule with regard to limitations applies in equity, that would conclude the action at law. Long acquiescence and a lapse of time, therefore, in obedience to the statute of limitations, is a bar to a bill for an account. Acherly vs. Roe, 5 Vez. 565, Perkins' note (6,) and cases there cited. Thus where one had received the profits of an infant's estate, and after six years had elapsed from his coming of age, the infant brought a bill for account, the court held, that the statute of limitations was a bar to such suit, as it would be to an action at common law. Daniel's Chancery Pleading and Practice, 731, cited Lockey vs. Lockey, Prec. in Ch. 518. And on this ground, if there remain any doubt of the settlement under the letter of March 3rd 1842, the court think the bar of the statute is conclusive against the complainants.
As regards the amount allowed by the auditor's account to Dorcas Sparks, in lieu of dower, the complainants' claim of preference has no foundation. No such [**20]  priority exists under the rights and equities in their bill. This allowance, in lieu of her dower, made to the widow in her lifetime, devolved, when she died, upon her administrator. The case of Warfield vs. Banks, 11 G. & J. 98, is not a parallel case. There one of several joint purchasers paid more than his share, and upon a bill filed for partition, upon sale and distribution of proceeds, he was decreed to be reimbursed his excess. This distribution was between the parties in privity. But here no such equity subsists. The money is part of the estate of Mrs. Sparks; and against the creditors of Mrs. Sparks, who are represented by Mr. Campbell, the administrator, no such lien or priority can be maintained. The complainants, as to what is due to them by the decree of the court below, can receive no more than the share properly arising to them of the assets of the 

 [*78]  estate of said Dorcas Sparks, dividing the same rateably among the creditors, if insufficient to pay the whole, in due course of administration, the decree of Baltimore county court being affirmed.
DECREE AFFIRMED.  

28 of 29 DOCUMENTS 

CALEB D. OWINGS, CORNELIUS H. OWINGS, FRANCIS R. GRIFFITH AND OTHERS, USE OF EDWARD GREEN, vs. JOHN B. EMERY AND CYRUS GAULT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 405; 1848 Md. LEXIS 54 

December, 1848, Decided 

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

This was an action of debt, brought by the appellants against the appellees, to recover the sum of $ 375, the amount of three quarters of a year's rent, accruing under a lease, of a certain quarry, from Nicholas Owings, under whom the plaintiffs claim, to the appellees, dated the 11th of June 1840.

This lease, upon which the plaintiffs counted, will be found set out in full, in the case of Owings and Griffith vs. Emery and Gault, 6 Gill, 261. The material parts of it, are also recited in the opinion of the court in this case, delivered by his honor, Judge Frick.

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. At the trial, the plaintiffs read in evidence the lease, and the will of Nicholas Owings, executed on the 7th of July 1841, by which he devised the reversion in said quarry, to his son Beale, during his natural life, and at his death, to his children lawfully begotten, with power to said Beale, in case he should die without issue, to leave said reversion by last will and testament, to any or all [**2]  of the children or grand-children of said Nicholas, at his pleasure. This will also contained the following clause: "It is my will and desire, that the rents arising from the quarry, known by the name of Fox Rock Quarry, be applied to discharge the incumbrances on the same." (This clause of the will, this court, in the case of Emery and Gault vs. Cornelius H., and Caleb D. Owings, Adm'rs of Beale Owings, 6 Gill, 191, being an action upon the same lease, decided, did not separate the rents from the reversion,) and proved that said Nicholas, at the time of his death, left five children, the legal plaintiffs in this action, and said Beale Owings who died in July 1843, unmarried, without issue, and intestate. The defendants then, under the leave annexed to their plea, proved notice to the plaintiffs, that they would give in evidence, and insist, that the sum of $ 866, advanced by the defendants to Nicholas Owings, or for his use, to enable him to settle with Noah Worthington, on or about the 5th of June 1840, was advanced and paid on account of the rent thereafter to accrue, and now claimed in this action, under the lease mentioned in the declaration, and should insist, that [**3]  this sum ought to be credited upon this lease, (whatever may be the amount,) at the time this action was instituted, either as payment, or by way of off-set.

And then proved by Mathew G. Emery, that prior to the execution of said lease, the said Nicholas Owings told him, on one occasion, that he would be under the necessity of paying a certain Noah Worthington, the sum of $ 866, which he could not raise, unless the defendants would advance it, on the rent of the Fox Rock Quarry; that a week or two afterwards, and shortly after the execution of said lease, the said Nicholas told him, and he would be unfortunate, as it would take all the resources of his quarry for a year or so, before he could get any rent. The plaintiffs then read to the jury the receipt of Nicholas Owings, which is recited in the opinion of this court, and the defendants claiming to apply the sum of money therein mentioned, as an off-set against the rents sued for in this action, the plaintiffs then produced and proved an assignment of these rents, under seal, from the legal plaintiffs to Edward Green, for whose use the suit was brought, executed on the 1st of April 1844.

And further offered, on behalf of [**4]  said Green, to pay into court any sum of money which the court might direct, to cover the legal liability of said nominal plaintiffs, for the costs of this suit, as a deposit to meet said costs, in the event of a verdict for the defendants; and then said Green produced Caleb D. Owings, one of the nominal plaintiffs, and offered to swear him as a witness, as soon as the court would decide what sum should be paid into court by Green, to release the liability of said Caleb, for costs as aforesaid, and so soon as said money should be actually paid into court, or to such person as the court might direct: which payment said Green offered himself then and there ready to make, stating by his counsel, that said Caleb was offered as a witness to disprove the testimony of M. G. Emery, aforesaid; and said Caleb, being in court, assents to be examined as a witness for the purpose aforesaid, or any other purpose. But the court (LE GRAND, J.,) refused to determine what amount should be paid into court by said Green, or to allow said Caleb to be examined, as proposed, because he was a party to the suit, and incompetent, by reason thereof, to testify. The plaintiffs excepted, but this exception was [**5]  abandoned in argument in this court.

2ND EXCEPTION. The plaintiffs then prayed the court to instruct the jury, that upon the evidence aforesaid, if believed by them, the said $ 866 must be applied chronologically to extinguish the rents as they accrued, under the lease, and that the defendants could only obtain a credit for so much, (if any,) of said sum, as the jury might find remained unextinguished by rents, accruing anterior to the rents embraced in this suit. But the court refused to grant this instruction, and instructed the jury, that it was at their election to apply the said sum to the rents, as they accrued under said lease, chronologically or not; and that the jury might, if they thought proper, apply so much of said sum as was necessary to defeat the whole claim of the plaintiffs in this action, it being admitted that only $ 394 of said sum of $ 866, had been already credited or applied, on account of said rents, by the verdicts of juries, in two suits brought in this court, by different plaintiffs, against defendants, for rents accruing under the lease in evidence, there being rents for three-quarters of a year under said lease, not embraced in either of the present [**6]  or former suits. The plaintiffs excepted.

3RD EXCEPTION. The defendants, upon the whole evidence, then prayed the court to instruct the jury, that if they find, that the receipt offered by the plaintiffs, of the 5th June 1840, for $ 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 defendants to said Nicholas, from the Fox Rock Quarry, under the lease of the 11th June 1840, and that the said sum of $ 866, has not been returned to said defendants, by said Nicholas, 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 plaintiff's demand, which instruction the court granted, and the plaintiffs excepted. Judgment of non pros. on verdict for the defendants being entered, the plaintiffs appealed to this court. The statement of evidence, in the bills of exception, and prayers, was assented to by the counsel for the defendants.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

On the 11th of July 1840, N O leased to E and G, a granite quarry, called the Fox Rock Quarry, for six years, to commence 10th of November 1840. The lessees stipulated, to quarry and get out at least 40,000 cubic feet of stone, and to pay therefor one and-a-quarter cents per foot, amounting to $ 500, or to pay for that quantity annually, by quarterly instalments. Before the execution of this lease, on the 5th of July 1840, the lessor gave to the lessees a receipt, acknowledging that he had received from them $ 866, "to be returned them in granite stone to the amount of 69,300 feet, between the 10th of November 1840, and the 10th of November 1846, from my quarry, known by the name of Fox Rock Quarry." HELD:

1. That the true interpretation of the agreement between the parties, requires these two papers to be taken together as one contract; they are to be construed with mutual reference to each other, and the amount mentioned in the receipt must be considered as advanced, on account of rents to accrue under the lease.

2. The intent of the parties no doubt was, that these advances should be applied, chronologically, to the rents as they became due; but, upon proof that only a part had been so applied, and that the lessees had paid other moneys in liquidation of prior rents, it was HELD, that they were entitled to have such advances set off against rents accruing subsequent to the time when, by a chronological application, prior rents would have extinguished them.

A legal plaintiff on the record is not a competent witness, even though the party, for whose use the suit is brought, offers to deposit in court any sum which the court may direct, to cover the liability of such plaintiff for costs.  

COUNSEL:
By BRENT for the appellants, and

By HINKLEY for the appellees.  

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

OPINIONBY:
FRICK 

OPINION:

 [**7]  
 [*409]  FRICK, J., delivered the opinion of this court.
In this case, the action is instituted to recover the amount of three-quarters rent, accruing under a lease from Nicholas Owings, to the appellees. The appellants claim title to the property under said Nicholas Owings, the original lessor, deceased, and no question is raised, of their right to sue in this action.
The lease, in evidence, bears date the 11th of July 1840, to commence on the 10th of November 1840, and to endure for the term of six years; the lessees to pay for the use of the premises, and the stone to be quarried and got out of them, one-and-a-quarter cent for every cubic foot so quarried and got out, binding themselves so to quarry and get out at least 40,000 cubic feet, amounting to $ 500, or to pay for that quantity annually, by quarterly instalments; and for all over and exceeding that quantity, to pay additionally at the same rate aforesaid.
On the 5th of July 1840, (six days preceding the execution of the lease,) a receipt in the following terms was passed from Nicholas Owings to the appellees.

 [*410]  "BALTIMORE COUNTY, July 5th, 1840.
Received of Messrs. Emery & Gault, eight [**8]  hundred and sixty-six dollars, to be returned them in granite stone to the amount of 69.300 feet, without interest, between the 10th of November 1840, and the 10th of November 1846: they being at the expense of quarrying and transporting the same from my quarry, known by the name of Fox Rock Quarry.
NICHOLAS OWINGS."
And under leave to give in evidence any special matter that might be pleaded in bar; this receipt is produced by the appellees, as a set-off or payment of the rent sought to be recovered in this action. An attempt has been made to give to this receipt a construction independent of the lease. But it must be manifest that this agreement between the parties was a preparatory step to the lease, afterwards executed within a few days; and that at the time of the advance of the said sum of money to Owings, the lease of the quarry was in contemplation. Both instruments correspond in their essential stipulations. They are made conterminous with each other; both to begin and to end on one and the same day; and the $ 866 to be returned in 69.300 feet of stone, is at the precise rate of one-and-a-quarter cent per foot. The receipt is open to no rational interpretation, unless [**9]  it can be made to refer to the subsequent lease. The lease effectually neutralizes any action of the appellees under the receipt. It compels them to take out 40,000 feet of stone or pay for that quantity, and for every foot of stone over that computation, they are also required to pay at the same rate. And unless they are supposed to be required to pay double for all over 40,000 feet, the receipt is merged in the lease, and it must be intended that the stone referred to in the receipt, was to be quarried and got out, under the lease. That instrument covers the whole term set out in the receipt; and the condition in it, is that no stone can be taken from the quarry, but what must be paid for under the terms of the lease. The two agreements cannot therefore stand independent, but must be construed in reference to each other. And the appellees insist in their notice to the appellants at the trial below, that this advance was made on account of the rents thereafter to accrue 

 [*411]  under the lease, and claim its application in part, to the credit of the rent in controversy in the present action.
The appellants, on the contrary, deny that there can be any legal appropriation of any [**10]  part of these advances to the liquidation of the rents in the present suit.
Before the date of the writ in this case, claiming rent from the 10th day of May 1843, two years and a half of prior rents had accrued under the lease, to the parties in interest, preceding these plaintiffs, and if these advances, (as they insist they ought,) had been applied in liquidation of these antecedent rents, they must have absorbed more than the whole sum, and would leave no balance to be set-off against the present claim.
On this ground they prayed the court to instruct the jury, "that the said sum of $ 866, must be applied chronologically, to extinguish the rents as they accrued under said lease; and that the defendants could only obtain a credit for so much, (if any,) of the said sum of money as the jury might find remained unextinguished by the rents accruing under said lease, anterior to the rents embraced in this suit."
But the court refused to grant this instruction, but directed the jury, "that it was at their election to apply the said sum of money to the rents as they accrued under said lease, chronologically or not, and that the jury might, if they thought proper, apply so much of said [**11]  sum as was necessary to defeat the whole claim of the plaintiffs, it being admitted, that only $ 394 of the said sum of $ 866 had been already applied or credited on account of said rents, by the verdicts of juries, in two suits brought in this court by different plaintiffs, against the defendants, for rents accruing under the lease in evidence, there being rents for three-quarters of a year under said lease, not embraced in either of the present or former suits. And upon the further prayer of the defendants, also instructed the jury, "that if they find from the evidence, that the receipt offered in evidence by the plaintiff of the 5th of June 1840, for the sum of $ 866, was given by Nicholas Owings, under an agreement that the same should be applied to the payments of rents thereafter to become due from the defendants to said Owings, from the Fox Rock Quarry, under the lease of the 11th of June 1840, and that the 

 [*412]  said sum of $ 866, has not been returned to said defendants by 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 off-set to the plaintiff's [**12]  demand."
The propriety of these instructions is submitted for the decision of this court.
We have shown that the true interpretation of the agreement between the parties, requires that the two papers must be taken together as one contract, and are to be construed with mutual reference to each other; that the amount mentioned in the receipt must be considered as advanced on account of rents to accrue under the lease.
Was the court below correct in saying, that the jury might apply them or not, as they thought proper, to the liquidation of the present rent, so as to defeat the whole claim of the appellants; and that they were not bound to apply them chronologically, in the order in which they became due?
This latter mode of application was certainly in the view of Nicholas Owings, when the money was advanced. For he states to Matthew G. Emery, the witness produced, "that it would take all the resources of his quarry for a year or so, before he could get any rent." This evidence was admitted without objection, and serves to explain, not to contradict the receipt, or control its written stipulations. It presents his own view of the time and manner in which the advances were [**13]  to be liquidated. And under his own interpetration of the agreement, the rents thus applied would, before the time the present action accrued, have extinguished the whole sum: more than two years having expired from the date of the lease. It is also the probable and natural presumption, that the defendants, would so seek to apply their advances, and deduct the sum from the first rents due by them under the lease. With this relation between the parties connecting Emery's testimony with the receipt of Nicholas Owings, it would seem in the absence of any other conflicting evidence, to be the proper view of the case, and the correct instruction to the jury, that if they believed Emery, the advances were to be applied chronologically to the 

 [*413]  rents in the order in which they became due, until the sum advanced was absorbed. So applied, the amount of the receipt would be liquidated before it reached the present cause of action, and the plaintiff would have been entitled to recover the rent now in dispute.
But it appears, there was other evidence in the cause, to show that the amount of these advances was not actually exhausted, when the present rents accrued. That evidence [**14]  is stated as the foundation of the instruction of the court, upon the appellant's second prayer, as an admission of the parties, that, "only $ 394 of the $ 866, had been before credited or applied, upon account of the said rents," and by agreement of counsel, was submitted and argued, as part of the case presented to the court.
From this admission it results, that the advances had not been strictly applied to the preceding rents, in their chronological order, but that other moneys must have been paid by the defendants, in the liquidation of prior rents, postponing the application of the advances, or part of them, to the present period of the lease. It was for the advantage of the appellees, that they should have been sooner applied. Yet a portion still remains due, to show that they must have waived the application, and satisfied a portion of the antecedent rents, in some other form. Why, then, should the appellees not have the benefit of the application now, when it was manifestly an indulgence to the lessors, that they were not sooner applied, under Owings' own interpretation of his contract, in the order in which the first rents accrued under the lease?
The appellants admit,  [**15]  that the whole amount is not refunded from the rents. When is the period assigned for the final liquidation of these advances? If not now set off and extinguished, according to the understanding of the lessor, at what subsequent point of the lease are they to be adjusted?
In view of the admissions in the case then, the court below were correct in refusing to instruct the jury, that this amount of $ 866, had been legally absorbed in the antecedent rents, which they would virtually have said, in granting the appellant's second prayer; and they properly instructed them, that if 

 [*414]  they find, from the evidence, that the amount of said receipt has not been returned, or in any way satisfied, by Nicholas Owings, or those claiming under him, they must allow the said receipt, or so much as may be found due, as an off-set to the appellant's demand.
This mode of application of the money here in question, is not now, for the first time, adjudicated. It was before this court, presented in the same form, at December term 1847, by these appellees, against the executors of Beale Owings. The third prayer of the appellees in this record, the same as there in form and substance, was,  [**16]  by this court, affirmed to be the proper direction to the jury; and upon the admission here, that these advances are not yet exhausted, is the proper instruction in the present case. The instruction asked by the appellants assumes, that all the rents that did accrue, under the lease antecedent to that claimed in this suit, must legally and of necessity have been satisfied out of these advances, and in no other way. How could they so say, that this whole amount had been thus applied and exhausted, when the antecedent rents might have been, and must have been satisfied, in some other way, if it be true, as admitted, that only a portion had been applied to the large amount of rents which had fallen due, before the claim for which the present suit is brought?
Some further objections have been urged, to the two instructions of the court, on the ground of inconsistency; the first, submitting to the jury, that if they find the advances, or any portion of them, are still unpaid, they may, at their election, set them off or not, against the present rent, the other directing, without qualification, that they must so apply them. Whether it was proper to submit it, under the evidence [**17]  admitted, to the option of the jury, to determine the right of set-off, it is not now necessary to examine. The verdict is in conformity with the proposition and instruction upon the defendants' (the appellees') prayer, and under the case as presented to this court, the judgment of the court below must be affirmed.
Any reference to the first exception of the appellants is necessarily omitted, because in the argument of the cause it was properly abandoned.
JUDGMENT AFFIRMED.  

29 of 29 DOCUMENTS 

FREDERICK BELL vs. THE HAGERSTOWN BANK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Gill 216; 1848 Md. LEXIS 34 

December, 1848, Decided 

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

This was an action of assumpsit, brought by the appellees, as holders, against the appellant, as endorser of the following bill of exchange:

"$ 500.

HAGERSTOWN, July 23rd, 1844.

Ninety days after date, pay to the order of Samuel Bell, five hundred dollars, value received, which place to account of--     DAVID BELL.

To GEO. WATERS, Georgetown, D. C.

Endorsed: Samuel Bell, Fred'k Bell.

Pay to A. Suter, Esq., or order.

ELIE BEATTY, Cash."

At the trial, the plaintiffs proved by competent testimony, the handwriting of the drawer and endorsers, the endorsement by the defendant and delivery to plaintiffs, and then produced in evidence the following protest for non-payment.

"UNITED STATES OF AMERICA, DISTRICT OF COLUMBIA, Washington county, to wit:

On this, the twenty-fourth of October, in the year of our Lord, eighteen hundred and forty-four, at the request of the president, directors of the Farmers and Mechanics Bank of Georgetown, D. C., bearers of the original draft, whereof a true copy is above written, I, George Jewell, notary public, duly commissioned and qualified, residing in the Corporation [**2]  of Georgetown, in the district aforesaid, presented the said draft at the counting house of George Waters, and demanded payment thereof. I was answered by him, that he 'had no funds in hand to pay it.' Wherefore I, the said notary, at the request aforesaid, have protested, and by these presents do solemnly protest, as well against the drawer and endorsers of the said draft, as all others whom it may concern, for exchange, re-exchange, and all costs and charges, damages and interests, suffered and to be suffered for the want of payment of the said draft. Thus done and protested at Georgetown aforesaid, and on the same day, I addressed written notices to the drawers and endorsers of the said draft, informing them that it had not been paid by the drawer thereof, and that they would be held responsible for its payment, and directed to Elie Beatty, Esq., cashier, Hagerstown, Md., and deposited in the post office, Georgetown, on the same day. In testimony whereof, I have hereunto set my hand and affixed my seal notarial, the day and year aforesaid.     (Seal.)     GEO. JEWELL, N. P.

PROT., $ 1.75."

Also the evidence of George Jewell, taken under a commission in Georgetown,  [**3]  D. C., who testified, that he was a notary public for the District of Columbia, duly commissioned and qualified, and was appointed in January 1842. That he had seen the draft referred to twice before, once on the 14th of October 1844, when it was put into his hands, as a notary public, by the Farmers and Mechanics Bank of Georgetown, for the purpose of presenting the same to the said George Waters, for his acceptance, and to note it for non-acceptance, if acceptance was refused, and again on the 24th of October 1844, when it was again put into his hands for presentation for payment. That on said 24th of October 1844, he presented said draft to said George Waters at his counting house, and demanded payment thereof, when he was answered by said Waters, that he had no funds in hand to pay; whereupon he protested the same for non-payment, and wrote separate notices to the drawer, D. Bell, and to each of the endorsers, F. Bell, Samuel Bell, and Elie Beatty, cashier, informing them that it had not been paid, and that they would be held accountable to the holders thereof, and enclosed the same under cover, directed to Elie Beatty, cashier, Hagerstown, and deposited them in the post office [**4]  in Georgetown the same evening, and returned the draft, with protest, to the Farmers and Mechanics Bank, at whose request it was protested. The witness further proved, that on the 14th of October 1844, he presented the draft to Waters for acceptance, which was refused, which refusal witness noted on the face of the draft, as follows: "Noted for N. A., October 14th, 1844, by G. J., N. P.;" and on the same evening, wrote notices to the drawer and each of the endorsers, directed to each of them separately, and enclosed the same to Elie Beatty, cashier, Hagerstown, and deposited them, on the same day, in the post office at Georgetown. These notices were as follows:

"GEORGETOWN, D. C., Oct. 14th, 1844.

Take notice, that a draft for five hundred dollars, drawn by David Bell on George Waters, in favor of Samuel Bell, or order, dated Hagerstown, July 23rd, 1844, payable ninety days after date, and for which you are accountable to the holders, was this day protested for non-acceptance.

Very respectfully, &c.,

GEO. JEWELL, Notary Public.

To FREDERICK BELL, ESQ."

The witness further testified, that he kept a record of his official proceedings, but does not retain [**5]  a copy of the notices, but knows that the notices hereto annexed, are substantially the same as those enclosed to Elie Beatty, cashier.

And to prove that notices of the non-acceptance and non-payment of said draft had been duly sent to the defendant, the plaintiffs offered to prove by Elie Beatty, a competent witness, that for many years prior to the date of said draft, he was and still is the cashier of the Hagerstown Bank; that as such, it is part of his duty, when notices of the dishonor of a bill are received, to enclose and direct the same to the drawer and endorsers thereof; that notices of dishonor are always, as he believes, put in the post office in Georgetown, on the day of their date, and that by the regular running of the mail, they are brought to Hagerstown late the next evening, and delivered at said bank next morning; that it has been his invariable practice, to seal and direct the same to the drawers and endorsers the same day he receives them; that he has a distinct recollection of receiving the notices of non-acceptance and non-payment in this case, from the surprise he felt at the draft of such punctual men being protested. And he is very sure that on the same [**6]  day he received them, he sealed and directed them to the drawers and endorsers, at their respective post offices; that he has no recollection of their date when he received them, except by reference to the papers themselves. He has no recollection of any instance wherein such notices were not received by him in due course of mail, viz., on the next morning but one after their date, and he is satisfied, that if a longer delay had occurred in this case, he should have noticed and remembered the fact, so unusual, and he is therefore confident, that the notices in this case were received on the morning of the second day after their date. He further proved, that witness does not deposit the notices or letters of the bank in the post office, but that duty is performed by a regularly appointed messenger of the bank, whose duty and practice is, to come to the bank daily, at about the closing hour, when witness sometimes delivers to said messenger all letters and notices prepared that day, to be put in the office by him. That witness sometimes leaves the bank a little earlier or before the messenger arrives, in which case witness leaves the said letters carefully upon his table, and there is [**7]  a general understanding, that the messenger is to take them to the post office; he cannot remember which was done on the day he received and directed the notices in question, but he remembers directing them properly, and he did not find them upon his table next morning, nor has any instance ever occurred of finding such letters or notices on his table the next morning, nor has he heard of any instance in which they were not, as he believes, put in the office the same day. The plaintiffs further offered to prove by William M. Marshall, a competent witness, that at the date of said draft, and for many years before, he was and still is the teller in said bank; that said bank has been closed daily at two o'clock, and the cashier leaves generally about that hour, but that witness and the book-keeper remain sometime afterwards, to settle and adjust the accounts of the day; that when the cashier leaves the bank, before the messenger arrives for the letters, it is and has been the usual practice of witness, to see that the same are taken by the messenger, and witness generally sees them taken away, or the messenger generally takes them from the table whilst witness is in the bank; that for [**8]  the last few years witness has been exceedingly particular in this respect, because, during that time, there have been almost daily remittances of money by mail, and it was therefore necessary to be careful that letters were delivered to the messenger; and witness has no recollection of any instance of the letters and notices prepared during the day, which were not taken from the bank to be put in post office on the same day. The plaintiffs further offered to prove by John Anderson, a competent witness, that from a period long anterior to the date of the draft in question, he has been the messenger of the said bank, duly appointed by the president and directors; that as part of his duty, it is and has been his invariable custom and practice, to be at the bank at the hour of its closing, or very soon afterwards, sometimes an hour afterwards, to take the letters and notices of the bank to the post office; that sometimes he receives them from the cashier in person, or, if he has left the bank, from the cashier's table, where they are found laid, one or the other; that he so takes them before the other officers have left the bank, and in their presence, and he has no recollection of any [**9]  failure so to obtain them, and it has been his uniform custom, to deposite them directly in the post office; that he has never failed to put them in the office the same day; once, however, about six months ago, there was a letter to one of the Baltimore banks, (as he thinks,) which was not ready at the usual time, and being delivered to him later in the day, he neglected to put it in the office until next morning; he has no particular recollection of the notices in question, but is very sure, that if delivered to him or found upon the cashier's table, as aforesaid, he deposited them in the office the same day, and he remembers seeing the name of the defendant and other Bells on some letters so put in the office, he thinks perhaps two years ago, and since that time and before, but cannot tell at what time; that notices of protest are folded and sealed differently from letters, and he never failed to deliver such in the office the same day. To the foregoing evidence the defendant objected, as being incompetent and inadmissible to prove, that notice of the non-payment of the said draft was received by or given to the defendant, but the court overruled the objection and permitted the said [**10]  evidence to be given to the jury, and thereupon instructed the jury, that said testimony was evidence to prove, that notice of non-payment of said draft was given to the defendant in due time, and if they believed the said evidence, their verdict must be for the plaintiff. The defendant excepted and appealed to this court.  

DISPOSITION:
JUDGMENT AFFIRMED.  

HEADNOTES:

A draft was regularly protested for non-payment, in Georgetown, D. C., and the usual notices to the drawer and endorsers, deposited in the P. O., the same evening, by the notary, directed, under cover, to B, the cashier of the appellee in Hagerstown. It was then proved by B, that he had a distinct recollection of receiving these notices, and is sure that, on the same day, he sealed and directed them to the drawer and endorsers, at their respective post offices. He does not recollect the exact time of their receipt, but remembers no instance where such notices were not received in due time, i. e., on the second day after their date, and should have remembered an instance of longer delay as unusual. That the bank has a regularly appointed messenger, whose duty and practice it is to come to the bank daily, about the hour of closing, when he either delivers to him all letters and notices for the P. O., or, when he leaves before the messenger arrives, places such letters carefully on his table, and there is a general understanding that the messenger is to take them. He cannot say which course was adopted in this instance, but did not find the notices on his table next morning, and has never so found them. By the teller of the bank, that it is his practice, when the cashier leaves before the messenger arrives, to see that the letters are taken by the latter,--is very particular in this respect, and recollects no instance where they were not taken the same day. By the messenger, that it was a part of his duty and his invariable custom, to be at the bank at the hour of closing, or very soon after, to take the letters and notices to the P. O. He either receives them from the cashier in person, or, if he has left, takes them from his table. Has never failed to obtain them, and it has been his uniform custom to deposit them directly in the P. O., which he has never failed to do, except in one instance particularly described. HELD:

That this evidence of notice of non-payment to the indorser, was legally sufficient to charge him, and to warrant an instruction to the jury that if they believed it, they must find for the plaintiff.

Where the holder and the party to be notified reside in the same place, personal notice is required, or it must be left at his residence or place of business, unless, by the usage of a particular place, a different mode is resorted to.

In large commercial towns the uniform practice now is, to reach the party to be affected with notice, through the post office, when both reside within the limits of the penny-postman, but it must be shown to have been put in, in time to be delivered before the expiration of the day following the dishonor.

Where personal notice is required between parties residing in the same place, it is sufficient if it be made by the expiration of the day following the refusal.

Where the parties reside in different places, notice may be sent through the post office, to the nearest office of the party entitled to notice; and it is sufficient if it be put into the post office at any time during the day the note is payable.

The deposit of a letter in the post office, properly directed, and in proper time, is sufficient to charge the endorser without proof of its having been actually received, and a right of action accrues, without waiting for it to reach its destination.

The usages of banks have grown up to be a part of the settled law of the land, and in obedience thereto, personal notice is dispensed with, and the indorser is charged by the bare deposit of notice in the post office, even if it never comes to hand.

This case is distinguished from the cases of Flack vs. Green, 3 G. & J., 474, and Smedes vs. The Utica Bank, 20 Johns., 372.

The testimony of the cashier, that he "sealed and directed the notices, both to the drawer and endorser, at their respective post offices," must be taken to mean, that he knew the residence of both to be out of the town, and directed accordingly through the proper channel, by which notice would reach them.

Whether due diligence has or has not been used, and whether or not legal notice has been given, are questions of law, to be decided by the court, unless the evidence is doubtful or contradictory.

The possession of the note by the appellees, previously endorsed by them, through the cashier, their agent, and produced by them as their cause of action, is prima facie evidence of property in them, and they are to be regarded as the bona fide owners, notwithstanding the subsequent endorsements, and entitled to sue upon it.

It is no objection that the endorsement is in blank. The act of 1825, ch. 35, dispenses with the form of filling up the blank, so far as to sustain the judgment upon any negotiable instrument, notwithstanding the omission to fill up the blank in the endorsement. 

COUNSEL:
By JERVIS SPENCER for the appellant, and

By J. DIXON ROMAN for the appellees.  

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

OPINIONBY:
FRICK 

OPINION:

 [*223]  FRICK, J., delivered the opinion of this court.
This action was brought against the appellant, as the endorser of a bill of exchange, of which the following is a copy:
"$ 500.
HAGERSTOWN, July 23d, 1844.
Ninety days after date, pay to the order of Samuel Bell, five hundred dollars, value received, which place to account of--     DAVID BELL.
To GEORGE WATERS, Georgetown, D. C.
Endorsed: Samuel Bell, Frederick Bell.
Pay to A. Suter, Esq., or order.
ELIE BEATTY, Cashier."
The note thus in the possession of the Hagerstown Bank, of which Elie Beatty was the cashier, had been transmitted to said Suter, to be collected through [**11]  the agency of the Farmers and Mechanics Bank of Georgetown. It was there regularly protested, for non-payment at maturity; whereupon the notary addressed separate notices to the drawer, and to each of the endorsers, informing them, that it had not been paid, and they would be held accountable to the holders; and enclosed the notices directed under cover, to "Elie Beatty, cashier, Hagerstown," and deposited them in the post office, in Georgetown, the same evening.
The appellee then proved by said Beatty, the cashier, that he had a distinct recollection of receiving these notices; and is very sure, that on the same day he sealed and directed them to the drawers and endorsers, at their respective post offices. That he had no distinct recollection of the date when he 

 [*224]  received them, except by reference to the papers themselves; nor of any instance, wherein such notices were not received by him in due course of mail; and is confident these notices were received in time, that is, on the second day after their date, because he should have noticed and remembered the fact of a longer delay, as unusual. That the bank has a regularly appointed messenger, whose [**12]  duty and practice it is, to come to bank daily, about the closing hour, when sometimes, he delivers to him all letters and notices for the post office, and sometimes, when he leaves the bank before the messenger arrives, he places such letters carefully on his table, and there is a general understanding, that the messenger is to take them to the post office. He cannot remember which course was adopted on this occasion. He did not, however, find the notices on his table the next morning; nor has an instance ever occurred of so finding them.
He further proved by the teller of the bank, that when the cashier leaves the bank, before the messenger arrives, it is his practice to see that letters are taken by the messenger, and he generally sees it done, or the messenger takes the letters himself from the table. That he has been exceedingly particular in this respect, and has no recollection of an instance, when they were not taken from the bank on the same day.
He further proved by Anderson, that he was the appointed messenger of the bank. As part of his duty, it has been his invariable custom and practice, to be at the bank, at the hour of closing, or very soon after, to take the [**13]  letters and notices to the post office. That sometimes he receives them from the cashier in person, or if he has left the bank, takes them from the cashier's table, one or the other. That he has no recollection of any failure so to obtain them; and it has been his uniform custom to deposite them directly in the post office. That he has never failed to put them in, on the same day; except on one occasion, when a letter to one of the Baltimore banks, was delivered to him later in the day, it was neglected by him until next morning.
To this evidence, the defendant objected, as being incompetent, and inadmissible to prove, that notice of the non-payment 

 [*225]  of the said draft was received by, or given to the defendant. But the court overruled the objection, and permitted the evidence to be given to the jury, and instructed them, "that said testimony was evidence to prove, that notice of the non-payment of said draft was given to defendant in due time; and if they believed the said evidence, their verdict must be for the plaintiff." And upon exception to this instruction, the case comes before this court for revision.
The question here presented is, was the evidence of the [**14]  notice of the non-payment of the note, upon which this suit was brought, legally sufficient to charge the endorser, and to warrant the instruction to the jury, that if they believed it, they must find for the plaintiffs.
To arrive at the proper answer to this enquiry, it is necessary first to recur to what is deemed a legal and sufficient notice, within the authorities that control this branch of commercial law. It has now become text law, so often affirmed by reiterated decisions, that it is only requisite for the present purpose to state it in brief.
Demand and notice are conditions precedent to every holder's right to recover, and the endorser is entitled to strict notice. Wherever the holder of the bill, and the party to be notified, reside in the same place, personal notice is required, or notice must be left at his residence or place of business; (Smith's Merc. Law 251; 15 Me. 141,) unless by the usage of a particular place, a different mode of notice is resorted to. As in large commercial towns, it is now the uniform practice, to reach the party to be affected by the notice through the post office, when the parties both reside within the limits of the penny-postman.  [**15]  "But it must be shewn to have been put in, time enough to be delivered before the expiration of the day following the dishonor." Smith's Merc. L., 250, and cited 4 Tyrwh. 1002, in note (y.) The particular custom of the place is made to decide the question.  1 H. & J. 427. Bank of U.S. vs. Norwood. And in these cases, where personal notice is required between parties residing in the same place, it is sufficient, if made by the expiration of the day following the refusal. Smith's Merc. Law, 250, and cases there cited. When 

 [*226]  the party to be charged by the notice resides in a different place from the holder, notice may then be sent through the post office, to the nearest office of the party entitled to the notice. Bank of Columbia vs. Magruder, 6 H. & J. 172, 181. 1 Wheat. 298. And it is sufficient if the notice of non-payment is put into the post office at any time during the day the same is payable. Chitty, (8th ed'n,) 514, 515. The deposit of a letter in the post office, properly directed and in proper time, is sufficient to charge the endorser, without proof of its having been actually received.  Saunderson vs. Judge, in 2 H. Bla. 509, [**16]  is the earliest case affirming the doctrine, and it has ever since been adhered to. It is in itself a plain rule, and it has always been considered unsafe to depart from it. See also 6 Taunt. (Eng.) 305. 17 East., 385.  6 H. & J. 172, 181. It is now so well settled, that a right of action accrues thereon, without waiting for the notice to reach its destination.  15 Me. 67. 3 Pick., 414. 4 Greenl. R., 479.
In the case before the court, there is no difficulty in assuming, that if the letter was put into the post office, it was done on the same day that the notices reached Hagerstown, and was consequently in due time. Nor can we entertain a doubt, that the evidence in the cause is legally sufficient to establish the fact of its having been done. What evidence, short of the actual manual deposit of this notice in the post office, can be given more directly to the point? Is not the whole of it, taken together, fully equivalent to the establishment of that fact? If the messenger of the bank had gone one step further, and sworn to the fact as within his recollection, (without some special circumstance to charge [**17]  his memory with the fact,) would it be credited? That among the notices which he delivered daily throughout the year, and which indicated nothing to him beyond the external address, nothing to attract his special attention, he should have recollected this one in particular? The practise to which he testifies, must render it next to impossible, that he should have such distinct recollection of each notice in particular. And yet nothing short of this is required, if such evidence is rejected as doubtful. Looking to this practice, (and the numerous cases in the books, sanction it as the uniform 

 [*227]  practice of all banks,) is not testimony of this character the best that the nature of the case admits of? The business of banking is a distinct operation in commerce, recognized in almost every State in the Union, by the incorporation of banks; and their usages have grown up as a part of the settled law of the land. In obedience to this usage, it is that the law dispenses with personal notice, and charges the endorser by the bare deposit of the notice in the post office, if in due time, even if the notice never comes to hand. The importance of fixed and uniform rules in reference to [**18]  mercantile dealings, has converted usage into law. It is adapted to expedite commercial and banking operations. Any rule, less liberal, would embarrass them.
The rule, however, it is said, must be strictly complied with; reasonable and due diligence must be proved in order to charge the endorser. We regard the evidence in this cause as a sufficient compliance with the rule. The course and practice of the bank, as proved, is entirely consistent with what the law requires. The notice was received at the bank in time. It was enclosed and directed by the cashier to the proper post office in time, and then delivered to the messenger, or laid upon the cashier's table. Such is the purport and legal effect of the cashier's testimony. Equally so, is the effect of the testimony from the messenger, that he received this notice from the cashier, or took it from his table, and deposited it on the same day in the post office. If he never omitted to do so, there could be no omission in this instance. From the practice to which he testifies, he would be the more likely to recollect an omission, if it did occur; and if, as he swears, there was no omission in any instance, (save the one to which he [**19]  refers,) it may be said to be affirmatively proved, that there was none in this. The usage of the bank, seems to have been characterized by accuracy and certainty, to attain its object, and the evidence leaves no room to doubt, but that the notice reached the office. In the absence of all contradictory testimony, the fact, that this notice was properly disposed of by the messenger, seems to be irresistable. It is not in the nature of things, from this course of business in the bank, sanctioned by law and usage, to prove 

 [*228]  more. And to ask the witness, under the circumstances, to bring his recollection to bear upon the particular notice here in question, is to require too much.
The case of Flack and Green, 3 G. & J. 474, so strongly urged in favor of the appellant, is easily distinguished from the case at bar. The letter containing the notices had been mailed at Washington in due time, and addressed to the house of Payson & Co., in Baltimore; and it was proposed to prove by the witness, one of the firm, "that it was the invariable practice of that house to forward such notices immediately on the receipt of them, and that he had no doubt, from [**20]  the course of their business, that they had forwarded this particular notice, but that he had no recollection upon the subject of forwarding it. That from the general course of their business, and from the particular custom of their counting house, in respect to such notices, he believes that the notice in question had been duly transmitted." And similar testimony was offered from the clerks of the house, but it was all properly rejected by the court. And although no reason is assigned, yet it was manifestly too loose and vague to raise the presumption it was intended to convey. Time, the essential ingredient in the notice, is indefinite. It does not appear when the letter was received by the house, or how soon after it, the notice, was forwarded to the endorser. It does not prove, through what channel or direction, by whom or whose business it was among the partners and clerks of the house, to see it expedited, and whether it was forwarded by mail or personal message. There is nothing in the evidence to warrant a legal inference, that it was the particular duty of any one of the firm or the clerks, to see that a proper direction was given to the notice, by which it might reach the [**21]  endorser. Strict notice, as was said, is required to charge the endorser. In most instances it may be through the post office; in others, it is essential that it should be personal. In this case the evidence was altogether too indefinite to gratify the requirements of the law, and the court very properly rejected it.
The case cited from 20 Johns. 372, Smedes vs. Utica Bank, is likewise to be distinguished from the case at bar. 

 [*229]  There all the parties resided in the same town, and the testimony of the witness is, "that he delivered a notice, either at the post office or at the office of the party, but which of the two he could not tell." Here it will be perceived, in the language of the court, on page 383, "the notice in one place would be sufficient, in the other a nullity." On the ground, therefore, that the party was entitled to personal notice, and the proof being equivocal, the testimony was rejected.
On the contrary, in the case of Warren vs. Gilman, 17 Me. 360, where the bill was drawn by residents of Bangor, made payable in Boston, being endorsed to a bank in Bangor, it was transmitted to Boston, and there presented [**22]  for payment and dishonoured, and the notices thereof transmitted to Bangor by the notary, by the first mail; the cashier of the bank testified, "that on the receipt of them, which was in due time, he directed one of the notices to the endorser, and either gave it to him in person, on the same morning of receiving it, or put it into the post office in Bangor, on that same morning;" the court determined, that it was notice to charge the defendant: because, as said, "in this case either mode was sufficient. If delivered to him in person, there could be no question; and we are of opinion, that the notice coming from the notary, the post office was a proper channel of communication," the notary residing in a different place from the party charged by the notice.
In this connection, it may be the proper place to notice the objection taken by the appellant's counsel, that as the fact of the residence of the endorser does not appear upon the record, it must be presumed to conform to the note, which is dated at Hagerstown, and consequently the notice should have been personal, or left at his dwelling. Assuming the law, however, to be as stated in this latter case, and the notices [**23]  here under consideration having been transmitted by the notary from Georgetown, either notice would be sufficient. If the appellant had actually resided in Hagerstown, the notice, originating with the notary in Georgetown, from the dishonour of the bill there, was, by the rule in the above case, sufficient to satisfy the law, if put into the post office.

 [*230]  But the true answer to this objection, properly appears in the testimony of the cashier, where it is said, he "sealed and directed the notices, both to the drawer and endorser, at their respective post offices," and this must be taken to mean, that he knew the residence of both to be out of the town, and directed to them accordingly through the proper channel, by which notice would reach them.
We find the case in 8 Ala. 590, Ball vs. Bank of Alabama, a nearer parallel to the case before us. There the cashier testified, "that in due course of mail, he received a package containing a hundred or more protests; that he had no distinct recollection of the one in question, but does not doubt it was regularly received; and that notices were enclosed, addressed and mailed, on the same day [**24]  , to the endorsers, as was his constant practice. If he had received the protest under circumstances indicating that it had not been transmitted in due season, it would have been noted according to the invariable practice of doing business in the bank." The court here observe, "the facts stated are quite convincing, and inconsistent with the idea that notice was not duly received by the plaintiff, and addressed and mailed in due season to the defendant," &c.
Another case, to be found in 4 Ala. 148, is there referred to, under like evidence and circumstances, to which we merely refer, with a view to an extract from the opinion of the court, having some application and analogy to the case now before us. In reference to this practice of banks, it is there said: "Such a course of business, if pursued, would have furnished sufficient evidence for the presumption, that what was usual to be done in all cases, was not omitted in the particular one. This is the usual course of evidence by a large class of persons, such as public officers, notaries and clerks. Where the business performed by them is of great extent, it is highly improbable, from the nature of things, that any precise [**25]  remembrance shall exist of one fact, which has nothing to distinguish it from a multitude of others of the same nature,--hence it is, that evidence of this general character is admissible."
Another objection, upon which great stress has been laid by the counsel for the appellant, is, that the court erred in taking 

 [*231]  the testimony from the consideration of the jury, by the positive instruction, that if they believed the evidence they must find for the plaintiff. Upon a careful examination of the authorities, however, we think there is no error in this instruction of the court, and they have not invaded the province of the jury. It is conceived of primary importance in all commercial transactions, that fixed and settled principles should prevail. In no branch of the mercantile law is it more necessary that uniform rules of decision should be established, than in the one now under consideration. And in the case of Ransom vs. Mack, 2 Hill 587, 595, it is justly remarked by the court: "If such questions are to be submitted to a jury, a party may be discharged to-day, and be made liable to-morrow upon the very same state of facts."
It is therefore now the settled [**26]  doctrine, that due diligence and notice is a question of law. When all the facts are ascertained, this question of liability is to be settled by the court. "The enquiry is not what inferences the jury may draw, but what testimony does the law require." 20th Johns., 383, before cited.
Nothing short of clear proof of notice can fix the liability of the endorser. He is entitled to this protection, but he must take it from the court, as the least liable to render this protection doubtful or fluctuating. Therefore, whether due diligence has or has not been used, and whether or not legal notice has been given, are questions of law to be decided by the court, unless the evidence is doubtful or contradictory. It is only in such cases that the jury are called upon to decide. The principle is found distinctly stated in numerous cases. "When all the facts are ascertained, and there is no controversy about them, diligence is a question of law." 15 Me. 263, Thorn vs. Rice. "What is reasonable notice is a question of law, upon the facts proved." 17 Johns. 453. "This results," says Spencer, J., in Bryden vs. Bryden, 11 Johns. 187, "from the [**27]  necessity of having some fixed legal standard, by which men may not only know the law, but be protected by it."

 [*232]  The result of all the authorities examined is, that the law requires of every holder of negotiable paper, reasonable diligence in conveying to the party to be charged notice of the dishonor of the bill; and where there is no dispute about the facts adduced in evidence, whether such diligence has or has not been used, is a question of law for the court.
In further support of the doctrine, we quote from the language of the Supreme Court, in the case of the Bank of U. S. vs. Corcoran, 2 Peters 134: "If this was a question of inference fit to be submitted to the discretion of the jury, it seems to the court, that the rules respecting this subject, which have been laid down with so much care, would no longer be fixed and certain, but would change with the varying conclusions which a jury might draw of the fact, from evidence, however slight, given to prove it." And in a more recent case in that court, reported in 2 HOW 457, Rhett vs. Poe, it is said, upon page 481: "It is a doctrine generally received, one which is recognized by [**28]  this court in the case of the Bank of Columbia vs. Lawrence, 1 Peters 578, that whenever the facts upon which the question of due diligence arises, are ascertained and undisputed, due diligence becomes a question of law." See also 21 Wend. 643.
We may here safely close this array of authorities by a reference to the rule on this subject, long ago announced in our own State, in 1 H. & J. 187, Philips vs. McCurdy, "that notice of the non-acceptance and protest of a foreign bill of exchange must be given in due and convenient time, of which the court are to judge." And in the same volume, on page 477, in the case of Patton and Jones, vs. Wilmot, the rule is repeated: "That it is the province of the court to determine, whether or not due diligence has been used."
There is no force in another objection of the appellant, that the appellees have no such interest in the note in question, as to entitle them to recover in this action. The possession of the note, previously endorsed by them, through the cashier, their agent, and produced by them as their cause of action, is prima facie evidence of property in them. It has the endorsement [**29]  of Elie Beatty, not in his own name, but in his character 

 [*233]  of cashier, as the proper officer of the bank, in whose name such evidences of property are received and transferred. And they are to be regarded as the bona fide owners, notwithstanding the subsequent endorsements, and entitled to sue upon it.  1 G. & J. 175, Bowie vs. Duvall. It is no objection that the endorsement is in blank. Since the decision on this point, in the Cumberland Bank vs. M'Kinley, 6 H. & J. 527, affirming this doctrine, the act of 1825, ch. 35, dispenses with the form of filling up the blank, so far as to sustain the judgment given upon any negotiable instrument, notwithstanding the omission to fill up the blank in the endorsement.
Upon the whole case, then, the facts being deemed by this court sufficient to establish due diligence, in the absence of all doubtful or contradictory testimony, we are of opinion, that the court below were right in taking the question into their own hands, and instructing the jury, that if they believed the facts, they must find the verdict as directed by the court. The judgment of the court below is therefore affirmed.
JUDGMENT [**30]  AFFIRMED.