1 of 48 DOCUMENTS 

CHARLES T. MADDOX and ADOLPH AUR vs. JOHN WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 72; 1853 Md. LEXIS 16 

JUNE, 1853, Decided 

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

The appeal in this case was taken by the appellees, the defendants below, from the order of the court below overruling their demurrer to the bill of the appellee, and also from the order granting the injunction prayed for by the bill. The allegations of the bill and the facts of the case are fully stated in the opinion of this court, as well as in the following opinion of the court below, (FRICK, C. J., PURVIANCE AND LE GRAND, A. J.,) delivered upon the passage of the order overruling the demurrer above referred to:

"The bill alleges in substance that the complainant, as owner of a certain building in the city of Baltimore, leased a portion of the same to James M. Buchanan, the postmaster for the city of Baltimore, "to be used as the Baltimore post office," and to be restored at the expiration of the term in the same good condition, the necessary wear and tear excepted; that the defendant, Maddox, has succeeded Buchanan as postmaster, and that with his permission the other defendant is about to appropriate the premises to a liquor establishment, and is about to commit waste by the destruction or alteration of the walls [**2]  of the tenement. The bill prays an injunction to stay waste. To this bill a demurrer has been filed, exhibiting for cause of demurrer the following reasons, (which are fully stated in the opinion of this court.)

The demurrer of course admits the truth of the averments of the bill, and the question therefore arises, is such a case presented by the bill as entitles the complainant to an injunction? It is clear that it is such a case. See 5 Ves., 555. 1 Johns. Ch. Rep., 435. 3 Paige, 254, and 4 Sandford's Ch. Rep., 562, 587. In regard to a want to proper parties it need only be observed, that it is not a bill to enforce a specific performance but to stay waste, and prevent the violation of the terms of a contract. Neither the United States nor the Postmaster General are parties to the wrong complained of, and this court could pass no decree nor grant any process against them. The court are of opinion that the proper parties are in court, and that the demurrer is not well founded, and therefore, on this 14th day of October 1851, order that the demurrer be and the same is hereby overruled and the defendants ordered to answer the bill." 

DISPOSITION:
Orders affirmed and cause remanded.  

HEADNOTES:

The appellee leased a building to B., then postmaster of Baltimore city, to be used as the Baltimore post office, and at the expiration of the term, to be returned in as good order as when demised, reasonable wear and tear excepted. B. was succeeded as postmaster by M., who entered upon the premises and was accepted as tenant, but afterwards removed the post office and put the premises in possession of A., with authority to convert them into a beer establishment, and A. accordingly was proceeding to do so by tearing down petitions and committing other material waste and injury to the property. HELD:

That these acts of A. could be restrained by injunction upon a bill filed by the lessor, and neither the Postmaster General nor the United States are necessary parties to the suit.

A lessor may, by injunction, prevent his lessee, or those claiming under him or acting by his authority, from converting the demised premises to uses inconsistent with the terms of the lease, and from making material alterations for such purposes, and committing other kinds of waste.

When a case comes before this court upon demurrer, all the averments of the bill are to be considered as true.

A sub-lessee may be restrained by injunction from violating the stipulations in the original lease, without making the original lessee a party.  

COUNSEL:
Thos.  [**3]  G. Pratt for the appellants.

1st. The contract for the lease of the house was made by Buchanan, as the agent of and by the authority of the United States. The lease was to him as postmaster, and signed by him as such. The contract was made on account of the government, and was a public and not a personal contract, which enured to the benefit of, and was obligatory upon, the government and not upon him, consequently the United States was a necessary party to this suit. 1 Term Rep., 172, Macbeath vs. Haldimand. 1 Cranch, 363, Hodgson vs. Dexter.

2nd. If the contract is to be considered personal and not public, enuring to the benefit of and binding upon Buchanan and not the government, then Buchanan was a necessary party to the suit. 2 Story's Eq., sec. 1526. 6 H. & J., 14, Cromwell vs. Owings. 5 Metcalf, 124, Ingraham vs. Dunnell. 2 G. & J., 376, Mayor of Balto., vs. Chase.

3rd. There is no privity of interest between the complainant and the defendants, and the acts complained of are consequently acts of trespass and not waste. There are many cases where a landlord would be entitled to an injunction against his tenant where he would not be against a stranger, such as Aur [**4]  is in this case. 2 Story's Eq., secs. 720, 721.

4th. An injunction will not be granted either in cases of trespass or waste, unless the bill states facts sufficient to satisfy the court that the injuries complained of would be irreparable, and incapable of being compensated for by damages at law, and no such statement is made by the bill in this case. Jeremy's Eq., 328, 424. 7 Metcalf, 404, 405, Atkins vs. Chilson. 9 G. & J., 473, 474, Amelung vs. Seekamp. 5 Metcalf, 125.

Thos. S. Alexander for the appellee.

1st. The appeal from the order granting the injunction is warranted only by the act of 1835, ch. 380, sec. 3, which requires as preliminary thereto, that the defendants shall have filed their answers to the bill. It is insisted that a demurrer is not an answer within the letter and object of the act. And again, that the demurrer being overruled, there was not, at the time of the entry of the appeal, any thing on the record which could in any sense be treated as an answer. In addition to the act of 1835, see 9 G. & J., 475, Richter vs. Pue.

2nd. Assuming that the demurrer overruled could be treated as an answer filed, and thus gratify the requisitions of the [**5]  act, we next insist that the injunction was properly granted upon the case stated by the bill; and in support of this point, we rely on the authorities referred to by the county court. 5 Ves., 554. 14 Ves., 525. 1 Johns. Ch. Rep., 435. 3 Paige, 254. 4 Sandford Ch. Rep., 562.

3rd. An appeal will not lie from an order simply overruling a demurrer; and therefore the correctness of the order of the 14th October 1851, is not open for revision at this time. The act of 1830, ch. 185, limits the right of appeal to the case of a final decree or order in the nature of a final decree. None of the later acts extends the right of appeal to an order overruling a demurrer. And although an appeal from such order was entertained by this court in 2 H. & G., 382, Wolf vs. Wolf, it is to be observed that the question was not raised in the case; and that in the subsequent case of Danels vs. Taggart, 1 G. & J., 311, it was, upon consideration, expressly adjudged that an appeal will not lie from an order overruling a plea. The cases, it will be insisted, are identical in principle.

4th. If the merits of the demurrer are now before the court, we insist that the order of the court below is correct [**6]  and ought to be affirmed. A court of equity has a clear jurisdiction, on a bill filed by a landlord, to restrain the tenant of premises demised for a specific purpose from devoting them to a different purpose; and especially when this change in purpose will involve the necessity of repairs and alterations tending to waste and injury, and will create a nuisance to the landlord, his family and his tenants occupying adjacent premises. As to the alleged want of parties we insist, that as the post office has been removed and the injunction is asked to prevent the tenant in actual possession from appropriating the demised premises to the purposes of his own private business, in which the United States and the Postmaster General can have no interest, neither the United States nor the Postmaster General are necessary or proper parties to the suit.

Pratt for the appellants, in reply.

The act of 1835, ch. 380, authorises the appeal. Why is not the demurrer for all essential purposes an answer? It admits every thing in the bill to be true--and is therefore equivalent to an answer admitting all the allegations of the bill, and saying that the plaintiff is not entitled to recover. The [**7]  order is a final one; it decides that the case made by the bill entitles the complainant to an injunction, for it not only grants but continues it. In 2 H. & G., 387, the whole case was brought up by demurrer; see also 5 Gill, 359, White vs. White. 3 G. & J., 491. 8 Gill, 376. 5 H. & J., 459. 1 Md. Rep., 344, McChesney vs. Bruce.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*76]  ECCLESTON, J., delivered the opinion of this court.
The bill in this case was filed on the equity side of Baltimore county court, by the appellee against the appellants. It states that the complainant, as the owner of a building in the city of Baltimore, which for some time had been, and still was, used as a post office, on the first day of June 1848, demised several apartments of the building to James M. Buchanan, then postmaster of the United States for the city of Baltimore. The demise being for the term of four years from the 1st of July ensuing. That it was stipulated that the premises should be used as the Baltimore post office; and that at the expiration of the term, the premises should be restored to the possession of the complainant, in the order and condition [**8]  they were when demised, reasonable wear and tear excepted. That in virtue of this contract Buchanan, as postmaster, entered upon or retained possession of the premises, and continued to use the same for the purposes of a post office, from the 1st of July 1848, until some time during the year after; 

 [*77]  when he resigned or was removed from the office of postmaster, and the defendant, Maddox, was appointed his successor. Whereupon Maddox, as postmaster, and in virtue thereof, assignee of Buchanan, entered upon the premises, and was accepted as tenant of the same, by the complainant, and occupied the demised property as a post office until about the month of August 1851, at which time Maddox removed the post office, and placed the premises, or the principal part thereof, in the possession of the defendant Aur, with directions or authority to the said Aur, to convert and use the same for the purposes of a beer establishment, or depot for the sale of beer and other fermented liquors. And the bill avers, that at the time of filing the same, Aur, claiming as assignee of Maddox, was actually engaged in tearing down partitions and committing other material waste and injury to the property,  [**9]  and making alterations in the arrangement thereof, with a view of fitting it up for the purposes of preparing and selling beer and other fermented liquors; and that he avowed his purpose of establishing and opening a depot or place for sale of such liquors, as soon as he could make the necessary alterations. And the complainant insists, that by the terms of the agreement, the demised premises were to be used as a post office exclusively, and the appropriation thereof to a different purpose, would be a fraud on the agreement; that the alterations proposed to be made would materially injure the property, and lessen its value, and directly violate the stipulation requiring the premises to be restored in like order and condition as at the time of the demise; that the conversion thereof to the purposes intended by Aur, would be exceedingly offensive and a nuisance to the complainant and his family, who reside in an adjacent building, and to his tenants occupying parts of the same building; and he apprehended he would lose those tenants and be compelled to leave the premises occupied by them vacant, or appropriate them to other purposes.
The bill prays for an injunction to restrain the [**10]  defendants from using the demised property for any other purposes than those of a post office--and especially from altering or changing the order or condition thereof, by tearing down partitions or 

 [*78]  other fixtures, or making repairs or erections thereon, to fit the same for the purposes of a depot, for the manufacture, preparation or sale of beer, or other fermented liquors, or committing other waste or injury to the premises.
An injunction was granted, and then the defendants appeared and filed a demurrer to the bill, assigning for cause of demurrer the following reasons.
1st. That the complainant has not stated such a case in his bill as entitles him to the injunction or relief prayed for against the defendants.
2nd. That if the matters stated entitle the complainant to any relief against the defendants, his remedy is at law and not in equity.
3rd. That according to the complainants own showing the Postmaster General of the United States and the United States should have been made parties.
After argument the court below overruled the demurrer and ordered the defendants to answer. From this order and also from the order granting the injunction this appeal is taken.  [**11]  
Believing the appellee entitled to an affirmance on the merits, we deem it unnecessary to notice the preliminary questions, presented on his part, in regard to the regularity of the appeal.
On behalf of the appellants, in relation to the first and second grounds of demurrer, it was contended, that there was no privity between the complainant and defendants; but more especially so in reference to Aur. That his acts complained of were those of a stranger and mere trespasser, which would not authorise the interposition of a court of equity, by an injunction; but if the complainant was entitled to relief his remedy could only be at law. It was conceded by the appellant's counsel, that a landlord, by injunction, could restrain injuries to his property, committed, or about to be committed by his tenant, when for similar acts by a stranger he could not have such relief.
That a lessor may, by injunction, prevent his lessee, or those claiming or holding under him, or acting by his authority, from converting the demised premises to uses inconsistent 

 [*79]  with the terms of the contract, and from making material alterations for such purposes, as also from committing other kinds of waste, [**12]  will be found fully sustained by, 5 Ves. 555. 1 John. Ch. R. 435, and 4 Sandf. Ch. R. 587. Which authorities are referred to by the court below. See also Eden on Injunctions, 377 and 378, and 2 Story's Eq., sec., 913.
As this case comes before us upon demurrer, we are to consider all the averments in the bill as true. And under the allegations therein contained, in connection with the exhibit therewith filed, we cannot consider either of the defendants as a stranger and mere trespasser, in the view insisted upon by appellants, but we agree with the county court in thinking the principles established in the authorities referred to are applicable to this case.
Nor was there any error in overruling the third objection presented by the demurrer. The United States and the Postmaster General were not necessary parties. No injury was done to the complainant by them or either of them, which it was important for him to restrain by the injunction, nor had he any ground on which to ask relief against them. In the case of Barret vs. Blagrave, 5 Ves. 555, a sub-lessee, or rather his wife, during his insanity, was violating [**13]  a stipulation contained in the original lease; which the lord chancellor restrained by injunction.
The bill did not make the original lessees parties, but the sub-lessee and his wife were the only defendants.
The orders of the county court will be affirmed with costs to the appellee, and a decree will be signed to that effect, and remanding the cause for further proceedings.
Orders affirmed and cause remanded. 

2 of 48 DOCUMENTS 

THOMPSON PEGG and others, vs. RICHARD C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 385; 1853 Md. LEXIS 41 

DECEMBER, 1853, Decided 

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

This appeal was taken from an order of the court below, dismissing a petition of the appellants. The facts of the case are set out in the opinion of this court, and render any additional statement unnecessary, except to state that the issues granted upon the application of the appellants, Pegg and others, referred to in this opinion, were six in number, and in substance as follows:

1st. Whether the will of the 6th of April 1848, was executed by said Rachel Colvin, when she was of sound and disposing mind, and capable of executing a valid deed or contract?

2nd. Whether it was executed by her under the influence of suggestions or importunities, when her mind from its diseased or enfeebled state was unable to resist the same?

3rd. Whether the will of the 30th of October 1845, was duly executed and published?

4th. Whether this was revoked by the will of the 6th of April 1848?

5th. Whether it was revoked in any other manner than by the will of 1848?

6th. Whether said Rachel was prevented by the fraudulent concealment of the will of 1845, by any person or persons, from revoking the same by burning, cancelling [**2]  or otherwise?

In the trial of these issues, the order directed the petitioners Pegg and others, to be plaintiffs, and Richard C. Warford to be defendant.

The issues granted upon the application of Landis and others, were also six in number and in substance as follows:

1st. Was Rachel Colvin at the time of executing the will of 1848, of sound and disposing mind, and capable of executing a valid deed or contract?

2nd. Was she at or before that time urged to execute the same by importunities, which she was too weak to resist, and under circumstances which did not leave her free as to the disposition of her estate?

3rd. Was she at or before that time urged to execute the same by undue influence, which she was too weak to resist? &c.

4th. Was this will and the execution thereof, her free and voluntary act, to which she was induced with a knowledge of its contents, and without the exercise of a dominion or influence by some person or persons which prevented the exercise of a sound discretion?

5th. Was it and its execution procured by undue influence, fraudulent devices, importunities, misrepresentations, and deceits practiced upon and to her?

6th.  [**3]  Was she at any time subsequent to its execution, desirous of altering or cancelling the same, and was she prevented therefrom by management, fraud, undue influence or importunities?

The order directed the petitioners, Landis and others, to be plaintiffs at the trial of these issues, and Richard C. Warford to be defendant.  

DISPOSITION:
Order affirmed in part and reversed in part, and cause remanded, costs to await the final result.  

HEADNOTES:

In cases of caveats to wills, the orphans courts have the power to compel a joinder of all the caveators, when the issues they desire are the same in substance.

But in the case of several wills made by the same party, and where the interests of the different caveators are to some extent conflicting, there ought not to be a joinder, the ends proposed not being the same.

Under the act of 1798, ch. 101, at any stage of the proceedings before final adjudication, either party may require an issue, and the orphans court is not at liberty to refuse it.

Even after the finding of a jury on issues, a party in interest can require another issue or issues in regard to facts not covered by those pronounced upon, if the final judgment on the paper purporting to be a will has not been rendered.

But no issue can be granted which substantially embraces the same question that has been pronounced upon by the jury, for their finding in regard to it, is conclusive and binding on the whole world.

Nor can the same issue be granted on the several applications of different parties unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict.

When an issue is once granted, the functions of the orphans court, so far as that question is concerned, are suspended until the finding of the jury be certified, and when that is done, the court has no discretion, but is imperatively required to enter up judgment in conformity thereto.

When on the application of one party, an issue is transmitted to a court of law for trial, the granting on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity -- a void act.

On an appeal from an order of the orphans court awarding the same issue a second time, this court would be bound to denounce it as utterly void and as of none effect.

The orphans court has no power to revoke or remodel issues after they have been transmitted, but until then they have the power to compel the joinder of parties who desire the same issue.

By consent of the parties to the proceedings, issues which have been granted and transmitted may be abandoned in the court of law where they are pending for trial, and others framed by the orphans court.

Though the jury may find affirmatively or negatively on the question submitted, yet such finding may not determine the validity of the will, for there may be facts outside of the verdict, and not inconsistent with it which will decide the question.

The orphans court are bound to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the jury, but so far as the facts covered by the verdict are involved, they are settled unalterably by it, and all other facts contrariwise are to be disregarded.

Whenever a bill or petition be filed, whether or not the other parties are cited to appear, if, in point of fact, they do appear and answer, the proceedings are plenary. 

COUNSEL:
Henry Winter Davis for the appellants.

It is more important that these cases should be decided than how they are decided. The proceedings are solely under the act of 1798, ch. 101, and it is singular that this act no where particularly prescribes the proceedings upon a caveat. Sub-ch. 2, secs. 6, 7, 8, 9, 10, 11; Sub-ch. 18, secs. 16 and 17; and Sub-ch. 8, sec. 20, contain all that relates to plenary and summary proceedings, and to the granting and trial of issues. We insist, first, that there was error in the court below, in not granting the prayer of the petition for the ordering of plenary proceedings, as issues can only be awarded on such proceedings. If there be plenary proceedings, a party can call for issues whenever there is any fact in dispute [**4]  to be tried. Now none of the applications in this case are plenary proceedings,-- they make no persons defendants, but are mere caveats,--mere informal, ex-parte, and summary proceedings. Filing their answers does not make the parties defendants. 9 G. & J., 324. A will may may be probated upon summary as well as plenary proceedings. 5 H. & J., 175, Barroll and Cannell, vs. Reading. What are plenary proceedings, may be tested by what are formal proceedings in chancery or the ecclesiastical courts, and in such courts these proceedings would not be plenary. The fact that the petition is in writing does not make the proceedings plenary. There must be a substantial allegation of your case, and making a party defendant by calling on him to answer. A caveat is not a plenary proceeding, until some one comes in and offers to probate the will, until then it is a mere warning to the world.

But, secondly, suppose the proceedings to be plenary, there still have been errors committed by the orphans court, which it has the power to correct before final judgment. The fact that one party comes in and files a caveat and asks for issues does not exclude the others; the only limit to such proceedings [**5]  is the rendition of the final judgment. 5 H. & J., 175. There must then have been some time at which the court had the power to blend the several proceedings. This should have been done and but one set of issues awarded, in which all the caveators should be made to unite. It is error not to make the proper parties to the caveat. 8 Gill, 31, Marriott vs. Handy. 9 Gill, 456, Glass vs. Ramsey. The court must have the power, on motion of a party, to revoke and modify any issues awarded at any time before trial, and in this case they ought, in order to prevent confusion and conflict between the verdicts on the same will, to revoke the issues, make all the caveators parties to the same issues, and order one trial. Notwithstanding the transmission of issues, the cause still remains in the orphans court. 6 How., 62, Van Ness vs. Van Ness. The court of law to which the issues are sent, has no jurisdiction of the case, it cannot render judgment, but simply certifies the verdict of the jury to the orphans court, upon which it is conclusive only as to the points embraced in the issue. 2 H. & G., 42. The court of chancery never loses jurisdiction of a case when it sends issues to be tried; so with [**6]  a circuit court when a certificate of division is sent up to the supreme court.

Geo. W. Brown and Wm. Schley for the appellees.

1st. The appellants caveated the will, and issues were sent upon their own motion, and they cannot upon the state of facts made in their petition, ask for a revocation of them. The orphans court has no power to recall issues after they have been transmitted to a court of law for trial, the jurisdiction of a court of law attached immediately on the receipt of the issues, and the orphans court could not divest it of its jurisdiction. The jurisdiction of the orphans court was temporarily suspended until the return of the issues. The court of law in the case of issues sent, stands in the place of the orphans court, which cannot act until the certificate of the verdict is returned to them. Before the issues were sent, the orphans court had power to modify or change them as it choose, but the moment they were sent another tribunal had jurisdiction,--it was a case there pending,--its jurisdiction was exclusive for the time.

2nd. Even if the orphans court could have recalled the issues, and resumed jurisdiction de novo, with the consent of all parties [**7]  to the issues, still where want of consent appeared that court could not rightfully interfere, nor would the court of law have refused to try the issues, if any of the parties had claimed the exercise of its jurisdiction, even if the orphans court had by its order requested the issues to be returned.

3rd. At all events the orphans court did right to refuse the application of the appellants, as no sufficient reason was set forth and established, why the issues transmitted on their application should be recalled, even if the power of the court were conceded.

4th. But if the court in its discretion could have validly recalled the issues, if it had deemed it expedient, still no appeal will lie from its decision refusing to recall them. 5 Gill, 506. 1 Bland, 5.

5th. The proceedings were plenary. The issue of a summons is not the test whether proceedings are plenary or summary, for this may be done upon application of any one ore tenus; nor is it necessary that there should be a contest between parties to make proceedings plenary. The test is whether the application, bill, or petition is in writing, if it is the proceedings are plenary. See, act of 1818, ch. 204, sec. 3.  

JUDGES:
The [**8]  cause was argued before LE GRAND, C. J., ECCLESTON and TUCK J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*390]  LE GRAND, C. J. delivered the opinion of this court.
This is an appeal from an order of the orphans court for Baltimore city.
It appears from the record, that on the 8th of February 1853, a paper, dated the 6th of April 1848, purporting to be the will of Rachel Colvin, deceased, was produced and filed in the orphans court for Baltimore city; that on the 26th of the same month, Thompson Pegg and others filed their petition or caveat, which, on the 21st April, was answered by the appellee. That on the 1st March 1853, another paper, dated the 13th October 1845, purporting to be the last will of Rachel Colvin, was produced and filed in the same court; and that, on the 3rd March 1853, Jesse Landis and others filed their caveat to the will of 1848; and, on the 19th March 1853, Thompson Pegg and others filed their caveat to the paper dated 13th October 1845. On the 21st April 1853, the appellee filed his answer to the petition or caveat of Pegg and others to the paper dated the 13th October 1845, and, on the same day, filed his answer to the petition or caveat of Landis and others to the [**9]  same paper. On the 17th May 1853, on the application of Pegg and others, the orphans court directed issues, embracing the papers purporting to be wills of date 1845 and 1848, to be sent to the superior court for Baltimore city for trial; and on the written application of Landis and others, issues were ordered touching the will of 1848. On the 23rd of October 1853, Regnear Van Sickle 

 [*391]  and others filed their caveat against the paper of the 6th April 1848, which was answered by appellee on the 12th November following.
On the 5th November 1853, appellants filed their petition, which, after reciting the proceedings of the orphans court, prays that the issues which had been granted "may be revoked, and that plenary proceedings may be ordered, and that new issues may be framed and transmitted for trial to the circuit court for Baltimore county, and that said parties, (those who had filed caveats,) may be ordered to join in the same, or that the said issues granted upon the application of petitioners may be revoked, and new ones framed and transmitted to the circuit court of Baltimore county for trial."
On the 12th November 1853, appellee, and Landis and others, filed [**10]  their separate answers to the petition of appellants, the appellee resisting the granting of the prayer of the petition, and Landis and others acquiescing in it, except in so far as they are required to join with the petitioners and to abandon the issues ordered on their own application. On the 14th November 1853, Van Sickle and others filed their answer and consent to the prayer of the petitioners. On the 26th November 1853, the court dismissed the petition of the appellants, and it is from this order of dismissal the appeal is taken.
These facts exhibit a singularity of case without parallel in the published history of the judicature of the State. In all the cases, with which we are acquainted, in which issues have been ordered by the orphans courts of our State, the caveators have, so far as the records show, harmonized in their efforts to set aside the papers propounded as wills, and therefore, in each case, there has been but one set of issues. The uniformity of this practice would seem to impress it with the character of being the best, and there can scarcely be a doubt on the mind of any one that when it is practicable it ought to be observed. We, therefore, hold it proper [**11]  for the orphans court to order a joinder of all the caveators when the issues they desire are the same in substance; but, we can very 

 [*392]  readily understand, that in a case where there is more than one paper propounded as a testamentary disposition of property, the interests of the different caveators may be, to a certain extent, conflicting, and this case furnishes an illustration of the principle. It may be to the interest of some of them to sustain the will of 1845, whilst they assail that of 1848. It would be manifestly productive of confusion to compel such of them to join with those who not only assail the will of 1848, but also that of 1845. There ought not to be a joinder of parties whose proposed ends are not the same, but where they are so there is, in our judgment, a power in the court to compel it.
It is a somewhat remarkable circumstance, that notwithstanding the great care bestowed upon the draught of the act of 1798, chapter 101, and, in general, its minuteness, and particularity of detail and direction, there should have been so little ascertained by it in regard to the granting and trial of issues. The only parts of the act having reference to this matter [**12]  are the 16th and 17th sections of sub-chapter 15, and the 20th section of sub-chapter 8.
By the 16th section of sub-chapter 15, it is provided, that "whenever either of the parties having a contest in the orphans court shall require it, the said court may direct a plenary proceeding, by bill or petition, to which there shall be an answer on oath," &c.; and, by the 17th section of the same sub-chapter, it is enacted, "on such plenary proceedings all depositions shall be taken in writing and recorded, and in case either party shall require, the court shall direct an issue or issues to be made up, and sent to any court of law which may be most convenient, under all circumstances, for trying the same, and the said issue or issues shall be tried in the said court of law as soon as may be, without any continuance longer than is necessary to procure the attendance of a witness or witnesses; and the power of the court of law, and proceedings thereto relative, shall be as hereinbefore directed respecting the trial of issues, and the orphans court shall give judgment, or decree upon the bill and answer, or upon bill, 

 [*393]  answer, depositions, or finding of the jury," &c. The reference [**13]  in this section, by the words "as hereinbefore directed," is to the 20th section of sub-chapter 8, which provides for the case of an executor or administrator being indebted to the estate of the deceased, and authorises the court, on the petition of any person interested in the administration, to direct an issue or issues to be tried, and declares "the same shall be tried in any court of law proper for the trial and most convenient under all circumstances, and the court of law shall have power to direct the jury and grant a new trial, as if the issue or issues were in a suit therein instituted," &c.
There is nothing in either of these sections, nor in any other part of the act of 1798, nor indeed in any of the supplements thereto, which defines the duty of the orphans court where issues are applied for by different parties, at different times; and there is also a perfect silence as to the power of the court over the matter of granting issues when that authority has been once exercised. In regard to these matters therefore, our conclusions and reasoning must be drawn from the nature of the proceeding, the purpose proposed by the testamentary system, and the analogies of the law.  [**14]  
In the case of Cain, et al., vs. Warford, 3 Md. 454, this court said, "the obvious purpose of the 16th section, (sub-chapter 15,) is to enable the court to advertise itself of the real facts in the case," and this also is clearly the object of the 17th section, which provides for an issue or issues. The practice of directing issues is undoubtedly borrowed from chancery and the ecclesiastical courts, and was observed in this State prior to the passage of the act of 1798. By the 9th section of the act of February 1777, chapter 8, the orphans courts were empowered to grant a plenary proceeding, and to order an issue and summon a jury for the trial of the same. Whilst, however, that act authorised the court to give judgment on the finding of the jury, it is not so clear they were bound to do so in conformity with it as they are required by the act of 1798.
Under the act of 1798, "at any stage of the proceedings, 

 [*394]  before final adjudication, either party may require it, (an issue,) and the court is not at liberty to refuse it." Barroll and Cannell, vs. Reading, 5 Har. and Johns., 176. From this it follows, that even after the finding [**15]  of a jury on issues, a party in interest can require another issue or issues in regard to facts not covered by those pronounced upon, if the final judgment on the paper purporting to be a will has not been rendered. Thus if an issue be sent to a court of law which involves only the question of the execution, attestation and publication of the paper, and it be found in favor of the paper, it is still competent to the same party, or any other in interest, to require another issue or issues involving an inquiry as to the mental and disposing capacity of the testator, or the exercise of undue importunity and control over him, the practice of fraud upon him or any other fact not inconsistent with the execution, attestation and publication of the paper. No issue can be granted which substantially embraces the same question that has been pronounced upon by the jury, for their finding in regard to it is conclusive and binding on the whole world. Nor, for the same reason, can the same issue be granted on the several applications of different parties, unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict. Were different parties permitted [**16]  to propound the same question to different juries, there might, and most probably would be, different verdicts, and, as an inevitable consequence, under the act of 1798, different judgments in the orphans court on the same matter. It would be absurd to impute such a folly to the act. Its purpose is to ensure certainty, and this cannot be accomplished if the same question be submitted to different juries. We hold, therefore, from the very nature of the thing, when a question is once submitted, so far as it is concerned, the functions of the orphans court are suspended until the finding of the jury be certified, and when that is done, it has no discretion in regard to it, but is imperatively required to enter up judgment in conformity thereto. And, as a consequence of this, where, on the application of one party, an issue is 

 [*395]  transmitted to a court of law for trial, the granting, on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity--a void act. On an appeal from an order of the orphans court awarding the same issue a second time, this court would be bound to denounce it as utterly void and of none effect.  [**17]  
We perceive nothing in these views obnoxious to censure from any quarter. When the question has been once fairly answered by a jury it ought to be considered as definitively settled. If the jury disregard the testimony or the court err in its instructions of the law, the party aggrieved has his remedy by a motion for a new trial, or an appeal to this court.
We do not regard the orphans court as having any power to revoke or remodel issues after they have been transmitted; until then, however, as we have said, they have the right, by virtue of a power necessarily inherent in them, to compel the joinder of parties who desire the same issues; and, as we have shown by the case of Barroll vs. Reading, 5 H. & J. 175, a party has the right to require an issue up to the time of final adjudication, the appellants are entitled to an issue involving an inquiry as to the mental capacity of Miss Colvin when she executed the paper dated 13th October 1845, and the orphans court have power, in their order awarding it, to direct that it shall be tried at the same time and before the same jury which shall act upon the issues already transmitted. This secures to them all they have a right [**18]  to ask--the verdict of a jury on all the questions they may think proper to propound touching the paper of 1845 or of 1848.
It does not necessarily follow, because the finding of a jury on issues be as is desired by those at whose instance they may have been awarded, that the paper shall be admitted to or denied probate as the case may be. The finding of the jury may be affirmatively or negatively on the questions submitted, and yet such finding either way may not determine the question of the validity of the paper as a will; there may be other facts outside of the verdict and not inconsistent with it which will decide the question. For instance, a jury might 

 [*396]  find on an issue so framed that a certain paper purporting to be a last will, was executed, duly attested and published as such, and yet its final judgment might be against the paper as a valid will, because it might appear from testimony taken before the orphans court, or by the finding of another jury, that at the time of the execution and publication, the testator had not the requisite disposing capacity. And this being so, the orphans court have not only the right, but are bound to render their final judgment [**19]  on the finding of different juries, where they have pronounced on different issues touching the same paper. They are also to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the juries. So far as the facts covered by the verdicts are involved, they are settled unalterably by it, and all other facts contrariwise are to be disregarded.
Whilst we are of opinion the orphans court have no power to revoke or remodel the issues transmitted to the superior court at the instance of the appellants, yet we nevertheless think, that by consent of the parties to the proceeding they may be abandoned in the court of law where they are pending for trial, and others framed by the orphans court without prejudice to the rights of either party.
As the prayer for plenary proceedings is also embraced in the petition of the appellants, we will remark, that we regard the proceeding which has been had on the caveat and petition of the appellants as a plenary proceeding, and that wherever a bill or petition be filed, whether or not the other parties are cited to appear, if in point of fact they do appear and answer, the proceeding is plenary. [**20]  
From these reasons it appears, we are of opinion, that the appellants were entitled to issues relating to the mental capacity of Miss Colvin when she executed the paper of October 1845. In so far we disapprove of the order of the orphans court, and affirm it so far as it relates to the other matters embraced in the petition of the appellants.
Order affirmed in part and reversed in part, and cause remanded, costs to await the final result. 

3 of 48 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. WILLIAM B. NORMAN, by DANIEL SPRIGG, his next Friend.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 352; 1853 Md. LEXIS 38 

DECEMBER, 1853, Decided 

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

This was an action of trover, brought on the 2nd of November 1850, by the appellee, Norman, an infant, by Sprigg, as his prochein ami, against the appellants, to recover the value of three certificates of stock particularly described in the declaration. Plea, non cul.

Exception. By the will of Talbott Jones, and a decree of the court of chancery carrying out the trusts thereof, the plaintiff, (then and still an infant, being at the time of the trial about thirteen years of age,) became entitled to certain stock of the corporation of the city of Baltimore. Michael S. Norman was, on the 27th of December 1838, appointed his guardian, but this appointment was revoked on the 25th of October 1843, by the orphans court, and Samuel Jones, Jr., appointed in his stead, which latter appointment was also revoked on the 8th of January 1847, and Daniel Sprigg, the prochein ami in this suit, appointed guardian to the plaintiff.

The plaintiff then offered in evidence the three certificates of stock cancelled by erasure of the signatures of the mayor and register thereto. These certificates thus cancelled were produced at the trial by defendants upon [**2]  notice served upon them by plaintiff, and were in the name of Norman, the plaintiff, redeemable at pleasure after the 1st of July 1867, 1870, and 1890, with interest at six per cent., payable quarterly, transferable only at the mayor's office in person or by attorney, and delivery of the certificate at the time to the transferree. Upon the back of each was this endorsement, dated November 1st, 1844: "Transfer to the Saving's Bank of Baltimore." Signed, "Samuel Jones, Jr., guardian." He then proved that said stock was transferred on the books of defendants by the issue in the same form of like certificates to the Saving's Bank of Baltimore. Upon this proof the plaintiff asked two instructions, in substance as follows:

1st. If the jury believe that Norman, the plaintiff, was, on the 1st of November 1844, owner of the stock sued for, and that it stood upon the books of the defendants in his name, and that on that day defendants received of Jones, the guardian of said Norman, said certificates, cancelled the same, and issued others of the same amounts in place thereof to the Savings Bank, and have since refused to deliver to plaintiff or his guardian any stock, or pay any dividends [**3]  thereon, then plaintiff is entitled to recover the value of said stock and interest thereon from the time of such cancellation.

2nd. If the jury believe from the evidence that the certificates, for the conversion of which this action is brought, were the property of Norman, an infant, and that the city of Baltimore, since the month of March 1844, obtained possession of the same by delivery from Jones, guardian of said infant, and cancelled them without an order from the orphans court authorising and directing said Jones so to deliver them to said city to be cancelled by it, and has since refused to pay him or his guardian the principal or dividends of said stock, then plaintiff is entitled to recover whatever the jury shall find said stock would have brought in the market at the time it was delivered up to be cancelled, with legal interest thereon since the time of such delivery and cancellation.

The court, (FRICK, C. J., and LE GRAND, A. J.,) granted both prayers, and to this ruling defendants excepted. The verdict rendered on the 12th of May 1851, was in favor of the plaintiff for $ 9186.14, with interest from that day, and costs. The par value of the stock in question,  [**4]  as appeared upon the face of the certificates, was $ 6299.99. From the judgment rendered in accordance with this verdict the defendants appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A guardian transferred stock standing in the name of his ward on the books of a corporation; the certificates of the stock were cancelled by the corporation and others issued to the transferee. HELD:

That this was a sale or removal within the meaning of the act of 1843, ch. 304, and having been done without the order of the orphans court as required by that act, is void, and the rights of the ward are not affected by it.

An infant may sue in trover by prochein ami, though he has at the time a duly appointed and qualified guardian.

As a general rule the plaintiff in trover must show that he had, at the time of the conversion, both a property general or special in, and the actual or the right to the immediate possession of, the chattel.

For the purpose of sustaining trover the right of possession is common both to the guardian and infant, the possession or right of possession in the one being the right of possession of the other as against third parties.

Where there is a general and special property to the same chattel in different persons, either may, in most cases, sue in trover, but a judgment obtained by one is a bar to an action by the other.

In the absence of a statutory guardian, the natural guardian is invested with as full power to sue in trover for the conversion of the infant's property as the former.

It is no ground for the reversal of a judgment that the prayer of the appellee submits an immaterial question to the jury, by which his own case was prejudiced rather than that of the appellant.

Where a guardian transfers stock standing in the name of his ward, without the order of the court required by the act of 1843, ch. 304, and the corporation cancels the certificates and issues others to the transferee, this is such a tortious conversion of the ward's property by the corporation as to dispense with the necessity of demand and refusal before suit in trover.

In legal contemplation all persons are presumed to know the existence and nature of the public statutes of the State, and are responsible for their violation.

It is error to grant a prayer which submits to the jury to find the market value of the bonds converted, when the only evidence of value is the bonds themselves; the bonds proved their par value, but from this no legal inference could be drawn of their market value. 

COUNSEL:
Benjamin C. Presstman and John Nelson for the appellants.

The second prayer is defective, because it instructs the jury that the plaintiff is entitled to recover the market value of the stock, with interest, whilst there was no evidence in the cause of such value. No objection is more fatal to an instruction than that there is no evidence to support it. It is evident the jury based their verdict upon mere speculation. 2 Md. Rep., 217. We were not bound to ask for a new trial, because we complain of the verdict as the result of this instruction.

There has been no such tortious conversion as will dispense with demand and refusal. The city authorities obtained peaceable possession of the stock, for it was placed in their hands by the party having the custody of it. The cancellation was by mistake and did not affect the rights of the parties, for they could have maintained assumpsit for the dividends as they arose. Angel and Ames on Corporations, 631, 646.

But assuming the conversion [**5]  was the action properly brought? By the statutes of West, 13 Edw., 1, ch. 49, and West, 2, 13 Edw., 1 ch. 15, an infant may sue by prochein ami in cases where he can sue at all, as for instance in assumpsit for the dividends, because the debt was due to him, but where trover is brought the right to the immediate possession of the thing sought to be recovered must be in the plaintiff. 2 Greenleaf on Ev., secs. 636, 640. The infant was not entitled to such possession, and the delivery of the stock by him to the city would have been a conversion as against the guardian. A cestui que trust cannot maintain trover, because the right of possession is in the trustee. All the authorities maintain that the plaintiff in trover must have the right of property and the right of possession. See 7 Term Rep., 9. 1 Chitty's Pl., 148. 7 Dowling and Ryland, 407. 4 Barn. and Cres., 941. 12 Eng. C. L. Rep., 272. 21 Eng. C. L. Rep., 390. Leigh's Nisi Prius, 1466, 1468. The only case seemingly in conflict with these is that in 2 H. & J., 347, but in that case there was at the time the suit was brought no guardian appointed by law. The judgment of the court was there founded upon the fact that the hiring by [**6]  the mother was tortious; that she had no right to deal with the property as she did, and the infants having no guardian necessarily had the right to sue.

Richard T. Merrick for the appellee.

The argument on the other side admits the liability of the city, and rests the defence solely upon technical grounds, and that, too, the infancy of the plaintiff, which should be his protection. The stock stood in the name of the infant, and the certificates were given up to the obligors and cancelled by them, and others issued to the bank, for which they have received a valuable consideration. The act of 1843, ch. 304, requires an order of the orphans court before a transfer could be made. The case of Albert and wife, vs. Savings Bank, 2 Md. Rep., 168, adopts the opinion of Chief Justice Taney, in Maria Lowrey's case, to the effect that the act of 1843, is notice to the corporation, and binds it to require the order thereby provided for. The liability of the city is therefore clear and indisputable, the transfer having been made by a party signing as guardian without the order required by the act.

In an action of trover the conversion is complete. 1st. where the party acquires possession [**7]  of the property tortiously; 2nd. where he has exercised unauthorised acts of ownership over it; and 3rd, where he refuses to deliver after demand made. Either of these constitutes a conversion and the presence of either of the first two renders the third unnecessary. 1 Chitty's Pl., 153, 166. Here there was an exercise of unauthorised dominion over the property. Suppose the certificates had been burned by the defendants, would there have been any necessity for a demand? 9 Gill, 7. The fact of conversion is a question of law, the jury must find the facts that constitute the conversion, and if the prayer had left to the jury the finding of the conversion it would have been defective.

But it is said the infant has not the right of immediate possession. The bonds stood in his name, he was the owner of them. The guardian is not the owner of the legal title to his ward's property; he is merely the custodiary of it--the mere officer of the orphans court, which at best alone has the power to transfer and dispose of it. The policy of the act of 1843 is to let the property of the infant remain in his name. The possession of the guardian is but the possession of the ward at last. Now the [**8]  question is, has the ward the right to sue by prochein ami? The guardian could not sue for himself, he would have to sue as guardian. But since the statutes of Westminster, 1 and 2, the uniform practice has been for an infant to sue by prochein ami, and defend by guardian. 1 Coke Lit., 135, (b,) note 220. 2 Saunder's Rep., 117, (f,) note 1. Chitt. Pl., 284. Edwards on Parties, 195. Demand and refusal are not necessary where there is a tortious conversion as in this case, and it is therefore immaterial whether the party upon the record was competent to make the demand or not. 3 Pick., 218. 11 Verm., 273. Though an infant has a guardian he may still sue by prochein ami. 3 Blackf, 228. 11 Alabama Rep., 343. But the Court of Appeals of this State, has decided that an infant may sue in trover by prochein ami in the case of Hay vs. Conner, 2 H. & J., 347. It is said the infants in that case had no legal guardian, but they had a natural guardian, and such guardian must refuse to come in upon summons before the orphans court will appoint one. 3 G. & J, 112. 5 H. & J., 110. Again, where a party holds funds in two capacities, he will be adjudged to hold them in that capacity in which he ought [**9]  to hold them, (2 G. & J., 225, 226. 2 Md. Rep., 199,) and hence in this case the party will hold the money if recovered as guardian and not as prochein ami, and payment to him will therefore protect the city.

It is said the prayer is defective because there is no evidence of what the market value of the stock was. The certificates themselves were evidence of value, from which the jury could infer what value they chose, and if they rendered excessive damages the defendants should have moved for a new trial. The measure of damages is the value of the property converted. (Sedgwick, 512, 517,) and prima facie, the certificates would have brought what they purport to be worth on their face.  

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

OPINIONBY:
MASON 

OPINION:

 [*358]  MASON, J., delivered the opinion of this court.
At the time the transfer or cancellation of the stock or obligations in question took place, the act of 1843, chap. 304, was in full force. By that act it is provided that, "it shall not be lawful for any guardian, to sell any property of his ward, without an order of the orphans court, authorising such sale or removal, and any sale made without an order of court [**10]  shall be void, and no title shall pass thereby to the purchaser." No order was passed authorising the sale or transfer in the present instance, and consequently it was void, and the rights of the plaintiff were not affected by the transaction; this court regarding it as a sale or removal within the meaning of the act.
The remaining question then for us to determine is, can the plaintiff under the present proceeding, remedy the evils which have resulted from the illegal act of his guardian of which he complains?
The record discloses the facts, that at the time this suit, (which is an action of trover,) was instituted, the plaintiff was an infant, under twenty-one years of age, and that Daniel Sprigg, Esq., was his guardian, duly appointed and qualified as such; and we are therefore asked to decide whether, under such circumstances, the guardian and not the infant was not the proper party to sue in the present action.
As a general rule we concede, that in order to support the action of trover, the plaintiff must show, not only that he had at the time of the conversion, a property in the chattel either 

 [*359]  general or special, but that also at the time of the conversion, [**11]  he had the actual possession, or the right to immediate possession. 1 Chit. Plead., 148, (11th Amer. Ed.)
Under the statute of West., 1, 3 Edw. 1, chap. 49, and West., 2, 13 Edw. 1, chap. 15, an infant can sue by prochein ami in all cases where his rights have been invaded, and the only ground for questioning the right in the present case, is based upon the hypothesis that the possession of the chattel in dispute, which is the gist of the right to sue in trover, belongs exclusively to the guardian and not to the infant. In this view of the case we do not concur. For the purpose of sustaining the action of trover, we regard the right of possession as common to both the guardian and infant, the right in the first instance, resulting from the special property in the chattel by virtue of the guardianship, and in the second from the general and absolute property in the real owner. The possession, or right of possession in the one, is the right of possession of the other, as against third parties or strangers. In the case of a general as well as a special property to the same chattel in different persons, the action [**12]  of trover may in most cases, be brought either by the general or special owner, but a judgment obtained by one, is a bar to an action by the other.  7 Cowen 328, Smith vs. James.
In this State in the case of Hay vs. Conner, 2 Har. & Johns. 347, the right of an infant to sue in trover, has been directly recognized by our Court of Appeals. It is true the particular point does not appear distinctly to have been raised in the argument, though expressly decided, nor does it appear in that case, that the infant had a guardian duly appointed under the act of 1798. It is to be presumed that if a valid objection did exist to the right of the infant to sue in that case, that it would have been discovered and pressed in argument by the counsel, and would have been considered in the learned opinion delivered by the court below. Nor do we think it a material circumstance in the case, that there was no guardian in existence appointed under our act of Assembly. The mother, the natural guardian, was before the court, who in the absence 

 [*360]  of a statutory guardian, would have been invested with as full power to sue in such case as the other, and [**13]  if the right had been exclusive in the former, it would also have been so in the latter.  Fridge vs. The State, 3 Gill & Johns. 103.
While we have not been able to find a case in all respects in point to the present question, we have nevertheless discovered, in other States, a number like the case of Hay vs. Conner, where an infant has sued both in trover and replevin, although it is true, in those cases the fact was not disclosed whether there was a statutory guardian or not. In the case in 11 Vt. 273, the right of the infant to sue, in assumpsit, for a legacy, was established, although there was a regular guardian in existence at the time.
The foregoing question, though not directly raised by the prayers offered below, is nevertheless presented by the pleadings and proof, and has been pressed upon us in argument, and as it strikes at the very root of the plaintiff's case we have thought proper to dispose of it.
If this were a case where demand and refusal were necessary to support the present action, the plaintiff's first prayer would clearly have been incorrect, because it requires the jury to find a refusal, and of necessity a [**14]  previous demand, when in fact there is not the slightest evidence in the record to show that there had been either. But, as we shall presently show, as this was not a case requiring demand and refusal, the objection mentioned above would not be regarded as a legitimate ground upon which to reverse the judgment below, because the question submitted to the jury, whether proved or not, was wholly immaterial: and in submitting that question to the jury the plaintiff rather prejudiced his own case than that of the defendant, and therefore the latter has no just ground to complain. We have no hesitation, however, in saying, that demand and refusal were not essential to the plaintiff's case, and therefore that question, in strictness, ought not to have been submitted to the jury in any form.
We have already said, the sale or cancellation of the plaintiff's stock or bonds, by Jones, his former guardian, and the 

 [*361]  defendants, was void, and that, under the act of 1843, no title passed thereby. Whether or not the defendants acted ignorantly and innocently in this transaction, does not vary the case or excuse them in law. In legal contemplation all persons are presumed to know [**15]  the existence and nature of our public statutes, and are held responsible for their violation. This being true, we cannot regard the conduct of the city council, in destroying the obligations or bonds in question, under the circumstances, in any other light than as a tortious conversion of the plaintiff's property, which dispenses with the necessity of a demand and refusal before suit.
The granting of the appellee's second prayer by the county court was erroneous. There being no evidence adduced at the trial below as to the market value of the bonds or stock in dispute, it was clearly improper for the court to have submitted to the jury to find what said certificates or bills obligatory would have brought in the market at the time they were delivered up to be cancelled.
The only evidence before the jury as to the value of the bonds, was the bonds themselves. From them clearly no legal inference could be drawn with reference to their market value. They proved, it is true, their par value, but the par value of a public or private security is no index of its market value, and the very circumstance of having asked the jury to find the market value was conclusive that [**16]  it varied from the par value.
It is clear to our minds that the conclusions of the jury upon that subject, must of necessity have been based upon mere speculations, and not upon proof properly in the cause, and was therefore manifestly erroneous.  Insurance Company vs. Wilson, 2 Md. 217.
For the defects contained in the appellee's second prayer which we have pointed out, we shall reverse the judgment of the court below.
Judgment reversed and procedendo awarded. 

4 of 48 DOCUMENTS 

THE ASSOCIATED FIREMEN'S INSURANCE COMPANY vs. FREDERICK ASSUM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 165; 1853 Md. LEXIS 82 

DECEMBER, 1853, Decided 

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

Covenant by the appellee against the appellant on a policy of insurance, made 10th of October 1850, for one year, and afterwards continued for another year. By agreement all errors in pleading were waived, and leave given to each party to offer any evidence admissible under any state of pleading.

Exception. The plaintiff offered in evidence the policy sued on, which insured him "against loss or damage by fire to the amount of $ 1000, say $ 700 on stock of books and stationery, and $ 300 on music, musical instruments, fancy goods, bronze powder and medicines contained," &c.; and contained a proviso, that "if the assured, or his assigns, shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation and have the same endorsed on this policy or otherwise acknowledged, in writing, by this corporation, or in default thereof, this policy shall cease and be of no effect." This policy was continued by the following endorsement thereon, signed by the secretary of the company: "Received, October 2nd, 1851, $ 7.50, premium on $ 1000, to expire at noon [**2]  October 10th, 1852."

The plaintiff then proved, that on the 19th of November 1851, he effected insurance with the Baltimore Fire Insurance Company as follows: "That is to say, $ 600, say $ 300 on each of two piano fortes, $ 150 on printed music, and $ 50 on vegetable powders in glass bottles, making $ 800 contained," &c.; "$ 300 now insured on music, musical instruments, fancy goods, bronze powders and medicines, in the Associated Firemen's Insurance Company." He then offered evidence as to the contents of the store, the fire and the damage sustained.

The defendant proved that plaintiff asked additional insurance of defendant, in June 1851, and again just previous to the fire, which the latter declined; and also, that defendant had no notice of the insurance with the Baltimore Fire Insurance Company till after the fire; and then asked an instruction to the jury, in substance, that if they found that any part of the goods and chattels mentioned in, and intended to be insured by, the policy in the Baltimore Fire Insurance Company were also included in, and intended to be covered by, the policy sued on, the plaintiff cannot recover in this suit, because he has not shown a notice [**3]  of such other or additional insurance to, and endorsement thereof by the defendant, on the policy in suit. The court, (FRICK, J.,) rejected this prayer and instructed the jury that the plaintiff could not, in this action, recover for any property insured by the defendant, if they believe that the same property was afterwards insured by the plaintiff with the Baltimore Fire Insurance Company without proper notice thereof to the defendant.

To this ruling the defendant excepted. The verdict was in favor of the plaintiff for $ 854.42 and judgment accordingly, from which defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A policy of insurance "to the amount of $ 1000, say $ 700 on stock of books and stationery, and $ 300 on music, musical instruments, fancy goods, bronze powder and medicines," contained a covenant, that if the assured "shall hereafter make any other insurance on the hereby insured premises, he shall, with all reasonable diligence, notify the same to this corporation," &c., "or in default thereof, this policy shall cease and be of no effect." HELD:

That the proper construction of this covenant is, that if any part of the goods mentioned in the policy was afterwards insured in any other insurance office without notice, as provided in the covenant, the whole policy thereby becomes void. 

COUNSEL:
T. P. Scott for the appellant.

1st. The defendant's prayer ought to have been granted, because the terms of the policy were violated by the plaintiff in making "other insurance on the hereby insured premises" without giving notice thereof to the defendant, which he was bound to do and must affirmatively show that he did do, and the policy is therefore void. See 2 Hall's N. Y. Rep., 493, Moadinger vs. Mechanics Fire Ins. Co. 5 Ohio, 468, Harris vs. Ohio Ins. Co. 17 Wend., 359, Bowery Fire Ins. Co., vs. N. Y. Fire Ins. Co. 16 Pet., 495, Carpenter [**4]  vs. Providence Washington Ins. Co. 4 How., 216. Double insurance is where the same party insures the same property twice with a view to a double compensation. Angel on Fire Ins., 21, 131. Additional insurance is where the same party insures the same property after it has improved or increased in value, for the purpose of additional security. Separate valuation in the same policy does not, as a general rule, require the policy to be construed as separate insurances. The cases cited on the other side are exceptions to the general rule, and depend upon the peculiar phraseology of the particular policies. The exception is, that where the language of the policy is equivocal or admits of alternate constructions, that construction will be given which favors indemnity; but in this policy there is neither equivocal language nor such as will admit of alternate constructions. Its conditions do not point solely to a case of double insurance, but apply to and embrace both double and additional insurances. The subject matter insured the second time was the same. But the renewal of this policy is the same as that in the case in 10 Barbour, 440, cited upon the other side, and upon that authority there [**5]  is an end to the separate policies if they ever were such at the beginning.

2nd. The instruction granted by the court is erroneous, because:--1st, the policy sued on being a contract in writing, its construction is a matter of law to be settled by the court and not the jury. 2nd, the property insured being a shifting stock of merchandise, the court erred in deciding that the plaintiff must recover unless the jury believed the property in the second policy was "the same property" insured by the defendant; the instruction goes upon the idea of identity instead of similarity of a shifting stock, and was, therefore, calculated to mislead the jury. 3rd, there was also error in referring it to the jury to determine what was "proper notice" to the defendant.

Wm. F. Frick for the appellee.

There are but two questions in the case:--1st. Is there a double insurance at all? 2nd. If there is a double insurance of a part only, does this vitiate the whole policy?

1st. There was no double insurance. Double insurance and contribution are correlative terms, and there can be no such thing as a double insurance where there is not a right of contribution between the insurers. Here [**6]  the first insurance was $ 300 on music, musical instruments, &c., generally; the second on piano fortes, printed music, &c., separately valued; and upon all the authorities there can, in such a case, be no contribution between the insurers, and therefore no double insurance. Angel on Ins., 21, 131. 5 Hill, 298, Howard Ins. Co., vs. Scribner. 10 Barbour, 440, Driggs vs. Albany Ins. Co. 2 Watts & Seargt., 545, Stacy vs. Franklin Ins. Co. 1 Marshall on Ins., 146, 148. 2 Do., 600, 601, 788.

2nd. The rule is, that all policies of insurance are to be construed liberally and always in favor of the insured--they are not subjected to any critical strictness or technical interpretation. 1 Duer on Ins., 161 to 166. Here, though all the goods to the extent of $ 1000 were covered by one policy, yet by its true construction there were separate and distinct contracts of insurance, one for $ 700 on books and stationery and the other for $ 300 on music, musical instruments, &c., each governed by the general clauses of the policy; and the condition as to double insurances means, that if double insurance be effected, without notice, on all the property insured, then the policy is void; if upon one [**7]  only of the separately valued subject matters of insurance, then it shall be void as to that one only. Marshall on Ins., 600, 601. 12 Mass., 80, Davis vs. Boardman. 7 Hill, 122, Trench vs. Chenango Co. Ins. Co. 10 Johns., 234, Deidericks vs. Commercial Ins. Co. There was no double insurance on the stock of books and stationery valued at $ 700, and there was, therefore, no forfeiture of his insurance on these.

3rd. If either of the above positions be correct, the court was right in refusing the defendant's prayer. The instruction granted did no injury to the defendant, because it being admitted that no notice of the second insurance was given, the question of notice was not in the case; and the question, whether the goods were the same, is a question of fact for the jury. 2 McMullan, 220, Neve vs. Columbia Ins. Co.  

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

OPINIONBY:
MASON 

OPINION:

 [*169]  MASON, J., delivered the opinion of this court and his own separate opinion as follows:
The court are of opinion this judgment ought to be reversed. A majority of the court think that the proper construction of the covenant is, that if any part of the goods [**8]  mentioned therein was afterwards insured in any other insurance office without notice to the appellants, as provided in the covenant, the policy thereby becomes void and of no effect, and therefore it was error in the court below to refuse the instruction asked for by the appellants.
While I concur with the court that the judgment ought to be reversed, I base my opinion upon different grounds. Although there was but one policy of insurance in fact, yet it embraced, in my opinion, two distinct and separate insurances, one for $ 700 and the other for $ 300, upon different goods. The proper construction of the covenant, I think, is this: if any of the goods embraced in either one of the contracts were insured in another office without notice, it vitiated the policy only as to that contract of insurance in which the goods thus reinsured were embraced; and if a part of the goods embraced in each contract was afterwards insured elsewhere without notice, it would vitiate the whole policy, and there could be no recovery against the appellants by the appellee in this action.
The instruction which was given by the court seems to be based upon the assumption, that the liability of the appellants [**9]  

 [*170]  was discharged only to the extent of the goods actually afterwards reinsured, and the verdict of the jury appears to rest upon the same grounds, otherwise it would be difficult to discover how the amount of the verdict was arrived at.
I think, therefore, the instruction which was given by the court was wrong, while I think that asked for by the appellants was properly refused.
Judgment reversed and procedendo awarded. 

5 of 48 DOCUMENTS 

NEILSON POE, Garn. of DENNIS C. LIENTARD, vs. LEVI DUCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 1; 1853 Md. LEXIS 61 

DECEMBER, 1853, Decided 

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

This was an attachment, sued out of Baltimore county court by the appellee, Duck, upon a judgment recovered by him in said court against Lientard, upon the promissory note set out in the opinion of this court. The writ was laid in the hands of Poe, as garnishee, who appeared and pleaded nul tiel record, and nulla bona of defendant in his hands, upon which issues were joined.

Exception. The plaintiff offered in evidence the record of the judgment upon which the attachment issued, and it was admitted that Lientard, after its recovery, to wit, on the 16th of October 1849, applied for the benefit of the insolvent laws of Maryland, and that Poe was duly appointed his permanent trustee, and has in his hands funds sufficient to pay the attachment if they are liable thereto, and that Duck was, at the time of making the contract, and still is, a citizen of Pennsylvania. The garnishee then asked the instruction set out in the opinion of this court, which the court below, (FRICK, C. J., and LE GRAND, A. J.,) refused to give, and this refusal constitutes the only exception in the case. The verdict and judgment was in favor of the plaintiff, and the [**2]  garnishee appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A contract made in Maryland between a citizen of this State, (the debtor,) and a citizen of another State, (the creditor,) whether it be regarded as a Maryland contract or not, is not affected by a discharge of the debtor under the insolvent laws of this State, because the creditor is a citizen of another State.

Whatever operates to discharge the contract according to the law of the place where it is made or to be performed, discharges it everywhere.

The fact that the foreign creditor brings suit upon his contract in the courts of this State, does not subject his contract, or the judgment obtained upon it, to the operation of our insolvent laws.

State insolvent laws apply to all contracts made within the State between citizens of the State, but not to those made within a State between a citizen of that State and one of another, nor to those not made within the State.  

COUNSEL:
Levin Gale for the appellant, contended, that the prayer should have been granted, because:

1st. The contract on which the judgment was obtained by the appellee against Lientard, was made, and to be performed, in Maryland, and is now sought to be enforced here. Story's Conflict of Laws, sec. 317. 12 New Hamp., 520, Bank of Orange County vs. Colby. 8 Johns. Rep., 189, Thompson vs. Ketcham. A citizen of another State cannot come here and make a contract, and then throw off our laws subject to which it is made. If he makes an usurious contract, it is clearly subject to the laws of this State. In this very case the appellee knew he was making a contract subject to our laws, for he procured the note to be stamped according to their requirements.

2nd. The contract is therefore governed by the laws of Maryland, and the insolvent laws under which Lientard was discharged having been passed prior to the contract, they either entered into and formed a part of it, or controlled it at its formation, so as to subject it to said laws, and therefore the discharge thereunder did not violate or impair the obligation of the contract. The power over [**3]  the contract results from its being made in the State, and not from the citizenship of the parties. 1 Wash. C. C. Rep., 340, Camfranque vs. Burnell. 1 Howard 315, Bronson vs. Kinzie. 1 Cowen, 103, Sherrill vs. Hopkins. 19 Wend., 150, Parkinson vs. Scoville. 3 Cowen, 147, Raymond vs. Merchant. 12 Johns. Rep., 142, Hicks vs. Brown. The final opinion of Judge Johnson, in the case of Ogden vs. Saunders, 12 Wheat., 358, is relied upon by the other side as a conclusive authority, that State insolvent laws bind only citizens of the State in which they are enacted. This decision has given rise to more discussion than any case in the books. The opinions of Judge Washington, 259, 264, 265; of Judge Thompson, 297, 298, 299; of Judge Trimble, 321, 324, 325; and of Judge Johnson, 282, 284, 285, show upon what ground that decision was placed. See also 12 Wheat., 369, Shaw vs. Robins, and 1 Kent's Com., 465. The opinion of Chief Justice Marshall, 333, shows that the case is positive authority only so far as the facts of the case go. It does not decide the question at issue here, and the Supreme Court itself, in 5 Howard, 295, 307, Cook vs. Moffat, has refused to recognise the authority of Ogden vs.  [**4]  Saunders on this point.

C. D. Barnitz for the appellee. There have been several decisions in Maryland, that where the contract and the citizenship are both foreign, the insolvent laws do not affect it. There is no evidence in this case that the contract was made in this State, except the fact of the note being dated here, which is not sufficient to make it a Maryland contract. But the single question, whether the foreign citizenship alone will protect the contract, ought now to be decided. I insist that it does. State insolvent laws can operate but upon two classes of persons:--1st, those who assent to the operation of such laws, by participating in proceedings had under them, 3 Peters' Rep., 411, Clay vs. Smith; and 2nd, all citizens of the State where such laws are enacted, because they are a part of the law making power of the State, 1 Cush. Rep., 430, Brigham vs. Henderson. As to citizens of other States, they are inoperative and null under the constitution of the United States. The very question raised here was decided by the Supreme Court, in Ogden vs. Saunders. The contract in that case "was made and to be executed in the State of New York," and the question was, whether [**5]  a discharge under the insolvent laws of New York, "would bar" a suit upon it by the plaintiff who was a resident of Kentucky? (12 Wheat., 293,) and it was decided that it did not. In Boyle vs. Zacharie, 6 Peters, 348, the Supreme Court affirm the final opinion of Justice Johnson, in Ogden vs. Saunders, and say, "whatever principles are established in that opinion are to be considered no longer open for controversy, but the settled law of the court." In Frey vs. Kirk, 4 G. & J. 509, our own Court of Appeals adopts the case of Ogden vs. Saunders, and say it is the final and conclusive law of this State. See also 3 Story's Com. on the Cons., secs. 1110, 1384, and 2 Story's Rep., 383, Springer vs. Foster, where the same view of that case is adopted by Mr. Justice Story. See also 4 Wheat., 122, Sturges vs. Crowninshield. 5 Cush., 83, Tebbetts vs. Pickering. 8 Pick., 194, Braynard vs. Marshall. 10 Metcalf, 594, Savage vs. Mark. 2 Blackford, 394, Pugh vs. Busel, and 5 Gill 441, Larrabee vs. Talbott. 1 Md. Ch. Decisions, 281, Potter vs. Kerr. 2 Md. Rep, 457, Owens vs. Sprigg.  

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

OPINIONBY:
TUCK 

OPINION:

 [*4]  TUCK, J., delivered [**6]  the opinion of this court.
This case commenced by an attachment issued at the instance of the appellee, to affect funds in the hands of the appellant, as the trustee in insolvency of Dennis C. Lientard, a debtor of the appellee.
It appears that Duck, in May 1849, recovered judgment in Baltimore county court against Lientard, on the following promissory note:
"BALTIMORE, Sept. 14, 1848.
Three months after date I promise to pay Levi Duck, or order, one hundred and eight dollars, and ten cents, for value rec'd.
DENNIS C. LIENTARD."
That at the date of the note, up to and at the time of the trial, Duck was a citizen of Pennsylvania; that the maker of the note applied for the benefit of the insolvent laws in October 

 [*5]  1849, upon which the appellant was appointed his trustee, and that he has in hand, of the insolvent's estate, sufficient to pay this claim, if condemnation be awarded to the appellee. Upon these facts the garnishee asked the court to instruct the jury, "that if from the evidence they shall find that Lientard applied for the benefit of the insolvent laws of Maryland, and that the funds attached in the hands of the garnishee came into his possession as trustee [**7]  under said application; and shall further find, that the contract on which judgment was recovered by the said plaintiff against Lientard, was made and contracted within the State of Maryland before said application, then the plaintiff is not entitled to recover against the garnishee, although the jury also find that the plaintiff was, at the time of making the contract, and has been ever since, a citizen of the State of Pennsylvania," which instruction the court below refused.
The counsel for the appellant contends, that the contract on which the judgment was obtained by the appellee against Lientard, was made and to be performed in Maryland, and that, being a Maryland contract, the discharge of the debtor under her insolvent laws does not impair its obligation. On the part of the appellee it is insisted, that whether the contract be a domestic one or not, the discharge is inoperative as to citizens of other States.
We think that the judgment of the court below must be affirmed, because the creditor is a citizen of another State, and shall not express any opinion on the question whether the contract is a Maryland one or not. The cases referred to by the appellant's counsel on this [**8]  point, are not precisely the same with the present, though they seem to sanction the doctrine advanced by him; but a different opinion was expressed in Goodwin vs. Holbrook, 4 Wend. 377, where the parties to a contract lived in different places, and a question arose as to the place of performance, the contract being silent on that point, and the court held, that if the payment had been to be made in money, there could not have been a doubt as to the place of performance; it would have been the duty 

 [*6]  of the defendant to seek the plaintiff in order to make the payment. And so in Towne vs. Smith, 1 Woodbury and Minot, 128, Woodbury, J., in discussing the constitutionality of State insolvent laws, refers to Braynard vs. Marshall, 8 Pick. 194, as having decided that a negotiable note, not restricted on its face to be paid within the State, may be considered as payable wherever the indorsee may live, and is not affected by a subsequent discharge in the State where the contract was made. He refers, however, to several cases as opposing this doctrine, and intimates that, on this and other doubtful points, it may be proper, on the principle [**9]  of the common law, to lean towards vigilant creditors, as against others less watchful, and against such debtors as have been improvident. Without adopting this suggestion, we deem it unnecessary to determine the point in the present cause, and shall consider whether this discharge was invalid as against Duck, merely because he was a citizen of another State.
It is unnecessary to examine the cases commented upon at the bar, for the purpose of ascertaining how far they can be reconciled, because, whatever discussion has taken place upon the supposed conflict of opinion among the judges of the Supreme Court of the United States, in the several cases in which the constitutionality of State insolvent laws has been considered, it is no longer to be doubted that the ultimate opinion delivered by Mr. Justice Johnson, in Ogden vs. Saunders, 12 Wheat. 213, has settled the law upon the points there stated.  Boyle vs. Zacharie and Turner, 6 Peters 348, 634. Cook vs. Moffat, 5 Howard 307. Frey vs. Kirk, 4 Gill and Johns., 509.  Larrabee vs. Talbott, 5 Gill 426. In 6 Peters 348, Marshall, C. J., uses [**10]  this very explicit language: "That opinion is to be deemed the opinion of the other judges who assented to that judgment. Whatever principles are established in that opinion are to be considered no longer open for controversy, but the settled law of the court."
The counsel for the appellant, however, insists, that the question now before the court is not covered by that opinion. 

 [*7]  In this view of the case we do not concur. If we are correct in supposing that no reliance was placed on the fact that the discharge obtained in New York was set up, not in that State, but in another, (and of this we think there can be no doubt, because what would operate to discharge the contract, according to the law of the place where made or to be performed, would discharge it everywhere, Confl. Laws, sec. 331,) there was, according to the facts of the case, no other question for decision than the validity of the discharge as against a foreign creditor, the contract having been made and the discharge having been obtained in the same State.
If this be treated as a contract to be performed in Maryland, because dated here, there will be discovered no substantial difference between this case [**11]  and Ogden vs. Saunders, except that here the discharge is relied upon in a State court of the place of the contract, and in that cause it was obtained in New York, but pleaded in the district court of Louisiana, the discharge in each case having been obtained in the State where the contract was made. This is a note made in Maryland, payable to a citizen of Pennsylvania. In Ogden vs. Saunders, the cause of action was a bill of exchange drawn in Kentucky on Ogden, a citizen of New York, and there accepted by him, in favor of Saunders, a citizen of Kentucky, by which, as far as the acceptor was concerned, it became a New York contract. (See Lizardi vs. Cohen, 3 Gill 430. Confl. Laws, secs. 317, 319.) The Supreme Court held, that such discharge was inoperative as against Saunders. We do not find that any notice was taken of the fact that the discharge was set up in a State other than that in which it had been obtained. Nor is this circumstance alluded to in any of the subsequent cases as having entered into the conclusions to which the majority of the court arrived.
That opinion has been frequently examined, and sometimes objected to, but not so much on [**12]  account of difficulty in ascertaining what it decided, as because judges have not sanctioned its conclusions, or agreed with the course of reasoning by which these results were arrived at. The judge says: 

 [*8]  "The question now to be considered is, whether a discharge of a debtor under a State insolvent law, would be valid against a creditor or citizen of another State, who has never voluntarily subjected himself to the State laws, otherwise than by the origin of his contract." We are not to suppose that it was meant to deny the right of a foreign creditor to sue in the State courts, except at the expense of the very preference which he was seeking to enforce, as secured by the constitution. It would be a mere mockery to accord to him a privilege over the domestic creditors, as the holder of a promissory note, and then deny to him its enjoyment the moment he sought to avail himself of the right by legal process. It is now understood that it makes no difference whether the creditor sues in a Federal or State court. In either his preference is recognised, except where he comes in for his dividend, or asserts his claim under the proceedings in insolvency. Owens vs. Bowie, 2 Md. 457, [**13]  and the cases cited.
The reasoning of the judge and his reference to cases show, that he was considering the extra-territorial effect of laws of this description, upon the rights of citizens of other States, merely as such non-residents, and without reference to the place of the contract. We are informed by him that the courts of this country, upon international principles, had discarded the doctrine of the English courts, by which the discharge of a bankrupt is held to be effectual against contracts of the State that gives the discharge, whatsoever may be the allegiance or country of the creditor. Proceeding to treat the question as affected by the provisions of the constitution, he considers that the evils that might grow out of the assertion of a power over the rights of citizens of other States, upon the doctrine of jurisdiction of courts over contracts, will be avoided, if the power of States over contracts, after they become the subject exclusively of judicial cognizance, is limited to the controversies of their own citizens, beyond which they cannot advance without deciding upon the rights of persons, without giving them a sufficient opportunity 

 [*9]  of being heard. And,  [**14]  concluding this branch of the case, he considered "the discharge under a State law as incompetent to discharge a debt due a citizen of another State;" and that, as between citizens of the same State, a discharge of a bankrupt by the law of that State, is valid as it affects posterior contracts; that as against creditors, citizens of other States, it is invalid as to all contracts.
To show that this point was decided in that case, we need only adduce the testimony of one of the eminent jurists who concurred in the opinion. Judge Story, in 3 Comm. on Const., sec. 1103, says: "No State can introduce any system which shall extend beyond its own territorial limits, and the persons who are subject to its jurisdiction. Creditors residing in other States cannot be bound by its laws." See also sec. 1110. And, at sec. 1384, in treating of this subject more at large, and giving the result of the various decisions, he says, that insolvent laws apply to all contracts made within the State, between citizens of the State; that they do not apply to those made within a State between a citizen of that State, and one of another State; and that they do not apply to contracts not made within [**15]  the State. For which he refers to Ogden vs. Saunders, 12 Wheat. 213. M'Millan vs. M'Neill, 4 Do. 209. See also Confl. Laws, 341. And more recently, sitting in the case of Springer vs. Foster, 2 Story's Rep., 383, he declared it to be "the settled doctrine of the Supreme Court, that no State insolvent laws can discharge the obligations of any contract made in the State, except such contracts as are made between citizens of that State; and that such was the decision in the case of Ogden vs. Saunders, afterwards affirmed in Boyle vs. Zacharie and Turner, 6 Peters 348." This interpretation of Judge Johnson's opinion is also recognised in 1 Woodbury and Minot, 124; 1 Cushing, 430; 5 Do. 83; 2 Blackf. 394; and in several other cases referred to in these decisions.
In the case of White, et al., vs. Winn and Ross, before the Circuit Court, this question arose, and must have been decided in favor of the foreign creditors on the ground of citizenship 

 [*10]  alone, because it was a case of a Maryland contract, the judgment on which the attachment was issued having been recovered [**16]  on bills of exchange drawn in Pennsylvania, but accepted in Maryland, in favor of the plaintiffs, citizens of Pennsylvania. See 8 Gill 499. 2 Md. 468. This was precisely the state of case in Ogden vs. Saunders, with the exception that the discharge was relied upon in Louisiana. No allusion whatever is made by his honor, Judge Taney, to any other ground for his opinion, but he says, (8 Gill 501,) "it is to be assumed that the plaintiffs, as citizens of Pennsylvania, are not bound by Jones' application for the benefit of the insolvent laws. They may deny the validity of the proceeding."
This view of the law is also taken by the Court of Appeals, in Frey vs. Kirk, 4 Gill and Johns., 519, where it is said that one of the principles deducible from the decision in Ogden vs. Saunders, is, that State insolvent laws, though constitutional in their action upon the rights of their own citizens, are unconstitutional when they affect the rights of citizens of other States, and that as to these they are invalid as to all contracts. In that case the creditor was a citizen of Pennsylvania, and the note was drawn payable in that State.  [**17]  But, as we understand the opinion, the discharge of the debtor in Maryland was held to be invalid, not only because, according to Boyle vs. Zacharie and Turner, it affected a Pennsylvania contract, but also because, according to Ogden vs. Saunders, it affected the rights of a citizen of another State, independently of the place of the contract. We do not find that any court has entertained a different view in regard to the ultimate opinion of the court in Ogden vs. Saunders, than we have here expressed. As far as we have examined the cases they agree that, upon its authority, the discharge is invalid when set up against a citizen of another State.
Judgment affirmed. 

6 of 48 DOCUMENTS 

JOHN Y. DAY and THOS. GORSUCH, vs. WILLIAM Y. DAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 262; 1853 Md. LEXIS 28 

DECEMBER, 1853, Decided 

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

This was an action of trespass vi et armis, instituted on the 28th of March 1848, by the appellee against the appellants, and two others, who were returned non sunt, to recover damages for an assault and false imprisonment.

The appellants appeared and pleaded:--1st. Non cul. 2nd. Non cul infra annum. 3rd. A plea of justification, averring that the defendant, Gorsuch, was a justice of the peace for Baltimore county, and had view of a nuisance committed by the plaintiff, in the obstruction of the navigation and fishery of Gunpowder river, and for this caused him to be arrested and committed, and that the plaintiff was afterwards presented by the grand jury of said county for the commission of said offence, and an indictment found against him, to which he had pleaded. Issue was joined on all these pleas. All errors in pleading were waived, and it was agreed that any evidence might be given on either side which would be admissible under any form of action or pleading, and that the defendant, Gorsuch, was a justice of the peace for Baltimore county at the time the arrest complained of was made.

1st Exception. The parties having offered the [**2]  testimony set out in the opinion of this court, the defendant, Gorsuch, prayed an instruction, that if the jury find that he was a justice of the peace at the time, and acted, or claimed to act, in the execution of his office, then, inasmuch as the plaintiff had offered no evidence of notice of the cause of action having been given to him before the suing out of the writ, as provided by the statute of 24th Geo. 2, ch. 44, they must find for defendant. This prayer the court, (FRICK, C. J., and PURVIANCE, A. J.,) refused, and defendants excepted.

2nd Exception. The plaintiff then offered the two prayers stated in the opinion of this court, which were granted. The defendants then offered thirteen prayers, in substance as follows:

1st. Denies the plaintiff's right to recover, if Gorsuch saw him with his boat anchored in the river, and believed that this tended to obstruct navigation, and, acting in his official capacity, and on this belief, ordered the arrest and commitment.

2nd. That it was competent for Gorsuch, in his official capacity, to order the arrest by parol, if he saw the plaintiff obstructing the navigation of the river, and the defendant Day's right of fishing [**3]  therein.

3rd. Justifies the arrest as aforesaid for the nuisance, and commitment upon refusal to enter into recognizance to appear and answer for the offence, if Gorsuch saw the offence committed in his view.

4th. Justifies the arrest under the circumstances stated in the preceding prayer.

5th. Justifies the arrest by Gorsuch as aforesaid, if the other defendants were attempting in a peaceable manner to abate the nuisance and the plaintiff violently resisted, and threatened a breach of the peace if they persisted, and Gorsuch saw the plaintiff erect the nuisance, resist its abatement, and heard him make the threats.

6th. Justifies the arrest as aforesaid, if Gorsuch was present and believed it was necessary in order to avoid a breach of the peace.

7th. Justifies the arrest as aforesaid, if it was necessary to the peaceable abatement of the nuisance.

8th. Justifies the acts of the defendant, Day, if the nuisance interfered with his right of fishery, and he did not use unnecessary force in abating the same.

9th. This prayer was abandoned.

10th. That the plaintiff cannot recover against Day, if the nuisance obstructed his right of fishery and he [**4]  did nothing more than abate it.

11th. That there was no evidence that Day did anything on the occasion not necessary to the abatement of the nuisance, and which he had not a legal right to do.

12th. That if Day went for the purpose of abating the nuisance which obstructed his fishery, and while so doing the plaintiff commenced the affray, the latter cannot recover.

13th. Justifies the acts of Gorsuch, if the plaintiff, when arrested, as before stated, demanded no examination on the subject of the offence, produced no testimony, but declared his desire to go to jail, and refused to enter into recognizance for his appearance, to answer for the offence, and rejected Gorsuch's offer to become his surety therefor, the offence having been committed in the county of which Gorsuch was a justice.

The court rejected all of the defendants' prayers, to which refusal and to the granting of those of the plaintiff the defendants excepted. The verdict was for the plaintiff for $ 200 damages, and judgment accordingly, from which the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A party has the right to segregate any portion of the facts of a case from the whole body, and ask the instruction of the court upon them; it is for the other party, if he desires it, to ask the opinion of the court on the whole testimony.

A mittimus issued by a justice, directed the constable to take into his custody "the body of W. D., and him safely keep, to answer a charge of obstructing the navigation of Gunpowder river, until he shall be discharged by law." HELD:

That this authorised the commitment for no other offence than the obstruction of the navigation of said river, and there was no error in the court's granting an instruction to that effect.

If it be conceded that a justice of the peace may himself make, or order by parol, an arrest for a misdemeanor committed super visum, yet it ought to appear that at the time of the arrest he acted, and professed to act, in his official capacity, and he ought to notify the party arrested of such fact.

The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if its exercise involves a breach of the peace; when such is the case, the party erecting the nuisance must be proceeded against legally, by a warrant regularly issued upon charge made on oath.

Adversary and exclusive use would be indispensable to a several right of fishery in navigable water of this State, if it be conceded such a right could be acquired by prescription.

The first section of the statute of 24 George 2, ch. 44, requiring notice to be given to justices of the peace before suit brought against them, is not in force in this State.  

COUNSEL:
Charles F. Mayer for the appellant.

1st Exception. The statute of 24th Geo. 2, ch. 44, is in force [**5]  in this State, and notice before suit, as required by it, not having been given to the defendant, Gorsuch, of the cause of action against him as a justice of the peace, he ought to have had a verdict in his favor. 5 Bac. Abr., 427. Kelty's Rep. of Statutes, 253.

2nd Exception. The first prayer of the plaintiff leaves out the finding of malice. If in the acts of a judicial officer malice is wanting, there can be no action against him--if he acts honestly, without malice, he is exempt from liability, though he may have misjudged. 10 Mass., 365.

The obstruction of a navigable river is a nuisance--an indictable offence, (8 G. & J., 510. 4 Bl. Com., 167,) and the only question is, whether a justice of the peace had the right to take judicial notice of it and arrest the party? In all cases of offences committed in the presence of a justice, he has the right to make the arrest. 1 Chitty's Crim. Law, 17, 74. 1 Wilson, 158. 2 Hawk. Pleas of the Crown, 133. There may be an informal commitment and still the imprisonment be valid, especially where done without malice. 1 Chitty's Crim. Law, 109, 119. The committing officer has the power to detain the prisoner until the mittimus is made [**6]  out. 7 East, 537. 2 Hale's Pleas of the Crown, 122.

The learned counsel also contended, that the appellant, Day, had a several right of fishery in the river, and therefore had a right to abate the nuisance thereto.

Robert J. Brent for the appellee.

1st Exception. Kelty, in his report of the statutes, says, that the first section of the statute of 24th Geo. 4, ch. 44, is not in force in this State, and these reports the Court of Appeals have said may be relied on. 5 H. & J., 403. But if he acts from improper motives in a case where he has no jurisdiction, no notice is necessary. 1 Baldwin, 602. But again, there is no statement in this exception that proof of Gorsuch being a justice was read to the jury, or notice to the plaintiff of his acting on the occasion as justice, which must be done. 1 Russ. on Crimes, 623. So far as he acted without affidavit or process he was not executing his office, but was a simple trespasser, and cannot by the subsequent issuing of process set up his special privilege as justice. 2 Term Rep., 225, Morgan vs. Hughes. 1 Baldwin, 602.

2nd Exception. The first prayer of the plaintiff presents the construction of the warrant, and was rightly [**7]  granted. A party has the right to segregate any portion of the evidence and ask an instruction upon it. 1 Gill, 143. Nothing could be more illegal and void than this commitment:--1st, it is based on no oath or complaint, and on no precedent warrant. 2nd, it requires the constable to keep the prisoner, and this is erroneous. Latrobe's Justice, sec. 1602. 3rd, it is in the nature of a final commitment in a case not bailable. Latrobe's Justice, sec. 1603.

The second prayer assumes that there is no evidence to justify the arrest of the plaintiff, because of his obstructing the fishing privileges of John Y. Day, or any one else, in Gunpowder river. Suppose he was obstructing the common right of fishery in a navigable river, this is but a nuisance, and to justify his arrest by a breach of the peace, and detention for two hours until the arrival of a constable, it must be shown that the erection of a nuisance in a navigable stream justifies all that was done by the defendants. A public nuisance may be abated, but not by a breach of the peace or riot. 3 Bl. Com., 5. 9 Rep., 55. Upon the ground of abating a supposed nuisance, there was no power to arrest the plaintiff and detain him, see [**8]  same authorities, and also 2 Strange, 686. A nuisance is but a misdemeanor, and the party cannot be arrested for it without a warrant founded on a charge. 1 Baldwin, 602. 1 Chitty's Gen. Pr., 618. 2 Barn. and Cress., 699. 7 Bing., 316, Price vs. Severn. 3 Barn. and Adolph., 798, Fox vs. Gaunt. 5 Car. and Payne, 206, Rex vs. Birnie. 11 Johns., 486, Philips vs. Trull. Before the plaintiff could be forcibly removed, there should have been a request to depart. 1 Steph. N. P., 217. If this was a nuisance it was a public one, and the parties could not redress it by any private remedy. 8 G. & J., 510, 511.

There is no evidence that John Y. Day had any exclusive right of fishery in this river, and there has been no decision in this State that he could acquire such a right in a navigable river.

The prayers of the defendants, besides being liable to special objections, were all in conflict with the plaintiff's prayers, which the court had granted, and therefore were properly rejected.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*267]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted by the appellee,  [**9]  to recover damages for an assault and for false imprisonment. From the evidence it appeared, that William and John Day were the owners of adjoining fishing shores on the Gunpowder river, near its confluence with Bird river, and that the shore of William "had been immemorially used as a fishery," and that although John, "at one period," was in the habit of fishing higher up the stream, and in front of his own shore, the latter fishery ceasing to be advantageous, he shifted the range of his seine within the last three years preceding the institution of this suit, so as to carry it out in front of the shore of William; but, notwithstanding this common range for their seines, both fisheries could be conveniently carried on, it being easy to carry out the seine from one shore while that laid out from the other was drawing in; and that, so, this alternate use of the best fishing waters could be had by each party without interruption or delay. It also appeared, that while the seine of John was being laid out, William was anchored in his boat in the line which the seine of John would take, thus compelling an alteration of its intended direction. Evidence was also given that while the boat [**10]  of William was so anchored, John, Gorsuch and others, in another boat, pushed out to 

 [*268]  him, when a scuffle ensued, resulting in the capture of William and the bringing of him ashore. There was testimony to show that William commenced the struggle, and also that violence was first used by John. When William reached the shore he was committed by the defendant, Gorsuch, who had been present during the difficulty between William and John Day. That commitment was in these words:
"State of Maryland and Baltimore county. To William K. Swain, constable: Take into your custody the body of William Y. Day, and him safely keep, to answer a charge of obstructing the navigation of the waters of Gunpowder river, until he shall be discharged by law. Witness my hand and seal this 19th day of May 1847. Thomas Gorsuch, (Seal.)"
Two hours elapsed from the time of the capture of William Day until the delivery of this commitment to the constable. There is evidence in the record to show that Gorsuch urged him to give bail, offering to become it himself, and that the latter refused, as he did also a similar offer made by a friend in Baltimore city, preferring to go to jail, saying that the damages [**11]  would be increased thereby. He remained in jail six hours, when he was discharged on his entering into a recognizance to answer at court.
There was a great deal of other testimony given, both by the appellants and the appellee; but the above statement is sufficiently full to present the questions which we are called upon to determine.
On behalf of the plaintiff, at the trial below, two instructions were asked of the court, which were given; and on behalf of the defendants thirteen, all of which were refused. The ninth prayer of the defendant has been abandoned.
Without recurring to the precise verbal structure of the prayers on behalf of the defendants, it may be said, that they are in direct conflict with the legal propositions contained in those submitted on the part of the plaintiff, and, as a consequence, if the latter were properly granted the others were rightfully refused.

 [*269]  The first prayer of the plaintiff merely asks the court to instruct the jury, that the commitment given in evidence authorised the commitment of William Day for no other offence than the obstruction of the navigation of the Gunpowder river. This is clearly the meaning of the mittimus, the charge [**12]  being specifically set out in it, and the Court of Appeals, in the case of Whiteford vs. Burckmyer and Adams. 1 Gill 127, have recognized the right of a party to segregate any portion of the facts of a case from the whole body and ask the instruction of the court on them. It is for the other party, if he desires it, to ask the opinion of the court on the whole testimony. We do not see how any other construction could have been given to the commitment, and therefore discover no error in this particular.
The second prayer of the plaintiff asserts the broad proposition, that there was no evidence of a legal authority to arrest him. This prayer covers the whole case, and is in direct opposition to each and every of the prayers asked on behalf of the defendants.
It is clear from all the testimony, that the plaintiff was arrested without warrant.
The undisputed evidence is, that the plaintiff had anchored his boat in the stream, and that the defendants went out to the place and there, after a scuffle, arrested and brought him to the shore. There is none whatever that he was, at the time of the arrest, notified Gorsuch was acting in the capacity of a justice [**13]  of the peace; but even were it conceded a justice of the peace may himself make an arrest for a misdemeanor committed super visum, yet it ought to appear, for the future protection of the party arrested, that at the time of the arrest he acted, and professed to act, in his official capacity. Any other rule might enable a person in the commission to excuse his tortious acts under the plea of a mistake of judgment in the discharge of the judicial duties of his office. In the case now under consideration there is not the slightest evidence Gorsuch, at the time of the arrest, professed to act as a justice of the peace, nor is there any that he did so, nor that the 

 [*270]  plaintiff had any knowledge of his being a justice, until the arrival of the constable, which did not happen until two hours after the arrest had taken place.
It is unquestionable, that if the act of the plaintiff in anchoring his boat in the stream was illegal, it was so simply because it was an interruption to the public right of navigation or of fishery, and, as such, punishable by indictment. The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if [**14]  its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against legally; that is, a charge must be made on oath and a warrant regularly issued. In the case before us the attempt to remove the boat did, in fact, involve a breach of the peace. It brought about a scuffle in which violence was used on both sides. When such a state of things appeared to be the inevitable result of the attempt to remove the boat of the plaintiff, the defendants ought to have desisted and to have made complaint before the proper authority; or, if it were conceded, as we have before remarked, that a justice of the peace has the right on view to order an arrest by parol, and if Gorsuch assumed on this occasion to have acted in his official capacity, he should have notified the plaintiff of such fact.
We regard the capture of the plaintiff and his boat as but the act of parties assuming to abate what they considered a public nuisance, which they were not authorised to do if it could not be effected without a violation of the peace.
There is no evidence in the record as to the several right of fishery on the part of the plaintiff; and although it [**15]  was discussed at the bar, we do not feel called upon to decide whether--in the absence of legislation to that effect--it is competent to a person by prescription to acquire a several right of piscary in any of the navigable waters of this State. There is nothing in the proof from which it could be properly inferred that the plaintiff, or those under whom he claimed, had exercised an exclusive right of fishery for a time sufficiently long to justify the presumption. The evidence only 

 [*271]  goes to the extent of showing the right had been exercised immemorially, but not that it was adversary and exclusive, and, in any event, such adversary and exclusive use would be indispensable to a several right of fishery in a navigable water of this State.  Delaware and Maryland R. R. Co., vs. Stump, 8 G. & J. 479.
The defence set up for the defendant, Gorsuch, under the first section of the act of Parliament of 24 George 2, ch. 44, cannot avail him, it not being in force in this State. Chancellor Kelty, in his report of British statutes, applicable to our condition, states the first section of this act not to be in force in this State; and this [**16]  court, in the case of Dashiell, et al., vs. Attorney General, 5 H. & J. 403, have said that the report "was compiled, printed and distributed under the sanction of the State for the use of its officers, and is a safe guide in exploring an otherwise dubious path."
For these reasons we affirm the judgment of the county court.
Judgment affirmed. 

7 of 48 DOCUMENTS 

JOHN H. ING vs. RICHARD CROMWELL, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 31; 1853 Md. LEXIS 13 

JUNE, 1853, Decided 

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

The appellant executed a mortgage to the appellee, dated the 5th of November 1849, of certain lots in the city of Baltimore, to secure the payment of $ 3600, and interest thereon, for the principal of which he had passed to the mortgagee his promissory note, of even date with the mortgage, payable in three years, and for the interest, his six notes also bearing even date with the mortgage and payable respectively at six, twelve, eighteen, twenty-four, thirty and thirty-six months. The condition was, that the mortgage should be void upon payment of said sum, with legal interest thereon, at the times and in the manner specified in said notes, otherwise to be in full force, &c. This mortgage was executed under the act of 1833, ch. 181, and contains the assent of the mortgagor to the passing of a decree, as provided for in said act. A portion of the property embraced in this mortgage was conveyed to the mortgagor, by deeds of mortgage from several parties.

The mortgagee filed his petition in Baltimore county court, on the 22nd of January 1851, for a decree for a sale, according to the provisions of said act; and on the same [**2]  day, the court passed a decree for the sale of the lots on Madison street, embraced in the mortgage, or so much thereof as may be necessary, appointing a trustee for that purpose, directing him to sell upon the usual notice, by advertisement, and prescribing the terms of sale to be for cash. Afterwards and before the sale, the mortgagor filed his petition, asking leave, upon the grounds therein stated, to file a bill of review for errors of law upon the face of the decree, upon which the court passed an order granting leave to file such bill on or before the 1st of March then next, and in the meantime suspending proceedings under the decree. Afterwards, on the 20th of March 1851, no bill of review having been filed, the court passed an order directing the trustee to proceed in the execution of the decree. The mortgagor thereupon appealed from the decree.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Under the 2nd section of the act of 1833, ch. 181, relating to mortgages in Baltimore city, the court is only restricted in fixing a time for the sale to "one of the periods limited" in the mortgage for forfeiture thereof, and it may prescribe such terms of sale as shall seem proper.

Under this authority it is clearly within the power of the court to direct, as one of the terms of sale, that the property shall be sold for cash.

The mortgage itself fixes the time for the payment of the money, and the mortgagor cannot complain that further notice was not given to him.  

COUNSEL:
John H. Ing for the appellant.

1st. The proceeding being ex-parte, the law must be followed strictly. The appellant respectfully insists, that under this act of 1833, no decree for sale can pass, without giving to the defendant a day to pay into court the amount justly due to the complainant [**3]  under his mortgage, and no day having been fixed by the decree in this case, that is error, and should on appeal be corrected.

2nd. Under the second section of this act, the terms of sale are left discretionary with the court. In this case the terms are "cash." To allow the property so to be sold will be ruinous and oppressive to the defendant, and without benefit to the complainant. A modification of the decree in this respect, allowing the complainant, through the trustee, to sell upon terms, one-third cash, one-third on credit of one year, and remaining one-third on credit of two years from day of sale, credit payments to bear interest and be secured to the satisfaction of the trustee, would be equitable and just, and in nowise affect the complainant or impair his rights.

3rd. Under this act, all parties who may in anywise be affected by the sale ordered by the court, should be made parties to the proceeding, and thus opportunity be afforded them to arrest the sale, by paying, on or before the day provided and fixed by the decree, the sum necessary to save their property and interest from being sacrificed by a public sale. The record shows a number of persons to be interested [**4]  in the property who are not brought before the court, and the decree is erroneous in not having proper parties made to it.

4th. The decree does not give the title of the term of the court at which it was passed, and this is error.

5th. The appellant having brought himself before the court by his petition, and having made himself a party thereto, and being before the court, ex-parte proceedings were taken in the case, when he should have had notice and a hearing before the court's order, of the 20th March 1851, was passed.

Milton Whitney for the appellee.

1st. There is no error in the decree, in not giving the defendant a day to pay into court the amount due on the mortgage. By section second of this act the object thereof is expressed: "In order to the facilitating the enforcement of mortgages of real property and estate in the city of Baltimore." It authorises the mortgagee, at any time after filing the mortgage to be recorded, to submit to the court the conveyance or copies thereof; and the court may thereupon forthwith decree, that the mortgaged premises be sold, not as prescribed by the third section of the act of 1785, ch. 72: "If the money is not paid within [**5]  the time limited in the decree," therefore making it imperative upon the court to fix a day for the payment of the money, but "at any one of the periods limited in said conveyance for the forfeiture of said mortgage." And by section third, it authorises the trustee to sell "after the arrival of said period." The right of the defendant under the act of 1785 to a day, to be limited in the decree for payment of the money, arises from the language used in its third section. See David, et al., vs. Grahame, 2 H. & G., 94. The act of 1833 was passed to facilitate the enforcement of mortgages, and provides for a decree before forfeiture, and the only limit to be fixed by the decree is that fixed by the parties by the terms of their contract. In the case of David vs. Grahame, the court held, that under the act of 1785, where the sale was ordered on credit, no day need be limited, as the sale on credit was equivalent to a day being given. Under the act of 1833: a decree for a sale at the time limited in the conveyance for a forfeiture, is a day limited for the payment of the money, to wit, the day fixed upon by the parties; and it was the intention of the legislature to hold the parties to their [**6]  contract, and not allow the court to make a new contract between them, by giving an additional time after forfeiture. The intention was, to remove the delay incident to the giving of time for the payment of the money after forfeiture of the mortgage, and the language used can receive no other construction.

2nd. There is no error in ordering the premises to be sold "for cash." The terms of sale are left entirely at the discretion of the court, having jurisdiction to pass the decree. This court is to presume that this discretion was exercised by the court below, and will not, upon appeal, exercise the powers vested in that court and undertake to say, whether the terms of sale prescribed are or are not advantageous to the parties. The defendant below might have come into court, and, by petition, set forth any facts to operate upon their minds.

3rd. There was no error in not making other persons parties to the proceedings. The decree is for the sale of the two houses on Madison street. It touches none of the other property embraced in the mortgage. The record shows no persons to be interested in that property prior to the appellee. His mortgage constitutes the first incumbrance [**7]  on it. Under the act of 1785, the ordinary proceedings in chancery were to be observed--all persons interested to be made parties, subpoenas to be issued, and all the delay incident thereto. The act of 1833 requires the assent of the mortgagor. That assent goes upon record, and is information to the world, in the same manner and to the same extent, as a decree. He who takes a subsequent interest in the mortgaged premises, takes it not only subject to the mortgage, but also to this special power. The mortgagee acquires a right which he did not possess under the act of 1785, and no act of the mortgagor can deprive him of it. If the mortgagor could, by various assignments subsequent to the mortgage, compel him to resort to all the delays incident to the old system, and make all persons subsequently interested parties, he would then deprive him of that right. The object of the statute is to facilitate: can the mortgagor defeat it by making an assignment? This act contemplates the making of no person party. All it requires is, "that the conveyance be submitted to the court," who may thereupon forthwith decree. It is a proceeding in rem, and all subsequent incumbrancers take the property [**8]  subject to this power in the court, and right in the mortgagee, by virtue of the assent, which is made a matter of record. They are not to be made parties except upon their own petition.

4th. There is no law or rule of practice requiring a decree to give the title of the term of the court at which it was passed. The practice has uniformly been, not to give the title, but the day of the month upon which the decree is passed. This is given in the present decree. The courts have authority to pass decrees at any time. The month of March and August are not "term-times." A decree passed in either of those months could not give the title of the term, as it would not be passed in term-time.

5th. The appellant was not entitled to notice and a hearing before the court's order of March 20th, 1851. By order of the court, the appellant had leave to file a bill of review, provided the same was filed on or before the 1st of March then next. On the 20th March, no bill of review having been filed, the trustee was ordered to proceed. The appellant had lost all benefit of the prior order in not complying with its conditions, and there was no error in not giving him notice before the order of [**9]  March 20th.  

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

OPINIONBY:
MASON 

OPINION:

 [*36]  MASON, J., delivered the opinion of this court.
We find no error in the decree of the court below. The application for a sale was not made till after default by the mortgagor, and therefore no sale could take place till after such default. By reference to the act of 1833, ch. 181, sec. 2, the court is only restricted in fixing the time for a sale, "to one of the periods limited in said conveyance for the forfeiture of said mortgage."
The act further provides, that the court shall prescribe such terms of sale as shall seem proper. Under this authority it was clearly within the power of the court to direct, as one of the terms of sale, that the property should be sold for cash.
The mortgage itself fixes the time for the payment of the money, and therefore the mortgagor can have no good reason to complain that further notice was not given to him.
We think the decree should be affirmed.
Decree affirmed, with costs. 

8 of 48 DOCUMENTS 

JAMES H. CASSILLY and wife, FRANCIS J. MEYER and THOMAS PATTON, and wife, vs. ANDREW and Jos. MEYER, Exc'rs of ANDREW MEYER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 1; 1853 Md. LEXIS 10 

JUNE, 1853, Decided 

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

This appeal was taken from an order of the orphans court, dismissing the petition of the appellants for an account and distribution of certain assets of the estate of Andrew Meyer, deceased, in this State. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

A citizen of Ohio executed his will there, and died leaving real and personal estate in Maryland, and also five children, all residents of Ohio, two of whom he made his executors. Three of these children filed a petition in the orphans court of Baltimore city, where ancillary letters of administration had been granted, against the executors, alleging payment of debts, legacies, &c., and praying for an account of all the assets in this State and distribution thereof here. The executors answered, admitting the facts, but insisting, among other things, that the distribution belongs exclusively to the courts of Ohio. HELD:

That the courts of this State are not bound to transfer the assets to Ohio for distribution there, but it is a matter of judicial discretion with them to do so, or to distribute them here, that discretion to be exercised according to the circumstances of the case.

Under such discretion the assets may be distributed by the court granting the ancillary administration, where the legatees or distributees reside within the jurisdiction of such court, or when they seek their remedy there.

In this case all the parties interested in the assets being before the court in this State, and no circumstance showing any particular propriety or necessity for transferring the property to Ohio being presented, but, by so doing, further delay and expense would be incurred, it was HELD, that distribution should be made here.

A testator directed certain "real estate to remain as at present as long as the law will allow," the rent to be divided equally among his children and their legal representatives, and his "bank stock also to remain unsold and the dividends divided in the same manner, and any money" he might "have at interest, the interest to be divided in the same manner, and the principal, as fast as the same may be paid, to be reinvested, and the interest divided as aforesaid." HELD:

That by this devise the stock itself and the principal of the debts passed to the devisees; the direction that the one should remain unsold, and the other be reinvested as it might be received, cannot prevent the children from now claiming the principal.

A life estate in a chattel may be given to one, and the same, with its increase, be limited over to another, but this can only be done by express words or necessary implication.

The gift of the produce of a fund without limit as to time, is a gift of the fund, and the legatee takes a vested interest.

A devise of the rents and profits of land is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein.  

COUNSEL:
T. P. Scott for the appellants.

1st. The testator was a resident of Ohio, and the will was made there, though he had real and personal estate in Maryland. The will of the testator is the law governing the courts in the settlement of the estate. He had the right to direct that all his estate should be divided where he chose. In this case he has directed a part to be sold and invested in Ohio, and left the other to be distributed here--the bank stock to remain unsold, and the income arising therefrom to be divided. The Frederick street property has been sold and taken to Ohio, to be there invested, the remainder is to be distributed here.

2nd. The executors having taken to Ohio more than the proceeds of the Frederick street property, and enough to secure the annuity to Margaret Hossafross, and all the debts having [**2]  been paid, there is no reason why distribution of the remaining assets in Maryland should not now be made. The provision of the tenth section of the will have been gratified, $ 13,000 having been distributed in Ohio, and the distributees have therefore received more than $ 500 each.

3rd. The devise of the rents, dividends and interest on loans, carries with it the principal of the estate, and entitles the devisees to a distribution of it. 22 Eng. C. L. Rep., 23. 2 Jarman on Wills, 534. So much of the will as seeks to prevent the distribution of the estate after the time required by law, is void. 3 Green's N. J. Rep., 436. A devise over of personal property must be by express words or necessary implication. 6 G. & J., 185. This devise would have given the devisees the absolute estate in land, a fortiori, will it in personalty.

4th. The will does not create a trust in contemplation of the act of 1798, ch. 101, so as to arrest the jurisdiction of the orphans court. The 12th sec. of the 15th sub-ch., gives to the orphans court power, authority and jurisdiction to hear and decree upon all claims and demands between wards and guardians, legatees and distributees, and executors [**3]  and administrators, in as full and ample a manner as the court of chancery may. See also sub-ch. 14, sec. 12; sub-ch. 12, sec. 16; and sub-ch. 15, sec. 20.

5th. The orphans court of Baltimore city had jurisdiction and authority to make distribution, notwithstanding the fact that the testator, the executors and the petitioners were all of them non-residents of Maryland, and citizens of Ohio, the parties to this suit being in Maryland when the petition was filed, and the defendants having appeared and answered. 2 G. & J., 506, 507. 4 G. & J., 340. 5 G. & J., 484, 488. 1 Story's Conflict of Laws, secs. 513, 514. 1 Story's Eq., sec. 589. 1 Mason, 381, 430. 3 Pick., 128.

John Nelson for the appellees.

There are two points in the case:--1st. As to the power of the orphans court of Baltimore city to distribute any portion of the fund. 2nd. Admitting its jurisdiction, how far does it extend? to the fund itself or the income from it?

1st. The testator and all the legatees resided in the State of Ohio, and letters testamentary were granted there. There is no case to be found where it has ever been held competent for a foreign jurisdiction to make distribution in a case like [**4]  this. The general principle is, that the law of the domicil governs the distribution of the decedent's estate. The letters here are letters pro forma or auxilliary. The object of granting them is, that when a foreign executor comes into this State he shall not be permitted to take assets away, without first satisfying the claims of creditors residents of this State against them. The fund, after payment of debts, is to be transmitted to the principal administrator in cases of intestacy. 2 H. & J., 191. And the same rule applies to cases of testacy. 2 Kent's Com., 527, 528, (last Ed.) 3 Story's Rep., 755, Grattan vs. Appleton. The authority in Story's Conflict of Laws, 403, 404, 423, 424, makes the distinction as to the right of creditors, legatees or distributees resident within the country. See also 2 Bland, 488. The will does not give a different law to this case,--it does not direct distribution in Maryland,--it directs distribution by the executors who lived in Ohio, and it would be a strange interpretation to compel the executors to come here to distribute, and the distributees to come here to receive their money. The parties to receive and the parties to distribute were both in [**5]  Ohio.

2nd. What amount of distribution is to be made, conceding that there is any? The devise of rents and profits of lands, and the dividends of stocks, does not always pass the land or stock--never ex vi termini, but as only indicating the intent of the devisor that they should pass. The case cited in 22 Eng. C. L. Rep., was the case of a devise of rents and profits directly to the devisee himself,--here it is in trust to the executors. An interposed trust will prevent the estate from passing. The case in 3 Green, 436, only decides, that a court of chancery will interfere to change investments. There is sufficient upon the face of this will to show that the testator designed the legatees should not have the principal, but that the same should be reinvested. The clause "as long as the law will allow," refers exclusively to the real estate, and has nothing to do with the stocks.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*5]  ECCLESTON, J., delivered the opinion of this court.
On the 27th of June 1848, Andrew Meyer, then a resident in the State of Ohio, died leaving a will, in which he appointed two of his sons, Andrew and [**6]  Joseph, his executors. The will was proved and recorded in that State, and letters testamentary were there granted to the executors. A transcript of the record of the will, under seal, having been sent to this State and recorded, letters testamentary were granted to the executors therein named, by the orphans court of Baltimore county, in July 1848.
The following eighth, ninth and tenth items of this will contain the provisions which relate to the matter in controversy:
"Eighth. I do constitute Andrew and Joseph Meyer, executors of this my last will and testament; and it is my will, that after my death, as soon as may be conveniently done, they sell the property owned by me on Frederick street, Baltimore, and invest the avails here, by loaning the same on real estate security, and out of the interest, or interest of other moneys, pay Margaret Hossafross the sum of one hundred and twenty dollars per annum, during her natural life, provided she remains single."
"Ninth. It is my will, that the rest of my real estate in Baltimore shall remain as at present, as long as the law will allow, drawing rent, and the rent to be divided equally among my children and their legal representatives;  [**7]  my bank stock also to remain unsold, and the dividends divided in the same manner, and any money I may have at interest, the interest to be divided in the same manner, and the principal, as fast as the same may be paid, to be reinvested, and the interest divided as aforesaid."
"Tenth. In case of the death of Andrew, Francis J. or Joseph, leaving a widow, she is to be paid by my executors, from my personal estate, five hundred dollars, provided, however, 

 [*6]  that should they, or either of them, have received from item No. 9, before his or their death, the sum of five hundred dollars, then his or their widow to receive nothing on his or their death."
The children of the testator are his two executors, Elizabeth, wife of James H. Cassilly, Alena, wife of Thomas Patton, and Francis J. Meyer.
In October 1852, the two daughters, with their husbands, and Francis J. Meyer, filed their petition in the orphans court of Baltimore city, stating that the debts of the deceased had all been paid; that the executors have in their hands money and property in Ohio, more than sufficient to secure and pay the annuity given to Margaret Hossafross by the will. The petition concludes with a prayer, [**8]  that the executors may be compelled to account for all the estate which has come to their hands in this State, principal and interest, and make distribution thereof among the legatees. The executors answered the petition, and filed as exhibits certain accounts and proceedings, in the courts of Ohio, in regard to the estate, and also two administration accounts passed in this State. These exhibits show a considerable amount of assets in their hands in Ohio, that a sum has been transferred there from Maryland, more than sufficient to pay to each of the three sons, Andrew, Francis J. and Joseph, $ 500, and that they had each received more than that sum.
In their answer the executors resist the application of the petitioners, and insist, that by the true construction of the will of the deceased, they are trustees of the estate mentioned in the ninth clause, and not subject to the jurisdiction of the orphans court of Baltimore, further than by their settlements as executors, to ascertain the amount of the principal, and to pay any debts due to citizens of Maryland. That with regard to the distribution of the estate, the jurisdiction belongs exclusively to the courts of Ohio, the petitioners [**9]  being citizens of, and residing in, that State. They also contend, that the income from the estate in Maryland of right should be, and 

 [*7]  in fact has been, accounted for in Ohio, as their accounts will show.
Only two judges were present in the court below, and being divided in opinion, an order was passed dismissing the petition. This order we are called upon to revise.
In argument the prayer of the petitioners was resisted on two grounds:--1st. Because, if the provisions of the will authorised, at present, a distribution of the whole of the personal estate, now in Maryland, among the legatees, the same should be transferred to Ohio for distribution, the courts of this State having no jurisdiction in such a case.
2nd. Admitting that our courts would have the authority to distribute the assets, if they were now in a proper condition for that purpose, still the petition was rightfully dismissed, inasmuch as, according to the provisions of the will, the petitioners are not entitled to demand a distribution of the bank stock, or of the principal of the debts due to the deceased, because they are subject to a trust not yet terminated.
The first ground presents a question which [**10]  has occasioned much controversy, and elicited a great deal of learning in its discussion. The decisions in the different States have been treated of, with their usual ability, by the two very distinguished writers, Chancellor Kent and Mr. Justice Story, as may be seen in the 2nd vol. of the Commentaries of the former, commencing at marginal page 431, (new Ed.,) and in note a, page 434; and in the Commentaries of the latter, on the Conflict of Laws, sec. 513, and note 2.
From a careful examination of these authorities and the cases referred to, we think it may be considered as a well settled principle, that in a case like the present the courts of this State are not bound to transfer the assets to Ohio, for distribution there; but that it is matter of judicial discretion to do so, or to distribute them here, that discretion to be exercised according to the circumstances of the case.
At pages 432 and 433, Chancellor Kent, speaking of Harvey vs. Richards, says: "It was held, upon a masterly consideration of the case, that whether a court of equity would proceed 

 [*8]  to decree an account and distribution according to the lex loci rei sitoe,  [**11]   or direct the assets to be distributed by the foreign tribunal of the domicil of the party, would depend upon circumstances." Again it is said: "Though the property was to be distributed according to the lex domicilii, national comity did not require that the distribution should be made abroad. Whether the court here ought to decree distribution, or remit the property abroad, was a matter of judicial discretion, and there was no universal or uniform rule on the subject." And in the note referred to the chancellor informs us, that in Vermont this judicial discretion is recognised; that it rests on courtesy and expediency alone, and though it is the usual course to remit the assets, still this will not be done when the rights of those entitled to the estate would be endangered by it.
In the 513 section of Story, he advances the doctrine, that the new administration is ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them. But that "the new administration is made subservient to the rights of creditors, legatees and distributees, resident within the country." In note 2, he [**12]  refers with decided approbation to the learned opinion of Chief Justice Parker, in Dawes vs. Head, 3 Pick. 128, from which large extracts are made. In that case the court thought it could not be, that in every case a final settlement of the estate should take place under the jurisdiction which granted the ancillary administration; for, if so, then, if there were no debts there, "and none to claim as legatees or next of kin," all would be required to prove their right and receive their distributive shares there, notwithstanding the lex domicilii must regulate the settlement. They considered it clear, that in such a case the assets should be remitted to the foreign executor or administrator, because the distribution should be made according to the laws of the country, where the deceased was domiciled. It is then said: "And if any part is to be retained for distribution here, it will be only by virtue of some exception to this general rule, or because the 

 [*9]  parties interested seek their remedy here; in which case it might be within the legal discretion of the court here to cause distribution, or to remit, according to the circumstances and condition [**13]  of the estate."
These authorities seem very clearly to establish, that there is a judicial discretion on this subject, which is to be regulated by the circumstances of each particular case. And especially that under such discretion, the assets may be distributed by the court granting the ancillary administration, where the legatees or distributees reside there, or, in the language of Chief Justice Parker, where they "seek their remedy there." If the residence of claimants will entitle them to expect this discretion to be exercised for their benefit, we see no just reason why non-resident parties may not, voluntarily, come in and ask the same privilege; particularly, when, as in the present case, all the parties having any interest in the assets are before the court.
The executors being here as parties, they, together with the petitioners, are all the legatees, having an interest in the assets now in this State.
No circumstances showing any particular propriety or necessity for transferring the property to Ohio have been presented. It is not alleged that there are outstanding debts to be paid; but the only objections urged against the application of the petitioners, are those which [**14]  have been stated, as based upon a want of jurisdiction over the subject in the Maryland courts, and an alleged subsisting trust created by the will.
On the subject of jurisdiction, believing our courts have a discretion, we think the prayer of the petition should have been granted. We see no good reason why it should not, whilst there are reasons to the contrary. The proceedings in the record exhibit clear proof of a failure, in several particulars, on the part of the executors to perform their duty in Ohio; the administration in Maryland had been standing in an unsettled condition for more than four years when this petition was filed, and directing the estate to be transferred, 

 [*10]  would only be productive of still more delay and further expense, without, as far as we can see, benefitting any one.
In our opinion, there is no trust which can take from the orphans court its jurisdiction over the personal estate of the deceased, now remaining in this State. The property on Frederick street in Baltimore has been sold, and the proceeds taken to Ohio, in obedience to the directions of the will.
The bequest of the dividends of the bank stock and interest of the debts to his children,  [**15]  is a gift to them of the stock itself, and also the principal of the debts. The direction that the one should remain unsold, and the other reinvested, as it might be received, cannot prevent the children from now claiming the principal.
It is true, as has been contended, that a life estate in a chattel may be given to one person, and the same, with its increase, be limited over to another. But this can only be done by express words or necessary implication. Evans vs. Iglehart, 6 G. & J. 171. In this case there are no such express words, and it will be exceedingly difficult to discover any such necessary implication. The dividends and interest are given to the children in general terms, without limitation as to time. Neither is there any limitation as to the duration of the direction not to sell the stock and to reinvest the principal of the debts, unless the expression, "as long as the law will allow," used in connection with the real estate, mentioned in the same clause, is to be considered as applicable to the stock. But this discloses no intention on the part of the testator, that the principal of those portions of his estate should be preserved for the ultimate [**16]  benefit of any other persons than his children; neither can we discover a design that the same should be paid or delivered over to them as they arrive at age, or at any specified period, so as to prohibit them from demanding a distribution thereof until then. But the bequest is a simple unqualified gift of the dividends and interest, which carries with it the principal of the debts and the stock also. On this point the case before us is very analogous to that of Manning vs. Craig, et al., 3 Green's N. J. Rep., 436. There 

 [*11]  the will contained the following bequest: "Two hundred and fifty shares of stock that I hold in the great western turnpike company, in the State of New York, to remain unsold, and the dividends arising thereon I direct to be equally divided between" certain of his children and grandchildren, naming them. The application was to have the stock divided among the legatees, which the court ordered to be done. It was there held, that the gift of the produce of a fund, without limit as to time, is a gift of the fund, and that the interest of each legatee was vested.
A devise of the rents and profits of land, is equivalent to a devise of the land itself,  [**17]  and will carry the legal as well as beneficial interest therein. 2 Jarman on Wills, marg. p. 534.
If at any time there was a necessity for retaining a portion of the Maryland estate, to meet the contingency depending upon the decease of Andrew, Francis J. and Joseph, leaving widows, that necessity no longer exists, because each of those sons has received the $ 500, which puts an end to all claim on the part of his widow.
We think the order of the court below ought to be reversed and the cause remanded, that the orphans court may direct a sale of the bank stock, the collection of any outstanding debts due the estate, and requiring the executors to account, so that a distribution may be made among the legatees.
Order reversed and cause remanded. 

9 of 48 DOCUMENTS 

WM. PETERKIN and others' Lessee, vs. WM. INLOES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 175; 1853 Md. LEXIS 23 

JUNE, 1853, Decided 

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

This was an action of ejectment, instituted by the lessors of the appellant to recover one acre of land, described in the declaration as part of "Mountenay's Neck," which is referred to in the preceding case of Hammond's Lessee vs. Inloes, et al., and in the cases in 11 G. & J., 351; 6 Gill, 321; and 1 Gill, 430. The plea and defence were the same as in those cases.

Exception. The plaintiffs claimed under the title of "Mountenay's Neck," and the title papers offered by them, exhibiting the chain of title from Alexander Mountenay, in 1663, to Thomas Sligh, in 1759, and from Sligh to William Hammond, as heir at law of Thomas Hammond, for fourteen and one-quarter acres, part of "Mountenay's Neck," are the same set forth in 1 Gill, 435 to 442. They then offered two successive leases of part of this fourteen and one-fourth acres, the first, dated 6th of December 1776, from William Hammond to Isaac Hall; the second, dated 24th of July 1782, from John Hall to Benjamin Spencer, under whom the plaintiffs claim by descent. They further offered deeds conveying eleven acres, part of "Mountenay's Neck," in fee, from Thomas Sligh, in 1760, to Charles [**2]  Weisenthal; from Weisenthal, in 1775, to John Cornthwait; and from Cornthwait, in 1782, to said Benjamin Spencer. They then proved the death of said Spencer before 1820, and that two of the lessors of the plaintiff, William and Joshua Peterkin, are the grand-children of said Spencer, and the two others, William and Ellen Peterkin, his great-grandchildren, those who stood before them in the line of descent, being proved to be dead. They then offered a license by the mayor of Baltimore to said Spencer, to extend a wharf therein described, and the same acts and ordinances as in the preceding case of Hammond vs. Inloes, and also the act of 1784, ch. 39, and 1816, ch. 209, and proved that the land opposite the lot claimed by them had, from time to time, been extended, filled up and made fast land out of the water, as delineated in the plats, and the possession of it by the defendants. They also offered the plat of the addition to Baltimore town under the act of 1773, ch. 4. The defendants then offered the patent of "Bold Venture," and the same evidence appearing in 1 Gill, 451 to 468. The plaintiffs then offered the patent of "Rogers' Inspection," granted in 1759 to affect in part "Bold [**3]  Venture," which is described therein as "escheat land," (see 1 Gill, 471 to 474,) and also a certified copy of a certificate for a tract of land called "Pemblico," surveyed for John Oulton and others, on the 26th of April 1669, and an assignment thereof, on the 5th of August 1714, by John Hays, as administrator of John Oulton, to Thomas MacNemara, and the patent for said tract subsequently, on the 10th of December 1714, issued to said MacNemara. They then also offered certificates from the register of wills for Anne Arundel county, showing that letters of administration were granted on the estate of John Oulton, on the 23rd of September 1709, and on the estate of Mary Oulton, widow, on the 7th of October 1709. The defendants then offered the will of John Oulton, executed on the 4th of May 1709, and admitted to probate on the 11th of July 1709, by which he devised to his wife, Mary Oulton, "Bold Venture," and all his other lands in fee. The plaintiffs then offered the following prayers:

1st. If the jury find the patents, deeds and permission or license of the mayor and city council of Baltimore, offered in evidence on the part of the plaintiffs, and that the same are properly located;  [**4]  and if, from the evidence and from said deeds, and the recitals therein, and from the acts of possession of Benjamin Spencer, and those claiming under him, that possession had gone along with said deeds, &c., then they are bound to presume a deed from Mountenay to Blunt, and from Isaac Hall to John Hall, or if they find the deeds from Sligh to Weisenthal, from Weisenthal to Cornthwait, and from Cornthwait to Benjamin Spencer, the elder, and that said Spencer died intestate before the year 1820, leaving Elizabeth, his only child and heir at law, and that said Elizabeth, previous to the death of her father, intermarried, in the year 1802, with William Peterkin, and that said Elizabeth and William died intestate about the year 1825, leaving five children, two girls, both of whom died intestate and without ever having been married, and three boys, George, William and Joshua, the two last named being plaintiffs; that George intermarried with Maria Anne Atkinson, by whom he had two children, his heirs at law, living at his death, to wit, William and Ellen Peterkin, two of the plaintiffs; that said George died between the years 1830 and 1835; that if they find the acts of Assembly and ordinances [**5]  given in evidence, and further find, that in pursuance thereof, the grounds in front of the plaintiffs' lot, as located, was filled up and extended for the width thereof from time to time, as far as to the dock at Lancaster street, and made fast land, and was in possession of defendants before the institution of this suit, then, by force of the operation of said acts and ordinances, and facts aforesaid, if the jury find them, the plaintiffs are entitled to recover.

2nd. If they find the facts of the aforegoing prayer, and also the papers given in evidence relating to "Pemblico," and those relating to the administrations granted on the estates of John Oulton and Mary Oulton, respectively, and that said Mary Oulton is the Mary Oulton named in the writing offered in evidence as the will of John Oulton; and that said John and Mary died in the year 1709, and shall not find any claim made by any one under said John or said Mary for "Bold Venture," at any time between their deaths, respectively, and the year 1745, then they may find, that before that year there had ceased to be any heirs of John Oulton to take said tract by descent, and any persons to take the same through said Mary,  [**6]  as devisee under said will by descent, and that said tract so became, before the year 1745, vested in the State, and if they find as aforesaid, then the plaintiffs are entitled to recover, if the jury also find the addition made to Baltimore town, under the act of 1773, ch. 4, as testified, and as shown by the plat of said addition given in evidence, and by the locations in the cause.

3rd. If they find from the facts of the aforegoing prayers, and shall not find any claim to have been made by any one under said John or Mary for "Bold Venture," after their said deaths, and before the year 1700 and 1743, then they may find, that before the latter year there had ceased to be any heirs of said John to take said tract by descent, and any persons to take the same through said Mary, as devisee under said will by descent, and that before the year 1773, the said tract so became vested in the State; and that if they shall find as aforesaid, the plaintiffs are entitled to recover, if they also find the addition made to Baltimore town, under the act of 1773, ch. 4, as testified, and as shown by the plot of said addition given in evidence, and by the locations in the cause.

The defendants [**7]  offered the same three prayers as in the preceding case. The court, (LE GRAND, A. J.,) rejected the plaintiffs' and granted the defendants' prayers, to which granting and refusal the plaintiffs excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment affirmed with costs.  

HEADNOTES:

The grant of letters of administration is prima facie evidence that the person, upon whose estate they were granted, was dead at the date of the letters.

The plaintiffs claimed title under the patent of a tract of land, which was authorised to be added to the city of Baltimore by the act of 1773, ch. 4, and the privileges conferred by that act. HELD:

That this act conferred no privileges to the owners of this tract, unless the addition was made in pursuance thereof; and a prayer setting out the grounds on which the plaintiffs were entitled to recover, and which failed to leave to the jury to find that the addition was made under this act, is for this reason defective.

A prayer asserting the escheat of a tract of land, without submitting to the jury to find that the patentee died intestate as well as without heirs, is for this reason defectively framed.

The patentee of a tract of land covered by navigable water died in 1709, devising the same by will to his wife, who died the same year. No claim was made by any one, under the patentee or his wife, before 1745. HELD:

That this evidence was not sufficient to warrant the finding, that the tract escheated before 1745; the law does not presume that a person dies without heirs, and the absence of claim is not to be taken against the defendants, the land being covered by navigable water.

The further lapse of twenty-eight years from 1745, or sixty-four years from the death of the wife of the patentee, will not authorise the finding, that the tract was escheat as of that time.

An escheat patent is evidence of escheat at the date of the warrant, and not before.

An escheat warrant authorised the party to take up the whole tract called "Bold Venture," as escheat, but the escheat patent, dated in 1759, granted to the patentee a certain number of acres of said tract, "clear of elder surveys." HELD:

That from this patent it may fairly be inferred, that the State had, previous to the act of 1773, under which the plaintiff claimed, granted the whole tract; the recital, "clear of elder surveys," means elder surveys of "Bold Venture," and is evidence of a previous grant of the residue of the tract. 

COUNSEL:
Grafton L. Dulany for the appellants, argued and insisted upon the same points as argued by the counsel for the appellants in the preceding case; and further contended, that in this case there was evidence tending to show that both John and Mary Oulton died intestate and without heirs before the act of 1745, ch. 9, and that, consequently, before or at the time of the passage of said law, the title to "Bold Venture" was vested in the State, and passed, by that act and the law of 1773, to all improvers under them. That the facts of the death of Oulton and his wife, without heirs, ought to have been submitted to the jury. The second and third prayers of the plaintiffs should have been granted, and the second and third prayers of the defendants ought to have been refused. 2 Howard's Rep., 319, 385. 12 Peters, 454. 3 H. & J., 554. 7 G. & J., 369. 7 H. & J., 136. 6 G. & J., 481. 11 G. & J.  [**8]  , 360. 1 Gill, 509.

William F. Giles for the appellees.

1st. As to the rights of the parties, independent of "Bold Venture:" The proprietors of "Fell's Prospect" have equal rights with the owners of "Mountenay's Neck." "Fell's Prospect" was granted 1763, and the act of 1773 is the only act under which the plaintiffs claim. In 11 G. & J., 359, no act of 1773 was referred to, but that decision went upon the act of 1745. The act of 1773, in fact, added two hundred acres to the city, and included "Fell's Prospect." A legislative act is a grant, and the defendants are therefore grantees of equal date with the plaintiffs, for "Fell's Prospect" was added to the city the same day with "Mountenay's Neck." This makes the distinction between this case and the case in 11 G. & J., because in that there was no reference to the act of 1773, and the plat made under it. The legislature could distribute favors to whom it chose. There was no inherent power in the elder patent, that it should alone be the recipient of these favors. The right to improve is a quasi property, but it vests only when the improvements are made, and this applies to us, the owners of "Fell's Prospect," as well as the [**9]  owners of "Mountenay's Neck." The legislature have the right to grant land covered by water. "Mountenay's Neck" originally ran across an arm of the sea, and therefore was not riparian any more than "Bold Venture." The grant of "Bold Venture" has been again and again affirmed by this court. The only limitation upon the sovereign power is, that it cannot grant land so as to interfere with the rights of navigation and fishery. The case in 2 H. & McH., 246, turned upon the point that there had been a fraud committed upon the lord proprietary in obtaining the grant of the patent of "Bold Marsh." The directions of the lord proprietary to the land office was, that all lands within five miles of Baltimore should be reserved and not granted, and the application for the resurvey of "Bold Marsh" did not aver that it was within five miles of the city, which was in fact the case, and the patent was vacated on this ground. The doctrine of alluvion never sanctioned the idea that if there was a sudden subsiding of the sea, the land would belong to the riparian proprietor; in such a case it would belong to the State, and so if an island suddenly springs up. The riparian proprietor gets what increases [**10]  little by little, of which the law takes no notice--gradual accretion.

2nd. As to the effect of "Bold Venture:" If an heir of Mrs. Oulton should appear, what would bar his recovery? nothing! The outstanding title is good. The evidence shows that the property became fast land in 1836, and could not have been taken possession of before. Limitations could not run against an heir of Oulton, except from the time when the land became fast, and if such an heir should come forward to-day he could recover. There has been no claim or possession adverse to that of John Oulton. But the case has been twice decided, and unless this case differs in a material point from the case in 6 Gill, the judgment must be affirmed. It is said that it is different, because the acts of 1796 and 1816 are now in. But the act of 1796, ch. 68, gives new rights to nobody, it simply erects Baltimore town into a city. The 11th sec. gives the city council full power to control all improvements into the basin, but it makes no new grants to anybody. The act of 1816 is merely an act to enlarge the city of Baltimore. These acts therefore make no difference in the two cases. The only additional evidence is the administration [**11]  on the estates of John and Mary Oulton, and the grant of "Pemblico," and this is introduced to show an escheat of "Bold Venture" prior to 1745. But this evidence falls, because the defendants show the will of Oulton, by which he devises the land to his wife and makes her his heir. But Mrs. Oulton also died the same year, and administration was granted on her estate. This is no evidence that she died intestate, because the custom then was to grant letters of administration as well where there was a will as where not. There has been no search for her will; she may have left a large family and the record still be correct. The answer to this is, that no claim has been made by the heirs of Oulton. No claim could be made until 1836, when the land first appeared above water.

The propositions of law embraced in the plaintiff's prayers could, by no possibility, be granted. The first prayer is defective for various reasons. There is but one Spencer mentioned in the evidence. There is no proof that the daughters of Peterkin died intestate and without issue. They may have had issue without being married, and in such case the issue, though illegitimate, would have been the heir at law. There [**12]  is no evidence as to when these children died. This prayer does not raise the question which survived, Peterkin or his wife. There is no evidence that Benjamin Spencer died intestate. Again it could not be granted, because it takes no notice of "Bold Venture." It supposes that the plaintiffs could recover in spite of "Bold Venture," which is directly in the teeth of the decision in 6 Gill.

The second prayer could not be granted, because it calls upon the jury to say that if there was no descent the plaintiffs could recover, whereas there might have been a devise of the land in question. An escheat cannot be proved by proving that there are no parties claiming by descent.

Reverdy Johnson on the same side.

1st. As to the true interpretation of the acts of 1745 and 1773: What are the rights a proprietor gets where his land borders on a navigable river? The first right such riparian owner has is a right of navigation and of fishery. As to fishery, he has the exclusive right to draw his net to his own shore. He has no exclusive right to navigate, though he has to start his vessels from his own land. But there is another right belonging to such properties, and that is the [**13]  right of alluvion. Now what is this right? It is the right to become the owner of all the land which may accrue by gradual accretion; but such increase must be gradual. The reason of this right is, because he is liable to lose by the washing away of his lands. It must be gradually acquired, it cannot be made: if the sea subsides at once, the land uncovered does not belong to the proprietors of the original tract, because in such case there is not found the essential ingredient of gradual accretion--so if an island suddenly springs up. If this be so, there is then no impropriety in granting fast land to one and land covered by water to another. But this is not now an open question. The State may grant land covered by water outside of the fast land. The opinion in 1 Gill, 512, by Judge Dorsey, is sustained by the case of Brown vs. Kennedy, 5 H. & J., 202, 204, 208, 209. The same doctrine is advanced in 11 G. & J., 358, by Justice Stephens. The law of this State then is, that the grant of "Mountenay's Neck" does not include the land covered by "Bold Venture," and gave no title to land south of its southernmost line. Independent then of the act of 1745, if the owners of "Mountenay's Neck"  [**14]  had undertaken to fill up the land included within the lines of "Bold Venture," by driving down piles, or anything else, the owner of "Bold Venture" could have brought ejectment and stopped them. Apart from the escheat of "Bold Venture," then, the case is clear of difficulty.

Up to 1745, then, the patentee of "Bold Venture" was the owner of all the land within its lines. If the State had the right to grant this patent, it is inconsistent that the owners of "Mountenay's Neck" should be entitled to any part of it. But it is admitted for the sake of the argument, that this rule is qualified so far as to prohibit the grant of land in "Bold Venture," so as to interfere with the alluvial rights of "Mountenay's Neck." This would only give the first grantee the same right as against the second grantee that he would have as against the State. But what is this right of alluvion?--it is not the right to improve. The act of 1745 gave the riparian owners the right to have what they would not have by the right of alluvion. All the owners of these water lots under this act had equally the right to improve, including the owners of "Bold Venture." The land here has not been made by any alluvion,  [**15]  but by artificial causes. The same facts exist here as in Brown vs. Kennedy. The act of 1745 has nothing to do with the alluvial rights belonging to "Mountenay's Neck"--it is entirely separate and distinct. The State had the right to grant the land, and having granted "Bold Venture" in 1695, she could not, in 1745, by any power of grant, authorise the owner of "Mountenay's Neck" to come within the lines of "Bold Venture."

Again, the doctrine of 11 G. & J. is not applicable to this case. In that case the defendants claimed title by virtue of "Fell's Prospect," and claimed as riparian owners also. But at the time the act of 1745 was passed, "Fell's Prospect" was not granted, and this was the weakness of the defendants' case. The court did not, in that case, decide, that in reference to the dates of the patents themselves, the right to improve belonged to the eldest title, they only decide, that as "Fell's Prospect" was not then granted, the right to improve belonged to "Mountenay's Neck." 11 G. & J., 359. The act of 1745 was a quasi grant, and attached to each of the water lots which the State had previously granted by patent. If the act of 1773 had not passed, the owner of "Mountenay's [**16]  Neck" could lay no claim to this property; they only had it by that act. They do not get this right by seniority of patent by virtue of that act, because it then, for the first time, brings "Mountenay's Neck" into Baltimore city, but at the same time "Fell's Prospect" was brought in. Suppose these two tracts were granted by the same patent, with the power to make this improvement, would one part of it have any right over that of another? But the fact that they were granted at different times makes no difference. The right here was a right in the nature of a franchise attaching to the lands, first given by the act of 1773. At that time we were then holders of water lots as well as were the holders of "Mountenay's Neck." The right vested eo instanti in the proprietors of the two tracts.

Dulany for the appellants, in reply.

The merits of the case are not affected by the little discrepancies and omissions in the prayers, and these points ought to be discouraged, and this is in strict conformity to the act of 1825, ch. 117. 11 G. & J., 361. The objection comes too late, and moreover, there is sufficient in the record to submit the question of possession, independent of the deeds.  [**17]  

It is said, that as the act of 1773 was passed after both patents of "Fell's Prospect" and "Mountenay's Neck," it threw the right of improvement upon both equally. This puts the parties in conflict as to their rights, and the rule then is to give it to the eldest patent. This was the rule laid down in 11 G. & J., in analogy to the seniority of patents when granted of the same land. 1 Gill, 510. 1 Gill, 506, 507. The effect of an escheat is to draw with it all the rights which belonged to the original patent.

The points involved in this case have been decided in the case of 2 H. & McH., 246. The fact that the lands in that case were within in the reserves does not vary the case, for the act of 1782, ch. 38, appropriates these reserves to such purposes as the General Assembly should thereafter direct. This reserve was therefore dedicated by the act of 1773 to the improvements specified by that act. 2 Md. Ch. Decisions, 495.

The ground of the decision in 1 Gill and 6 Gill is upon the effect of the outstanding title of "Bold Venture." The construction of the act of 1745 and 1773 was unquestionably erroneous. The doctrine of estoppel does not apply to a legislative act. The [**18]  words of the act of 1745 are in the future tense as well as in the past.  

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

OPINIONBY:
TUCK 

OPINION:

 [*186]  TUCK, J., delivered the opinion of this court.
As the present controversy grows out of the same title as that set up in the case of Hammond vs. Inloes, (ante, 138,) and the suit was defended in the same manner, reference is made to the opinion in that case for a statement of what we consider to have been settled by the former decisions of this court, and by which some of the questions argued on this appeal are also to be determined.
It is sufficiently shown by the letters of administration on the estate of John and Mary Oulton, that they were dead in the year 1709. 1 Greenlf. on Ev., sec. 550. He devised "Bold Venture" to Mary Oulton in fee. As evidence that this tract escheated after her death, the plaintiffs relied on the patent of "Rogers' Inspection," granted in 1759, which was also in evidence in the case of Wilson vs. Inloes, 6 Gill, and on the first trial of Casey vs. Inloes, 1 Gill.
The plaintiffs offered three prayers and the defendants offered three, identical with those presented [**19]  in 6 Gill, and the case of Hammond vs. Inloes, at this term. If the plaintiffs' case has not been materially improved, the judgment of this court must be the same in both cases.
Objection has been made on the part of the appellees to the title of the plaintiffs, independently of any defence on their part founded upon the grant of "Bold Venture." They have also contended, that as the title of the plaintiffs commenced 

 [*187]  in 1773 by the legislative grant of that year, (as now insisted by them,) no priority of franchise or right to improve could be claimed by one riparian owner over another, both being such at the passage of that act; and that as the addition to Baltimore town, then made, first included the water line of "Mountenay" and that of "Fell's Prospect," under which the defendants claim, both of which had been previously granted, the owners of these tracts must be considered as entitled, cotemporaneously, to the "immunities and privileges" conferred by that act; that is, the right to improve, mentioned in the act of 1745: and that "Mountenay" is in no better situation in that respect than "Fell's Prospect." We deem it unnecessary to express [**20]  any opinion upon these points, because we think that the interests of the parties require that the case should be disposed of by a decision of the others.
The first prayer of the plaintiffs was defective, in not submitting to the jury to find, whether the addition to Baltimore was made as located on the plats. If the act of 1745, at the time of its passage, did not affect the property in controversy, because it had not then become a part of Baltimore, the act of 1773 conferred no privileges to the riparian owners, unless it appeared that the addition was made in pursuance of that act. According to the prayer, the jury might have found for the plaintiffs, even if the addition had never been made.
But this prayer is defective in not taking notice of the title of "Bold Venture," for the reasons assigned by us in Hammond vs. Inloes, to which reference is made.
The second prayer asserts that "Bold Venture" escheated before 1745. The evidence shows that Mary Oulton died in 1709. But it does not submit to the jury whether she died intestate as well as without heirs. But apart from this defect in the frame of the prayer, we think that the evidence was not sufficient [**21]  to warrant the finding of an escheat before 1745. The law does not presume that a person dies without heirs. The absence of any claim of title by those representing her is not to be taken against the defendants, when we consider the nature of the property, as we have heretofore said, in Hammond's 

 [*188]  case. If "Rogers' Inspection" be relied on as proof of escheat, we must not forget that the Court of Appeals, in 1 Gill 510, decided that a patent is evidence of escheat at the date of the warrant and not before. The other evidence, in our opinion, does not show that the property had returned to the State at an earlier period than April 1759, the date of the warrant for "Rogers' Inspection."
The third prayer, predicated on the same proof, refers the escheat of "Bold Venture" to 1773, and asserts that it was sufficient to authorise the jury to find that fact as of that time. We do not think that the further lapse of twenty-eight years from the time of Mary Oulton's death will, under the circumstances of this case, produce that result. And if "Rogers' Inspection" is supposed to be evidence of the fact, as of the date of the warrant, it must [**22]  be taken altogether, as well against, as for, the party offering it in evidence. And from it it may fairly be inferred, that the State had, previously to the act of 1773, granted all of "Bold Venture;" for that patent grants to Rogers a certain number of acres, "clear of elder surveys," which must mean elder surveys of "Bold Venture," because Rogers was entitled by his warrant to take up the whole of that tract as escheat. This statement in the patent we regard as evidence, upon the authority of this court in 1 Gill 492, where an ancient certificate of the surveyor was received as evidence, that at that time the premises were in possession of the persons named therein as being in possession.
We are of opinion that this case is not materially different from Hammond vs. Inloes; and for the reasons assigned and upon the authorities cited in both cases, we approve of the refusal by the court below to grant the plaintiffs' prayers, and of their instructions to the jury as prayed on the part of the defendants.
Judgment affirmed with costs. 

10 of 48 DOCUMENTS 

MARIA WINCHESTER and ROBERT LEMMON, vs. THE BALTIMORE AND SUSQUEHANNA R. R. COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 231; 1853 Md. LEXIS 25 

DECEMBER, 1853, Decided 

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

The allegations of the bill in this case, which was filed by the appellants against the appellee, on the 16th of December 1852, are sufficiently stated in the opinion of this court.

The injunction was granted as prayed. The answer, which was made under oath and filed on the 8th of January 1853, denies all notice, either actual or constructive, of the conveyance to Mrs. Winchester, and sets up the defence that the company was a bona fide purchaser without notice. It admits that George Winchester was president of the company at the date of the mortgage executed by him to Howard, Hodges and Leakin, three of its directors, but avers that in so doing he acted solely in his individual capacity, and not for the company.

Several exhibits were then filed in the cause by the parties: 1st. The deed dated the 31st of July 1830, from the sheriff of York county, Pennsylvania, conveying the whole of the Yorkhaven property to George Winchester, acknowledged by the sheriff in open court on the 4th of August 1830, but not recorded until the 18th of August 1834. 2nd. A deed from Winchester and wife, dated 12th of January [**2]  1831, and recorded the 18th of August 1834, conveying three-fourths of the property to Leakin, Glenn and Freeman, who, according to the recitals of the deed, were each at the time of the purchase interested in and entitled to one-fourth thereof. 3rd. The deed from Winchester and wife, conveying to Lemmon, as trustee of Mrs. Winchester, the remaining fourth of said property, dated the 1st of July 1831, but not recorded until the 13th of February 1841. It recites that Mrs. Winchester was entitled to one-fourth of the property, the purchase having been made in trust for her, and the purchase money paid out of her separate estate. 4th. The mortgage by George Winchester to Hodges, Howard and Leakin, three directors of the rail road company, of one undivided fourth of said property. This mortgage recites, that "whereas the said George Winchester is indebted to the parties of the second part in the sum of $ 4711, for which he has given his twelve checks, payable," &c., "and for the purpose of securing the payment thereof hath agreed to execute these presents," and bears date the 9th of April 1833, and was recorded the 5th of July of the same year. 5th. A deed from Winchester and wife, conveying [**3]  to John Glenn, in consideration of $ 2000, one undivided fourth of said property, dated the 20th, and recorded the 24th, of February 1834. 6th. A deed from Glenn, reconveying this same fourth to Lemmon, as trustee for Mrs. Winchester, in consideration of $ 4000, dated the 15th of November, and recorded the 1st of December, 1838. 7th. A record of the proceedings in the court of common pleas of York county, Pennsylvania, by the rail road company to foreclose their mortgage. 8th. A certified copy of the act of the State of Pennsylvania of 1775, relating to the acknowledging and recording of deeds.

A motion to dissolve the injunction was then made, and thereupon the court, (FRICK, J.,) dissolved the same by an order passed the 23rd of March 1853, from which the complainants appealed. In this court it was agreed that the exhibits filed should be treated as evidence, as if duly proved under a commission.  

DISPOSITION:
Order reversed and cause remanded for further proceedings under act of 1832, ch. 302.  

HEADNOTES:

A bill for an injunction, filed on the 16th of December 1852, did not require the defendant to answer on oath; after answer under oath the injunction was, upon motion, dissolved by an order passed the 23rd of March 1853. Upon appeal from this order, HELD, that by the act of 1852, ch. 133, the answer cannot be used as evidence against the complainant.

Actual knowledge is equivalent to registration; but such knowledge must be shown by proof, or, at least, such circumstances as are sufficient to put the party upon inquiry must be proved.

The president of a corporation executed to certain of its directors a mortgage of land, to which his wife had an equitable claim by virtue of an unrecorded deed to her. HELD:

That having acted in the transaction not for the corporation, but solely for himself, his knowledge of his wife's equities is not the knowledge of the company, and cannot affect its rights, unless shown to have been communicated to it.

An officer of a corporation cannot bind the latter in a case where he professes to represent only himself, and to deal with the company as if he had no official relation to it.

W. purchased certain real estate, three-fourths for other parties, and one-fourth with the separate estate of his wife and for her, and took the deed for the whole in his own name. HELD:

That the fact of buying for, and conveying the three-fourths to, such other persons, one of whom was a director of a corporation, did not inform such director that the other fourth was for the grantor's wife, and notice thereof to the corporation could not be established thereby.

A mortgage recited that the grantor "is indebted" to the grantee in a certain sum, for which "he has given" his checks, &c. HELD, that this language does not justify the inference that it was given for an antecedent debt. 

COUNSEL:
Charles H. Key for the appellants.

The act of 1852, ch. 133, prevents the answer from being used as evidence, and the appellants therefore insist:

1st. That as the deed from Winchester [**4]  to Lemmon of 1831, recites the fact that the property thereby conveyed was originally purchased with Mrs. Winchester's separate estate, this declaration of Winchester, made when in possession with title, shows his wife's equity, and binds the rail road company, his subsequent grantees, who are thereby precluded from denying such equity, and cannot claim against it, except by showing that they were subsequent purchasers for a valuable consideration without notice. 3 H. &. J., 426, Dorsey vs. Dorsey. 7 Gill, 375, Richards and Wife, vs. Swan. 4 Paige, 220. 2 Md. Rep., 365, Faringer vs. Ramsay.

2nd. Winchester being at the time of the execution of the mortgage to the company its president, and in that capacity a member of the board of directors, his knowledge of the pre-existing deed to his wife was the constructive knowledge of the company, and notice to him was notice to the company. 2 Hill, 451, Bank of United States vs. Davis. 4 Paige, 136, Fulton Bank vs. Sharon Canal Co. Any thing which puts a party upon inquiry is sufficient notice in equity. 1 Md. Rep., 415, Price vs. McDonald. 3 Md. Rep., 340, Baxter and Wife, vs. Sewell. 5 Gill, 483.

3rd. The mortgage to the company [**5]  was given as security for a pre-existing debt, as appears upon its face, and does not constitute the mortgagees purchasers for value, so as to support the mortgage against the equitable claim of Mrs. Winchester. 22 Pick., 243. 1 Dev. Eq., 106. 4 Paige, 220. 4 Scammon, 19. 1 Sm. and Mar., 49. 10 Paige, 180.

4th. The original deed of the sheriff, though executed in 1830, was not recorded till 1834, and the deed of 1831 being therefore a deed of a mere equity, was not itself required to be recorded, and consequently the mortgage of 1833 did not affect its validity. The subsequent recording of the sheriff's deed does not affect this view of the case, but the mortgage being of an equitable title, the mortgagee was bound to take notice of equitable incumbrances, and can only claim subject to them. 7 Cranch, 34. 7 Pet., 271. 4 Dessaussure, 274. 11 Searg. and Rawle, 389. 7 Barr., 165, 340. 5 Gill, 481.

5th. The neglect of the appellees to enforce their mortgage for nearly twenty years, is almost conclusive evidence of its having been abandoned by them.

J. Mason Campbell for the appellees.

The sheriff's deed, which is the common source of title of both parties, was acknowledged [**6]  in open court, and it is this acknowledgment, and not the recording, which in Pennsylvania passes the legal title. 2 Wharton, 469. 10 Watts, 25.

The bill attacks the mortgage to the company solely on the ground of notice of the prior deed of 1831, and the answer denies notice, either actual or constructive. The act of 1852, ch. 133, does not apply to the case of a motion to dissolve an injunction, for if it did, there never could be such a motion, and it could hardly be supposed the legislature intended to work such a revolution as this in chancery proceedings. But the act of 1853, ch. 344, makes the answer in this case of equal force as evidence as the bill, and that such laws, retrospective in their operation, are constitutional, see 7 Pet., 239.

The deed of 1831 is out of the case, and cannot be relied on as evidence of title. The bill sets it up not only as a deed of that date, but as continuing to the present time, but in 1834, Mrs. Winchester conveyed this identical property to Glenn. This is a repudiation of the deed of 1831; the two are in conflict. The subsequent deed from Glenn in 1838, reconveying the property to her, is the only title she now has, and this confers [**7]  no rights as against the company, being subsequent to its mortgage.

The mortgage upon its face shows, that Winchester was then indebted to the company, and in consideration of the mortgage, time was given, as appears by the checks recited in it, and this is sufficient to make the company purchasers for a valuable consideration. 2 White and Tudor's Leading Cases, Basset vs. Nosworthy, (71 Law Lib., 104, 105, 106.)

But suppose there was an equity, how have the company notice of it? Where a director is acting for himself in his individual character, his knowledge thus obtained is not the knowledge of the corporation. Story on Agency, secs. 140, (a,) 140, (b.) 2 Hill, 451. 9 Barr., 27. 3 Md. Ch. Decisions, 381.

The registry acts of this State apply to conveyances of equitable titles. 3 Md. Ch. Decisions, 383, 384. And the act of Pennsylvania of 1775, set out in the record, expressly requires deeds, which in any way affect equitable as well as legal titles, to be recorded, and that conveyances of equitable titles in that State are required to be recorded, see 10 Watts, 13. 11 Searg. and Rawle, 389, 392.

S. T. Wallis for the appellants, in reply.

The act of 1852,  [**8]  ch. 133, expressly enacts, that in no case shall the answer be evidence unless read at the hearing, not the final hearing. The act of 1853, ch. 344, though it cannot operate upon this case, having been passed after it was decided and pending the appeal, is yet a legislative construction that the previous act of 1852 does apply to the present case.

The acknowledgment of the sheriff's deed in open court does not pass the legal title. The case in 2 Wharton, 469, only decides that a sheriff's deed shall not have the effect of an ordinary deed until acknowledged in open court, but it is also required to be recorded like any other deed to give it validity. 10 Watts, 26.

The property was purchased with Mrs. Winchester's money, and there can be no doubt Winchester's declaration of that fact in the deed of 1831, is binding upon the company, his subsequent grantee, as the cases cited on this point show. The deed to Glenn in 1834, conveyed all the equitable title of Mrs. Winchester, and though she was thereby estopped from claiming as against Glenn, yet he could have set up these equities as against the company, and so could his grantee, Mrs. Winchester. There is nothing then to stand [**9]  against the equity of Mrs. Winchester, unless the company are bona fide purchasers without notice.

If notice is given to a party who acts as the agent of a corporation, the latter is affected by it. The case in 2 Hill, is the very case at bar. The mortgage was not to the company itself, but to three of its directors, and Winchester, as president, must have joined in their appointment. He was therefore the agent of the company as well as of his wife.

But again, if the circumstances of the case are sufficient to put the party upon inquiry, this is notice. Here Leakin, one of the directors taking the mortgage in behalf of the company, was one of its directors, and his knowledge was clearly the knowledge of the company. Now he was concerned in the original purchase, was tenant in common of one-fourth of this property, and therefore bound to know the title of his co-tenants in common. But, besides this, the deed of the three-fourths to him, and others, recites, that the property was purchased with the money of others, and not that of Winchester, There is no case to be found where one tenant in common is not regarded as having knowledge of the title of his co-tenants.

Again,  [**10]  was the company a bona fide purchaser for value? The mortgage was clearly given for an antecedent indebtedness. The fact that the mortgagor gave his checks does not alter the case--they were given for an existing debt--the taking of them was for the benefit of the company. If this makes the company bona fide purchasers, every mortgage would have that effect.

A party who takes an equitable title, takes it with notice of all equitable incumbrances upon it; with notice that something is to be done to make it perfect, and this puts him upon inquiry as to all the imperfections pertaining to the deed. 7 Cranch, 34. 7 Pet., 231. 5 Gill, 481. 7 Barr., 340.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*237]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the Superior court of 

 [*238]  Baltimore city dissolving an injunction, which had been previously granted by that court on the filing of the bill of the appellants.
The equity of the bill may be stated thus:--it avers and charges, that George Winchester, the former husband of one of the parties, becoming possessed of a portion of the separate [**11]  estate of his wife, invested it in real estate lying in York county, Pennsylvania, taking a deed for the same in his own name; that this occurred in the year 1830; that the said Winchester and wife, by their joint deed, in the year 1831, conveyed one-fourth part of the property, so alleged to have been purchased with the moneys of the wife, to Lemmon, as trustee, for her sole and separate use; that after the execution of this deed it remained in possession of Winchester, who neglected to have it recorded, which was not done until the year 1841; that in the year 1833, Winchester mortgaged the same property to certain directors of the rail road company, he being at the time its president, to secure the payment of an alleged indebtedness of himself, "the said company in fact having actual knowledge and notice of the interest and claims" of the appellants, and "with such actual notice, did, nevertheless, accept the said mortgage." The bill then proceeds to state, that the company is about to foreclose the mortgage, and prays an injunction to prevent it from doing so.
The bill does not require the answer of the defendant to be under oath. It was filed on the 16th of December [**12]  1852, and by the act of 1852, ch. 133, the answer of the defendant cannot be considered as evidence against the complainants. It provides, "that no answer of any defendant to any bill or petition, to be hereafter filed in the courts of equity in this State, shall be evidence against the complainant or complainants, unless, by the bill or petition, such answer shall be required to be made under the oath of the respondent or respondents; or unless, at the hearing of the cause, the complainant or complainants shall read the answer as evidence, in which case it shall have the same effect as to the party reading the same, as if it had been required to be made under oath."

 [*239]  Putting the answer out of view, the case, as presented by the bill, is simply this:--the complainants had a claim on, and an equity in, the property in question, and the company, with actual notice of such claim and equity, took a conveyance of it. There can be no doubt that actual knowledge is equivalent to registration, and that if, the company had such notice, it took the property subject to the equities of the complainants. There is nothing, it is true, in the evidence to show actual knowledge; [**13]  but, on the other hand, there is nothing to disprove it, and, in the present condition of the case, the averments of the bill must be assumed to be correct, except, (under the agreement filed in the cause,) in so far as they are rebutted, and we have already said, that under the act of 1852 the answer of the defendant cannot be invoked for that purpose on this appeal.
These observations dispose of the case as made by the bill and proof; but inasmuch as the act of 1832, ch. 302, makes it incumbent upon us to decide and determine all the questions arising out of the record, we proceed to do so.
It was urged in argument, that inasmuch as George Winchester was the president of the company at the time he executed the mortgage, any knowledge which he had in regard to the rights and equities of his wife must be taken as the knowledge of the company.
It is undoubtedly true, as a proposition of law, that the principal is affected with the knowledge and bound by the acts of the agent; but this principle can have no application to a case in which the one party does not act as agent, but avowedly for himself, and adversarily to the interests of the other. In the case now under consideration [**14]  Winchester did not profess, and in fact did not represent, the company; it was represented in the transaction by the three directors with whom he dealt. To hold a company responsible for all the acts of any of its officers, when they act confessedly in behalf of their own interests and in an adversary character, would be to sanction the grossest frauds. The distinction which we state is plainly taken in the case relied on in argument. 

 [*240]  The court there intended, and did nothing more than assert the general proposition, that an agent, within the scope of his authority, may bind his principal, but not to countenance the idea that an officer of a corporation may bind the latter in all eases whatever, especially not in a case where he professes to represent none other than himself, and to deal with the company as though he had no official relation to it.  4 Paige 127, 129. See Story on Agency, sec. 140, (a and b.)
From these observations it will appear we are of opinion, that the knowledge of George Winchester, unless it be shown to have been communicated to the company, is not sufficient to affect its rights. Actual knowledge must be shown by proof,  [**15]  or at least such circumstances must be proved as would have been sufficient to put the company on the inquiry.
An extract of an act of the legislature of Pennsylvania of 1775, relating to the acknowledgment and recording of deeds, is set out in the record; and the property in controversy being within that State, the company rely upon that statute.
At the final hearing one of the questions for decision will be, necessarily, what is the influence of this statute on a case like the present? The appellants claim under the same person as does the appellee; but insist, that their deed being older, although not recorded so soon as the deed of the latter, must have precedence on the ground of George Winchester having but an equity, because, as argued by them, the deed from the sheriff of York county was not recorded until after the execution of the instruments under which both appellants and appellee claim.
According to the provisions of the statute, all deeds made and executed in the then province concerning any lands, tenements or hereditaments, or whereby the same might be any way affected in law or equity, are directed to be recorded in the office for recording of deeds, in [**16]  the county where the lands lie, within six months after their execution; and such deeds as may not be so recorded, are to be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such deed or conveyance shall 

 [*241]  be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim.
The deed under which the appellants claim bears date the 1st July 1831, and was not recorded until 1841. The mortgage is dated 9th April 1833, and was recorded 5th of July of the same year.
The statute of 1775 is the only one which has been given in evidence, but, it was argued at the bar, and the printed reports of judicial opinions pronounced in Pennsylvania were cited to show, that there are other acts in force in that State which relate to sheriffs' deeds. When such acts are legally proved, they possibly may establish that the sheriff's deed conveyed a legal title, without being recorded in what is known in that State as the record office. Of course we give no opinion on the effect of such acts, they not being now before us. If, however, it should appear from these [**17]  statutes a legal title passed to George Winchester under the sheriff's deed, then the deed to the company, being first recorded, would prevail over that of the appellants, unless the allegation of the bill as to actual knowledge on the part of the company, or such circumstances can be made out as ought to have put it on the inquiry in regard to outstanding equities at the time the mortgage was executed.
It has been said that S. C. Leakin, who was a director of the company, because of his being concerned with G. Winchester in the original purchase, had notice Winchester was purchasing for his wife, and that this knowledge was notice to the company. We do not perceive how, necessarily, his interest in the purchase would give him notice of, or put him upon inquiry in regard to the rights of Mrs. Winchester, when the deed in fee for the whole property was taken in G. Winchester's name. The fact of buying for and conveying to Leakin, Glenn and Freeman, three-fourths of the property, did not of itself inform Leakin that the other fourth was for Mrs. Winchester. Three-fourths being bought for others, 

 [*242]  did not give the least information that the other fourth was not purchased [**18]  for himself.
The mortgage has been assailed in argument, as showing on its face that it was given for an antecedent debt, but the language of the instrument does not justify any such inference. It is precisely the same language which would be used if the money had been lent the day on which the mortgage was executed.
From these views it will appear, we are of opinion, that the appellants have stated a good case on the face of their bill, and that if it can be made out at the final hearing, they will be entitled to a decree in conformity with their prayer; but that the knowledge imputed to the company cannot be established from the fact that G. Winchester was, at the time of the execution of the mortgage, its president; nor from any knowledge on the part of S. C. Leakin, growing out of the circumstances now disclosed in the case. And, moreover, if the appellants be unable to make out knowledge on the part of the company, or the existence of such circumstances as ought to have put a reasonable person on the inquiry as to outstanding equities, the right of the company cannot be interfered with.
Order reversed and cause remanded for further proceedings under act of 1832,  [**19]  ch. 302.  

11 of 48 DOCUMENTS 

EDEN SHIPLEY and wife, Admr's of CHARLES WOOD, EX-PARTE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 493; 1853 Md. LEXIS 56 

DECEMBER, 1853, Decided 

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

Shipley and wife were appointed administrators of Wood, on the 3rd of February 1853, and gave bond as such. On the 2nd of August of the same year, one of the sureties in the bond, filed his petition in the orphans court, praying for an order directing the administrators to bring into court $ 2800, part of the estate in their hands, to be invested until final settlement and distribution. The administrators assented, and the court directed the fund to be brought in and deposited in the Franklin Bank of Baltimore, which was accordingly done. On the 9th of November following, the court, upon the application of Shipley, withdrew the fund for the purpose of paying him thereout $ 200, for the maintenance of the infant child of the deceased, and ordered the balance $ 2600, to be deposited in the Fremont Savings Institution.

On the 22nd of the same month, Shipley and one of his sureties filed a petition praying that the fund be withdrawn, and again placed in the hands of the administrator and his sureties, which petition the court on the same day dismissed, remarking that the withdrawal asked for appeared to be not for the purpose [**2]  of paying debts of the estate, but to return the fund to the hands of the administrator to be used by him. On the same day the same parties filed another petition, again asking that the fund be withdrawn and paid into the hands of the administrator, and charging that the fund was lying idle and unproductive, and that said institution is not responsible or solvent, and the fund is in great danger of being utterly lost to the estate. On the same day the court passed an order in which, after stating the previous proceedings, and that the money was deposited to bear interest at the rate of four per cent., after three months from the time of its deposit, they refused to grant the prayer for the reasons as stated by them: 1st. Because the fund was not lying idle or unproductive, but was in progress of productiveness, according to the regulations of the institution; and 2ndly, because no evidence has been furnished against the solvency of said institution, or any proffer to select a place of deposit more worthy of confidence. The court also remarked, that they could not consent to be made an instrument by their judicial order of reflecting upon the solvency of a monied institution, whose [**3]  character stands, as far as they are informed, without reproach, and passed an order dismissing the petition. From this order the administrators Shipley and wife appealed.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

When money in the hands of an administrator is deposited or invested by order of the orphans court, under the act of 1831, ch. 315, it is the duty of the court to hear suggestions from those interested, for the purpose of having the money removed, if in danger of being lost to the estate, and it may do this ex-officio without application, but when it has acted upon such application, its decision is final and no appeal will lie.

In these cases the orphans courts are clothed with a discretion: that is, a sound judicial exercise of the authority vested in them by the act, with reference to the security of the fund, not an arbitrary or capricious decision.

If the court in such a case should act without hearing evidence, if offered, or allowing time to the parties to produce their proofs, it would not be a proper exercise of the power conferred by this law, but this court must presume that the court below has properly exercised its powers until the contrary appears.  

COUNSEL:
Vivian Brent, for the appellants, after remarking that it appeared by the charter of the Fremont Savings Institution, (act of 1853, ch. 227,) that the chief justice of the orphans court was one of its directors, insisted that the whole power of the court to order the money to be deposited, is derived under the act of 1831, ch. 315, the true construction of which requires the deposit or investment to be made in some good security. Here the investment was as a loan in a new and untried corporation, and is a violation of law and an excess of legal power and trust. 2 H. & G., 120, Thompson vs. Brodess. 6 H. & J., 67, Scott vs. Burch. Again, the refusal of the court to allow time for the proof of the allegations in the petition was a gross error. This is a proper case for an appeal, especially as the record shows that the court below have not acted on their legal discretion. 14 East, 397.

William Schley, for the motion to dismiss, insisted that the motion should prevail:--1st. Because the [**4]  order determined no matter of right, and did not injuriously affect the interests of the appellants. The act of 1831, ch. 315, sec. 5, makes the money at all times subject to the order of the court when it is brought in. The party alone can appeal whose rights are injuriously affected by the order. Here the administrators are not aggrieved by this order. 2nd. By the act of 1831, ch. 315, the jurisdiction of the orphans court in the matter of the petition of the appellants was exclusive, and the granting or refusal of the prayer was within their judicial discretion, and having exercised that discretion their decision cannot be reversed by this court, as no appeal will lie from it. On these points he cited, 2 Gill, 253, Compton vs. Compton. 5 Gill, 508, Hebb vs. Hebb. 3 Md. Rep., 230, Hanna vs. Munn. Do. 462, 463, Cain vs. Warford. 3 Md. Ch. Dec., 300.  

JUDGES:
A motion was made to dismiss this appeal, on which, as well as on the merits, the cause was argued before LE GRAND C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*496]  TUCK, J., delivered the opinion of this court.
This appeal is taken from an order of the orphans court of Baltimore county.
It appears that in pursuance of the [**5]  4th sec. of the act of 1831, ch. 315, a sum of money, belonging to the estate of Charles Wood, on which the appellants had taken out letters of administration, was brought into court and deposited in the Fremont Savings Institution. Afterwards the appellants filed their petition, in which one of the sureties on the administrator's bond united, suggesting that this fund was unproductive, that the institution was not responsible, or solvent, and that there was great danger of the money being utterly lost to the estate; and praying that it might be paid back to the administrators. This petition was dismissed for reasons assigned in the order of the court.
The act of Assembly authorises the orphans courts "in their discretion, and whenever to them it shall seem proper, either ex-officio, or upon application, to order any executor or administrator, to bring into court, or place in bank, or invest in bank stock, or in any other good security, any money or funds received by such administrator or executor, and the court shall direct the manner and form in which such money or funds shall be placed in bank, or invested as aforesaid." The right of a party interested to make application to [**6]  have the funds taken from the administrator, for safe keeping, cannot be questioned. It is equally clear, that when deposited or invested by order of the court, it is the duty of the court 

 [*497]  to hear suggestions from those interested, for the purpose of having the money removed, if in danger of being lost to the estate, and this they may do ex-officio, without any such suggestion. But when the court has passed upon such application its decision is final, and no appeal will lie. The orphans courts, in these cases, are clothed with a discretion. This means a sound judicial exercise of the authority vested in them by the act of Assembly, with reference to the security of the fund; not an arbitrary or capricious decision.  4 Gill 261. If, as suggested by the appellants' counsel, the court below acted in the present case without hearing evidence, if offered, or allowing time to them to produce their proofs, and this appeared by the record, we could not say that it had properly exercised the power conferred by law. It is the duty of courts to respect the rights of parties, and to protect their interests. This cannot always, if ever, be accomplished by deciding [**7]  upon their personal knowledge of the circumstances of the case. In the case of Rex vs. Justices of Kent, 14 East, 395, which was a proceeding to compel an inferior jurisdiction to exercise a discretionary power, the court said, "if the justices had rejected the application, in the exercise of the discretion vested in them by the Legislature, this court would not interfere; but if they had rejected it on the ground stated, that they had no power to grant it, the court would interfere so far as to set the jurisdiction of the magistrates in motion, by directing them to hear and determine upon the application."--"They have a discretion to exercise, and therefore they must hear the application; but having heard it, it rests entirely with them to act or not upon it as they think fit."
We must presume, however, that the court has properly exercised its powers, until the contrary appears. The record does not show that it refused to hear evidence, or denied time to the appellants to collect their proofs. On the contrary the order of the court states, that no evidence whatever was furnished against the solvency of the institution.
Appeal dismissed. 

12 of 48 DOCUMENTS 

THE BALTIMORE AND SUSQUEHANNA RAIL ROAD COMPANY, vs. ALBERT P. WOODRUFF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 242; 1853 Md. LEXIS 26 

DECEMBER, 1853, Decided 

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

This was an action of trespass on the case, instituted by the appellee against the appellant, on the 30th of April 1847, to recover damages for injuries caused by fire communicated to the plaintiff's property by the defendant's locomotives. The declaration avers, that the defendant, by its "agents, conductors and servants, so carelessly, improperly and negligently, drove, conducted and propelled, their cars, engines and locomotives, that through such carelessness, negligence, and improper conduct, sparks and fire from said engines were blown and cast upon the fences, cord-wood, timber and trees, of the plaintiff, and thereby set fire to the same, and consumed and injured them," to the extent of $ 500. The plea was non cul.

1st Exception. The plaintiff proved, that in the spring of 1845, two fires occurred upon his farm through which the rail road passed, shortly after the cars had passed by, which consumed trees, timber and fences, to the value of about $ 500; that both fires began at the edge of the rail road, and other facts tending to show that they were occasioned by sparks from the engines, or through the carelessness of the men employed [**2]  on them in throwing burning cotton and pieces of wood from them whilst in motion. The company then proved, that in the spring of 1845 they used the best spark-catchers then known, which were examined every night, and repaired if necessary, and that the locomotives were never run without them. The parties then offered the proof relating to the fuel used on the locomotives at that time, which is stated in the opinion of this court. The plaintiff then proved, that the spark-catcher used upon the locomotive which passed last before the fires occurred, was not Johnson's and Flecher's, which is considered the best and safest, but a modification of it, by which the draft, steam and speed, are increased, and the sparks emitted, and the danger of fire are also increased. The plaintiff then offered to prove, that before the occurrence of the fires upon his farm, as given in evidence, fire had been communicated by defendant's engine to the property of other persons on said road, which had been burnt in consequence thereof, to which offer and evidence defendant objected, but the court, (LE GRAND, A. J.,) overruled the objection, and permitted the evidence to be given to the jury, to which overruling [**3]  and permission defendant excepted, and prayed the court to sign and seal this its bill of exception, which is done accordingly, this 21st of February 1848. There was a scroll for a seal, but no signature by the judge.

2nd Exception. The commencement of this exception, which was signed and sealed by the judge, is stated in the opinion of this court. The plaintiff thereupon offered two prayers:

1st. If the jury shall believe from the evidence that the damage to the trees, fences, grass, &c., of the plaintiff, was occasioned by fire communicated from the engines of, or by the agent or agents of the defendant conducting said engines, the fact of such damage by fire is prima facie evidence of carelessness or negligence upon the part of the defendant, and throws upon it the burden of proving that said damage was not the result of its negligence or carelessness, or that of its agents, and in case it shall fail to supply such proof, the plaintiff is entitled to recover.

2nd. That if the jury shall find from the evidence that the damage to the trees, fences, grass, &c., of the plaintiff, was caused by fire communicated from the engines of, or by the agent or agents of the defendant [**4]  engaged in conducting said engines at the time of said fires, then it is incumbent on the defendant to prove, not only that the engines and spark-catchers were generally kept in good order and condition for the business upon which the defendant was then engaged, but further to prove, that at the times of the fires given in evidence in this cause, the engines of the defendant, from which said fires were communicated, were supplied with the most approved spark-catchers then in use known to the defendant, and that they were propelled by the use of that fuel then in use for such purpose in the city of Baltimore, least likely to communicate fire to property along the road; and also, that the agent or agents of the defendant who were then conducting said engines, acted upon such occasions with the utmost prudence, care and caution, and that if the disaster in question was occasioned by the least negligence, or want of care or caution, in any one or all of the above particulars, the defendant is liable in this action.

The defendant then offered five prayers:--1st. That the plaintiff must prove to the satisfaction of the jury that the fires complained of were caused by the defendant.  [**5]  2nd and 3rd. These are stated in the opinion of this court. 4th. This prayer, to the effect that the plaintiff cannot recover, because he has shown no title to the trees or fences injured, was abandoned by the appellant. 5th. That the plaintiff can only recover the value of his interest in the trees, as tenant in possession without title to the freehold or inheritance.

The court granted the plaintiff's prayers, and the first and fifth of defendant's, but rejected the others, to which grant and refusal defendant excepted. The verdict was for the plaintiff for $ 300 damages, and judgment accordingly, from which the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A prayer that "if the jury believe from the evidence, that the damage to" the property of the plaintiff "was occasioned by fire communicated from the engines of, or by the agent or agents of the defendant," then, &c., is defective, because it assumes that damage was done to the property of the plaintiff.

The court could not assume that the plaintiff's property was damaged in the manner complained of, even if the proof established the fact beyond controversy, because to do so would be an invasion of the rights of the jury.

In an action against a rail road company for damages from fire communicated to plaintiff's property from the company's locomotive by negligence, the plaintiff offered to prove, "that before the occurrence of the fires upon his farm, given in evidence, fire had been communicated by defendant's engine to the property of other persons on the road." HELD:

That this evidence was inadmissible, either to prove that defendant's engine created the fire in controversy, or to rebut the defendant's proof of care and diligence, though such proof may have been so loose and indefinite as to be illegal.

The offering of improper evidence by one party, can never justify the introduction of similar evidence by the other; irrelevant testimony cannot be admitted as an answer to irrelevant testimony.

The act of 1837, ch. 309, made a rail road company responsible in damages for property injured by fire, caused by an engine on the road, whether there was negligence or not. The act of 1838, ch. 244, provides, that the company shall be responsible, unless they can prove to the satisfaction of the tribunal before which the suit is tried, that the injury has been done "without any negligence" on their part. HELD:

That the last act being, in regard to negligence, inconsistent with the first, therefore, in that respect, repeals it, and restores the rules of the common law, except so far as to cast the onus of proving the absence of negligence on the defendant.

The word "negligence" has different meanings in relation to different causes of action; in some cases it means a very slight absence of care and prudence, in others the absence of reasonable care, and again such want of care as makes gross negligence.

The degree of negligence requisite to render a rail road company liable in damages for fire occasioned by its locomotives to property on the line of the road, is that which results from a want of reasonable care and diligence, and not that arising from the absence of the slightest or least care or caution.

The words without any "negligence" in the act of 1838, ch. 244, must be construed with reference to the class of cases to which the act refers, and they therefore mean without any negligence occasioned by the want of reasonable care.

By reasonable care and diligence is meant, having engines properly constructed, in good order, with suitable fixtures for preventing injuries by fire; the spark-catchers, such as are known to the company to have been used and approved of, and best calculated to prevent the emission of sparks, while allowing sufficient draft to create steam enough to propel the engine at proper speed; and such care and diligence in using the locomotive upon the road, as would be exercised by skilful, prudent, and discreet persons, having control of the engine, regarding their duty to the company, and having a proper desire to avoid injuring property along the road.

It being proved that at the time the fires complained of took place, coal was used as an experiment upon one rail road leading to the city of Baltimore, and wood upon all others, and that coal made fewer sparks than wood, it was HELD:

That a prayer which required the company to show that when the fires occurred, their "engines were propelled by the use of that fuel then in use for such purposes in the city of Baltimore, least likely to communicate fire to property along the road," is defective, because it must necessarily have led the jury to conclude that the company was obliged to use coal.

If the fire was communicated without negligence on the part of the company, or if they took the usual and proper precautions to prevent as far as practicable the communication of fire from their engines, they are not responsible, and prayers to this effect, there being some evidence tending to prove care and diligence, should have been granted.

The act of 1838, ch. 244, does not give any new cause of action, nor a new action to recover damages for an injury known to the common law, but simply changes a rule of evidence, by releasing the plaintiff from proving negligence if the fact of the fire is established, and casts the onus upon the defendant of showing proper diligence.

By this act, when the fire is proved, the law raises the presumption of negligence, and therefore the charge of negligence in the declaration is proved by showing that the fire was occasioned by the defendant.  

COUNSEL:
Coleman Yellott for the appellant.

The first bill of exceptions was not signed, but the second, which is both signed and sealed, specifically refers to and adopts it, and in this respect this case differs from those in 2 Md. Rep., 13, and 2 H. & J., 345. There is no statute of this State upon the subject, and the statute of Westminster, 31st of Edward, 1, only requires the judge to seal the exception, not to sign it. 3 Bl. Com., 372. Evan's Pr., 310. The court has adopted the scroll to this exception [**6]  as its seal, by saying in the second that the first is duly signed and sealed.

1st Exception. The evidence admitted was a surprise upon the defendant, and irrelevant to the issue. It was of other fires before those in question, not at that time. The issue was as to defendant's communication of fire to the plaintiff's property, not to that of other persons, and there was therefore error in admitting it. 8 G. & J., 311, 313, 314.

2nd Exception. The act of 1837, ch. 309, is void so far as the appellant is concerned, because it violates its charter. 11 G. & J., 403, 404. Under its charter, (act of 1827, ch. 72,) the appellant had the right to place locomotives upon its road, and was not responsible except for negligence, and the act of 1837 abridges this right, and is therefore unconstitutional. 2 Story's Com. on Cons., sec. 1385. Again, this act, so far as negligence is concerned, is repealed by that of 1838, ch. 244, because the provisions of the latter are on this point inconsistent with it. Dwarris on Statutes, 9 Law Lib., 30. The latter act is also out of the case, because it changes the rule of the common law, and the declaration does not show upon its face that the plaintiff [**7]  proceeds under this statute, which should be the case before he can avail himself of it. 1 Chitty's Pl., 372, 373. Dwarris on Statutes, 25, (9 Law Lib., 2.) 2 Saunders on Pl. and Ev., 830, 831. 2 Ev. Harris, 480, 497. This applies to the first and second prayers of the defendant. Its third prayer should have been granted, whether the declaration was under the act or at common law. 2 Cushing, 542, 543.

The plaintiff's first prayer violates the common law rules of evidence, by throwing the onus of proving the absence of negligence upon the defendant, by the mere showing of the fact of the fire, and, apart from the act of 1838, it was erroneously granted. 13 Pet., 191. 8 Johns., 421. The case of stage-coach proprietors does not apply, because there is in such cases an implied contract to carry safely. Story on Bailments, sec. 601, (a.)

The objections to the second prayer are two-fold:--1st. The degree of care and caution required is overstated. Story on Bailments, sec. 601, (a.) 2 Cushing, 542. 19 Conn., 566, 576, 577. 15 Johns., 255. 2nd. The question of negligence is not left to the jury. There is no proof of any usage to use coal, and it was not negligence to use wood. The [**8]  whole question as to what was proper care, should have been left to the jury upon all the circumstances in proof. 1 Denio, 91. 1 Strobhart's Law Rep., 356, 358.

But both these prayers are objectionable, because they assume that injury was done to the property of the plaintiff. 1 Md. Rep., 161.

St. George W. Teackle for the appellee.

The questions decided in the first exception are not before this court, because that exception is not signed by any judge of the court below. The very purpose of an exception is, that it should be the act of the court who made the decision. The scroll was made by the counsel who drew the exception, and did not become the seal of the court until adopted by the judge whose decision is excepted to, and the evidence of that adoption is his signature. In the early history of the common law the judges could not write, and hence they used their particular seals to identify their acts, and such is the practice in England to the present day. Here a scroll is used for a seal, and if the doctrine on the other side be correct, the counsel drawing up the exception might make the court decide anything he chose, and though the court below should refuse [**9]  to sign it, this court would still be bound by it, and therefore compelled to reverse decisions which were in fact never made. But this is no longer an open question, it is put at rest by the case in 1 Md. Rep., 13.

But suppose the questions are before this court, the evidence was admissible:--1st. Because all the proof of the plaintiff to show that the fires were occasioned by the engines of the defendant was circumstantial evidence, and his case was to be established by such evidence alone. The capability of the engines to communicate fire was one link in the chain, and the plaintiff proposed to prove it by witnesses who had seen fire communicated by them to property along the road, and in this view the evidence was clearly admissible. 2nd. It was admissible as rebutting evidence. The defendant had in defence given in evidence its general care and vigilance to prevent fires to property along its road, and if it could do this, it was clearly competent for the plaintiff to rebut such evidence, by proof that the engines had frequently set fire to the property of persons on the road.

The second exception incorporates the evidence in the first exception, and upon the prayers [**10]  we insist:--1st. As to the acts of 1837 and 1838, that the latter is a mere supplement to the former, and therefore does not repeal it, and that both are constitutional. When did this company acquire the constitutional right to kill, cripple and burn? These acts merely affect remedies, and are analogous to the insolvent and usury laws of the several States, which have been decided to be constitutional. 2nd. These acts settle the questions raised upon the second exception. They make the defendant liable without any proof of negligence by the plaintiff, except the fact that the injury was caused by defendant's engine. The first does not exempt the defendant, even if it could prove by the clearest evidence that the injury was the result of inevitable accident. The latter exempts it only upon proof that the injury complained of has been committed "without any negligence." 3rd. The prayers do not assume that the damage was done, and therefore take this from the jury; they mean the damage mentioned in the evidence, and the jury are required by them to find from the evidence.

The second and third prayers of defendant could not have been granted, because there was no evidence upon which [**11]  they could be based. The only proof was of general care and diligence, but the act of 1838 says the only evidence which shall exempt is proof that there was not "any negligence." There is no hardship in this, because the company has its conductors, firemen and engineers, to disprove the negligence. Again, this act only changes the character of the proof, not the nature and character of the remedy, the declaration was therefore properly brought at common law, and it need not conclude contra formam statuti. 4 Gill, 406.

J. Mason Campbell for the appellant, in reply.

1st. Exception. The issue is not upon a firing, but upon a negligent firing, of the plaintiff's property, and is so put in the declaration. Now how can evidence of firing other persons property tend to prove this issue? If this were all the evidence in the case, could the jury find this issue one way or the other? It was not used as rebutting evidence, and cannot be, for our proof was of diligence at the time the fires occurred, and to rebut this it cannot be shown that before that time we had set fire to other property.

2nd Exception. We contend that the suit was brought at common law, and that the rules of [**12]  evidence of the common law apply to it. The nar charges the cause of action to be the negligently setting fire to the plaintiff's property. The declaration incorporates negligence, and is therefore at common law, because the act of 1838 does not require the charge of negligence. The first prayer in fact assumes that the plaintiff was to prove negligence. The fact of firing is not proof of negligence. 8 Barr., 366. These prayers are not good even under the act of 1838, for it lays down no such rule as they assume, nor does it say what shall constitute evidence of negligence. Under it, negligence is no part of the plaintiff's case. The real meaning of it is simply to shift the burthen of proof.

Without negligence and "without any negligence" mean the same thing. Negligence in some cases is the want of ordinary care, and the rule adopted elsewhere in reference to rail road companies in such cases as these, is well stated in 2 Cushing, 541, 543, 544. Reasonable care and caution only is required under all the circumstances of the case. 19 Conn., 569. 1 Denio, 91. 4 Harrington, 252.

The second prayer puts the test too high. Upon the facts in the case, the court should have submitted [**13]  it to the jury without instructing them what constituted negligence, as the cases above cited show, and as was done by the defendant's second and third prayers.

Again the frame of these prayers is evidently defective, as they assume that damage was done. 2 Md. Rep., 82. 3 Do., 162.

But is the first exception in the case? It presents the evidence; the scroll is the seal, and is the same as that used to the second, and by authenticating that the judge authenticates the seal to the first. It matters not where the signature is placed; the locality is nothing. But what is the effect of rejecting the first bill? If it is out of the case where is the evidence? that requires the authentication of the judge also. If void as to the questions decided by the court it is void for every purpose, and there was therefore no evidence to sustain the prayers, and the case must be reversed. Oh this point see 11 G. & J., 479. 7 Cranch, 242. 2 G. & J., 376. 7 G. & J., 353. 2 Brock., 75. 6 Cranch, 233.  

JUDGES:
The cause was argued before ECCLESON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*251]  ECCLESTON, J., delivered the opinion of this court.
The first bill of exceptions in this case concludes [**14]  in the usual form and has a scroll for a seal, but is not signed by the judge. This, the appellee contends, renders it so defective that the decision of the court below, in regard to the admission of the evidence objected to, is not properly before us for revision. Nevertheless, he insists, that in considering 

 [*252]  the prayers contained in the second exception, we are authorised to look at the testimony set forth in the first, because the second begins by saying: "The plaintiff and defendant then to sustain the issues on either side respectively, offered the evidence given by each, and set out in the first bill of exception."
The argument on the part of the appellant assumes, that the first bill of exceptions is perfect in itself, as it has a seal, although not signed by the judge; but if this be not true, any defect arising from the want of the judge's signature is cured by the language of the subsequent exception, which is regularly signed and sealed. The appellant insists further, that if the defect contended for by the appellee can avail to prevent a revision of the point presented in the first exception, this court cannot look at the testimony contained in it for any purpose.  [**15]  If void in reference to the question decided by the court, it is void as a bill of exceptions in every respect, which would leave the case entirely without testimony to sustain the plaintiff's prayers, and consequently a reversal must follow.
But we need not stop to enquire which of these positions is correct; for whether the first exception is in the case, or out of it, the judgment below must be reversed, on account of error in both the prayers of the plaintiff.
The first prayer begins thus: "If the jury shall believe from the evidence that the damage to the trees, fences, grass, &c., of the plaintiff was occasioned by fire communicated from the engines of, or by the agent or agents of the defendant," &c. In this it is assumed that damage was done to the trees, &c., of the plaintiff, and the jury are only left to enquire whether such damage to the trees, &c., of the plaintiff was occasioned by fire. This assumption, on the part of the court, was an interference with the province of the jury, who possessed the exclusive right of deciding upon the proof, whether any damage had been done to the property of the plaintiff. In Gaither vs. Martin, 3 Md. 146, this [**16]  court said: "No matter how clear and satisfactory the proof was to establish the sale, the court could not assume that it took 

 [*253]  place, as it would be an invasion of the rights of the jury." See also 6 G. & J. 70. 6 Gill, 259. 3 Md. Rep., 176, and the cases there cited. These authorities establish very clearly that this prayer must be considered erroneous, even if the proof established the fact beyond controversy, that the plaintiff's property was damaged in the manner complained of. It is therefore of no importance in reference to this matter whether the testimony set out in the record is legitimately before us or not. In either alternative the result would be the same.
The second prayer of the plaintiff is subject to the same objection. Indeed its beginning is in the very language of the first, except using the word "caused" instead of "occasioned."
As this case must go back for a second trial, we will express our views upon the questions presented in the record as if they were regularly before us, unaffected by any objection to the first bill of exceptions.
The fire complained of took place in the spring of 1845. After [**17]  all the testimony in the cause had been given, except that which constitutes the point of the first exception, the plaintiff offered to prove, "that before the occurrence of the fires upon the plaintiff's farm, as given in evidence, fire had been communicated by the defendant's engine to the property of other persons on said road, and that it had been burnt in consequence of such fire." This proof was objected to, but the court permitted it to be given.
It is said this evidence was proper for the purpose of authorising the jury to believe, that if the engine of the company created the fires offered to be proved, it also occasioned the one in controversy. And if not admissible with that view, it was so for the purpose of rebutting the proof given by the defendant to show care and diligence.
The point in controversy or in issue was, whether the property of the plaintiff was fired by the engine of the defendant by negligence. The plaintiff being required only to prove 

 [*254]  the firing; the defendant to show the want or absence of negligence.
The books are full of cases, showing how careful the courts have been to refuse the admission of collateral matters in evidence. And this [**18]  refusal is founded upon principles of sound reasoning. Collateral facts are calculated to introduce a wide scope of controversy, drawing off the mind of the jury from the point really in issue, and the adverse party not having notice before the trial that such evidence is to be produced, cannot be prepared to rebut it. See 1 Greenlf. on Ev., sec. 52. In this section, and in the authorities cited below, cases will be found where this species of proof was rejected, when the facts offered to be introduced were quite as pertinent to the issue as in the present instance. 3 Phill. on Ev., 443, 444. (Cow. and Hill's note, 330.) 8 G. & J. 311, 313, 314.
It is by no means a necessary consequence, that because the engine did set fire to the property of another, it also was the cause of burning that of the plaintiff. The only legitimate inference from the former fire, would be to show that a locomotive engine running upon a rail road is an instrument which can, and probably will, set fire to property along the road. The very nature of such an engine is sufficient to satisfy a jury of that fact. And if the jury are to be considered as knowing nothing on the subject [**19]  without proof, the appropriate testimony would be to describe the construction of the engine, the means of propelling it, and the manner in which it throws out sparks of fire when in motion.
The evidence offered is no less objectionable in reference to the question of negligence, than to that of the firing itself. There is no time specified. We do not know whether it was one month or five years before the injury in dispute. And the instances alluded to might have occurred without the least negligence, which the defendant would have been able to show by satisfactory proof, if notified of an intention to introduce them. Or if they had been the result of great carelessness, nevertheless, the injury complained of in this suit might have occurred when the agents of the company were using 

 [*255]  all proper precaution. For it cannot be denied that such an engine may communicate fire when running in the best condition.
But the plaintiff argues, that the proof of the defendant on the subject of care and caution, is so loose and indefinite as to render it illegal, and therefore the evidence objected to was proper as rebutting proof. Admitting he is right as to the defendant's testimony,  [**20]  still his was not admissible. In Walkup vs. Pratt, 5 H. & J. 51, the court held, that "if the counsel for the appellee had offered improper evidence, the court, on application, would have rejected it, but the offering improper evidence by one of the litigant parties, never can justify the introduction of similar evidence by the other party; such doctrine would lead to endless confusion, and destroy all the established rules of evidence." And in Stringer vs. Young's Lessee, 3 Peters' Rep., 336, 337, it was decided that irrelevant testimony would not be admitted as an answer to irrelevant testimony.
In the argument upon the prayers in the second bill of exceptions, the plaintiff endeavored to sustain the court below, under the provisions of the acts of 1837, ch. 309, and 1838, ch. 244. The defendant's counsel insisted, that the act of 1837 was unconstitutional; and if not, that it was repealed by the act of 1838. They also contended, that this is an action at common law, and not under the statute, and therefore the rules of the common law are only applicable to it, the provisions of neither statute having any influence on the questions involved in the controversy. If [**21]  mistaken in this view, they claim that the last act is the only one to be considered as having any bearing on the case, and under that they are entitled to a reversal.
The act of 1837 was intended to make a rail road company responsible, in damages, for property injured by fire, caused by an engine on the road, whether there was negligence or not. The act of 1838 provides, that the company shall pay damages for injuries by fire, "unless said company can prove to the satisfaction of the justice, magistrate's court, or other 

 [*256]  tribunal, before which said suit may be tried, that the injury complained of has been committed without any negligence on the part of said company or their agents."
Whether the first of these acts is unconstitutional or not, is a matter of no importance on the present occasion. In regard to negligence, the last act is certainly inconsistent with the first, and therefore repeals it in that respect. The legislature deeming the first too severe and rigorous, thought proper again to make the absence of negligence a defence, and for that purpose passed the act of 1838. In doing which, we think, they have restored the rules of the common law in relation to [**22]  negligence, except only releasing the plaintiff from the obligation to prove it, and casting the onus of proving its absence upon the defendant. This, however, is denied by the plaintiff. He thinks because the act requires a defendant to prove the injury was done "without any negligence," the common law rules on the subject are not now to guide us; but a successful defence cannot be made, except by showing there was not the least degree of negligence; or, in other words, that the utmost care and caution were used. He relies much upon the word "any" as sustaining his view. But we must recollect that this word negligence has very different meanings in relation to different causes of action known to the law. In some cases it means a very slight absence of care and prudence, in others the absence of reasonable care or caution, and again, such a want of care as makes gross negligence. When, therefore, this word is used in the statute, in order to ascertain its appropriate meaning, we should look at the class of cases to which it has reference. In doing this, we shall find, by the authorities, that in suits similar in character to the present, the degree of negligence which is [**23]  requisite to render a party liable in damages, is that which results from a want of reasonable care and diligence, and not that arising from an absence of the slightest or least care and caution. Under such a rule of construction, the words "without any negligence," must mean without any negligence occasioned by the want of reasonable care.

 [*257]  If this be so, it follows necessarily that the second prayer of the plaintiff is erroneous in assuming it to be necessary for the defendant to prove, that at the time of the fire the agents of the company acted with the utmost prudence, care and caution, and that if the disaster in question was occasioned by the least negligence, or want of care or caution, the defendant is liable in this action. It would be difficult to frame more stringent rules than are to be found in this prayer, and we think them such as the law will not justify. The prayer is also defective in requiring the company should show, that when the fires took place the engines were propelled by the use of that fuel then in use for such purpose in the city of Baltimore, least likely to communicate fire to property along the road. The proof on this subject is, that in [**24]  the city of Baltimore, on the Baltimore and Ohio rail road, bituminous coal was used as an experiment, but wood was in use on the Philadelphia, Wilmington and Baltimore rail road, and the Baltimore and Washington rail road; and on the southern rail roads they used wood, not coal. The plaintiff having proved that the coal made fewer sparks than wood, and was less calculated to communicate fire, the prayer must necessarily have led the jury to conclude that the defendant was obliged to use coal. They were not left to the inquiry whether wood was in ordinary use upon rail roads, or whether coal had been used, and found appropriate and suitable for such purposes; but they were told that to be exonerated from damages the defendant must prove, the engines were propelled by the use of the fuel then in use in the city of Baltimore, least likely to communicate fire.
In using the expression reasonable care and diligence, we mean, having engines properly constructed and in good order, with suitable fixtures for preventing injuries by fire; the spark-catchers such as are known to the company to have been used and approved of, and such as are best calculated to prevent the emission of sparks, [**25]  allowing at the same time a sufficient draft upon the fire to create steam enough for the purpose of propelling the engine at a proper speed. And we mean also 

 [*258]  such care and diligence in using the locomotive upon the road, as would be exercised by skilful, prudent and discreet persons, having the control and management of the engine, regarding their duty to the company, and having a proper desire to avoid injuring property along the road. In regard to this subject, we would refer to the judicious remarks of Chief Justice Shaw, in Bradley vs. The Boston and Maine Rail Road, 2 Cush. 541, 542. This authority is cited simply as to the degree of negligence sufficient in such cases to render a defendant liable.
The reasoning contained in the preceding part of this opinion brings us to the conclusion, that the second and third prayers of the defendant ought to have been granted. The second asserts the position, that the plaintiff could not recover if the jury were satisfied "the fire was communicated without negligence on the part of the defendant." The third contains the proposition, that there was no negligence on the part of the defendant, if the usual  [**26]   and proper precautions were taken, to prevent, as far as practicable, the communication of fire from the locomotive. If, according to the second prayer, the fire occurred "without negligence," there surely was no liability on the part of the defendant. And if, in the language of the third prayer, to prevent as far as practicable the communication of fire from the engine, the company took the usual and proper precautions, how could the defendant be responsible in damages? The language is not simply the usual precautions to prevent the fire, but the usual and proper precautions to prevent it as far as practicable.
These prayers have been resisted by the plaintiff, not only by asserting the legal propositions they contain to be erroneous, but because there was no evidence to show a want of negligence. The first objection has already been disposed of. In regard to the last, we think there is some evidence tending to prove care and diligence, whether it was sufficiently strong to satisfy the jury that there was no negligence, we are not now called upon to decide.
Although it may seem to be somewhat out of the proper 

 [*259]  order of things to go back to the first [**27]  prayer of the plaintiff, after having discussed the subsequent parts of the case, nevertheless it is necessary for us to do so on the present occasion.
The point intended to be presented in that prayer is, that the damage by fire is prima facie evidence of carelessness or negligence on the part of the defendant, and that the defendant must prove there was not such carelessness or negligence, otherwise the plaintiff is entitled to recover.
The defendant admits this to be a correct view of the law under the act of 1838; but it is insisted, that the declaration is not under this act, and as it charges negligence in the common law form, the plaintiff is bound to establish it by proof, and cannot rely upon any legal inference of its existence, arising from proof of the fire itself. To this we cannot yield our assent. The statute does not give any new cause of action, nor does it give a new action to recover damages for an injury known to the common law. It simply changes a rule of evidence, by releasing the plaintiff from proving negligence, if the fact of the fire is established, and casts the onus upon the defendant of showing there was no negligence, or, in other words, that [**28]  there was proper diligence. By this, when the fire is proved, the law raises the presumption of negligence, and therefore the charge of negligence in the nar is proved, by showing that the fire was occasioned by the defendant. In an action for a libel or in slander, malice is a necessary ingredient; and Starkie, in his work on Slander, at marg. page 433 of the 1st Vol., considers it necessary to a complete declaration that it should contain an allegation of malice, and the books of forms are in accordance with Starkie. In his 2nd Vol., marg. pages 52 and 53, it will be seen that in some cases of slander malice is a legal inference from the words spoken, and in such instances it is unnecessary to give evidence of malice in fact or actual malice, unless it may be to aggravate the damages.
We have said there was error in the beginning of the plaintiff's first prayer, in assuming what should have been submitted to the jury. But for this error the prayer would 

 [*260]  have been correct, according to the view we have expressed in regard to the legal proposition intended to be presented by the instruction asked for.
We are relieved from considering the fourth [**29]  prayer of the defendant, as it has been abandoned.
Judgment reversed and procedendo awarded. 

13 of 48 DOCUMENTS 

JOHN T. R. JOYNES and SARAH JOYNES, vs. MICHAEL K. WARTMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 195; 1853 Md. LEXIS 85 

DECEMBER, 1853, Decided 

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

Replevin by the appellants against the appellee for a negro girl. The defendant's avowry is stated in the opinion of this court. Issues were joined upon the pleas of:--1st, non tenuerunt; 2nd, no rent in arrear; 3rd, eviction; and 4th, insolvency. The last plea was abandoned in argument.

Exception. The testimony is sufficiently stated in the opinion of this court. The plaintiffs then offered fourteen prayers, of which only those having reference to the validity of the proceedings under the act of 1834, ch. 192, need be stated, and which are as follows:

1st. That to entitle the avowant to recover, he must show that the bailiff who made the distress was authorised and empowered to make it by the landlord, and that such power and authority must be in writing and offered in evidence, or proved in some manner.

2nd. That the account filed by the landlord in this case is not in accordance with the requirements of the act of 1834, ch. 192, sec. 3.

To the refusal of the court, (MARSHALL, J.,) to grant these prayers the plaintiffs excepted, and the verdict and judgment being against them they appealed.  

DISPOSITION:
Judgment [**2]  reversed and procedendo refused.  

HEADNOTES:

The account of the landlord, annexed to a distress warrant, did not state against whom it was made out. HELD, that this was not a compliance with the act of 1834, ch. 192, sec. 3, and the plaintiff in an action of replevin for property sold under the distress may show that this act has not been complied with and thus defeat the defence of the avowant. 

COUNSEL:
B. T. B. Worthington for the appellants.

The act of 1834, ch. 192, applies to every case where a distress is authorised to be made, and it prescribes certain forms of proceeding which must be complied with. The third section provides, that "to all and every warrant" to distrain "there shall be prefixed or annexed the account of such landlord, stating in dollars and cents the amount of rent claimed," &c.; and the fifth section declares, "every distress" made "contrary to the provisions of this act" and "every sale" thereunder shall be "absolutely illegal and void." In this case no such account was filed. There is to be sure an account annexed to the warrant, but it does not appear against whom it is made out. The names of the tenants are not in it, and it is, therefore, no compliance with the act of Assembly. This act embraces every case of distress, as well those made off the premises, under the act of 1826, ch. 266, as others.

No counsel appeared for the appellee.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*196]  LE GRAND, C. J., delivered the opinion of this court.
This is [**3]  an action of replevin. In the court below the appellee avowed the taking of the property replevied by the appellants, as a distress for three months' rent, due on the 9th of February 1851, under an alleged demise to them and 

 [*197]  Pomeroy & Co., of "The Sulphur Springs and furniture," in Baltimore county, for $ 600, in quarterly payments, the rent to commence the 9th of May 1850, &c.; and averred, that within thirty days after the said rent had become due, the plaintiffs had fraudulently and clandestinely removed the same with intent, &c., and the defendant had pursued and taken it as a distress.
It appears from the testimony that an account was made out and sworn to by the appellee, but the account does not state against whom it is--it is blank, "Dr., to Michael K. Wartman." The warrant to distrain was given to William Thomas, constable, who returned it nulla bona. Subsequently the appellee went before a justice of the peace, in the city of Baltimore, and made oath that the property had been removed from the demised premises, and under the warrant of the justice a certain D. H. White was appointed to assist the bailiff of the appellee to take and seize the property alleged [**4]  to have been clandestinely removed. It was under this process the property replevied was taken.
At the trial the appellants offered fourteen prayers, some of which were granted and some of them rejected. The appellee asked and obtained the instruction of the court to the effect, that if the jury found the facts set forth in it the appellants were not entitled to recover.
In the view we have of the case it is not necessary we should express an opinion in regard to each of these propositions. The record discloses a state of facts which, under no circumstances, would enable the avowant to defend his distress. The act of 1834, ch. 192, sec. 3, provides, "that to all and every warrant or warrants authorizing any bailiff to levy a distress for rent claimed to be due to any landlord or landlords authorized by law to make a distress, there shall be prefixed or annexed the account of such landlord or landlords, stating," &c.; and the fifth section of the same act provides, "that any and every distress which shall be made, after the date when this act is to take effect, contrary to the provisions of this act, and all and every sale or sales which shall take place under and by virtue [**5]  of such distress shall be held to be absolutely 

 [*198]  illegal and void, any law, custom or usage to the contrary notwithstanding."
Now in the case before us there was no compliance with this statute. It is not denied that at common law it would be very difficult, if not impossible, in an action of replevin to show an irregularity in the distress; the aggrieved party being most generally driven to his action of trespass. It is not unreasonable to presume, that among the reasons which induced the passage of the act of 1834, was the desire to avoid this hardship and prevent circuity of action. It is similar to the act of New York of 1838, ch. 153. That statute has frequently undergone judicial interpretation. It provides, that previous to a distress for rent in the city of New York, the landlord must file an affidavit with the clerk of the city and county that the rent distrained for is due; and it has been held, the avowry must aver that this was done or it will be bad on demurrer.  Burr vs. Van Buskirk, 3 Cowen 263. Without going thus far, we are fully warranted in saying, that the plaintiff in an action of replevin can show the act of 1834 has not [**6]  been complied with, and thus render unavailing the defence of the avowant. The sufficiency of the affidavit is constantly inquired into in actions of replevin in New York, and we think the privilege exists under our act.  17 Wendell, 417; 2 Hill 648, and 20 Wendell 450.
Judgment reversed and procedendo refused.
ECCLESTON, J., dissented.  

14 of 48 DOCUMENTS 

JOHN HAYS vs. WILLIAM H. DORSEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 99; 1853 Md. LEXIS 74 

DECEMBER, 1853, Decided 

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

This appeal was taken from a decree of the court below for the sale of certain mortgaged premises, passed upon a mortgage executed under the acts of 1833, ch. 181, and 1836, ch. 249. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A mortgage was executed under the act of 1833, ch. 181, to the mortgagee, in trust, for the benefit of the payees of certain promissory notes secured by it, he, upon default, to make sale and apply the proceeds to the payment of the debt and interest. HELD:

That the mortgagee was the proper party to make the statement and affidavit required by the third section of that act, and that the payees in the notes, the cestui que trusts in the mortgage, need not be made parties to the proceedings under the act.

The proceedings under this act so far as the obtention of the decree is concerned are ex-parte; the rights of third parties are to be inquired into on the ratification of the sale and not before.

The affidavit and statement of the amount due on the mortgage required by the third section of this act need not be made before the decree but only before the sale. 

COUNSEL:
Thomas G. Pratt for the appellant, argued, that the decree was erroneous, because--

1st. The affidavit required by the act of 1833, ch. 181, should have been made prior to the decree, and by Miller and Arthur, the holders of the notes, to secure which the mortgage was given. The manifest design of the third section of the act of 1833 was to require that the party legally entitled to the money--the real creditor--should make the statement and affidavit. In no other way would the mortgagee be protected. This case is a forcible illustration of this proposition. Arthur and Miller are the holders of the notes, to secure the payment of which the mortgage was executed. They alone were authorised to receive payment in whole or in part of these notes, and consequently they alone could make the statement and affidavit required by the act.

2nd.  [**2]  Arthur and Miller, the holders of the notes referred to in the mortgage, and the cestui que trusts therein named, were necessary parties to the proceeding to foreclose the mortgage. Apart from the act of 1833, it is clear by every rule of chancery proceedings that they were necessary parties. Story's Eq. Pl., secs. 201, 207, 210. 3 Ves., 560, note (a.) 4 Madd. Rep., 101, Wood vs. Williams. The only question then is, whether this act dispenses with this necessity? I have looked in vain to the act to discover the provision which could be construed to have such a result. If we look at the question practically, the same necessity would seem to exist in proceedings under this act to have all the parties in interest before the court, which would exist in any other chancery proceeding. Arthur and Miller not being parties, are not bound by the decree which has been passed; they are not prevented by the decree from pursuing their remedy upon the notes, and the sale and payment of the money to the trustee named in the decree would not operate a liquidation of the mortgagor's indebtedness.

E. R. Sprague for the appellee. The mortgage was duly executed under the acts of 1833 and 1836. The [**3]  parties to the contract are Hays, the mortgagor, and Dorsey, the mortgagee. The former stipulates, that upon certain contingencies the latter shall have the right to foreclose under the provisions of the acts referred to. The contingency provided for in the mortgage happened, and the mortgagee, under the terms of the contract, instituted his proceedings in the proper court to obtain his remedy. It is too late now for the mortgagor to change the terms of this contract, and to require the mortgagee to pursue his remedy in any other way than that called for by the letter of the instrument itself. It is therefore submitted, that all the necessary parties are before the court.

As to the objection that Miller and Arthur should have made the statement and affidavit required by the third section of the act, it cannot be sustained, either by the language of the section, which is, that it shall be made by the "mortgagee or his assigns," nor by any construction of the act, for the whole object of this requirement is to go to the conscience of the mortgagee to disclose the exact amount claimed by him, and this requirement is fully gratified in this cause.  

JUDGES:
The cause was argued before LE [**4]  GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*101]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from a decree of the Superior court for Baltimore city, sitting as a court of equity.
It appears from the record that the appellant, to secure the payment of certain promissory notes, payable to Messrs. Arthur and Miller, of the State of Missouri, executed to the appellee, on the 16th day of March 1849, a mortgage in trust for the benefit of the payees of the promissory notes. The mortgage was executed under the acts of Assembly of 1836, ch. 249, and 1833, ch. 181.
On the 28th March 1851, all the notes being due, the appellee filed his petition praying a decree for the sale of the mortgaged premises, which was accordingly given.
To this decree two objections are urged:--1st. That Arthur and Miller should have been made parties to the proceeding; and 2nd. That the affidavit required by the act of 1833 should have been filed before the signing of the decree by the judge.
Both of these objections are to be solved by the act. It is an act applicable exclusively to the city of Baltimore. It provides for an ex-parte proceeding; and,  [**5]  so far as the obtention of the decree is concerned, no summons is necessary, nor is any notice required to be given to any one. The rights of third parties are to be inquired into on the question of the ratification of the sale and not before. The mortgagor, by executing his conveyance under the act, gives his "assent" to the passage of the decree; and so far as the authority of the court to pass it is involved, it is only necessary to file a petition and the mortgage. In the particular case before us, although the mortgage was executed in trust and for the benefit of Arthur and Miller, still the act contemplated the mortgagee, or 

 [*102]  his assignee, as the persons to file the petition and invoke the decree. The cestui que trusts are not anywhere required to be made parties. The third section of the act provides, that the affidavit to the amount of indebtedness shall be made "by the mortgagees, their executors or administrators, or their assigns if the mortgage claim shall have been assigned." Now were it conceded that in general the cestui que trusts are the proper persons to make the affidavit, yet in this case the mortgage provides, that the appellee, after default [**6]  of the mortgagor, shall make the sale and "apply the proceeds of sale to the payment of the principal debt then owing and unpaid, and all interest accrued." Under this clause we think the affidavit was made by the proper party.
This cannot occasion any inconvenience or injustice to the mortgagor. If the mortgagor has actually paid the notes, he can show it when the sale is reported for ratification. If, on the other hand, he has not paid them, justice requires that the property mortgaged should be made available to that purpose; and when the funds come to be distributed, he has a right to demand the surrender of the notes before the mortgagee or the cestui que trusts are entitled to any of the proceeds. Thus his interests are fully protected.
In regard to the second objection it is but necessary to say, it is distinctly answered by the third section of the act. It only requires the affidavit shall be filed "before" the sale. In this case, as yet, there has been no sale and the affidavit has been filed. We see no reason for setting aside the decree and accordingly affirm it.
Decree affirmed. 

15 of 48 DOCUMENTS 

HUGH MCNEAL and JOSEPH D. WORLEY, vs. JOHN GLENN, Trustee of ANN WATSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 87; 1853 Md. LEXIS 18 

JUNE, 1853, Decided 

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

The object of this suit was to set aside as fraudulent three deeds, executed by Ann Watson prior to her application for the benefit of the insolvent laws. The first was made to her son, Hugh McNeal, on the 11th of July 1843, and conveyed to him certain leasehold property, on Pratt street, in Baltimore, for an ostensible consideration of $ 404. The second was a bill of sale to the same party, executed on the 22nd of August 1843, conveying to him for an ostensible consideration of $ 8750, all the grantor's stock of goods in her two stores in Baltimore, with certain articles of household and kitchen furniture. The third was a mortgage, executed on the 20th of March 1845, to Joseph D. Worley, to secure him from his liability on certain promissory notes to one Watts and Flint, Cook & Co., in which he had joined her, the debts for which the notes were given being due by Ann Watson in her individual capacity, and as administratrix of her deceased husband, Donald Watson. The property mortgaged was the interest of Ann Watson in the estate of her said husband, and consisted chiefly of her interest in certain leasehold property in said city, and the mortgage [**2]  was acknowledged before a single justice of the peace. On the 22nd of March 1845, she applied for the benefit of the insolvent laws, and in May following, John Glenn was appointed her permanent trustee, who, on the 30th of July following, filed the original bill in this case, attacking the above mentioned deeds as fraudulent as against the creditors of the grantor.

This bill alleges, that Mrs. Watson being largely indebted and hopelessly insolvent, executed the first deed to her son for the ostensible consideration ($ 404,) appearing on its face, and that she afterwards put repairs on the house to an amount exceeding $ 900; continuing still insolvent, she made the second conveyance to the same party, covering all her stock in trade and furniture. McNeal, it is alleged, was young, without means, barely supporting himself by his trade as an iron worker, and could not and did not pay the pretended consideration money for either conveyance. Both deeds, therefore, it is alleged, were fraudulently executed to hinder and defraud creditors, and to conceal and secure the property for Mrs. Watson's own use, McNeal accordingly permitting her to remain in the house, and keep, use and dispose [**3]  of the goods and furniture as before the conveyance. The bill further alleges, that Mrs. Watson continuing insolvent and maintaining herself by the alleged frauds, executed the deed to Worley in consummation of them; that the notes on which Worley became her surety were partly given by her as administratrix, for debts she was not bound to pay, and the whole was a contrivance to enable her to keep possession of the property she had not already fraudulently disposed of; that Worley, at the time of the mortgage, was in possession of the house conveyed by the first deed to McNeal, and it was agreed between the parties that he should indemnify himself out of the rents, which he did, whereby the notes were satisfied without loss to him. This mortgage, therefore, it is alleged, was executed in fraudulent hindrance and delay of creditors, and to secure the property for the benefit of the grantor, and to give an undue and improper preference in contemplation of insolvency, and was moreover defectively executed. The bill then calls upon McNeal and Worley to answer all the matters hereinbefore set forth; and upon the former to state whether he paid to Mrs. Watson the sums of $ 404 and $ 8750,  [**4]  recited in the deeds as the consideration money for the same, or either of said sums, or any part of either of them; and also when and where the said money was paid, in whose presence, whether in specie or notes, and what was and had theretofore been his occupation and means of obtaining money; and for an account of the goods and furniture conveyed by him, and of all money received on account of the rent of the house and sale of the goods, and of the amount of the repairs put upon the house by Mrs. Watson after the conveyance thereof to him, &c.; and then prays for a decree vacating said deeds and for general relief.

By an amended bill the additional allegations are made, that all three of the deeds were executed in contemplation of insolvency, with intent to prefer both grantees, when Mrs. Watson had no reasonable expectation of exemption from liability, &c., for her debts, without applying for the benefit of the insolvent laws, McNeal and Worley both having at the times of their respective deeds, notice of her condition. The allegations of this amended bill are according to the provisions of the act of 1834, ch. 293, sec. 1, and also to the general provisions of the older acts.  [**5]  

The answers expressly deny the formal and technical allegations of the bill, and put the complainant to the proof of them. McNeal on his part avers, that he paid the consideration money ($ 404,) mentioned in the first deed. He denies that repairs were put on the house by his mother after she conveyed to him; but admits that before the conveyance she had put about $ 900 of repairs on it, and that as a consideration for this, it was understood that he should surrender his claim on his mother for some $ 800 she owed him as clerk hire for about two years, during which he had served her. That at the date of this conveyance he was a millwright, but denies that he was then without means, and avers that he paid the $ 404 out of his own money to his mother when he received the deed, part in specie and part in bank notes, in the presence of Patrick Collins, who was the only one present besides his mother on the occasion; that he obtained this money by his labor, being his savings from earnings as a millwright and machinist, his business then and now. As to the second deed, he says the consideration stated in it was inserted by the draftsman without his own knowledge; that the property conveyed [**6]  was worth about $ 3500, and that he did not pay the consideration expressed therein, because the deed, though absolute on its face, was only meant to secure to him the sum of $ 2000, which his mother owed him as administratrix of his father's estate. He admits that his mother was largely indebted when she conveyed to him in both cases; but denies that in his judgment or her own declared opinion she was hopelessly insolvent. He admits that after the goods were conveyed to him he allowed his mother to sell them, meaning by such sales to realise his claim, but she becoming embarrassed and obliged to obtain indulgence from her creditors, or come to terms with them, settled various claims with said goods until the quantity was much reduced, and those that were left were sold under execution by some of her creditors. He denies that he allowed his mother to occupy the house, rent free, but admits that he permitted her to retain possession of the furniture, which he avers was old and not worth more than $ 100, and was part of the estate of Donald Watson, the deceased husband of his mother.

Worley admits the execution of the deed to him, but says that it was fairly and bona fide made;  [**7]  that he became security on the notes therein mentioned, only on condition that he should be thus indemnified, and that he had paid these notes without having been repaid any part of the amount. He also denies all fraud, &c.

A large mass of testimony was then taken, the purport of which sufficiently appears from the arguments of counsel, the opinion of this court and that of the chancellor, reported in 3 Md. Ch. Decisions, 349, delivered upon the passage of the decree vacating all the deeds, from which this appeal was taken by the defendants. The complainant excepted to the competency of Mrs. Watson as a witness, and to the admissibility of all the evidence going to vary the consideration or alter the character of both the deeds to McNeal. The mortgage to Worley was objected to because, being a conveyance of a chattel real, it is executed before only one justice of the peace, and also, because the amounts of the alleged notes to Watts, to secure which it was given, are left in blank.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

A mother conveyed to her son by deed, for the expressed consideration of $ 404, property which she had recently purchased for that sum, but which she had repaired at an expense of more than $ 800. This deed being impeached by the creditors of the grantor, the grantee, to avoid the inference of fraud arising from the inequality between the value of the property and the consideration in the deed, set up in his answer an indebtedness from his mother on account of services as her clerk. This part of the answer not being responsive, and the proof showing that it was not probable or even possible that the grantee could, with his means of raising money, have saved sufficient to pay the $ 404, and also to create a fair indebtedness from his mother for the $ 800; and there being other suspicious circumstances in the case, it was HELD, that the deed was fraudulent and void as against the creditors of the mother.

The bill alleged that repairs to the amount of $ 900 were put on the property by the mother after the conveyance to her son, but did not ask him to show in what way he compensated her for the same. The answer denies that the repairs were made subsequent to the deed, and then states that the repairs were paid for by an indebtedness of his mother to him as her clerk. HELD, that this statement of the answer was not responsive, and must be sustained by proof.

Under a bill to account, the answer is no evidence of disbursements; such a bill is no more than a demand upon the defendant to show his receipts and the legal proof of his expenditures. 

COUNSEL:
Charles F. Mayer for the appellants.

1st. The bona fides of the deeds to McNeal is established not only by the answer, but by testimony that is super-added;  [**8]  and all imputations, (the only one to be imagined being inadequacy of consideration, no proof on that score, however, being offered,) are overruled by testimony; which testimony, not contradicting the deed, but explaining why the consideration of the deed should be deemed valid in amount, is perfectly competent to overthrow testimony, or charges equally dehors the deed. 7 G. & J., 331. 9 G. & J., 91. 10 G. & J., 248. 1 Gill, 423. 5 Ves., Jr., 700, Conolly vs. Lord Howe. Phill. Ev., 531, 533. 17 Ves., 192, Hartopp vs. Hartopp. 1 Younge and Collyer, 138. 1 Simon, 166. 7 Ves., 211. 9 Gill, 32, Bevin vs. Shepherd.

2nd. All pretensions of undueness of preference, are met by the responses of the answers of Worley and McNeal. And Worley's deed cannot be regarded as at all a preference conveyance, it being executed but in fulfilment of the terms upon which conditionally the liabilities provided for were incurred. As concerns fraud in Worley, either in taking or in maintaining that conveyance, there is not the slightest testimony.

3rd. The deed to Worley will, under the authority of Alexander and Ghieslin, (5 Gill, 138,) be enforced as a contract for a security, if, for want of acknowledgment [**9]  before two justices, the instrument be not deemed legally formal as a deed. The amount of the Watts' notes is rendered certain and duly specific, (within the act of 1825, ch. 50,) by referring to the judgments of Watts: "certum est quod certum reddi potest." At least the security must operate for the Flint, Cooke & Co., notes.

4th. Mrs. Watson's testimony is competent, and certainly is not, for the reason alleged by the appellee, inadmissible, since, by his own showing, she did not obtain her final release under the insolvent application. She stands, therefore, liable to all her creditors equally as to Worley, and diminishing the fund here of her general creditors, she increases her liability in that quarter, so far as she promotes Worley's satisfaction from this property. No such objection by appellee was taken in chancery to Mrs. Watson as a witness. His objection there was to only certain parts of her testimony, and upon no personal ground. At all events, however, she is swearing to what makes her answerable to Worley, so far as her testimony establishes payments by him after her application, and so, in any way, she is involved as much as she can be benefitted by her testimony.  [**10]  

5th. The proceedings before the insolvency commissioners, as showing Mrs. Watson's condemnation for fraud against her creditors, are, in that respect, no evidence against us. Their judgment would not so operate, if even the proceedings showed their determination to be founded upon the mala fides of these deeds. But it does not even appear on what charges, or upon what testimony or development, she was found unworthy of the benefit of the insolvent laws.

6th. We have already anticipated the fifth objection of the appellee, as to the testimony of Mrs. Watson's indebtedness to McNeal for his portion of his father's estate. It could not, as insisted by the appellee, be proved by administration accounts, since there never was an administration, as is testified.

7th. Whatever Mrs. Watson's expectation might have been, that by giving to her son McNeal the deed of her stock in trade, to secure his claim, she would, by indulging her with selling it, be enabled, in fact, to pay with the proceeds all her creditors, (as to a certain extent she by such means proceeded to do,) yet, and that is candidly the amount of all she has testified upon that head, such a reserved view of her's,  [**11]  not shown to be imparted to McNeal, and by him concurred in, could not bear against McNeal's security; indeed, so far as her ultimate, though secret action, was to ensure equal payment to all her creditors, this deed became the more meritorious in the view of equity. Mrs. Watson honestly swore to the credits claimed for payment of the debt to Cooke, Flint & Co., although the payments were made actually by Worley, because the oath demands only that the sums have been paid, or "have been secured to be paid." A creditor taking the assumption proper of the administrator, releases the estate, and the administrator then takes credit for the claim against the estate. This is usual and is legally right. 4 Mason, 206, Halsey vs. Whitney.

Frank Key Howard and S. T. Wallis for the appellee.

1st. The whole of the three deeds were fraudulent in fact, and constituted a contrivance, in which Worley and McNeal participated, to cheat the creditors of Mrs. Watson, and secure her property for her benefit. Now what was the condition of Mrs. Watson at the time of the deeds to McNeal? The latter admits that she was largely indebted, though he denies that she was utterly insolvent. The evidence [**12]  shows that she was pressed by numerous creditors, and was sued by Wilkins and Wonn, as early as the 30th of August 1843, for an undisputed debt, which they had previously, for three or four months, been pressing her for. Mrs. Watson confesses that she conveyed the goods to her son to keep them from being swept away by her creditors, and that she and her family lived on the proceeds of the goods and the rent of the house. The unfavorable report of the insolvent commissioners was also evidence to prove her fraud in the transactions impeached. She caused repairs, to the amount of $ 815.84, to be put upon the house before she conveyed it to McNeal. She paid the carpenter $ 130 in money, and the balance in goods out of her store, which she continued to let him have until the summer of 1844, a year after she had pretended to convey these very goods to McNeal. The evidence shows that McNeal never could have earned the money, ($ 404,) which he alleges to have paid as a consideration for the house. He is shown to have been incapable as a clerk, and to have been at work at his trade when he alleges he was earning clerk-hire for his mother. How could he have earned it? Mrs. Watson proves that [**13]  he lived with her till he went to Watchman as an apprentice, at about the age of eighteen years. Watchman says he worked there after his apprenticeship, and left in 1841. As an apprentice he received $ 3 per week, and for one year at the rate of $ 1.25 per day. From 1841 to 1843, was therefore the only time he could have earned the $ 404, and out of this time, two years, Mrs. W. says he was acting as her clerk, incurring an indebtedness from her for which the $ 800 repairs were to pay, and besides this he had a wife and family to support. As for the deed of the goods he never pretended to have paid the consideration expressed in it. He alleges that there was a mistake made by the draftsman, and that his mother had been indebted to him for $ 2000 for more than twenty years. The setting up of this $ 2000 is an affirmative allegation, not responsive. How is it proved? The allegation in his answer is, that his mother was the administratrix of his father, yet she says in her evidence that no administration was ever taken out. He stood by and saw these very goods taken under execution for his mother's debts. The whole transaction is tainted with fraud throughout.

2nd. All three of the [**14]  deeds are, at least, fraudulent under the insolvent laws, being intended to give fraudulent and illegal preferences. Acts of 1816, ch. 221, sec. 6, and 1834, ch. 293, sec. 1. 7 G. & J., 170, Dulaney vs. Hoffman. In reference to the deed to Worley it is admitted, that Mrs. Watson was insolvent, and knew herself to be so when she executed it, which was only two days before her application. That Worley also knew it, is proven by the fact that he had been living in the house with her for nearly two years, and that as far back as September 4th, 1844, he had become surety for her to the sheriff for the forthcoming of her goods, taken under an execution by Wilkins and Wonn. He was likewise security for her personal appearance on her insolvent application, and her provisional trustee. Besides, Mrs. Watson states that she executed the deed to Worley "at the time she was going to petition, in order to get him to sign the notes." McNeal was also joint surety with Worley on the notes referred to, and as clerk to his mother he must have known her situation. Various judgments in the record show that she was, at the date of the first deed, indebted to various persons for debts long due, and the proof [**15]  is that the creditors were then pressing her for payment.

3rd. The two deeds to McNeal were void under the statute of 13th Elizabeth, ch. 5. 1 Story's Eq., sec. 369. Twyne's case, 1 Smith's Leading Cases, 2, 4. The argument on the first point is also applicable to this.

4th. The deeds to McNeal being impeached for fraud, must stand or fall upon the considerations alleged in them, no evidence inconsistent therewith being admissible. The defence set up by the answers, and attempted to be sustained by the evidence, wherein a different character and different considerations are sought to be given to them, is altogether at variance with the settled law of this State, and cannot be maintained. 1 H. & G., 203, Betts vs. The Union Bank. 9 G. & J., 91, Clagett vs. Hall. 10 G. & J., 248, Alcock vs. Harris. 1 Gill, 423, Cole vs. Albers and Runge. 2 Gill, 393, Henderson vs. Mayhew. 6 H. & J., 279, Hurn vs. Soper. The bill does not ask what was the consideration of the deeds, but asks whether he paid the sums of $ 404 and $ 8750, stated in the deeds as their consideration. He sets up in his answer an entirely new consideration, in the shape of the $ 800 clerk-hire. This is not responsive,  [**16]  and therefore must be proved.

5th. Parol evidence was inadmissible to show any indebtedness of Mrs. Watson to McNeal, as administratrix of his father, her character as administrator, and her responsibility as such, being properly the subject of documentary evidence. 5 H. & J., 372, 382, Jones vs. Slubey.

6th. The mortgage to Worley is inoperative from its defective acknowledgment, and invalid also as to the notes, the amounts of which are left in blank. Acts of 1766, ch. 14, sec. 2, and 1825, ch. 150. 1 Gill, 424, Cole vs. Albers and Runge.

7th. Mrs. Watson was an incompetent witness for Worley, inasmuch as if it be true as she testifies, that Worley paid the notes after her insolvent application, she and her husband are responsible to him, and the result of her testimony is to relieve them both, by satisfying Worley's claim out of another fund. 2 Gill, 173, Wharton vs. Callan.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*96]  ECCLESTON, J., delivered the opinion of this court.
This proceeding was designed to vacate three deeds or conveyances executed by Ann Watson. The first two to her son Hugh McNeal, and the third [**17]  to Worley. They are alleged to be void under the insolvent laws, and fraudulent and void under the statute of Elizabeth, and at common law.
The first deed dated the 11th of July 1843, was designed to convey a leasehold interest in a house and lot on Pratt street in the city of Baltimore, for the consideration of $ 404. On the 12th of the preceding month this property was conveyed to Mrs. Watson for the same consideration. After her purchase and before the deed to her son, she repaired the property at an expense of $ 815.84. According to this statement, which is warranted by the answers and the proof in the cause, the property was worth over $ 1200.
To avoid the inference of fraud arising from the great inequality between the value of the property and the consideration expressed in the deed, the answer states an indebtedness 

 [*97]  from the mother to the son, on account of services rendered by him as her clerk; which by agreement between them was to be considered as payment for the repairs.
The answer on this point is not responsive to the bill, and, therefore, must be sustained by proof. The bill alleges that repairs to the amount of $ 900 were put upon the property, by Mrs.  [**18]  Watson after the conveyance to her son. It does not ask him to state how or in what manner he compensated her for the same, nor is there any interrogatory which looks to such an inquiry. The answer denies that the repairs were made subsequent to the deed, but asserts they were before. And then the statement is given in regard to the payment made by him, in the manner already stated. In the case of Ringgold vs. Ringgold, 1 H. & J. 82, it was held that under a bill to account, the answer is no evidence of disbursements. That such a bill is no more than a demand upon the defendant to show his receipts, and the legal proof of his expenditures.
The circumstances disclosed by the proof in this case convince us it is not within the scope of rational probability, but on the contrary next to an impossibility, that with his means of raising money or of acquiring property, the son of Mrs. Watson could have saved from his earnings sufficient to enable him to pay the $ 404 mentioned in the deed; and also to create a fair indebtedness to him from his mother amounting to eight hundred dollars. These repairs which it is alleged were paid for as between the mother and son, by the account for [**19]  his services as clerk, were paid by Mrs. Watson to the carpenter at different times; some of the payments as late as the summer of 1844. And with the exception of $ 130 in money, the balance was paid in goods out of the store. Now, on the 22nd of August 1843, this lady conveyed to her son her whole stock of store goods, and all her household and kitchen furniture. It is then evident that the goods which belonged to the son were, to a considerable extent, applied by the mother toward the payment of the repairs for which she had received satisfaction and payment through his account for clerk hire. This circumstance is calculated to create a very strong suspicion 

 [*98]  against the integrity of the alleged mode of paying Mrs. Watson by her son for the repairs.
The execution of the second deed also has an important bearing upon the one now under consideration, as tending to show the design of the parties to defraud creditors, by transferring so large a portion of the mother's property to her son; especially when it is seen that after the conveyances the mother continued to exercise control over, and dispose of the property, in the same manner as she did previously. In view of the [**20]  pleadings and proof in the cause, we are of the opinion that this first deed as against creditors, is void, under the statute of Elizabeth, believing that Mrs. Watson was at that time really insolvent, without credit, and pressed by those having claims against her. This is our conclusion whether it be admitted or not that Mrs. Watson is a competent witness for McNeal; and also whether it be assumed or not that he had the right to offer proof in support of the allegation in regard to his having paid for the repairs by means of his account for services as clerk.
In reference to the second and third deeds we concur with the chancellor in his views and conclusions; and having already said the first deed is void, a decree will be signed affirming the decree of the chancellor, with costs to the appellee, and remanding the cause for further proceedings in accordance with the terms of that decree.
Decree affirmed and cause remanded. 

16 of 48 DOCUMENTS 

JOHN WRIGHT and JOSHUA COCKEY, use of WM. H. GREEN, vs. THOMAS J. BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 37; 1853 Md. LEXIS 64 

DECEMBER, 1853, Decided 

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

This was an action of covenant against the appellee for breach of an indenture of apprenticeship, executed under the act of 1794, ch. 47, between Wright and Cockey, two justices of the peace, and Brown, by which the apprentice, Green, was bound to Brown for two years, the latter thereby covenanting to cause the said apprentice "to be taught to read, write, and cast accounts, and particularly to teach him the art or trade of a silversmith in all the branches thereof." Issue was joined upon the plea of performance, and all errors in pleading were waived by agreement.

Exception. The only exception in the cause was taken by the plaintiff to the refusal of the court, (LE GRAND, A. J.,) to reject the evidence offered by the defendant, which is fully set out in the opinion of this court. The verdict and judgment were in favor of the defendant and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A covenant in an indenture of apprenticeship to teach the apprentice "the art or trade of a silversmith in all the branches thereof," does not bind the master, in every event, to compel the apprentice to learn his trade, but only to act towards him in the matter of coercion as an ordinarily prudent and sensible parent would act towards his own child.

The master is not bound to impart to the apprentice the proper degree of skill at all events, whether he has the capacity or not, but the burden of proving want of capacity is upon the master.

Where the objection is made to the whole testimony, if any part of it is admissible there is no error in overruling the objection.

In an action of covenant for the breach of an indenture of apprenticeship which was to continue for two years and by which the master agreed to teach the apprentice "the art and trade of a silversmith in all the branches thereof," there was a plea of performance and an agreement to waive all errors in pleading. HELD:

That it was competent for the defendant to prove that it was impossible to teach all the branches of this trade in that time, and it would have been injurious to the apprentice to attempt to do so; that he was placed at one branch until he became master of it, had attained more than ordinary proficiency in the branches taught him, and for the time had been well and properly taught and advanced in the trade.  

COUNSEL:
James Malcolm for the appellant, insisted that the testimony was improperly admitted, because--

1st. The defendant is estopped from alleging it was impossible to perform his covenant. The contract was not in its nature impossible, nor has it become [**2]  so by act of God, he cannot, therefore, set up impossibility as a defence. 2 Comyn's Digest, Title, Condition D. 1 Swanston, 329, Prebble vs. Boghurst. 2 Story's Eq., sec. 1305. 19 Wend., 500, Beebe vs. Johnson. Platt on Covenants, 255. 3 Bos. & Pul., 420. 1 Archbold's Nisi Prius, 234. 1 Saunders on Pl. and Ev., 129. 1 Parsons on Contracts, 383. Story on Contracts, secs. 462 to 464.

2nd. The evidence was also inadmissible in mitigation of damages. 6 Gill 95, Franklin Fire Ins. Co., vs. Hamill. 3 G. & J. 435, Sothoron vs. Weems. An excuse for nonperformance must be specially pleaded. 3 Philips on Ev., 194, and the cases there cited. 1 Archbold's Nisi Prius, 370.

Geo. M. Gill for the appellee. The declaration sets out the indenture and avers the obligation of the master to teach the apprentice the trade of a silversmith in all the branches thereof in the best way he could. The plea is that he did this, and in full keeping with this plea, the defendant proved that he had done his duty by the boy faithfully and honestly, and if he had pursued any other course it would have been injurious to him. The acts of 1793, ch. 45, sec. 2, 1794, ch. 47, and 1826, ch. 154, in relation [**3]  to apprentices, never designed to compel the master to teach his apprentice, whether he was capable of learning or not. The true construction of such a covenant is, that the master shall afford to the apprentice every reasonable opportunity and occasion to learn the trade which he agrees to teach. He is not bound from the very nature of the case positively to teach, but to teach if it be possible to teach. The law does not require that to be done which it is impossible to do. 1 Dev. and Battles, 404, Clancy vs. Overman. 2 Dana, 129, Barger vs. Caldwell.

The objection below is, that the evidence was not admissible for any purpose whatever, and the only question then here is simply, whether this evidence is or is not admissible? 6 G. & J. 488, Goodhand vs. Benton. If, therefore, the testimony was admissible for any purpose, the court were right in not sustaining the plaintiff's objection to it, and it was clearly admissible for the purpose of showing that the plaintiff was not damaged, or had sustained such slight damage as to show a case of damnum absque injuria.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*39]  ECCLESTON, J., delivered [**4]  the opinion of this court.
This is an action of covenant, instituted against the appellee to recover damages for the violation of his engagement to teach Wm. W. Green "the art or trade of a silversmith in all the branches thereof."
The plea is performance and issue is taken thereon, with an agreement to waive all errors in pleading.
Proof was offered to show that Green had not been taught during his apprenticeship all the branches of the art or trade of a silversmith. The defendant then offered to prove that 

 [*40]  there were many branches in this trade; that it would have been impossible during the continuance of this apprenticeship to teach all the branches of the trade to any apprentice; that to undertake to teach all the branches would be injurious to the apprentice and would prevent him from becoming master of any one of them; that it was usual in the city of Baltimore during the time of apprenticeship, to put the apprentice at one branch and keep him at it until he became acquainted with it. And also offered to prove that Green had been kept at one branch of the trade no longer than was necessary, and then had been placed at another and taught it, and that he had attained [**5]  considerable proficiency in the art or trade in the branches taught him, much greater than that attained by most apprentices who served the same length of time which he did; and that considering the time of the apprenticeship, the boy had been well and properly taught and advanced in the trade.
The plaintiff objected to the admission of the evidence which tended to show, that no apprentice could be taught during the time of apprenticeship in this case all the branches of the trade of a silversmith, and that it was to his interest to be confined to one branch until he became well acquainted therewith; and that it was usual in the city of Baltimore to have the apprentice first taught one branch perfectly before he was instructed in another; and that Green had been well and perfectly advanced considering the time of his apprenticeship. This objection was overruled and the court permitted the testimony to be given. From which decision the present appeal is taken.
In Clancy vs. Overman, 1 Dev. and Batt., S. C. R., 402, the nature and extent of the obligation of a master in regard to teaching his apprentice a trade was under consideration. Overman had bound his slave to Clancy,  [**6]  who covenanted to teach and instruct, or cause to be taught and instructed, the negro boy "the art and mystery of the coach-making business."

 [*41]  The pleas were, "covenants performed and not broken; previous covenants not performed."
Evidence was offered to show that the boy had not learned his trade. And the defendant gave evidence to prove that he made all proper exertions to teach the apprentice, but that he had not capacity enough to learn the coach-making business. He also proved that in his absence the boy frequently would go to a neighboring store and procure spirits, by which he would occasionally become moderately intoxicated.
In the court below the judge instructed the jury, that the covenants on both sides were mutual and independent, and that if the covenants on the part of the plaintiff had been broken it was no defence to the defendant. He likewise charged the jury, that the covenant of the defendant was absolute and he could not be excused from its performance, although the boy had not capacity to learn the trade; but he said "the jury might take that into consideration in estimating the damages if they should find for the plaintiff."
In the argument before [**7]  the appellate court, the counsel of the plaintiff insisted that the covenant was absolute, and had not been performed unless the apprentice had become a good workman; that the contract contained no exceptions, nor did it merely oblige the master to endeavor to teach or to instruct the boy in the coach-making business, but positively required that he should be taught the trade.
The Supreme Court agree with the judge below that the covenants of the respective parties were mutual and independent, and also that the engagement of the defendant was absolutely binding to the extent of that engagement. But they do not concur in the construction given below to the covenant. They say: "It seems to us that an engagement to teach the apprentice, or to cause the apprentice to be taught, a trade, is not an engagement that the apprentice will learn that trade," and very good reasons are given why it should not be so. Again the court say: "It would be doing violence, we think, to the words found in this covenant to regard them as stipulating for more than faithful, diligent and skillful instruction."

 [*42]  The opinion in this case was delivered by the learned Judge Gaston.
 Barger vs. Caldwell, 2 Dana 129, [**8]  was an action upon an indenture of apprenticeship, in which the master covenanted to teach and instruct the apprentice the art and mystery of the tanning business.
The issue in that case seems to have been joined on the plea of performance; as it is said on page 130, "In the progress of the trial, upon an issue of covenants performed, the court permitted the plaintiff to ask a witness," &c.
The court below instructed the jury, that the defendant, though not obliged to make the apprentice a first rate workman, was, nevertheless, bound to make him as skillful a workman as tanners generally are who have regularly learned the trade. In the Court of Appeals this instruction was objected to on the part of the defendant, because it was not qualified by a proviso that the apprentice had sufficient capacity to learn. The court did not consider the qualification insisted upon as necessary, there being no proof of any want of ordinary capacity in the apprentice. And they held, that in the absence of such proof the presumption was that he had sufficient capacity to learn the trade. But they say, "there can be no doubt that the master was not bound to impart to the apprentice the proper degree [**9]  of skill at all events, whether he had the necessary capacity or not." The excuse, if it existed, is admitted to be a good one, but the burden of proving it is cast upon the defendant, and the plaintiff is not required to show the absence of any such excuse. Thus unequivocally allowing want of sufficient intelligence to be given in evidence by a defendant, where he has covenanted to teach and instruct an apprentice the art and mystery of the tanning business.
On page 133 it is said: "We do not wish to be understood, that the covenant binds the master in every event or situation to compel an apprentice of sufficient capacity to learn his trade. We mean only, that when sued for a failure of his duty in this particular, he should satisfy the jury that he used the necessary and proper exertions to make him learn; that is, that he has acted towards him in the matter of coercion as an 

 [*43]  ordinarily prudent and sensible parent would act towards his own child."
We have been thus particular in the examination of those two cases, because we think they set forth correct and salutary legal principles in giving construction to indentures of apprenticeship--principles which are sufficient [**10]  to guard the rights of the apprentice and enforce the obligations of the master, whilst they stop short of imposing upon him impracticable duties, such as were never contemplated by any master when signing such an obligation. See also Hughes vs. Humphreys, 6 Barn. & Cres. 680, in 13 Eng. C. L. Rep. 289.
In view of these principles, we think a portion, at least, if not all, of the testimony objected to in this case was properly admitted. And if any part of it was admissible, there was no error on the part of the court in overruling the objection.
It has been said, the defence here relied upon should have been made by a special plea and cannot avail under the plea of performance. To sustain this view, reference has been made to 6 Gill 87, 95, Franklin Fire Ins. Co., vs. Hamill. There the plea in an action of covenant was non infregit conventionem; and to it was annexed an agreement, that "all errors in pleading are released, and any matter may be given in evidence under the above plea which might be given in evidence under any other plea or pleas; provided, notice in writing of the substance of such defence be given four [**11]  weeks before the trial."
No notice in writing having been given according to the terms of the agreement, the Court of Appeals said, "the case stands on the plea of non infregit conventionem."
It was in this view of the pleadings that the court held the parol agreement offered in evidence was inadmissible, as there was no plea to which it could be applied. They, however, declined saying whether the parol agreement would have been admissible in a different state of the pleadings.
That case is very unlike the present, as here the agreement waives all errors in pleading and does not require any notice to be given of what is intended to be relied on in proof.
Whilst in this state of the pleadings we hold that there was 

 [*44]  no error in admitting the evidence, we are not to be understood as deciding that it would not have been admissible under the plea of performance without the agreement to waive errors. Under such a plea, in Clancy vs. Overman, testimony somewhat similar in its bearing was received. In Barger vs. Caldwell, on a like issue, it is very plainly intimated by the court, that similar testimony might have been used in defence, if any such existed. And in [**12]  the case before us the breach in the nar, charging non-performance of the covenant to teach or instruct the apprentice, being the only breach on which it appears the plaintiffs gave any testimony, and to which the proof offered by the defendant was evidently designed to apply, alleges, that the defendant "did not teach or instruct, or cause to be taught and instructed, the said William in the said trade of a silversmith after the best way and manner that he could, according to the force and effect of the said indenture."
It will be seen that the apprentice was bound to serve only from the first of June 1847 until the twenty-first day of May 1849.
Believing the court were right in refusing to reject the evidence, the judgment will be affirmed.
Judgment affirmed. 

17 of 48 DOCUMENTS 

EDWARD M. GREENWAY vs. JOSEPH J. TURNER and FRANCIS TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 296; 1853 Md. LEXIS 34 

DECEMBER, 1853, Decided 

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

A scire facias was issued by the appellees on the 12th of August 1848, under the act of 1838, ch. 205, upon a lien claimed by them upon a house and lot owned by the appellant, for materials furnished by them to one Wall, the contractor for the construction of said house. The claim for lien, amounting to $ 491.47, was filed on the 25th of March 1848. The bill of particulars shows, that lime and other materials were furnished by the plaintiffs to Wall, at short intervals from the 3rd of November 1846 to the 20th of September 1847, from which time no charge is made until the 7th of February 1848, when a charge for lime, &c., to the amount of $ 1.86, closes the bill. The appellant appeared and plead non assumpsit, and it was agreed, that under the issue upon this plea all errors in pleading should be waived, and each party might give in evidence every matter as if specially pleaded.

Exception. Holloway, the plaintiff's clerk, proved, in substance, that the articles charged in the account were furnished by them to Wall for the defendant's house; that the articles charged on the 7th of February 1848, were ordered on that day by one Conolly, who [**2]  signed the receipt therefor; that no lime was furnished from the 20th of September 1847, till the 7th of February 1848; that during the autumn of 1847, plaintiffs pressed Wall for another account they had against him, which has not yet been paid; that the portico to the house was not finished until after February 1848; that during the autumn of 1847 they pressed Wall for their bill, who gave them an order on defendant, payable on demand, and when witness called for the payment thereof defendant declined to pay or accept it, stating that it was contrary to his rule to accept orders on account of the house, but also stated there was a large amount due Wall on his contract, and for extra work, and he would secure the plaintiffs out of the money coming to Wall.

Conolly proved that Wall employed him to do the plastering for the house, and directed him to get the lime therefor from the plaintiffs; that in February 1848, he had completed his work, except the portico, for which he ordered lime on the 7th of that month; that plaintiffs did not ask him to order the lime on that day, but he had before that time asked them about a lien on defendant's house; that the lime so ordered was deposited [**3]  on the pavement by the plaintiffs' negro drayman, and when this was being done defendant raised a window in the house and ordered the drayman to take it away, but the latter drove off leaving the lime behind; that witness did not finish the portico, as defendant would not let him do so; it was finished by a man employed by defendant.

The plaintiffs then proved that they served two notices of lien upon the defendant, one dated the 13th of March 1848, signed by their attorney, the other two days before the sixty days from the 7th of February 1848 had expired, signed by themselves.

The defendant then offered the contract in writing between Wall and himself for the building of the house, dated the 21st of October 1846. Wall was to do the entire work, furnish all the materials, for $ 6700, part to be paid in real estate, and $ 4900 in cash, as the building progressed, Greenway reserving the right to withhold a sufficient sum, to secure him against any loss that might occur should Wall die, or from any cause be unable to complete the agreement; the house to be completed by the 1st of August 1847.

He also offered his account showing the payments made by him to Wall and others,  [**4]  on account of this house amounting to $ 10,414.55, and proved the receipts of Wall for various sums between the 23rd of Nov. 1846, and the 9th of Aug. 1847, amounting to $ 4310; and that from that time until the 16th of Oct. he advanced him sums to the amount of $ 505 as loans to be returned when demanded, for which Wall gave his receipts in that form. He further proved that on the 5th of Febuary 1848, two attachments were issued out of Baltimore county court against Wall as an absconding debtor, which were laid as per schedule, and condemnations nisi entered thereon, but nothing was realized as the property taken was mortgaged for more than its full value. And that on the 7th of February 1848, Wall applied for the benefit of the insolvent laws and subsequently obtained a discharge thereunder.

Hinkley, defendant's clerk, proved, in substance, that when Turner called for the payment of his claim against Wall, defendant was particularly guarded to make no promise to him, saying that he was in advance to Wall who had treated him badly, and defendant and Turner both spoke very severely of Wall.

Baily proved that he was employed by defendant in the fall of 1847, to complete part [**5]  of the carpenter's work on the house; that on the day the lime was left as stated by Conolly, witness met Conolly who spoke of the transaction and said defendant had given him a written order to get mortar from Mr. Didier, and he had got himself into a scrape with defendant.

Sharer proved that he was at work on the house in February when Conolly and the drayman came up with the lime. Defendant raised a window and cried out that it was sent to defraud him and get a lien on his house, and called to drayman to take it away. Drayman got on his dray, whipped up his horse and drove away, looking back and laughing. Witness heard defendant tell Conolly some time before this to get whatever lime and mortar he wanted from Didier.

Starr who was a plasterer, proved that at this time (Febuary 1848,) it was too cold to plaster.

To rebut this last evidence the plaintiffs proved by Green, that on the 8th of February 1848, he sold lime to several persons for plastering.

The defendant then asked the two instructions which are set out in the opinion of this court, which the court below (LE GRAND, A. J.,) refused. To this refusal the defendant excepted, and the verdict and judgment [**6]  being against him, he appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A material-man furnished materials to a contractor at short intervals between November 1846, and the 20th of September 1847, after which none were furnished until the 7th of February 1848, (long after the time fixed by the contract for the completion of the house,) and gave notice of his lien two days before the end of sixty days from that day. HELD:

That if the contract between the owner and the builder was, in point of fact, at an end at the time the materials were last furnished, the material-man could gain no lien by virtue of the delivery on that day.

Under the mechanics' lien laws the party furnishing materials to the builder or contractor, is bound to see that he is dealing with the person who is actually the builder or contractor at the time the materials are furnished

The owner is not required to give public notice through the papers of the termination of his contract with the builder, nor personal notice to each material-man or sub-contractor, in order to protect himself against the acts of the builder.

The liability of the owner is created not by act of the party, but by law, and must rest solely upon the terms of the law, one of which is that there must be an active subsisting contract between the builder and the owner, before the latter can be made responsible for materials furnished to the former.

A prayer composed of several parts connected by a conjunctive copulative presents but one entire proposition, and therefore is not liable to the objection of embracing several legal propositions, any one of which being wrong the whole should be rejected.

If there be a bona fide sale and delivery of the materials for the building, it is immaterial whether they are used or not.

Where a prayer by the defendant assumes a fact necessary to the support of the plaintiff's case, the latter cannot object to it on the ground that it takes from the jury the finding of such fact.  

COUNSEL:
Frederick W. Brune for the appellant.

The evidence shows that Wall had ceased to be the architect or builder, on the 7th of February 1848, when the last articles were furnished; the appellant in the autumn of 1847, took the direction and control of the completion of his house into his own hands, without objection from Wall, and therefore, with his consent, and the latter was an absconding debtor on the 5th of February 1848. By the original act of 1838, ch. 205, a lien could not be obtained by the party furnishing materials to the builder, unless he gave notice within thirty days, but the supplement of 1845, ch. 176, sec. 1, takes the time of furnishing as the starting point, and requires the notice to be given within sixty days. One question in the case is, whether this time runs from the furnishing of the last articles, or applies to the whole? It is a stringent law, and by its language and meaning imposes on the material-man, the duty of seeing that he has made a contract with one who is actually the builder at the time. Unless this be so the law affords no opportunity for an owner to discharge [**7]  a builder, however unfaithful or incompetent he may be, for after he is actually discharged he can still make the owner liable for his contracts. If, therefore, Wall was but the contractor at the time the articles were furnished, the appellees cannot recover. The law is a statutory privilege, in derogation of the common law and must be strictly construed, and its provisions strictly pursued by a party seeking the benefit of it. 3 Watts, 143. 1 Watts and Seargt., 406. 1 Smedes and Mar., 628. The defendant's first prayer should, therefore, have been granted.

There is evidence in the record from which a rational mind might have deduced, the fact of collusion between the appellees and Conolly in furnishing the materials on the 7th of February 1848, and if so, the defendant's second prayer should have been granted. 2 H. & G., 189, Davis vs. Barney. 2 G. & J., 403, Cole vs. Hebb. 7 G. & J., 27. In cases of fraud the slighest circumstances are permitted to go to the jury. 5 G. & J., 30. 2 Gill, 4. 1 Md. Rep., 474, Waters vs. Dashiell.

T. Yates Walsh and David Stewart for the appellees.

The evidence in the record shows that Wall was the builder of the house, and that the lime [**8]  was furnished to the building by the appellees; and further, that the appellant promised to pay them their claim out of the money he owed Wall on the contract. There is no evidence that Wall agreed to a recision of the contract with the appellant, and even if it were rescinded the appellees could not be affected thereby in the absence of notice to them of such recision. Though there are no decisions directly upon this point, yet there are analogous cases as to partnerships, where special notice of dissolution is always required; and why not here where the party was contractor for the entire building? As illustrative authorities on this point, see 2 H. & J., 186. 12 Pick., 133, 7 Pet., 113. The appellant is estopped from denying that Wall was his contractor unless he did something to give the public notice of the dissolution of the contract. There is no evidence the appellees knew of Wall's insolvency. The time begins to run after the furnishing of the materials. Okisko Company vs. Matthews, 3 Md. Rep., 168. The provisions of the act of 1845, would be of no avail if notice was to be given within sixty days after the delivery of each article. These lien laws are remedial in their character,  [**9]  and are to be liberally construed. Again, the prayer assumes that materials were furnished by the appellees, without leaving this fact to be found by the jury, and it is for this reason defective.

As to the second instruction, it is one proposition made up of three several ingredients. 1st. It leaves it to the jury to find collusion between the plaintiffs and Conolly, in ordering the lime on the 7th of February, for the purpose of reviving their lien. 2nd. That the lime was left on the street as stated by Sharer and Conolly; and 3rd, that it was not used in the construction of the house. The proposition being an entire one, if it be wrong in any of the positions assumed, it was rightly rejected. 12 G. & J., 242. Now there is no evidence of the imputed collusion--the action of the colored drayman in delivering the lime cannot be looked upon as such evidence. Whether the lime was used in the building or not is in no wise material, provided it was sold and delivered for the purpose of the building. 2 Penn. Rep., 104, 275. 2 Seargt. and Rawle, 170.  

JUDGES:
The cause was argued before ECCLESTON, MASON and Tuck, J.  

OPINIONBY:
MASON 

OPINION:

 [*302]  MASON, J., delivered the opinion of this court.  [**10]  
This is a proceeding under the mechanics' lien law of 1838, chap. 205, and its supplements.
The defendant contracted with a man named Wall for the building of a house in Baltimore, and Wall obtained a portion of the materials used in the house from the Messrs. Turner, the plaintiffs. At different times and at short intervals from the month of November 1846, up to the 20th September 1847, materials were furnished as alleged by the plaintiffs, and which are not denied by the defendant. No materials were again furnished after the 20th September until the 7th of February 1848, a period of nearly four months. At the last mentioned date, through the direction of a man named Conolly, who professed to act as Wall's agent, certain other materials, amounting to $ 1.86, were obtained from the plaintiffs to be used as was alleged in the building, but which were not in fact used, though delivered at the house; the defendant objecting to their delivery, and insisting upon their being taken away, denying at the same time Wall's right further to bind him. By the contract between Wall and the defendant, the house was to be completed by the 1st of August 1847, but in fact it was not completed for [**11]  more than a year 

 [*303]  afterwards. There is also testimony in the record going to show that in October 1847, the defendant had taken the management of the building into his own hands, and had virtually terminated his contract with Wall. On the 5th of February 1848, two attachments were issued against Wall as an absconding debtor, upon which judgments of condemnation were entered, and on the 7th of the same month he applied for the benefit of the insolvent laws, having for a long time previous been embarrassed in his circumstances.
This appeal comes before us upon exceptions taken by the defendant below, to the refusal of Baltimore county court to grant two instructions prayed for by him, upon the aforegoing testimony. We are now required to review the decision of the court below, and if necessary to correct it.
In the first prayer the court are asked to instruct the jury, "that the plaintiffs are not entitled to recover if the jury find that Jacob Wall was not the contractor, architect or builder of the building described in the proceedings, at the time when the materials charged by the plaintiffs on the 7th February 1848, were charged or furnished."
If in point of fact the [**12]  contract between Wall and the defendant was at an end, at the time the materials were last furnished, no lien or claim against the defendant or his property could result to the plaintiffs by virtue of the delivery on that day. Nor is any formal notice necessary to be given to those furnishing materials to the contractor, of the termination of the contract, provided bona fide, and in fact it is at an end. The party furnishing the materials has the duty imposed upon him by the act of Assembly, which was designed mainly, if not exclusively, for his benefit, of seeing that he is dealing with the person who is actually the builder or contractor at the time the materials are furnished. If the materials were furnished by virtue of an express authority or direction from the owner of the building, there might be some reason for requiring some notice equally express revoking the authority or direction. But where the authority to charge and bind the owner, alone results from the contract between 

 [*304]  him and the builder, that authority must be taken as having ceased as soon as the contract ceases. If it were otherwise there would be no protection for the owners of buildings against [**13]  the acts of improvident and fraudulent contractors. It is hardly to be presumed that the lien law imposes upon the owner of a building the necessity of giving public notice through the papers, of the termination of his contract with the builder, in order to protect him against the acts of the latter: nor can it be contended that individual or personal notice to each material-man, or sub-contractor, is required, because in many cases it would be impossible for the owner to know who they were.
This law provides, that unless within sixty days after the materials have been furnished a notice be served upon the owner, setting forth the claim for materials, &c., no lien for the same will accrue, and in case such notice is served, he may retain from the cost of such building, from the contractor, the amount which may be due the party giving such notice. After the lapse of sixty days from the termination of the contract, and the last materials had been furnished, the owner might well suppose himself free to settle with and pay off the contractor, and thus to surrender the indemnity which he might otherwise have retained in his hands against any claim for materials. But if the termination [**14]  of the contract is to constitute no protection for the owner against such claims as the one set up in this record, it would be impossible for him to know when his liability would cease.
This is not like the case of an ordinary agency, where the liability arises from an express or an implied authority from the party sought to be charged. Independent of the lien laws no responsibility could attach to the defendant for the materials in question, from the simple circumstances alone that they were purchased by his contractor and were used in his building. It is a liability created exclusively by act of Assembly, and not by the act of the party, and must rest solely upon the terms of the law, one of which is that there must be an active subsisting contract between the builder and 

 [*305]  the owner, before the latter can be made responsible for materials furnished to the former.
For the reasons expressed, we think the court erred in not granting the first instruction asked for by the defendant.
We are also of the opinion that the second instruction prayed for was improperly rejected. In that prayer the court was asked to say, "that if the jury find that the witness Conolly, in ordering [**15]  the articles charged upon the 7th February 1848, colluded with the plaintiffs for the purpose of reviving their lien, which they had lost for the articles previously furnished by them, and that the articles so ordered by him were left on the street by the colored drayman, under the circumstances mentioned in the testimony of the witnesses Sharer and Conolly, and were never used in the construction of the dwelling-house mentioned in the proceedings, then the plaintiffs are not entitled to recover."
It was contended on the part of the plaintiffs, that the above prayer was erroneous, because it embraced several legal propositions, that if one of those propositions be wrong the whole prayer should be rejected, and that the question was improperly submitted to the jury to find whether the lime was used in the building or not, as it was no wise important whether it was used or not, provided it was sold and delivered for the building by the plaintiffs.
We do not regard this prayer as obnoxious to this objection. The copulative used, being in the conjunctive and not in the disjunctive, makes the prayer present but one entire proposition, though composed of several parts. It not only affirms [**16]  that the materials were collusively furnished, but that they were so furnished against the protestations of the defendant, and that they were not used by him. It might well have been a question whether he would not have adopted this act of the plaintiffs, although the result of collusion with the witness, and thus made himself responsible, if he had not objected to the delivery of the articles, as he did, or if he had afterwards used them, or permitted them to be used, in his building. In order to protect himself against the alleged collusive conduct, 

 [*306]  (if such it was in fact,) it was necessary that he should not have used the lime on his building. The prayer does not put a case, as it seems to be treated by the counsel for the plaintiffs, of a bona fide delivery of materials for the building; for in such a case it is conceded, that it might have been immaterial whether they were used or not.
The court are of opinion further, that there was sufficient testimony in the record to warrant the submission of the question to the jury, whether there was collusion between the plaintiffs and the witness Conolly. They however express no opinion upon the weight of that testimony,  [**17]  but leave that to be determined by the jury, whose peculiar province it is to decide upon the facts in the case.
The objection urged in argument by the plaintiffs' counsel that the last prayer was erroneous, because it assumed the fact that materials had been furnished before the 7th February, is not tenable--it is, at least, not an objection which the plaintiffs would be permitted to make, because if it does assume a fact, it is one necessary to the support of their own case.
Judgment reversed and procedendo awarded. 

18 of 48 DOCUMENTS 

BENJAMIN H. ELLICOTT, Receiver of RACHEL COLVIN, vs. RICHARD C. WARFORD, Adm'r pendente lite of RACHEL COLVIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 80; 1853 Md. LEXIS 17 

JUNE, 1853, Decided 

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

The appeal in this case was taken by the appellant from an order of the chancellor, passed on the 19th of April 1853, discharging him as receiver of the estate of Rachel Colvin, a deceased lunatic, and directing him to account for and deliver up the property under his control to the appellee, who had been appointed administrator pendente lite of the deceased by the orphans court of Baltimore city. The facts of the case are fully stated in the opinion of this court and in the opinion of the chancellor, (JOHNSON,) accompanying the passage of the order appealed from, which is reported in 3 Md. Ch. Decisions, 289. A motion was made by the appellee to dismiss this appeal, upon the grounds stated in the opinion of this court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

After the death of a lunatic, the person who had been her committee was appointed receiver of her estate, by an order of the chancellor, which expressly reserved power to the court to change, modify or annul the same, to discharge the receiver, and pass other orders, &c. Afterwards, an administrator pendente lite of the deceased lunatic having been appointed, the chancellor passed an order discharging the receiver, and directing him to account and deliver the personalty to such administrator. HELD, that the receiver has no right to appeal from this order.

The appointment of a receiver does not determine any right, or affect the title of either party in any manner whatever: he is the officer of the court, and his holding is the holding of the court for him from whom the possession was taken.

He is appointed on behalf of all parties, and not of the plaintiff or one defendant only. His appointment is not to oust any party of his right to the possession, but merely to retain it for the benefit of the party ultimately entitled, and when he is ascertained, the receiver will be considered as his receiver.

The case of Ellicott vs. Ellicott, 6 G. & J., 35, differs from this in several particulars; there the order, from which the trustee appealed, finally adjudicated the rights of the parties to the fund, the trustee was not removed, and none of the other interested parties themselves appealed.  

COUNSEL:
William Schley for the motion.

1st. The appeal should be dismissed, because the order appealed from decides no matter of right between the parties. The act of 1835, ch. 346, sec. 3, allows an appeal from an order appointing a receiver, but not from an order discharging him. There is no other act of Assembly bearing upon the subject, and the general principle that an appeal will only lie from orders [**2]  deciding matters of right between parties must apply. It has been decided that an appeal will not lie from an order requiring money to be brought into court. 3 G. & J., 163, Richardson vs. Jones. 7 Gill, 307, Ellicott vs. The U. S. Ins. Co. 9 G. & J., 164, Sanderson vs. Alcock. 4 Gill, 38, Wheeler vs. Stone.

2nd. Because the appellant has no such title as will enable him to maintain an appeal from this order. He had no vested right to be continued in the office of receiver, and no interest in the real or personal estate of the deceased, so as to complain of the order directing him to deliver the property to the appellee. He is the mere officer of the court, bound to obey its orders. He is no party to the suit, but appointed outside of the case, because he was deemed a safe hand in which to entrust the property, for the purpose of preserving it until the proper party authorised to receive should be appointed. 7 Gill, 307, Ellicott vs. The U. S. Co.

Henry Winter Davis against the motion.

1st. Ellicott was the committee when he filed his petition upon the death of the lunatic to have a receiver appointed. Cain and others also filed a petition for the same purpose, and upon [**3]  their petition Ellicott was appointed receiver. Warford was then appointed administrator pendente lite by the orphans court. His rights by this appointment were confined to personalty, but from this appointment an appeal was taken, and if properly taken, it suspended his rights even over the personalty. He then filed a petition for the discharge of the receiver and the delivery over of the property to him. The Cains appear and answer this petition, and the chancellor discharged the receiver, and directed the property to be delivered over to the party who, we say, has no authority to receive it. From such an order it is said we have no right to appeal. It is not an order removing one receiver and appointing another, but an order refusing the whole relief prayed for in the petition. The injury in case of refusal to appoint a receiver, and after he is appointed to discharge him, is the same. The whole tenor of legislation on this subject is in favor of an appeal in such cases. The argument on the other side goes the length of saying that there is no appeal from an order in any case discharging a receiver. But the order in this case goes further, for it directs the delivery of property [**4]  from one party to another--a change of possession--which is of itself a subject matter of appeal. In England there would be no doubt but an appeal would lie--it would be a decretal order. The learned counsel then proceeded to review the various acts of Assembly of this State relating to appeals, and contended that the right of appeal did exist, either upon general principles regulating this subject, or by implication from the various acts in relation thereto, or from the general scope and spirit embodied in them as a whole.

2nd. I admit that the receiver cannot appeal for his own interest, but he can maintain an appeal for the benefit of other parties interested. The case is similar to that of Ellicott vs. Ellicott, 6 G. & J., 35, where a trustee was allowed to appeal for the benefit of those interested in the fund.

Reverdy Johnson for the motion, in reply.

1st. The order appealed from revoked the order appointing Ellicott, and directed him to hand over the personal estate to Warford, the administrator pendente lite. Ellicott refused to do this, and an attachment was applied for, and in that application the chancellor delivered an opinion, in which he decides that an [**5]  appeal will not lie from his order revoking the order appointing the receiver, both because the order itself was not the subject of an appeal, and because the receiver himself could not appeal. 3 Md. Ch. Decisions, 300.

But this is not an order from which any appeal will lie by anybody. In the absence of statutory provisions, the refusal to appoint a receiver is not a subject of appeal: it is merely a matter of discretion in the court below. The refusal to appoint the receiver settles nothing as to the controversy during which he is asked to be appointed. An appeal in such a case has never been heard of. The appointment of receivers was sometimes injurious, hence the act of 1835, ch. 380, gave the right of appeal from orders appointing them, but it gave none from orders refusing to appoint. The same was the case in reference to injunctions, see act of 1832, ch. 197. It is very clear, therefore, that if this had been an order refusing to appoint, no appeal would lie, and does it not necessarily follow that none will lie from an order rescinding the appointment?

2nd. It is admitted that Ellicott has no right to appeal on account of any interest he has in the property, but it [**6]  is said that he has a right to appeal, because he was appointed at the instance of Cain and others. This is something new, for Ellicott is not their receiver. When appointed he is the officer of the court, holding for the parties entitled.  

JUDGES:
This motion to dismiss was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*83]  ECCLESTON, J., delivered the opinion of this court.
Upon the motion to dismiss in this case, it was contended that the motion should be sustained on two grounds.
1st. Because the order of the 19th of April 1853, removing the receiver and directing him to deliver up the property under his control was such an order as could not be appealed from.
2nd. If it could the receiver was not a party having the right to appeal.
Believing the motion ought to be sustained on the second ground, we shall confine our remarks to that, exclusively.
In the lifetime of Rachel Colvin, by virtue of proceedings in chancery, B. H. Ellicott was appointed a committee for her as a lunatic.

 [*84]  After her decease, considering his control and authority over her property at an end, he filed a petition praying the chancellor to appoint him as receiver. [**7]  
Joseph Cain, Richard Cain, Mary Laruc, and Daniel her husband, Elisha Warford, Anne Hudnutt, John Cain of Gershom, and John Cain of Daniel, also filed a petition representing themselves as among the next of kin, and heirs at law of Rachel Colvin; that she had died leaving a will, the probat of which was disputed, and asking for the appointment of B. H. Ellicott as a receiver, to take possession of the real and personal property "until some one having right to the same shall appear to whom it can be delivered, or until the further order of the court."
On these petitions the chancellor passed an order dated the 9th of February 1853, appointing Ellicott the receiver; but expressly reserving to the court, power to change, modify or annul the order, to discharge the receiver and to pass such orders and decrees in the premises, as might be deemed necessary and proper.
Subsequently R. C. Warford filed a petition stating that he had been appointed administrator pendente lite of Rachel Colvin, by the orphans court of Baltimore city, and praying that the chancellor would revoke the appointment of the receiver, and direct the personal property to be delivered over to the petitioner.  [**8]  This application not only asked for a revocation of the receiver's authority in regard to the personalty, but to the realty likewise; the petitioner stating that in the event of such revocation it was his intention to apply, immediately, to the Superior Court of Baltimore city, to be appointed receiver of the estate. Among the reasons assigned for such revocation, he states that he is not only appointed the executor of Rachel Colvin in her will, but that he is also the principal legatee and devisee.
Jesse H. Landis, Rebecca Landis, Mary Quick and Theophilus Quick her husband Elizabeth Large and James Large her husband, likewise presented a petition, alleging that they were the heirs at law of Rachel Colvin, and so far as they knew her only heirs at law. They also prayed that the appointment of Ellicott as receiver might be revoked, 

 [*85]  and asked for the appointment of one of their solicitors or some other proper person in his place, until the controversy should be ended.
On the 19th of April 1853, the chancellor passed an order removing B. H. Ellicott from the office of receiver, and directing him to make a report, rendering an account of the property and money which came [**9]  to his hands, and to deliver over to the administrator pendente lite, the personal estate of the deceased. From this order the appeal is taken.
In deciding the question as to the right of the receiver to appeal, it is proper to ascertain what is the nature of his office. It is defined in sundry quotations, in the case of Ellicott vs. The U.S. Insurance Co., 7 Gill 307. From which it appears the appointment of a receiver does not determine any right, or affect the title of either party, in any manner whatever. He is the officer of the court; and truly the hand of the court. His holding is the holding of the court from him from whom the possession was taken. He is appointed on behalf of all parties, and not of the plaintiff or of one defendant only. His appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benefit of the party who may, ultimately, appear to be entitled to it; and when that is ascertained the receiver will be considered as his receiver.
It was conceded, in argument, on the part of the appellant, that he could not appeal in his own right, but it was said he could do so as representing [**10]  the parties interested. How can this be true? He was as much the representative of the administrator pendente lite as any one else. The possession of the property did not come to him from any of the litigant parties. There had been no final adjudication as to whom the property belonged; so as to constitute him the receiver for the persons in whose favor such decision was made, thereby authorising him to represent them in particular. But the only action of the court being that which removed him from office, and ordered the personalty to be delivered over to the administrator pendente lite, if the receiver could be considered more the representative of one than another, the administrator was that one.

 [*86]  As regards Ellicott, personally, he is not injured, for we have seen that he took the appointment, under an order reserving, in express terms, full power in the court, to change, modify or annul the same, and to discharge him as receiver. His counsel, therefore, might well concede he could not appeal, so far as his own rights are concerned.
To sustain the right of appeal the case of Ellicott vs. Ellicott, 6 G. & J. 35, was referred to, where a trustee [**11]  under a decree in chancery was allowed to appeal, for the benefit of those interested in the fund. That case differs from this in several particulars. There the order directed the fund to be applied in a certain way, by which the rights of parties were to be most materially affected, indeed finally adjudicated. The trustee was not removed from office, but was still the trustee. And none of the interested parties, themselves, appealed from the same order. Here the decision did not profess, or attempt, to settle any question as to the right of property. But the receiver was removed or dismissed, and when the appeal was taken he was functus officio. And sundry persons, professing to be parties in interest, have appealed from the same order, now under consideration. They are the same persons on whose petition, in part, the original order of the 9th of February, appointing Ellicott as receiver, was passed; and who also filed a petition praying that the receiver should not be removed. It will be seen that the two last mentioned petitions, as well as all others which have been spoken of, were filed in the same original cause in chancery, relating to the matter of Rachel Colvin, a lunatic. [**12]  The ground of necessity, therefore, cannot be relied upon as furnishing an argument in favor of allowing the dismissed receiver to appeal, for the purpose of protecting the rights of parties, in interest, for there is an appeal independent of his.
We have refrained from saying anything in reference to the first ground taken in support of this motion, because we wish to avoid interfering in any manner with questions which may probably arise in the other appeal. But on the second ground the present motion will be sustained.
Appeal dismissed. 

19 of 48 DOCUMENTS 

WILLIAM J. ALBERT and wife, and others, vs. WILLIAM WINN, JAMES ROSS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 66; 1853 Md. LEXIS 68 

DECEMBER, 1853, Decided 

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

This appeal was taken from a decision of the chancellor, overruling the claim of the appellants to a preference in the distribution of the proceeds of the sale of "The Wheatfield Inn," reported in 2 Md. Ch. Decisions, 169. Other decisions made by the chancellor and the Court of Appeals, on questions arising in the earlier stages of the cause, are reported in 2 Md. Ch. Decisions, 42, and 7 Gill 447. In those cases, as well as in the opinion of this court in the present case, the facts of the case will be found fully stated.  

DISPOSITION:
Decree affirmed and cause remanded for further proceedings.  

HEADNOTES:

Where the answer to a bill for the specific execution of a parol agreement, admits the agreement, and does not plead the statute of frauds, the court will decree a performance.

An agreement respecting lands within the fourth section of the statute of frauds must itself be in writing, but a trust within the seventh section need not be constituted but merely proved by some writing.

A written settlement, or an agreement in writing to make one, before marriage, in consideration thereof, is valid against creditors.

A post-nuptial settlement, reciting an ante-nuptial parol contract, is not valid against creditors, because as to them it is a voluntary conveyance, the subsequent written instrument not relating back to the prior parol agreement, so as to make the date of that the effective date of the settlement.

Marriage, after it is consummated, cannot be regarded as a valid consideration for a subsequent agreement in bar of the rights of creditors.

An answer in chancery, made in 1846, admitting a parol promise in 1845 to mortgage certain lands, cannot relate back to the parol promise and give it efficacy as of the time it was first made, nor prejudice any rights acquired prior to the date of the written admission.  

COUNSEL:
S. J. Donaldson for the appellants. The Court of Appeals decided that the proceedings in Baltimore county court were void for irregularity only. This was all they decided. All the proceedings in that court were exhibited and made part of the proceedings in this case--they were made a part of the present bill. The questions thence arising are two:--1st. Is Jones' verbal promise so proved as to entitle the appellants to a specific execution? 2nd. If so, is not that promise a lien on the fund, and are not his trustees bound by it?

1st. The answer to the [**2]  bill in Baltimore county court admits, in unqualified terms, the making of this promise, and though brought into this case for one purpose, it is in for all purposes. It is like a witness upon the stand. It stands entirely uncontradicted. The promise was made in November 1845. At that time Jones had an undoubted right to the property, for it was before the deed of trust was executed, and before the appellees had any standing in court. This answer comes up to all the requirements of the statute of frauds. Precedents in Chancery, 208, Croyston vs. Banes. 2 Ambler, 586, Gunter vs. Halsey. 2 Brown's Ch. Rep., 567, 569, Whitchurch vs. Bevis. 1 Ves., Sen., 221, Attorney General vs. Day. 6 Ves., 554 to 556, Spurrier vs. Fitzgerald. 2 Atk., 155. 2 Story's Eq., secs. 754, 755. 5 Gill 185, 186, Alexander vs. Ghiselin. 2 H. & G., 100, Black vs. Cord. 1 Story's Eq., secs. 68, 69. Newland on Contracts, 201 to 203. 1 Fonblanque's Eq., Book 1, ch. 3, sec. 8.

2nd. Are not the trustees bound by this agreement? They derive title through Jones, and they are here in a representative capacity, and can claim no more than their principal. They take the property cum onere, whether by law or contract.  [**3]  3 Atk., 1, Lacon vs. Mertins. 4 H. & J. 132, M'Mechen, et al., vs. Maggs. 3 Paige, 374, Clark vs. Mauran, et al. 3 Desaussure's Eq. Rep., 74, Polony and Read's Exc'rs, vs. Keenan, et al.

Thomas S. Alexander and Grafton L. Dulany for the appellees. The principles governing this case are familiar, and the only difficulty is in ascertaining the state of facts to which they are applicable. The first bill was filed in the court of chancery by Hopkins and others, creditors of Jones, on the 14th of September 1846, for the purpose of restraining the intended preference to the appellants, and an injunction was accordingly granted by the chancellor. The appellants filed their first bill in Baltimore county court on the 29th of September 1846, for the purpose of giving a preference in violation of the injunction granted by the chancellor, and on the 22nd of October following, they filed a second bill in the same court for the same purpose. Both bills allege the promise of Jones to convey the "Wheatfield Inn" to the appellants, and upon them an injunction was granted restraining the conveyance of that property to other creditors. Before answering these bills, Jones, on the 26th of the [**4]  same month, October 1846, executed a deed of trust of all his property, except the "Wheatfield Inn," for the benefit of his creditors, and covenanted to convey that as soon as the injunction of Baltimore county court could be dissolved. On the 30th of October 1846, Jones comes in and answers the first bill of the appellants, and admits his promise to them as alleged therein, and on the next day a decree was passed thereon, directing him to bring into court $ 24,000 to pay the appellants. The present bill was filed in January 1847, by Winn and Ross, the trustees in insolvency of Jones, in connection with the complainants in the original bill of 1846, to restrain the execution of the decree of Baltimore county court, and that decree, and all the proceedings prior to it in that court, were declared to be null and void by the Court of Appeals, in 7 Gill 483.

The case then is one of a parol agreement, in 1845, to make a conveyance of the "Wheatfield Inn" to the appellants. This, standing by itself, is conceded to be invalid under the statute of frauds, but it is urged that the answer of Jones to the bill of the appellants, made in 1846, takes it out of the statute, upon the ground [**5]  that it makes the agreement a written one within the requirements of the statutes. Such is the doctrine of Judge Story, in 2 Story's Eq., sec. 755, but his reasoning is refuted by the chancellor in this case, because the defendant may in his answer admit the agreement, and in the next breath rely upon the statute. But if the answer be considered the agreement, it was an undue and improper preference under the insolvent laws, and one which he was prohibited from making by the injunction previously granted in chancery. A mortgage then executed would have been void as an undue preference. The answer then cannot be treated as a new agreement.

Now treat it as an admission of an antecedent parol agreement. Is this a circumstance entitling the appellants to a decree? As evidence, it stands no higher than any other evidence, and is evidence simply of a parol agreement in 1845. Now if it is not efficacious as evidence, is it so as an admission by Jones of his having made a promise in 1845, (which was not then obligatory upon him,) obligatory upon us? Could he bind us by admissions made in 1846 after our rights had accrued? We are not bound by Jones' acts, (2 Story's Eq., secs. 788, 790,  [**6]  792,) nor do we claim under him in such a way as to make his admissions or acts binding upon us. We claim above him, for our rights commenced in August 1846, and at that time Jones had no right to make promises or do acts binding upon us. Even a deed reciting a prior parol promise cannot, under such promise, be valid as against the intervening rights of creditors. 7 Gill 354, Clabaugh, et al., vs. Byerly.

John Nelson for the appellants, in reply. In my view there are but two questions in this case:--1st. Whether there be any evidence in the cause upon which our claim rests? 2nd. Whether it be sufficient to maintain our claim to a priority of lien?

The facts of the case have been fully stated by the counsel for the appellees. Jones was unquestionably indebted to the appellants; about this there is no difficulty. The only question then is, what is the relative claim of the two parties to this suit to the fund in question? That the parol promise was made in 1845, the testimony is perfectly satisfactory and conclusive; about this too there is no question. If that agreement in 1845 had been in writing there would be no doubt of our right to a preference, for the case of Alexander [**7]  vs. Ghiselin, 5 Gill 181, is precisely like this, except there the contract was in reference to personalty. If, therefore, there exist in this case written evidence of the contract of 1845, the principles of the case in 5 Gill 181, apply. The complainants themselves have offered evidence of this by the very averments of their bill, which charges that Jones admitted the fact of having made the agreement of 1845. As to the fact of his having made this agreement there can, therefore, be no doubt. Now what is the effect of that admission,--of that evidence of this contract, this agreement? If, in 1846, Jones made an admission in writing that he made a contract in 1845, whether by answer or otherwise, it is good. We do not set it up as a contract of 1846, but as of 1845. There is no evidence that Jones was then embarrassed or insolvent. The statute of frauds says the contract must be evidenced, not made, in writing, and it is not material when this evidence is made, provided it be made before the suit is brought to enforce the contract. It makes no difference that this evidence be furnished by the course of judicial proceedings, or in any other way; it is brought here as evidence [**8]  of the contract. The only way in which this evidence can be got rid of is by showing that it was made by fraud or collusion, and of this there is not a particle of evidence in the record. The written admission of Jones is here by his answer just as much as if he had made it in any other way, and we rely upon it, not as an answer, but as written evidence of the contract of 1845.

But it is said the appellants proceeded to get the preference with knowledge and after the deed of trust was executed by Jones. There never was a greater fraud than that attempted to be perpetrated upon the rights of these appellants by that deed. But it saved whatever rights they had under the agreement of 1845, and besides was pronounced an absolute nullity by the Court of Appeals, in 7 Gill 446.

The only question that remains is, how far this admission may be affected by the appointment of the appellees as trustees in insolvency of Jones? Unless the agreement be in fraud of the insolvent laws it cannot be assailed. A party may, in invitum, when in insolvent circumstances, confess a judgment and this is not void. There is no proof of collusion. Jones was forced into chancery and he conscientiously [**9]  asknowledged his agreement, and in this there was certainly no fraud upon the insolvent laws.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*71]  ECCLESTON, J., delivered the opinion of this court.
By the report of this cause in 7 Gill 446, it appears that the order of the chancellor continuing the injunction was affirmed by the Court of Appeals.
Upon a subsequent hearing in chancery, at March term 1851, the chancellor filed an opinion in which he says: "In one of the accounts accompanying the report, the whole of the net proceeds of the 'Wheatfield Inn' has been assigned to William J. Albert and wife, in part payment of their claim, No. 26, and the propriety of this appropriation is the principal question now to be decided."
The claim to a preference upon this fund is based on a supposed lien said to be created by a parol promise made by S. Jones, in November 1845, to secure the claim of Albert and wife by a mortgage upon the "Wheatfield Inn." Which parol promise is admitted in the answer of Jones, filed on the 30th of October 1846 to the bill of Albert and wife, which had been filed in Baltimore county court, the [**10]  29th September, in the same year.
The chancellor decided that the lien could not be maintained, but the parties might prove their claim and participate in the fund as general creditors. And on the 23rd of May 1851, he passed an order directing an account to be stated 

 [*72]  according to the principles of his opinion. From this order the present appeal has been taken.
The statute of frauds has been relied upon as a bar to the lien. On the other hand it is insisted, that the answer of Jones is an admission of the contract in writing, which is such a compliance with the statute as places Albert and wife in the same situation, in regard to the fund in controversy, as if they had received from Jones a deed of mortgage for the "Wheatfield Inn," in November 1845.
The answer alluded to admits the parol agreement and does not plead the statute. It is clearly settled, that in a case where an answer of this description is filed, the court will decree a performance of the contract. The reason for this, which is to be found stated in the authorities generally, is, that the statute was intended to prevent fraud and perjury, and there can be no danger of either fraud or perjury when the contract [**11]  is fully set forth in the bill and confessed in the answer. Justice Story, however, in section 755 of the second volume of his Equity Jurisprudence, intimates, by way of a perhaps, that another reason may be added, which is, "that the agreement, although originally by parol, is now in part evidenced by writing under the signature of the party, which is a complete compliance with the terms of the statute." This suggestion the chancellor does not assent to, but considers the contract not sufficient to give any right of preference; the statute operating as a bar notwithstanding the answer. This is his view of the matter, assuming the answer to be properly in evidence before him, the correctness of which assumption he seems to doubt.
Admitting, (but without deciding,) that the chancellor is mistaken and that Judge Story's view is the correct one, still we do not think these claimants are entitled to a preference.
The answer is not relied upon as if it were an answer regularly filed as such in this cause, but it is claimed to be a written acknowledgment or admission of the original parol agreement, which is thereby rendered a valid contract, equally as binding and effective as [**12]  if it had been in writing and signed in November 1845.
Whether the contract is to be considered as effective and 

 [*73]  exerting an influence upon the rights of the appellees from November 1845, or is only to be regarded as a contract of the 30th of October 1846, when the answer was filed, becomes a very important inquiry under the circumstances of this case.
It was said by the counsel for the appellants that the statute of frauds did not require a contract to be in writing, but only to be evidenced by writing, and it matters not whether the writing be simultaneous with or subsequent to the agreement. In this remark as applicable to the question before us, we think he is mistaken. The fourth section of the statute provides: "That no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought shall be in writing and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized." In similar language the same section makes provision in reference to agreements in consideration [**13]  of marriage. The 7th, 8th and 9th sections relate expressly to trusts; the first of which provides, that a declaration or creation of trusts of lands shall be manifested or proved by some writing signed by the party enabled to declare the trust. In consequence of these terms trusts, not constituted, but merely proved by some writing, have been considered sufficiently established, although the ninth section of the act directs, that all grants and assignments of any trusts shall be in writing. Thus it will be seen there is a manifest difference between the language of the fourth section and that of the seventh. This difference is treated of in Willis on Trustees, 44, 45, in 10 Law Lib. 20, 21. In the course of his remarks on the subject he says: "The fourth section of this statute requires contracts for any interest in land to be in writing, and extends also to the consideration of the agreement, which is justly considered as an integral part of the contract. A trust of real estate, being an interest in land, might perhaps have been considered as within that clause were it not that the seventh section of the statute mentions trusts of lands, and directs that they [**14]  shall be manifested and proved by some writing signed by the party."

 [*74]  In Randall vs. Morgan, 12 Ves. 67, the claim was based upon an alleged marriage contract, in support of which two letters were relied on. One of them written prior and the other subsequent to the marriage. The Master of the Rolls, (Sir William Grant,) held that the first letter did not amount to a contract. The second, if relied upon as evidence of a previous promise, he did not think ascertained, or sufficiently pointed out, the promise to which it related, or when the promise was made, whether before or after marriage. Such a promise, if after the marriage, is spoken of as a nudum pactum, and the recognition of it by the letter as not giving it any validity. But after supposing this letter referred to some parol promise before the marriage, a very strong doubt is expressed whether the court could construe that into an acknowledgment of a debt; "for," says this learned jurist, "the promise being in itself a nullity, producing no obligation, a written recognition after the marriage would give it no validity. Otherwise the construction of the fourth section of the statute would [**15]  be just the same as the seventh, which requires only that a trust shall be manifested by writing. Upon that clause it is not necessary that the trust shall be constituted by writing. It is sufficient to show by written evidence the existence of the trust. But the fourth clause requires the very agreement to be in writing and signed by the party to be charged therewith."
In that case the rights of creditors were involved; and that we understand to be the ground on which it is supposed the subsequent written acknowledgment of a parol promise, even if made before marriage, would not sustain the claim.
There can be no doubt that a written settlement, or an agreement in writing to make one, before marriage, in consideration thereof, is valid against creditors. And there are decisions holding a written acknowledgment, made after marriage, of a prior parol agreement may be carried into effect by a court of equity, notwithstanding the claims of creditors may be interfered with. But later opinions, and we think the better ones, maintain the opposite doctrine. Mr. Atherly is in favor of this view of the subject, in his work on Marriage Settlements, 149, 150, in 27 Law Lib. 78, 79.  [**16]  He there finds 

 [*75]  fault with those decisions which sustain the validity of such agreements, and calling to his aid the opinion of Sir William Grant, in Randall vs. Morgan, he says: "But the soundness of this doctrine has, with much propriety, I conceive, been called in question by that able judge, the present Master of the Rolls. Indeed I do not see how the doctrine can possibly be sustained; for to support the settlement resort must be had to the previous agreement, and this agreement can only be proved by parol evidence, and to admit parol evidence in such a case would be completely inconsistent with the spirit and design of the statute of frauds." See also Izard vs. Izard, 1 Bailey's Eq. Rep., (S. C.,) 235, 236.
In 1 Story's Equity, sec. 374, the distinguished author refers to the struggles which have been made in courts of equity to sustain the validity of a post-nuptial settlement against creditors, when it purports to be founded upon a parol agreement before marriage, recited in the settlement. And he concludes by saying: "But the strong inclination of these courts now seems to be, to consider such a settlement incapable of support from any evidence [**17]  of a parol contract, since it is in effect an attempt to supersede the statute of frauds and to let in all the mischiefs against which that statute was intended to guard the public generally, and especially to guard creditors."
The subject has been examined by Chancellor Kent with his usual ability, in Reade vs. Livingston, 3 Johns. Ch. Rep. 481. After a very full review of the authorities his conclusion is, that the validity of such a settlement cannot be maintained.
It is true the late Court of Appeals, in Worthington and Anderson, vs. Shipley, 5 Gill 449, do not agree with the chancellor in one portion of his opinion, but they do not intimate the slightest objection to his views in relation to the particular subject now under consideration. They find fault with those who so construe the statute of 13 Eliz., as that an indebtedness at the time of a conveyance conclusively fastens upon the instrument a fraudulent character as an inference of law, because such a construction necessarily places voluntary conveyances and fraudulent conveyances in the same predicament, and consequently every voluntary conveyance must be 

 [*76]  a fraudulent [**18]  one with respect to an antecedent creditor. They then say: "A proposition of this kind cannot be maintained, and with great respect for the judgment of the eminent judge who delivered the opinion in Reade vs. Livingston, 3 Johns. Ch. Rep. 481, we think he erred in the exposition which he has given to the statute of 13 Eliz."
Our reference at present is not to this branch of the opinion, but to that which relates to the question, whether a post-nuptial settlement can be valid, as against creditors, by the mere force and effect of a recital in it of a prior parol agreement? The chancellor thinks the weight of authority, as well as the reason and policy of the case, are against the validity of such a transaction. Afterwards he discusses the question, whether a voluntary settlement unconnected with any ante-nuptial agreement, if made by a party indebted at the time, is not absolutely fraudulent and void as against existing creditors? And the conclusion which he draws from the cases is, that such settlement is presumed to be fraudulent in respect to existing debts; and that this is a presumption of law which does not depend upon the amount of the debts [**19]  or the extent of the property in the settlement, or the circumstances of the party. It is this portion of the decision to which the Court of Appeals object.
In Battersbee vs. Farrington, 1 Swanston 106, it was considered by the Master of the Rolls as settled law, that a voluntary settlement without fraud, by a husband not indebted, in favor of his wife and children, could not be impeached by subsequent creditors. And it was held, that a recital in a post-nuptial settlement of ante-nuptial articles was conclusive against those claiming under the settlement, but not evidence against creditors without other distinct proof, for the reason that such doctrine would give the power of excluding creditors by a recital in a deed to which they are not parties.
Now the ground upon which a post-nuptial settlement or agreement reciting an ante-nuptial parol contract is void as to creditors, must be, that it is a voluntary conveyance. And if so, it necessarily follows, that the subsequent written instrument does not so relate back to the prior parol agreement as to make 

 [*77]  the date of that the effective date of the settlement. If it did, then the settlement would [**20]  no longer be voluntary, but would virtually become a complete ante-nuptial settlement, and valid even against creditors, having the marriage as a valuable consideration. But marriage, after it is consummated, cannot be regarded as a valid consideration for a subsequent agreement in bar of the rights of creditors.
But where an instrument in writing recites or admits the existence of a previous parol promise or agreement relating to lands, the question, whether in such a case the date of the writing or that of the original agreement is to be considered the date of the contract, seems to have been decided in this State, in Clabaugh and Landers, vs. Byerly, 7 Gill 354. There two mortgages had been given, one on the 2nd of September and the other the day after. The latter recited, that on the first day of the same month the mortgagor had promised to give a mortgage to the mortgagee. These deeds were recorded in the order in which they bore date. The second mortgagee claimed a preference over the first in consequence of the parol promise recited in the last deed, upon the principle, that equity will consider that as done which ought to be done.
Although, independently [**21]  of the recital in the deed, there was no written evidence of the parol promise, yet two witnesses testified that the parol promise was made on the first day of September.
On page 362 the court say: "But the alleged promise is contradicted by the mortgagor, and there is no written evidence of it. The agreement then is one of which a court of chancery can take no notice, (see 3rd Powel, page 150,) and of course cannot regard it as performed. We are told that the promise is to be found in the deed of mortgage executed on the third of September. The recitals, however, in that deed, cannot prejudice the rights of the appellant acquired before its execution." Here we find it distinctly announced, that a parol agreement relating to land is one of which a court of equity can take no notice; and that the recital or acknowledgment of such agreement in a deed subsequently made, cannot prejudice the rights of other parties acquired prior to the date of the deed.

 [*78]  In the case before us we have seen, that the parol promise by Jones to Albert and wife, was in November 1845. There is no written evidence of it, except the answer of Jones, dated the 30th October 1846, and there can be [**22]  no doubt that prior to the answer the promise could not bind Jones, or any one else. If, as has been contended, his creditors, in consequence of his peculiar condition, had acquired such rights as would prevent him from making a conveyance of his property, for the purpose of creating a preference in favor of Albert and wife, or any other creditor, would it not be a direct violation of the principle established in the case last cited, to hold that the admission in the answer can relate back to the parol promise, and give it efficacy as of the time when it was first made? To do so, would surely allow the admission to prejudice rights which had been acquired prior to the date of it, when the court have said, most explicitly, the recitals in a deed could have no such effect. And giving to this answer the effect which is claimed for it by the appellants, would be in opposition to the principle, on which we suppose is founded the right of creditors to consider as voluntary, and consequently void as to them, a post-nuptial settlement, even where it recites a parol agreement made previous to the marriage. There the subsequent writing does not, by relation, make the original parol contract [**23]  the contract, for if it did, as has already been suggested, the creditors could not impeach it.
Indeed the doctrine on which this claim to preference is sought to be maintained, through the effect of this answer, if established, would open a wide door for the introduction of frauds, and the claims of creditors would become exceedingly insecure. Not intending by this remark, however, to intimate even a suspicion of any deliberate fraudulent purpose on the present occasion, but simply expressing the opinion that such doctrine, if allowed, would afford facilities for practicing frauds upon creditors.
Having expressed or intimated the opinion, that the answer could not be allowed to prejudice any rights existing prior to its date, it becomes necessary to inquire whether the creditors 

 [*79]  of Jones, in consequence of his peculiar condition, had acquired such rights as prevented him from securing to the appellants, by virtue of the admission in his answer, the preference claimed by them?
The former appeal in this case came up on the chancellor's order continuing the injunction, which had been granted by him on the 13th January 1847, restraining the execution of the decree obtained [**24]  on the 31st of October 1846, in Baltimore county court, by Albert and wife, against Jones. The bill on which this decree is founded was filed in Baltimore county court on the 29th of September 1846, and in that cause, on the 30th of October following, was filed the answer of Jones, which constitutes the chief ground of controversy at present. On the 14th of September, a bill had been filed in the chancery court against Albert and wife, and Michael S. Norman, on which an injunction issued restraining Jones "from conveying, assigning or transferring, any of his property or effects, rights or credits, to the said Albert and wife, and Norman, to secure or pay the debt due to them, in preference to the rest of his creditors, and to restrain the said Albert and wife, and Norman, from receiving any such preference."
On the appeal the effect of this injunction upon the decree of Baltimore county court was considered. And the appellate tribunal held, that the chancellor was right in issuing the second injunction for the purpose of preventing the execution of the decree, and that it was proper "to treat the whole proceeding in Baltimore county court as a nullity." The first injunction was in [**25]  full force when the bill was filed in the county court, and when the decree upon it was passed. And as the proceedings in chancery had precedence, in point of time, they were considered as giving that court the whole jurisdiction in regard to the distribution of Jones' estate, and especially for the purpose of preventing "Albert and wife from securing to themselves a preference in any way."
It cannot be successfully contended that the proceeding in the county court was a legal remedy, adverse and coercive against Jones, which the injunction of the chancellor did not 

 [*80]  design to reach, and consequently was neither giving or receiving such a preference as that injunction designed to prohibit. For this point was considered and settled in the former decision. Nor does that decision pronounce the decree alone to be a nullity, but also "the whole proceeding in Baltimore county court." And on page 483 it is said: "Until this proceeding before the chancellor was properly disposed of, and while the injunction under it remained in force, the parties were restrained, in any form, from seeking the preference which it prohibited." Again, on page 484, the court speak of the injunction [**26]  as "intended to prevent Albert and wife from securing to themselves a preference in any way," and their resort to another tribunal, designed or not, under the circumstances, is held to be a disregard of the injunction.
Thus it is evident from the decision of the Court of Appeals in this cause, that at the date of Jones' answer, which is relied upon as securing to the appellants the preference now claimed, he was under an injunction restraining him from giving a preference, in any form or in any way. And a decree based upon that answer, for the very purpose of enforcing this preference, is held to be a nullity, as likewise all the proceedings in that cause. Under such circumstances it is difficult to perceive how the admission of the contract in the answer can give, or aid in giving, the preference. Surely this admission can have no greater effect than it could if made by recital in a deed. And such recital could create no lien, as of the date of a deed executed when the answer was signed, because it would have been void in consequence of the express prohibition of the injunction; nor could it establish the lien, by relation to the original parol promise, according to the [**27]  views already stated.
The chancellor's order of the 23rd of May 1851, must therefore be affirmed, with costs in this court to the appellees, and the cause sent to the circuit court for the city of Baltimore for further proceedings. A decree will be signed accordingly.
Decree affirmed and cause remanded for further proceedings. 

20 of 48 DOCUMENTS 

GEORGE JONES and S. W. WATERBURY, vs. OUTERBRIDGE HORSEY, Gar. of BENJAMIN F. WIGGINS, and ELISHA MCCONNEKIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 306; 1853 Md. LEXIS 35 

DECEMBER, 1853, Decided 

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

This was an attachment upon warrant, issued on the 2nd of May 1850, by the appellants, non-resident creditors of Wiggins and McConnekin, trading under the firm of B. F. Wiggins & Co., and laid in the hands of the appellee, Horsey, permanent trustee in insolvency of Wiggins. The plaintiffs' claim was based upon a judgment recovered by them against Wiggins & Co., in the Circuit Court of the United States for the District of Maryland, on the 7th of April 1847, for $ 532.82, with interest and costs. The garnishee appeared and plead non assumpsit for the defendants, and nulla bona of defendants in his hands.

Exception. The plaintiffs proved their claim, and that they were citizens of the State of New York, and that the garnishee had in his hands certain sums of money which he had received as permanent trustee of Wiggins.

The garnishee then proved that Wiggins applied for the benefit of the insolvent laws on the 20th of April 1846, and was subsequently discharged thereunder, and that on the 21st of April 1846, the following paper was filed with the insolvent commissioners in the matter of said application, admitted to be signed by O. Horsey [**2]  and R. J. Brent, who were at that time the attorneys of the plaintiffs in the prosecution of their claim against Wiggins & Co.:

"To the commissioners of insolvent debtors of Baltimore: The undersigned creditors of B. F. Wiggins, an insolvent debtor, beg leave to recommend Outerbridge Horsey as permanent trustee of said Wiggins.

BRENT & HORSEY, for

"Jones and Waterbury, $ 550.

"Test,--Philip J. Tracy, Jr."

That said Horsey was on the same day duly appointed such trustee, and qualified as such.

The plaintiffs then asked the following instructions of the court:--1st, that they are not barred from recovering in this action because their attorneys recommended the appointment of a trustee. 2nd, that they are not bound or barred by the application of Wiggins for the insolvent laws, and that all proceedings thereunder are invalid against them, and that they are entitled to any funds derived from the estate of Wiggins undistributed in the hands of the trustee, both of which the court, (FRICK, C. J., and LE GRAND, A. J.,) refused, and the plaintiffs excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The voluntary uniting by a foreign creditor in the recommendation of a trustee for the insolvent, is such an acquiescence in the insolvent laws of this State as to place such creditor upon the same level with domestic creditors, and to compel him to take a dividend of the assets as they do.

Voluntarily calling in aid the insolvent laws of this State, by a foreign creditor, to avoid a deed of the insolvent, valid but for such laws, will have the same effect.

It is within the limits of the authority of an attorney for a foreign creditor to unite for his client in the recommendation of a trustee for an insolvent, and in the absence of proof to the contrary, such act is presumed to be with the approbation of the client, who is as much bound thereby as if it was his own act.

An attorney having charge of a claim may transfer it from the action and decision of such judges as the client has in the first place selected, and submit it to the decision of other persons, and in the absence of proof to the contrary, the legal presumption is that he acted by authority of the client.

The law as it now stands in regard to the rights of foreign creditors is exceedingly hard and oppressive upon the claims of domestic creditors, and this court has no inclination to increase such hardship. 

COUNSEL:
Levin Gale for the appellants.

The only controversy arises upon [**3]  the first prayer, for if this be granted the second follows of course, for the appellants being non-resident creditors, their debt is not discharged, unless the act of their attorneys in signing their recommendation has brought them within the laws of Maryland. We insist, then:

1st. That the recommendation of the appointment of a permanent trustee by the plaintiffs, they being citizens of another State, will not subject them to the effect of the insolvent laws of Maryland so as to bar their debt.

2nd. That an attorney of a foreign creditor, without special authority for the purpose, and simply in virtue of his employment as attorney, cannot do an act the effect of which is to release or discharge the client's debt.

The case of Clay vs. Smith, 3 Pet., 411, relied on in the court below, is quite different in principle from this. Smith, the foreign creditor, filed his claim and received a dividend from the trustee under the insolvent laws; and the Supreme Court held, that he was bound by the discharge granted in pursuance of those laws. Here the only thing done was to recommend the appointment of a trustee. This amounts to nothing more than a recognition of the existence [**4]  of the application, but does not submit the debt to the control of those laws. No claim was filed by the appellants, and indeed the commissioners have no power to adjudicate upon claims, so that the recommendation was not in fact offered before a tribunal which had any authority over the contract. But this point has been before several courts in this country, and in all of them it has been held, that nothing short of taking a dividend under the insolvent laws can so bring a foreign creditor under the operation of such laws as to affect his debt. Van Hook vs. Whitlock, 26 Wend., 43. McCarty vs. Gibson, 5 Grattan, 307. Norton vs. Cook, 9 Conn., 314. And in England the same distinction between merely appearing to and taking part in the proceedings, and the receipt of a dividend under the insolvent system, has been recognised and acted on. Phillips vs. Allan, 8 Barn. and Cres., 477.

As to the second point it seems to be established law, that an attorney can do no act, the effect of which is to release, discharge, or bar his client's debt. Thus, in Beeche's case, 8 Coke, 115, it was decided, that an attorney could not enter a retraxit, because it perpetually barred the plaintiff's [**5]  right of action, although it was admitted he might suffer a non suit which merely affected the remedy. And in Gaillard vs. Smart, 6 Cow., 385, the same distinction is taken between the remedy and the cause of action, and the doctrine admitted that an attorney has no right to discharge the latter. It has been repeatedly held, that an attorney has no right to release a defendant from execution without satisfaction, because it discharges the debt. Jackson vs. Bartlett, 8 Johns., 362. Kellogg vs. Gilbert, 10 Johns., 220. Simonton vs. Barrell, 21 Wend., 363. Card vs. Walbridge, 18 Ohio, 411. Nor has an attorney power to release or compromise his client's debts or claim, and such release or compromise is void, unless sanctioned by the client. Harrow vs. Farrow, 7 B. Munroe, 126. West vs. Ball, 12 Alabama, 341. Gullet vs. Lewis, 3 Stewart, 231. Langdon vs. Potter, 13 Mass., 319. Lewis vs. Gamage, 1 Pick., 347. Givens vs. Biscoe, 3 J. J. Marshall, 532. In the case of Givens vs. Biscoe, the court say that an attorney cannot release or discharge a debt, "or do any act that would have that effect." And in Doub vs. Barnes, 4 Gill, 1, the Court of Appeals gave a similar decision, where they say:  [**6]  "As attorney, Mr. Price had no authority to accept for his client the deed of trust;" that is, they decide that an attorney cannot accept a deed of trust for the benefit of his client, the effect of which is to compromise or release the client's rights. The rule to be gathered from the authorities seems to be, that an attorney has authority over the remedies, so long as they do not operate upon the cause of action itself, but when the act to be done, if effectual, will compromise, release or discharge the cause of action, then it is beyond the power of an attorney, acting merely in virtue of his general authority as such. In this case, then, if it be decided that the recommendation, if properly made, would discharge the debt claimed by the appellants, the attorney, according to the authorities cited, had no power to do the act. On the other hand, if the attorney, by virtue of his employment in that capacity, had a right to sign the recommendation, it seems to follow with equal certainty, that such an act could not operate to compromise, defeat, or discharge, his client's cause of action.

D. C. H. Emory for the appellee.

1st. We think the case of Clay vs. Smith, 3 Pet., 411,  [**7]  conclusive upon the first point, notwithstanding the argument of the counsel for the appellant. That case was decided upon the ground that the creditor, by voluntarily making himself a party to the insolvent proceedings, thereby abandoned his extra-territorial immunity from the operation of the State bankrupt law, and the receipt of the dividend was mentioned not as the ground or consideration, but as proof of acquiescence. The cases cited on this point by the counsel for the appellant not only do not sustain his proposition, but rather sustain the language of the court in Clay vs. Smith. In no one of those cases did the foreign creditor acquiesce in the proceedings, but in all he appeared and opposed the applicant's discharge, and did no act of submission to or acquiescence in the law. In 3 Caine, 154, Van Raugh vs. Van Arsdaln, Kent, C. J., says, "if the plaintiff had given his assent to the proceedings under the insolvent law," &c., and from it we infer that any acquiescence or assent to the proceedings was, in the opinion of Ch. Kent, sufficient. In Woodhull vs. Wagner, 1 Bald., 301, the court say the State law is constitutional, "if the creditor makes himself a party to the proceedings [**8]  which lead to the discharge in the State courts."

2nd. If the appellants were not bound by the act of their attorneys, it would be difficult, if not impossible, for attorneys to know how far their powers extend. This is not a case of retraxit, release or compromise, and yet in relation to the right of an attorney to compromise Chief Justice Marshall has said: "A court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case." Holker vs. Parker, 7 Cranch, 452. This case also decides, that an attorney has the power to refer a cause without special authority from his client. See also on this point Massey vs. Thomas, 6 Binney, 333. Wilson vs. Young, 9 Barr., 101. 16 Mass., 396. 5 Howard, 83. The duties and powers of an attorney at law in the prosecution of his client's rights are so familiar to this court, that I forbear to argue the point further.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*311]  ECCLESTON, J., delivered the opinion of this court.
The counsel for the [**9]  appellants contends, that the recommendation of O. Horsey, as the permanent trustee of Wiggins, even if the recommendation had been made by the plaintiffs in person, was not such a recognition of, or assent to, the proceedings in insolvency as could deprive them of 

 [*312]  their right to attach the fund in controversy, they being foreign creditors. He assumes, "that nothing short of taking a dividend under the insolvent laws, can so bring a foreign creditor under the operation of such laws as to affect his debt." In this we think he is certainly mistaken. He refers to Van Hook vs. Whitlock, 26 Wend. 43. McCarty vs. Gibson, 5 Grattan's Rep., 307.  Norton vs. Cook, 9 Conn. 314, and Phillips vs. Allan, 8 Barn. and Cres., 477, as sustaining his view of the subject. But in neither of these cases was there an act on the part of the creditor which could be construed into an assent to the proceeding; on the contrary, in each case the creditor opposed the discharge of the applicant and did nothing else, so far as the reports inform us.
In Clay vs. Smith, 3 Peters' R., 411, the creditor received a [**10]  dividend of the insolvent's assets, and that was held to be such an assent to the insolvent laws of the State, as amounted to an abandonment of the extra-territorial immunity of the foreign creditor. And this is a leading case, which has since been referred to in various decisions. But we have never understood it was supposed to establish the doctrine, that nothing less than the actual receipt of a portion of the assets could have a similar effect upon the creditor's claim.
The effect of an insolvent's discharge being under consideration in Van Raugh vs. Van Arsdaln, 3 Caine's Rep., 155, Chancellor Kent, in giving the decision of the court, declined expressing any opinion as to the operation of such a discharge, provided the case had been presented in either of several enumerated aspects, among which are, "if the plaintiff had given his assent to the proceedings under the insolvent law, or accepted any dividend of the defendant's estate." It is very true the learned chancellor does not here decide what would be the effect either of assenting to the proceedings or of taking a dividend; but it is equally true, he seems to consider these alternatives as standing [**11]  upon equal grounds; and, at all events, we cannot believe he entertained the opinion, 

 [*313]  that receiving a portion of the estate was the only acquiescence in the proceedings which could take from a foreign claimant his rights, as such, in opposition to the discharge. There is no necessity, however, to rely upon the inference to be drawn from this language of Chancellor Kent, for a decision of the present distinguished chief justice of the United States, in White, Warner & Co., vs. Winn and Ross, establishes clearly, that the rights of a foreign creditor, in opposition to the discharge of an insolvent and in preference to the claims of domestic creditors, may be lost by other means than taking a dividend of the assets. This decision may be found in 8 Gill 499, and is also mentioned in 2 Md. 468. In the case alluded to, an attempt was made in behalf of the plaintiffs, (who were foreign creditors,) in an attachment, laid in the hands of the trustees of an insolvent, to set aside a deed as fraudulent under the statute of 13 Eliz. In the progress of the cause the court were satisfied, that under the English statute, and independently of [**12]  our insolvent laws, the deed was valid. And the court put the plaintiffs in the predicament of being obliged to decide, whether they would submit to a non suit in consequence of the validity of the deed, if they intended to deny the validity of the proceedings in insolvency; or whether they would insist upon avoiding the deed under our insolvent laws. By adopting the latter alternative, they could claim under the permanent trustee such interest only as the insolvent laws would award them. So that they were forced to elect between a non suit or taking a dividend of the fund in the hands of the trustees. This, it will be seen, was not a proceeding in a State court, having jurisdiction over cases of insolvency, but in the circuit court of the United States. And there the foreign creditors were held bound to submit to the effect and influence of our insolvent system, if they claimed the benefit of that system for the purpose of invalidating a deed, which otherwise would have defeated their entire claim, so far, at least, as the property included in that deed was concerned. Voluntarily calling in aid the insolvent laws to avoid the deed otherwise 

 [*314]  valid, is then such [**13]  an acquiescence in those laws as places a foreign creditor upon the same level with domestic creditors, and compels him to take a dividend of the assets as they do. We see no just reason why voluntarily coming forward and uniting in the recommendation of a trustee, especially when that trustee is the attorney of the claimant, should not produce a similar effect.
Admitting this conclusion to be correct, the appellants' counsel insists, that the recommendation of the trustee in the present case being the act of the attorneys and not of the parties, they cannot be affected by it. The authorities cited in support of this position do not, in our opinion, establish the principle contended for. They are in relation to the inquiry, whether an attorney can enter a retraxit, or can release or compromise his client's claim. But this is neither a retraxit, a release, or a compromise.
In Holker vs. Parker, 7 Cranch 436, it was contended that an attorney could not, without the consent of his client, transfer a cause to other judges than those appointed by law, and place it before a tribunal distinct from the one before which the party himself had chosen to place it.  [**14]  But the Supreme Court, in the opinion delivered by the chief justice, denied the correctness of the position, and held "it to be the practice throughout the Union for suits to be referred, by consent of counsel, without special authority." And in the Alexandria Canal vs. Swann, 5 How. S. C. R. 89, a question arose, whether the reference was authorized by the corporation in the manner or by the persons having the right to do so. The court would not inquire what members of the corporation had the power to direct the proceedings in the suit and assent to the reference. And they say, "the corporation, however governed in this particular, was the party defendant in court and was represented by its counsel, and his acts are presumed to be authorised by the party in conducting the suit. This has long been the settled law of Maryland, which is the law of Washington county."
From those two cases it is perfectly plain, that an attorney 

 [*315]  having charge of a claim may transfer it from the action and decision of such judges as the client has selected in the first instance, and submit it to the decision of other persons. And in the absence of proof to the contrary the legal presumption [**15]  is, that in so doing the attorney acted by the authority of the client.
It is admitted here, that when Messrs. Brent and Horsey signed the recommendation, they were attorneys of the plaintiffs for the prosecution of their claim. And we find no proof in the record of any restriction or limitation upon their authority.
The case of White, Warner & Co., vs. Winn and Ross, shows there may be instances in which it would be exceedingly beneficial to a foreign creditor that his attorney, on the spot, attending to the management of his claims, should be clothed with power to acquiesce in the proceedings in insolvency. It has not been and we do not presume it will be seriously contended, that if from assenting to the insolvent laws by an attorney, the interest of the client would be promoted, the assent would not then be valid and binding. If binding in such a case, there would be great injustice in holding, that the result of the matter is the only test of the validity of the act, in regard to its influence on the client. If, in the beginning, the effect on the claim should be uncertain, but in the end prejudicial, the client would have the full benefit of the experiment, without its [**16]  having any injurious influence upon his extra-territorial rights. The law, as it now stands in regard to those rights, is exceedingly hard and oppressive upon the claims of domestic creditors, and we feel no inclination to increase the hardship.
The commissioners in insolvency, under the laws relating to the city of Baltimore, were legally authorised to perform acts having a material bearing and effect in the settlement and final adjustment of claims against the estate of insolvents. Perhaps few, if any, of their acts were more important, as regards creditors, than the selection of trustees. Beyond the limits of Baltimore city, the county courts, in regular session, 

 [*316]  had the power to appoint trustees where the insolvents made application to the court. In the recess, a judge of the county court or orphans court could make the appointment.
By the selection of an active and thoroughly competent person, the assets might be much increased beyond what they would be under the management of a man of the opposite character, and it might very well happen that a foreign creditor, by taking a dividend from the efficient trustee, would actually receive a larger share of his claim than [**17]  he could get by means of an attachment laid in the hands of a trustee, regardless of his duty or incompetent to perform it. And this is a good reason why an attorney should have the authority, at his discretion, when not prohibited by his client, to unite in the recommendation of a trustee. If such an act is within the limits of his authority, (which we think is the case,) then, when done, it is presumed to be with the approbation of his client, unless proof to the contrary is given. Therefore, the recommendation before us must be considered as having the same effect upon the appellants as if it had been their own act. See the cases of Henck vs. Todhunter, 7 H. & J. 275, and Kent vs. Ricards, 3 Md. Ch. Dec. 392.
Approving the decision of the court below on both prayers, the judgment will be affirmed.
Judgment affirmed. 

21 of 48 DOCUMENTS 

JOS. CAIN and others, vs. RICH'D C. WARFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 454; 1853 Md. LEXIS 4 

JUNE, 1853, Decided 

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

This appeal was taken by the appellants from two orders of the court below, the first of which dismissed the petition of the appellants, asking said court to direct plenary proceedings in the application of Richard C. Warford, (the appellee,) for letters of administration pendente lite, on the personal estate of Rachel Colvin, deceased; the second appointed, on his application, the said Warford such administrator, it being admitted that he was the executor and principal legatee named in the will of said Rachel, to which a caveat had been filed. The facts of the case are fully stated in the opinion of this court.

A motion to dismiss was made on the grounds:--1st, because it is a matter of discretion determinable by the orphans court, whether, in a particular case, letters of administration, pendente lite, should be granted or not, and to appoint either the person named as executor in the contested will, or the largest legatee of the personal estate, or the person who would be entitled to letters of administration in case of intestacy, and having done this, their action is not a subject of review by this court; 2nd, because there [**2]  was no such contest in the orphans court between the appellants and the appellee as rendered a plenary proceeding necessary or proper. This motion was argued with the questions upon the merits.  

DISPOSITION:
Orders affirmed with costs.  

HEADNOTES:

Where there is no dispute in regard to the facts, and nothing but a purely legal question to be determined, it is not incumbent on the orphans court to order a plenary proceeding.

The 16th and 17th sections of the act of 1798, ch. 101, sub-ch. 15, only relate to applications, where there are matters properly in issue between the parties, and not to cases where there is no dispute in regard to the facts.

A caveat was filed to a will, and upon application of the party who was admitted to be the executor and largest legatee of the personalty under the will, he was appointed by the orphans court administrator, pendente lite. HELD:

This appointment was resisted by other parties, on the ground that the estate was not in danger, being under charge of a receiver previously appointed by the court of chancery; they also recommended another person as such administrator.

That by the act of 1810, ch. 34, sec. 6, the orphans court had full power to make this appointment, and the eligibility of the party being admitted, the exercise of its discretion by said court must determine the matter.

The death of a lunatic determines the office of the committee; and the court of chancery will order the personal estate to be paid over to the representatives of the deceased. 

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The orphans court had no jurisdiction to appoint an administrator, ad colligendum, because the court of chancery had previously assumed the management, care and preservation of the estate by the appointment of a receiver, pendente lite. There is nothing imperative in the act of 1798, ch. 101, sub-ch. 3, requiring the orphans court to appoint such administrator; they are to do it in their discretion, but this discretion will never be exercised except upon a case properly made out. Here the fact was made known, that a court of equity had appointed a receiver to take charge of this estate, and yet an administrator, ad colligendum, is appointed for the very same purpose. The general power of a court of chancery to take possession, by a receiver, in case of a contested will, is clear. 6 Ves., 172. 1 Ves. and Bea., 544. Shelford on Lunacy, 2 Law Lib., 199. Administrators, pendente lite, are like receivers; their power [**3]  is identical, and the orphans court may grant such letters or chancery may appoint a receiver. 1 Wms. on Ex'rs, 409. Wherever there is concurrent jurisdiction, the court which first gets possession of the case will be entitled to retain it. 7 Gill, 484, 486, Albert and wife vs. Winn and Ross.

2nd. But suppose the orphans court had jurisdiction, it ought not, upon the facts of this case, to have been exercised. By the act of 1810, ch. 34, the granting of letters pendente lite is left to the discretion of the orphans court; they are not compelled to do so; there must be a case made proper to act upon; this is a sound discretion to be governed by fixed principles of law, not an arbitrary one. If the estate is safe, if it will be preserved until the dispute is ended, the effect of granting letters pendente lite, would be to burden it with heavy expenses. 2 Eng. Eccl. Rep., 122. The fact that a receiver was appointed may be called in to show that the estate requires some one to control it, but then the question recurs, is it safe in the hands to which it is entrusted? The very fact that a receiver has been appointed, is the best reason why letters pendente lite should not be granted.  [**4]  

3rd. There was error, also, in refusing to direct the plenary proceedings, as prayed by the appellants. The right to these proceedings is founded on the 16th and 17th sections of the act of 1798, ch. 101, sub-ch. 15. The word "may," in these sections, must be construed "shall." It is the right of the party, therefore, to have a plenary proceeding directed, whenever there is a contest, and the court is bound to grant it. 5 H. & J., 175. This right is not confined to cases where issues are required or a caveat filed, but it extends to all cases where there is a dispute.

4th. There was error in appointing the appellee against the recommendation of a majority in interest, and also in the refusal to appoint Elisha Warford, who had such recommendation. 1 Eng. Eccl. Rep., 60. 5 Do., 371. 6 Do., 145, 218, 244.

As to the right of appeal, it is clearly given by the act of 1818, ch. 204.

Wm. Schley for the appellee.

1st. On the motion to dismiss. The petition of the appellee presented a case of a pending controversy, which clearly authorised the court to appoint an administrator pendente lite, under the act of 1810, ch. 34. The language of that act is "that in all cases [**5]  where the validity of a will is or shall be contested," &c. There are but three grounds of error that can be taken by the appellants:--1st, the refusal to grant the plenary proceedings; 2nd, the appointment of the appellee; and 3rd, the refusal to appoint Elisha Warford.

A plenary proceeding will not be granted when the question is purely one of law. 5 Gill, 204, 206, Smith and wife vs. Young. The 20th section of the act of 1798, ch. 101, sub-ch. 8, prescribes the mode of trying issues on plenary proceedings. But what in this case is to be decided by a jury? The sole question is, whether the appointment of a receiver by the chancellor prevented the orphans court from acting? This is a pure question of law. The appointment of a receiver is only until the orphans court acts. 8 G. & J., 226. Such was the opinion of the chancellor here. What then is the use of issues? What is to be tried? The facts are all admitted, there is no dispute about them. Again, there is no conflict of jurisdiction here; the orphans court has general power over the subject, the chancery court only ancillary jurisdiction until the former acts. The administrator pendente lite is not a mere collector, but is,  [**6]  to all intents administrator pending the controversy. We therefore insist upon the motion to dismiss.

2nd. Upon the merits. 1st. There being no question as to the eligibility of the appellee, the act of the court appointing him, is the act of a tribunal clothed by law with exclusive jurisdiction over the subject matter. 3 G. & J., 20, Wilson vs. Wilson. 2 Gill, 241, Compton vs. Compton. Hanna vs. Munn and Placide, ante., 230. 2nd. Ellicott, one of the persons recommended by the appellants, was clearly ineligible, hence their application was properly refused. 8 G. & J., 84, Hoffman vs. Smith. The right to administration cannot be delegated. 8 Gill, 285, Ex-parte Young. 3rd. There was no error in refusing the plenary proceedings. 5 Gill, 204, 206, Smith and wife vs. Young. 4th. The appellants have no right to complain, for they do not show that they would be entitled to administer in case of intestacy. They may have been relatives on the mother's side, or of the half-blood. They might be nearest of kin as to distribution, and yet not entitled to administer. Act of 1798, ch. 101, sub-ch. 5, secs. 16 & 21; and sub-ch. 11, secs. 9 & 11.

Reverdy Johnson on the same side.

The [**7]  appointment of the appellee is resisted upon three grounds:--1st, that his petition presents no case, because the estate was not in danger; 2nd, that the court ought to have granted plenary proceedings; and 3rd, that the orphans court had no jurisdiction, because of the appointment of a receiver by the chancellor.

1st. The act of 1810, ch. 34, gives the orphans court the power to make the appointment when there is a contest about the will; the parties from whom he is to be selected are either the executor, the largest legatee, or the persons entitled to administration in case of intestacy. Here the case presented was one of a contested will; the length and nature of this controversy is presumed to have been before the court below. But what is the use of evidence? The act says the letters are to be granted in "its discretion," not the discretion of any one else, or any other court.

2nd. The counsel for the appellants supposes, that in every case in which there is any contest, of any kind whatever, about any subject whatever, there must be plenary proceedings whenever asked for by either side. There is some sort of a contest here. 1st. Is there to be an administration? This [**8]  is to be decided by the orphans court in its discretion, and under the act of 1810, ch. 34. 2nd. Who is to be appointed? this is to be decided in the same way by the same act. This is the contest. Now how is it to be contested on plenary proceedings? There was no dispute as to the fact of the will; that the appellee was named as executor, and was the largest legatee, and that the other parties were the next of kin. What then was to be tried?

But to grant plenary proceedings here would make the law a contradiction, as I will show: It is clear, that by the act of 1810, ch. 34, exclusive power and jurisdiction is given to the orphans court to appoint an administrator pendente lite. Now the right to plenary proceedings is conferred by the 16th section of the act of 1798, ch. 101, sub-ch. 15, but the 17th section prescribes, that in all cases of plenary proceedings, issues may be framed and sent for trial. The issue then in this case would be, whether the appellee should be appointed administrator pendente lite; and whichever way the jury might give their verdict on this issue, the orphans court would be bound to decide accordingly. Thus the result would be to deprive this court of [**9]  its discretion, previously and in express terms given it by the act of 1810. I say, therefore, that it never could have been the design of the legislature to give the right of plenary proceedings in such a case as this.

3rd. There is nothing in the record to show, that the court of chancery has ever exercised its jurisdiction. But we contend that the chancellor had no right to appoint the receiver. 2 Law Lib., 132, Shelford on Lunacy, Alex. Ch. Practice, 238, the death of the lunatic having determined the jurisdiction of chancery. But the chancellor only appointed him until the persons entitled should come forward and claim the property, and he has now passed an order directing him to pay over to the administrator pendente lite. But if the effect of appointing a receiver is to oust the orphans court of the power to appoint an administrator pendente lite, why should it not divest them of the power to appoint an administrator at all?

Dulany for the appellant, in reply.

1st. The first position assumed upon the other side is, that the orphans court has an absolute, exclusive and arbitrary discretion over the subject of the appointments of administrators pendente lite, and [**10]  for this they rely upon the act of 1810, ch. 34. But there are numerous cases in which discretion, though expressly given by statute, is yet held to be a sound discretion, to the proper exercise of which the parties are entitled, and the subject of review on appeal. 12 G. & J., 258. 1 H. & G., 404, 407. 5 H. & J., 460. 5 G. & J., 64. The estate must be in danger, and this fact must be affirmatively proved before an administrator pendente lite will be appointed. 2 Eccl. Rep., 124. There was no such averment or proof in this case. Where the court below has an absolute and exclusive jurisdiction, yet if in the exercise of it they mistake as to the law, this court will, quoad hoc, revise their judgment and send the case back for a proper exercise of their discretion. Such is this case, and there is every reason why this decision should be reviewed as the exercise of a sound and not an arbitrary discretion.

2nd. There is a fact in dispute here, and that is, whether the estate was or was not in danger, and the act of 1798 expressly gives the right to plenary proceedings wherever there is a contest, without any qualification as to the character of that contest. The term party does not [**11]  necessarily mean a party litigant, but any one who is injured by the order may appeal. 9 G. & J., 234. The argument on the other side as to making the law a contradiction by granting the plenary proceedings in this case is defective in assuming, first, that there is no fact to be tried; and secondly, that the orphans court have an absolute, exclusive and arbitrary discretion over the subject; both of which assumptions I deny, and without these the argument fails. That these proceedings would occasion delay is an objection that cannot be taken in a court of justice. 12 G. & J., 387.

3rd. As to the conflict of jurisdiction: The estate was under the control of the court of chancery, by a receiver duly appointed. The power of chancery was formerly much more ample. 37 Law Lib., 62, where Lord Eldon doubts but that a receiver may be appointed even where there is an administrator pendente lite, and this doubt is strengthened by the decision in 1 Ves. and Bea., 541. There is nothing in our statutes describing what an administrator pendente lite is, or what his character and qualifications are. For all these we must go to the English law for light. There is no case in England where a receiver [**12]  has ever been directed to give up the estate to an administrator pendente lite subsequently appointed. If such an one can be found, I will give up the case. A court of chancery will interfere, as a matter of course, to appoint a receiver pendente lite. Shelford on Lunacy, 2 Law Lib., 136, 199.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*460]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on appeal from orders passed by the orphans court for Baltimore city.

 [*461]  It appears from the record, that, on the 1st day of March 1853, the appellee filed in the orphans court his application, asking to be granted letters of administration pendente lite on the personal estate of Rachel Colvin, deceased, stating that she had left a will, bearing date the 6th day of April 1848, and that it had been left for probate, but that a caveat had been filed. On the 15th of March following, the appellants filed their objection to the appointment of the appellee, because, as alleged by them, "the high court of chancery of this State has assumed the management and control of the real and personal estate of [**13]  said Rachel, and has appointed Benjamin H. Ellicott receiver thereof, subject to any order in the premises which it might seem necessary or proper thereafter to pass." On the 26th day of March Elisha Warford filed his application to have himself and Benjamin H. Ellicott appointed administrators pendente lite, stating that the said Elisha was of the nearest of kin of the deceased, and that he represents the interest, with his own, of the majority of the nearest of kin of the deceased. This application was supported by the recommendation of the appellants, who allege themselves to be a majority in interest of those entitled to distribution. They also filed a petition, asking that the court would order and direct plenary proceedings in the matter of the petition of appellee. The court granted the prayer of the petition of the appellee, and dismissed the petition of the appellants praying an order directing plenary proceedings. It is from this action of the court that the appeal has been taken.
We see no error in the ruling of the orphans court. The person to whom the letters were granted was, admittedly, eligible to the office to which he was appointed, and we see nothing in the [**14]  acts of Assembly which made it the duty of the court, under the circumstances of this case, to have directed a plenary proceeding.
It does not appear from the record how the court of chancery obtained control of the estate of the deceased, but it was conceded by counsel in argument, that it was acquired by means of a proceeding against her during her life, on the ground of mental incapacity to superintend and manage her estate. It has been 

 [*462]  always understood that the death of the lunatic will determine the office of the committee, and the court of chancery will order the personal estate to be passed over to the representative of the deceased. Alexander's Ch. Prac., 238.
The claim set up by the appellants to an order for plenary proceedings, is founded on the 16th and 17th sections of sub-chapter 15, of the act of 1798, chapter 101.
The sixteenth section provides, that whenever either of the parties having a contest in the orphans court shall require, the said court may direct a plenary proceeding, by bill or petition, to which there shall be an answer; and the seventeenth section provides "in case either party shall require, the court shall direct an issue or [**15]  issues to be made up and sent to any court of law," &c.
The obvious purpose of the sixteenth section is, to enable the court to advertise itself of the real facts in the case, but where there is no dispute in regard to them, as in this case, and nothing but a purely legal question to be determined, it is not incumbent on the court to order a plenary proceeding. It could result in nothing more than what was already established. There was no dispute in the case, as to the fact that the court had assumed jurisdiction of the estate of the deceased, and the fact could not have been more distinctly placed before the court, either by the finding of a jury, or by the answer of the appellee to any petition or bill which might have been filed by the appellants, or by the appellee against them. And this being so, we are of opinion, that the court did right in refusing to order, in conformity with the prayer of the petition. These sections of the act of 1798 can only be supposed to relate to applications where there are matters properly in issue between the parties, and not to cases in which there is no dispute in regard to the facts of the case.  Smith vs. Young, 2 Gill 204. [**16]  
We regard the sixth section of the act of 1810, chapter 34, as vesting in the orphans court full power to appoint the appellee administrator pendente lite, it being admitted, that he was the executor named in the will, and the person to whom the largest portion of the personal estate was bequeathed. When the facts 

 [*463]  are admitted, which is the case here, the exercise of the discretion of the orphans court must determine the matter.
Orders affirmed with costs. 

22 of 48 DOCUMENTS 

MOSES M. CLAYTON and others, vs. JOHN CAREY and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 26; 1853 Md. LEXIS 12 

JUNE, 1853, Decided 

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

The bill in this case was filed on the 16th of February 1852 by the appellants, charging that they are members of a religious corporation styled "The Colored Peoples' First Baptist Church in the city of Baltimore," originally incorporated in March 1837; that complainant, Clayton, was for many years the minister in charge of said congregation, and they have been duly elected trustees of the corporation. That the corporation was the owner of a house and lot on Lewis street, in said city, in which they have been in the habit of worshipping. That five of the defendants, professing to have control of said building, did, in November 1851, fraudulently and wilfully conspire and collude with Benjamin Brown, the other defendant, for the purpose of depriving complainants of their just rights and privileges in said building, and with that view pretended to sell the property to Brown, who under color of this sale, with the aid of the other defendants, took and kept possession of the building, and they have excluded complainants therefrom, whereby they are prevented from worshipping therein, and enjoying their religious and [**2]  legal rights and privileges. The bill then prays for an injunction, enjoining the defendants from using, occupying or entering in the said church, except for the purpose of worshipping therein as other members, which was accordingly granted. The injunction was afterwards, upon petition, enlarged so as to command the defendants not to interfere with complainants in getting and keeping possession of the premises.

The answers deny that complainants were, at the time of filing their bill or at any time since, the trustees of said corporation, or that they were as trustees or individuals then or since, the owners of said lot and building, and aver that defendants are the trustees, duly elected to serve for one and two years from the 1st of March 1850 and 1851, and that defendant, Carey, was, on the 25th of June 1849, duly elected minister, &c., congregation. They further aver that the sale to Brown was bona fide and legal, and with his consent they continue to hold meetings in said building for religious public worship, and deny that they have excluded the complainants from attending said meetings.

A motion was then made to dissolve the injunction and testimony taken, the purport [**3]  of which sufficiently appears from the opinion of this court, and in the following opinion of the court below, (FRICK, J.,) delivered upon the hearing of this motion:

"It would seem to be sufficient for the sanction of the court, in their action upon this motion, to refer to that part of defendants' answer which expressly denies that the complainants are excluded from attending the meetings held for religious worship in the church; nor does the testimony taken to sustain the injunction establish any such actual exclusion as is alleged. It rather discloses a conflict between these parties about the right to administer the affairs of the corporation, asserted by two distinct bodies of trustees, which in this stage of the proceedings is not to be decided. It sufficiently appears that the defendants, in March 1851, were duly elected under the provisions of the charter for one year, and that they were in possession, exercising their functions as trustees, at the time of the alleged sale to Brown.

"How far that sale was legal, and if so how far it operated upon the corporate franchises, may be matter for future inquiry; and if the defendants, after this sale, were elected trustees [**4]  with the laudable intention to continue the corporate organization, it still remains a question, whether such election superseded the prior trustees in their character as trustees of the franchise, even if the property passed from them by the sale. Whether they could or have divested themselves as depositories of the franchise by any act or declaration on their part, I am not now to decide. The bill of complaint admits they were in possession before the sale, and asserts that they kept possession after the sale, (though it avers such possession was fraudulent.) But this possession in either aspect does not and has not (if the answer is true,) exclude the complainants from participation in the religious exercises of the church, which the defendants claim to control, under their election and possession of one year from the 1st of March 1851. I cannot as yet say they disqualified themselves or dissolved the franchise by the sale to Brown, without pronouncing in advance upon the validity of that sale, which is matter only for the final hearing. By dissolving the injunction, I mean to leave the complainants for the present where they originally were at the filing of the bill, in the full [**5]  legal and religious right to worship in the church under the administration of the defendants, until the final decision upon the merits of the case, as it shall hereafter be presented." An order was then passed dissolving the injunction, from which the complainants appealed.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

Where there is a complete remedy at law, except in a few peculiar instances in which there is concurrent jurisdiction, the powers of a court of equity cannot be invoked.

Mandamus is the proper remedy for the intrusion, usurpation or unlawfully holding of the office of trustee of a church incorporated under the general incorporation law of this State.  

COUNSEL:
Charles F. Mayer and O. Horwitz for the appellants.

1st. The only proper evidence of the corporate proceedings is the books of the corporation, and they show no authorization to sell the property in question. They show no means prescribed for selling at private sale, nor limitation of price, nor that a due number of the congregation attended, nor that a majority of all the members of the congregation, according to the articles of incorporation, authorised the sale. Angel and Ames on Corp., 378, 379, (1st Ed.,) ch. 17, sec. 2.

2nd. That there was an implied resignation in this case by the first trustees, is clear from their acts and their declining to serve as trustees, because of their concurring in the disposition of the church to Brown; as to implied resignation, and that a new election implies acceptance of resignations, see Angel and Ames, 254, (1st Ed.,) ch. 11,  [**6]  sec. 11. Acts inconsistent with the duty (as was the conduct here,) of officers, the same authority shows, amount to an implied resignation.

3rd. Whatever may be the force of other positions, it is enough for us to point out the utter futility of the pretension, that a sale has been validly made, to maintain our injunction; that sale being virtually relied on, and as matter in avoidance to justify our exclusion, and proving to be the only ground of opposition to our acknowledged original rights. It is but matter in avoidance not substantiated, but, on the contrary, shown by the defendants themselves to be incapable of proof and without any effect.

T. P. Scott for the appellees.

The title and all the equities of the complainants are denied by the defendants, and the injunction would have been properly dissolved on bill and answer. The evidence shows conclusively that defendants were the rightful trustees of the church. The bill having alleged a fraudulent pretended sale, the answers are responsive in denying the fraud, and are sustained by the evidence in regard to the whole transaction. But even if defendants were mistaken in supposing that a sale of the property produced [**7]  a dissolution of the corporation, yet they continued trustees in law until the next general election. The appellees therefore ask an affirmance of the order dissolving the injunction, and that this court will dismiss the bill. 4 Gill, 471, 478.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*30]  LE GRAND, C. J., delivered the opinion of this court.
We concur with the Superior Court in the opinion pronounced on the motion to dissolve the injunction, which had been previously granted. The equity of the bill is completely sworn away by the answers, and the proof fully sustains the denials contained in them.
It sufficiently appears from the evidence, that the defendants were legally elected trustees of the church, in March 1851, and there is a total failure of proof on the part of the complainant to show they had been denied the right to enter the building and participate in religious worship.
Besides, the second section of the act of 1828, ch. 78, provides the remedy of mandamus for all cases of "intrusion or usurpation, or of any breach or violation of any terms, conditions, privileges or franchises, or of unlawfully holding [**8]  of any office under any charter or incorporation granted by this State;" and the principle is well settled, that where there is a complete remedy at law--except in a few peculiar instances 

 [*31]  in which there is concurrent jurisdiction--the powers of a court of equity cannot be invoked.
Order affirmed with costs. 

23 of 48 DOCUMENTS 

HENRY HAMMOND'S Lessee, vs. WILLIAM INLOES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 138; 1853 Md. LEXIS 22 

JUNE, 1853, Decided 

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

This was an action of ejectment, and the present appeal arises from a second trial of the case of Casey vs. Inloes, after it was remanded under the decision on the first appeal in 1 Gill, 430. After remanding and before the trial, there was a suggestion of the death of Mrs. Casey, the lessor of the plaintiff, and an appearance entered for Henry Hammond, as her heir at law.

Exception. At the trial the plaintiff offered in evidence the patent for "Mountenay's Neck," dated 30th of June 1663, and all the deeds, (except the deed of Wheeler to Jones,) which were given in evidence at the former trial, and all the other testimony offered at said trial except the testimony relating to the escheat of "Bold Venture," and to the death of Oulton, the patentee thereof, and to the boundaries of said tract, and also excepting the patent of "Roger's Inspection," and all papers relating thereto. (This testimony, together with a plat of the property in dispute, is set out in full in 1 Gill, 435 to 487, and therefore need not be repeated here;) and then further offered the following acts of Assembly and ordinances, viz: 11th March 1823; 1745, ch. 9; 1773, ch.  [**2]  4; 1783, ch. 24; 1796, ch. 68; 1729, ch. 12; 1732, ch. 14; which it was agreed might be read from the printed publications thereof. And further offered, proving the same by the surveyor, the plat of the addition to Baltimore town, made and laid out conformably to said act of 1773, ch. 4. And proved that part of "Mountenay's Neck," as shown on the plat, was within the said addition, but that old Baltimore town only came to the west side of Jones' Falls, and did not include "Mountenay's Neck," or any part of it. And further gave evidence, that since the former trial the plaintiff's lessor, Elizabeth Casey, has died, and left as her only issue two children, Henry Hammond and Jane Pinkney, wife of William Pinkney.

The defendants read in evidence all the patents and deeds, including the patent of "Bold Venture," granted to John Oulton, on the 20th of March 1695, and the will offered at the former trial, and gave the same evidence as to their locations.

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

1st. (The first part of this prayer, as to the presumption of a deed from Alexander Mountenay to Robert Blunt, or his ancestor, is identical with that in 1 Gill,  [**3]  474, 475, making the necessary change, so as to leave to the jury the finding of the death of Mrs. Casey since the suit was brought, leaving two children, a daughter and her son, Henry Hammond, her only issue, being her children by her husband, John Hammond.) And if they further find that the acts of Assembly read in evidence are passed, and that by virtue and in pursuance of the act of 1773, ch. 4, "Mountenay's Neck" was surveyed and added to Baltimore town; and also find the filling up, as stated in the testimony, so that the ground claimed in this case was, at the bringing of this suit, fast land, and that the defendants were then in possession thereof; and the water boundaries to be truly located, as laid down on the plats, at the several periods assigned to the several locations thereof, then the plaintiff is entitled to recover.

2nd. If they believe from the evidence that John Oulton died at any time before the institution of the writ in this cause, then the defendants have shown no such subsisting outstanding title, in any one representing him, to "Bold Venture," as can bar the plaintiff's recovery in this case.

3rd. That the defendants, if the jury find the facts [**4]  set forth in the plaintiff's first prayer, and even if they believe the evidence offered by the defendants, are mere trespassers and intruders on the land claimed by them in this cause, and as such cannot set up an outstanding title in any third person to defeat the plaintiff or to protect their intrusion.

4th. If they find the patent of "Bold Venture" of 1695, granted to John Oulton by the State, yet as the defendants have offered no evidence of any entry upon, or possession of any part of the said tract of land by, John Oulton, or any one claiming title through or under him, from the date of said patent down to the present time, then the mere original existence of such a patent, in the absence of any proof of the facts aforesaid, does not constitute such a present, subsisting, available, outstanding title in any third person, as will bar the right of the plaintiff to recover upon the facts set forth in his first prayer, provided the jury believe them; and provided also, the jury find from the evidence that said Oulton departed this life at any time before twenty years next preceding the impetration of the writ in this cause.

5th. That defendants have shown no title whatever [**5]  to any part of the property embraced within the plaintiff's pretensions, as delineated on the plat, including the square from ----- street to the water.

6th. That they are, therefore, mere intruders, and cannot protect their possessions by setting up an outstanding title in any stranger with which they have not connected themselves, and have no privity.

7th. If the jury find the act of 1816, ch.    , and that "Mountenay's Neck" and the property in dispute are embraced within the local limits described therein; and further find the patent aforesaid to John Oulton; and that from the date of said patent in 1695 until the present time, there is an absence of all proof that either John Oulton himself, or any one claiming by, through or under him, did ever enter upon or become possessed of any part of the tract of land granted by said patent, then they may and are bound to presume, in the absence of any evidence to the contrary, that the State became reinvested with the title to "Bold Venture" when the said act of 1816 was passed, and that according to the true construction of said law, the plaintiff, or those under whom he claims, had a right to fill up and extend his lot in [**6]  the water opposite to and in front of the same, so as to reach the Port Wardens' line.

8th. That before the plaintiff be barred from recovery by reason of the patent of "Bold Venture," the defendants must show such outstanding title in some third person to said tract, as would enable him to recover in ejectment against both the contending parties in this case.

9th. If the jury believe from the evidence that "Mountenay's Neck" was added to and made part of Baltimore town in the year 1773, then, by operation of the act of Assembly of said year, the right to improve in front of the lot of the plaintiff, as delineated on the plat, was, for the first time, vested in those under whom the plaintiff claims, and that the operation of the patent of "Bold Venture," does not defeat the grant of said right in that year, or prevent its passing by that act, provided the jury believe that Oulton, the patentee, died intestate and without issue before that year.

10th. That the passage of the said act of 1773, is itself evidence, connected with the circumstances of the grant to Oulton in 1695, and of the age, which the jury are at liberty to infer he must have been at that time, to have [**7]  made a contract with the State, and the period since elapsed to the passage of said act, and the non-adduction of any will, or any evidence of any claim made by any person representing said Oulton, from 1695 to this day; from all of which the jury may find, that John Oulton died intestate and without heirs before the year 1773.

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

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

2nd. If the jury find that "Bold Venture" was granted, as given in evidence by the defendants, and that defendants' location of the second and third lines of that tract on the plats is the correct location, then the patent of "Mountenay's Neck" gives no title to the lessor of the plaintiff to the lot of ground for which the defendants have taken issue on the plats.

3rd. That the second and third lines of "Bold Venture," if the jury find said tract was granted as given in evidence by the defendants, must run with two lines of "Mountenay's Neck," as that latter tract is located on the plats; and if the jury [**8]  find that the said two lines are those on the plats, running from black (M) to black (N,) and from black (N) to red figures (320,) then the patent of "Mountenay's Neck" gives no title to the lessor of the plaintiff to the lot of ground for which the defendants have taken defence on the plats.

The court, (LE GRAND, A. J.,) granted all the prayers of the defendants, and rejected all those of the plaintiff. To this rejection, and the granting of defendants' prayers, the plaintiff excepted, and the verdict and judgment being against him, he appealed.  

DISPOSITION:
Judgment affirmed with costs.  

HEADNOTES:

Though cases may occur in which this court will be constrained to withhold its assent to, and review, its previous adjudications, yet it has been the almost uninterrupted practice of all courts to receive their own decisions as of binding force.

The solemn adjudications of an appellate court of last resort, ought, on general principles of judicial propriety, to be approached with caution, and should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed.

On a second trial in ejectment between the same parties and those claiming under them, on the same subject matter, the previous decisions ought to be considered conclusive, unless glaring injustice has been done or some egregious blunder committed.

But to give the binding decision these conclusive qualities, it ought to be explicitly declared and perfectly understood, and, to become the law of the case, it ought definitely to settle the rights of the litigant parties.

If an exposition is given to a will or deed, or act of Assembly, fully defining the rights of the parties, or any other opinion expressed settling the title to the thing in dispute, it should be deemed irrevocable, whenever the same persons and those claiming under them are concerned in the contestation.

If on a second appeal it appears that the court below has ruled in conformity with the principles settled by the previous decision, their judgment must be affirmed; in such case no error can be imputed to the inferior court.

This court recognises the decision in the cases of Wilson vs. Inloes, 6 Gill, 121, and Casey vs. Inloes, 1 Gill, 430, as binding and authoritative decisions in this case, unless the record presents a materially different case.

Though a procedendo will not be granted when this court can see that the plaintiff must fail in his action, it does not follow that the granting of such a writ implies that he must ultimately succeed.

The passage in the opinion of the court in 1 Gill, 510, relative to the plaintiff's fifteenth prayer, must be considered in reference to what the court said in connection with the subject matter of that prayer, which was exclusively the right of the parties to improve in front of their lots under the act of 1745, ch. 9.

Abandonment of all questions as to the location of title papers, cannot alter their construction or effect upon each other.

The object of the act of 1745, ch. 9, was to authorise the owners of water lots to acquire a right to vacant land covered by water without applying to the land office in the usual way; it was a legislative grant, in consideration of certain improvements materially beneficial to the public.

But these improvements could be made only on vacant property of the State, such as she could rightfully grant.

The act of 1773, ch. 4, made an addition to Baltimore town, and extended the privileges granted by the act of 1745, ch. 9, to the owners of water lots in such addition. The land in dispute consisted of improvements made out of the water under these acts. The plaintiff claimed under a patent granted in 1663, of a water lot, part of this addition. The land on which these improvements were made, being then covered by water and in front of and adjoining this lot, was granted by patent to another party in 1695, which patent was set up by the defendant as an outstanding title. HELD:

That the plaintiff could not recover, without showing that the land granted by the patent of 1695 had escheated, or the title of the patentee thereto had become extinct prior to the passage of the act of 1773.

Where an act of Assembly professes in terms to grant a particular parcel of land, it may be presumed that the State had title to the land when the act passed.

But there is a plain distinction between such an act or a patent specifying the thing granted, and an act which grants a right generally and operates merely in favor of those who may subsequently show themselves entitled to the benefit of its provisions.

An escheat patent is prima facie evidence that the land was liable to escheat at the date of the warrant, and an act of Assembly reciting that the property had escheated and making a grant would have the same effect.

If the junior grant recites an escheat, the elder patent must give place to it, unless it be shown that the land had not escheated; the onus of proof in such case is shifted.

The passage of the act of 1773, ch. 4, will not warrant the presumption of law that the patentee of the patent of 1695 had, before its passage, died intestate and without heirs.

It is a general presumption, that things once proved to have existed in a particular state, continue in that state until the contrary be established by evidence, either direct or presumptive.

The act of 1773, ch. 4, operating as a grant of the public domain, and affecting the rights of navigation and fishery, by allowing improvements to be made into navigable water, is to be judicially noticed by the courts as a public law.

A plaintiff in ejectment must always in the first instance make out a legal and possessary title to the premises, and the defendant's evidence may be confined to falsifying his adversary's proof, or rebutting the presumptions arising therefrom.

The defendant need not offer any evidence of title in himself, or of title in a third person; it is sufficient if he makes it appear to the jury that a legal and possessary title does not subsist in the plaintiff.

It is clear that the plaintiff must be defeated, if it appears that the party under whom he claims had no title, no matter in whom the right may really be, but if he shows a prima facie case, the burden is thrown upon the defendant.

The patentee of land covered by navigable water, can only claim in subordination to the rights of the public of fishery and navigation: such land does not admit of possession and acts of ownership in the ordinary way.

A prayer that defendants have shown no title to the property embraced within the plaintiff's pretensions on the plot, "including the square from ----- street to the water," is defective, because it does not specify the property to which it was intended to apply, neither the square nor the water being mentioned.

A prayer that if the jury "find the act of 1816, ch. --," is defective in not specifying the particular act of that session; and as no act of 1816 had been given in evidence, it was properly rejected for this reason also.

A prayer that by operation of the act of 1773, the right of improvement was vested in those under whom the plaintiff claims, and that the patent of "Bold Venture" does not defeat this right, "provided the jury believe that O., the patentee, died intestate and without issue before that year," is erroneous, because it assumes the escheat of "Bold Venture" upon the death of O. without issue.

The law does not presume that a person who is proved to be dead left no heirs; where the death only is proved, there must be some negative proof as to the existence of issue.

The death of a person may be presumed after a long lapse of time, as where, if alive, he would have been one hundred and fifty years old; when persons are known to have lived ninety and one hundred years, the court cannot say that others have died at an earlier age without some evidence on the subject.  

COUNSEL:
Charles F. Mayer for the appellant.

There are additional facts in this case which ought to modify the decision of the court on the former appeal. The plaintiff claims title under the patent granted in 1663. It is conceded that the defendants have no title in themselves, they only set up an outstanding title in the patent of "Bold Venture," granted in 1695, thirty-two years afterwards. The evidence in the other cases was also all here, except that relating to the escheat of "Bold Venture" and the death of Oulton, and the patent and papers relating to "Rogers' Inspection." The act of 1773, ch. 4,  [**9]  the addition to Baltimore town, the explanations by Bouldin of the plat, and the death and issue of Mrs. Casey, are additional evidence which has not been in the case before.

There is no question of location, and it is conceded that the plaintiff had his land bounding on the water, and was entitled to all the rights of a riparian proprietor. The act of 1773 was an act asserting the right of the State to the land under the water, embraced in the grant of "Bold Venture." This act was not before the court upon the former appeal, and as to its effect upon the patent of "Bold Venture," the court in that case have not committed themselves. We concede that a riparian proprietor has no right at common law to build out into the water by virtue of his riparian possession. But the State may grant the power of filling up navigable water for the purposes of commerce or navigation, and may grant this privilege to the riparian proprietors, and the land thus made is attached to the fast land, as much as if made by alluvion. 5 H. & J., 195, Brown vs. Kennedy.

Land covered by water may be granted subject to the rights of fishery and navigation, and to the sovereign power of the State over [**10]  commerce and navigation. In pursuance of this power the State passed the act of 1745, ch. 9. After this there were various acts by which the exercise of this right was regulated. The act of 1773, ch. 4, embraces the land in controversy. See also 1816, ch. 29. Presumptions in favor of these acts are strong, that what the State granted it had the power to grant. These acts give to the pretensions of the plaintiff additional merit, and they have never been before the court in this aspect.

The decisions in the previous cases are not conclusive in this. They will be reviewed if wrong. But the point here has never yet been decided in any other case. This is put in our fourth prayer, and was put in the case of Wilson vs. Inloes, 6 Gill, 147, and the court notice it at page 161. Why did the court send the case back in 1st Gill, when "Bold Venture" was as much in then as now, unless it was in reference to this very point? If the mere existence of the patent of "Bold Venture" was conclusive on the question, why was it not so decided there? The case of Wilson vs. Inloes, in 6 Gill, was manifestly decided upon the act of 1745 alone. If they omitted to regard the act of 1773, why should not [**11]  this court now supply this omission, and in fact do justice to the old court? The latter act was as much a grant as the act of 1745. 6 Gill, 161.

The grant of "Bold Venture" must be restricted so as not to interfere with the riparian rights of the owners of "Mountenay's Neck." 6 Gill, 150, 17th prayer. The court, at page 170, answer that prayer. The State might have made the grant of "Bold Venture" to avail for what it was worth, and it might, under certain circumstances, be available without interfering with the rights of the riparian owners of "Mountenay's Neck." At page 169, as to the question of fraud in obtaining the grant of land covered by water as if it were fast land, the decision of the court is wrong, and that decision ought now to be reviewed. The State was obviously the party on whom the fraud was perpetrated. The decision of the court in the same cause is not always conclusive. 5 H. & J., 276, Hammond vs. Ridgely.

In 1 Gill, 512, the court for the first time give a sort of intimation as to the effect of the grant of "Bold Venture." But here the case is different. The State granted the power of improvement, and thereby granted the same right as nature itself [**12]  would have given by alluvion. Such was the decision in Brown vs. Kennedy, 5 H. & J., 4 H. & J., 540. 2 Md. Ch. Decisions, 485, Chapman vs. Hotchkiss. 2 H. & McH., 244. We contend therefore:

1st. That by operation of the various acts of Assembly, and the ordinance of the 11th March 1823, the appellant acquired a prima facie valid title to all the land filled up and extended out of the water adjoining to and in front of the lot of ground, included in their pretensions. 1 G. & J., 249. 11 Pet., 589. 1 Bland, 316. 5 G. & J., 367. 11 G. & J., 357, 358, 360, 361. 1 Gill, 501. 12 Pet., 454. 3 H. & McH., 339.

2nd. That by the establishment of this prima facie title by the plaintiff, the burthen of proof was shifted to the defendants, upon whom, in order to defeat and overthrow it, it became incumbent to offer such proof of a title in themselves, in the State, or in some third person, as was originally necessary on the part of the plaintiff to establish title in himself. Chirac vs. Reinicker, 11 Wheat., 280.

3rd. That the defendants have not shown any title in the State, nor in themselves, nor such "a subsisting outstanding and available title" in any third person, as is sufficient [**13]  to impair or defeat the prima facie title of the plaintiff; that the mere adduction of the patent of "Bold Venture" to Oulton in 1695, standing by itself, and not followed up by any other proof in connection therewith, was not sufficient to establish such a title in any third person in full life, derived from Oulton, as would have enabled such third person to recover against both or either of the parties to this case; and that in such a case the law, out of respect for the established "prima facie" title of the plaintiff, and in order to confirm, maintain and support it, presumes that the interest of Oulton had become extinguished or acquired by the plaintiff. 2 Wash. C. C. Rep., 90. 3 Wheat., 224. 2 H. & J., 125. 3 Wash. C. C. Rep., 498. 6 G. & J., 257. 4 Do., 202.

4th. That there was clear proof that no part of "Mountenay's Neck" was included within the limits of Baltimore town until 1773, when, under the act of that year, for the first time, part of "Mountenay's Neck" was added to Baltimore town, and the privileges of the act of 1745 extended over it; that there was evidence from which the jury might have found that Oulton died sometime previous to that year, intestate and [**14]  without heirs, so that the title to "Bold Venture" became thus vested in the State, and opposed no obstacle to the extension of the right of improving into the water by operation of the act of 1745, as extended by the act of 1773, to the property now in dispute. 11 G. & J., 360. 6 Pet., 302. 12 Pet., 454. 2 H. & McH., 244. 11 Pet., 589. 7 H. & J., 136. 7 G. & J., 27, 369. 6 G. & J., 481. 3 H. & J., 554. 2 Howard, 319.

5th. That the grant of "Bold Venture," up to and in front of the water line of "Mountenay's Neck," the fillings and extension of the ground out of the water, under said acts of Assembly and ordinances, even when combined, are wholly incompetent to vest any right or title in Oulton, or any person claiming under him, to any part of the made ground in front of plaintiff's lot within the lines of "Mountenay's Neck," nor can any such interpretation be placed on the said grant, acts and ordinances, and if it could, neither the State, or mayor and city council, had any power to authorise such an invasion of the rights of private property, as to privilege Oulton, or any claiming under him, to build out and improve into the water, in front of the lots of the proprietors of [**15]  "Mountenay's Neck," so as to acquire title to such improvement, and therefore there is no such subsisting outstanding title in Oulton, or any who may claim under him, to the property in dispute, as will bar the title of the plaintiff. Brown vs. Kennedy, 5 H. & J., 195. 8 G. & J., 479, Delaware and Md. R. R. Co., vs. Stump. 5 G. & J., 367. 1 Gill, 501. 2 H. & McH., 244. 2 Howard, 285. 6 Gill, 170.

6th. The court ought to have directed the jury, on all the facts of the case, and the law applicable to them, that the defendants had no title whatever to any part of the property claimed by the plaintiff, and it therefore erred in refusing the plaintiff's fifth and other prayers on this point, and that if for this cause or any other misdirection the judgment should be reversed, the case should be remanded, and for the reasons aforesaid, the court ought to have rejected the second and third prayers of the defendants.

John V. L. McMahon for the appellee.

This case has been argued often, and most of the points now raised have been put at rest by previous decisions of this court.

1st. What is settled?

The whole case begins with the act of 1745, ch. 9. The object of that [**16]  act was to encourage persons who were riparian proprietors to improve by filling up the water. The act of 1773, ch. 4, authorises the annexation of eighty acres to the town of Baltimore, and gives to it the same privileges as the old town. The act of 1783 appointed Port Wardens, and gave them the power of directing how these improvements into the water should be made. 1796, ch. 67, was the charter of the city of Baltimore, and devolved upon the mayor and city council all the powers formerly possessed by the Port Wardens. The city ordinance gave us the right to make the improvements here made, and always recognised this right up to the year 1821. The first case was the case in 11 G. & J., and was tried upon escheat patents, and decides that the oldest patent should prevail. At page 358 this priority is settled. The parties then went back to their original patents, both of which were prior to the act of 1745, which, for the first time, gave the right of improvement. Both parties then stood at their common law rights as riparian proprietors--there could then have been no priority. But this is settled and we do not question it. But then the patent of "Bold Venture" came to light, and they [**17]  decide that this was a flat bar to the plaintiff's case. The question as to the effect of the act of 1773 was before the court before, as the points and statement of the parties in the other case show. The propriety of the prayers granted to us is affirmed by the former decisions, and this court cannot correct its own decisions. 1 Md. Rep., 395. The prayers in the three cases are all the same; this is admitted.

2nd. Now what is the new evidence? The plat of the improvement was in the case in 1 Gill, 485. And the only new evidence, (that of Bouldin,) is just what the plat proves and nothing more. The act of 1773 was a public act, and was therefore before the court. Every act which concerns the public land is a public act, and the court will take judicial cognizance of it. 10 G. & J., 354, 355. The act of 1745 was clearly a public act, and the latter is but a modification of this. The plat referred to the act of 1773, and was made under it. The act of 1829 authorises the reading of any private statute from the statute books. The plaintiff could, therefore, in any event, have invoked the aid of this act. As to the effect of the withdrawn evidence relating to the escheat of "Bold [**18]  Venture:" This does not affect the legal propriety of the prayers granted. The act of 1745 did not give any party the right to improve except upon the State's land, and by withdrawing the evidence of the escheat, they have shown that they have no case under it. They have shown no possession; the only possession and improvement was by us. The title of "Bold Venture" began in 1695, and it was then a good title, not barred by adversary possession, and there is no presumption of its surrender to the plaintiff. This is sufficient for the defendants; and unless this title is brought back to the State--unless there is an escheat--(and there being express evidence of an escheat in 1754 which is now withdrawn,) the plaintiff has no title. The withdrawal of this evidence is fatal to his whole case. Where a case goes back and the plaintiff's case is the same, and the defendant's case is substantially the same, the decision is binding. Is the plaintiff's case unchanged? Upon this point there can be no dispute. And the same case now coming up for the third time, the adjudications in 1 Gill and 6 Gill are conclusive, for it would be an absurdity to say, that the case of the plaintiff was an answer [**19]  to the whole of the defendants case, and not to a part of it.

This case is the same as in 6 Gill;--the law is the same--the authorities are the same--and the decision is therefore conclusive. That case decided that "Bold Venture" was a flat bar, and this decision must be binding; if the law is not to be regarded as settled, then the condition of society would be miserable indeed, "ubi jus vagun ibi misera servitus." The opinion of Judge Dorsey, in 6 Gill, is conclusive on the question of fraud on the Proprietary in obtaining the patent of "Bold Venture," because of its being covered by water; but this question is also decided in this very case in 1 Gill. The question on the act of 1773 is also decided. The ground on which the attack was made on this point was before the court before. The plat of 1773 was in then and is in now; and it refers to the act of 1773, and to the addition of "Mountenay's Neck" to Baltimore town.

In face of all this, the Court of Appeals decided, that the grant of "Bold Venture" was a bar to the whole case. The act of 1773 is not a new grant of new privileges. It does not give the old town any new rights; it only grants to the new town the rights belonging [**20]  to the old town. It, therefore, only gives to new lands rights granted by the act of 1745. There is no answer to the two facts of the grant and location of "Bold Venture"--there is no new evidence on this point. But again, he must show that the land escheated before 1773. This must be shown by showing that Oulton died intestate and without issue; but he has not made search for the will of Oulton or proved that he died without issue. There has been no search in the register's office, and the only evidence from which an inference can be drawn is, that the patent was granted in 1695, and no possession under it. But how could a man occupy land covered by navigable water? Lapse of time will not prove that a man has died without a will and without heirs, unless there is a search for will and heirs.

But there are special objections to the plaintiff's prayers. The first prayer assumes, that by the chain of title there stated, it has shown a complete chain of title from Mountenay to Henry Hammond, who appears in the case since the former trial as the heir of Mrs. Casey; and that upon this title Hammond is entitled to recover in this action. It takes no notice whatever of the title of "Bold [**21]  Venture," and therefore affirms, that under the title there set up, as derived from Mountenay and the act of 1773, the plaintiff is entitled to recover without regard to the title of "Bold Venture," whether escheat or not, wherever it is or whatever its condition; and is therefore not only directly at war with all the former decisions, but is also wholly untenable even as a new proposition. This prayer is also objectionable, because it assumes that it has shown a complete chain of title from Mountenay to Hammond, whereas, under the locations and proof and the case put by the prayer, the plaintiff has not shown such a complete chain of title as entitles him to claim the property in controversy as the eldest riparian proprietor, by force of the title of Mountenay. But there are also other objections to it, which are not only fatal to the prayer, but also to the plaintiff's whole case. Even if this complete chain of title is shown by the prayer, yet it also shows that the plaintiff had no legal title, or at all events no legal title at the institution of this suit, and is therefore not entitled to recover. 9 Gill, 275. Lastly, by the deed of Hammond to Anderson, (1 Gill, 443,) under which [**22]  alone the plaintiff claims title, the title of Mrs. Casey ceased at her death, and Hammond, intervening in the cause as her heir at law, had no title, as such heir, to recover on in this action; the title, which, at the death of Mrs. Casey, pending this action, devolved not on Hammond, but on him and Mrs. Pinkney, was a new, distinct and independent title accruing to them, not as Mrs. Casey's heirs, but as grantees in remainder under the deed of Hammond, and as such, and as accruing after this action was brought, does not entitle the plaintiff to recover in this action. There must be a dying intestate before there can be an heir at law, and this fact must be negatived--the court cannot assume it. 2 Md. Rep., 362. The act of 1831, ch. 311, sec. 11, does not help the case, for it expressly excepts cases where there is any beneficial interest in the trustee.

The second prayer asserts that the mere death of Oulton, at any time before the institution of the suit, (without any other fact whatever,) is sufficient to remove the bar of "Bold Venture." The objections to this are obvious.

The fourth prayer asserts, that if Oulton died twenty years before the suit, then "Bold Venture"  [**23]  is not a good title, because the defendants had not offered any proof that Oulton, or any one claiming under him, had had possession of "Bold Venture," or any part of it. The objection to this is equally obvious, as it bars the title of "Bold Venture" by the mere fact of non-possession, and in the entire absence of any adversary possession as against that title.

The third, fifth and sixth prayers raise objections to the bar of the title of "Bold Venture," on the ground that the defendants are mere intruders, and cannot, therefore, protect their possession by any outstanding titles in a third person, or one with which they have no connection or privity. The decisive answer to these is, that it is precisely the same outstanding title set up by the defendant, under the very same circumstances as in the former cases, and by the court affirmed to be a bar; and that apart from these decisions, the privity of the defendant with the outstanding title is not necessary to make it available to protect their possession, if a superior title. 7 Gill and Johns., 62. 1 Md. Rep., 52.

The seventh, ninth and tenth prayers raise objections to "Bold Venture," on the assumption that it was escheat,  [**24]  after the withdrawal of the evidence as to the escheat of it and the death of Oulton. Of the facts to be found by the jury under the tenth prayer, the plaintiff had express and uncontradicted proof in the former case in the escheat patent of 1759; and they were there held to be no answer to the title of "Bold Venture," and are therefore immaterial--the act of 1773 is not itself evidence from which, in connection with the other facts stated, the jury could draw the inference that Oulton died intestate and without heirs before 1773--nor, in the absence of any proof to show inquiry or search for heirs or will, and also looking to the fact, that until recently it was land covered by water, not susceptible of possession, and of which there was no adversary possession, do the facts stated warrant the inference of death intestate and without heirs before 1773. What act of 1816 is referred to in the seventh prayer is not only not shown by the prayer, (which is essential,) but also not even by the proof, there being no act of 1816 offered in evidence; nor is there any location of the limits described by that act; nor any proof that "Mountenay's Neck" is within them; the presumption of escheat [**25]  before 1816 is, by the prayer, directed to be made upon the single fact of the absence of all proof of possession by Oulton, or any one claiming under him; and lastly, the jury are required or bound to presume it.

As to the ninth prayer: The effect of escheat before 1773, was raised in the former cases upon express proof of escheat in 1759 and upon the plat of 1773, and was held not to affect the bar of "Bold Venture." The prayer depends upon the finding by the jury that Oulton died intestate and without issue before 1773, and there is nothing in the prayer, (nor even in the proof,) to justify that finding; and lastly, the prayer, in failing to specify any act of 1773, either in terms or by clear reference, raises no question upon any particular act of that year. The prayer also errs in assuming that by Bouldin's proof, "Mountenay's Neck" was added to the town in 1773, the proof being that only a part of it was added as shown by the plat.

The eighth prayer raises an abstract point, immaterial and furnishing no ground for reversal, if the defendant's prayers as to "Bold Venture" were rightly granted. 1 Gill, 19, 25, 30. 9 G. & J., 324. We are not trying a case where the land [**26]  is embraced within the plaintiff's patent, but where the land is in the State, and he cannot show that the title came back to the State. Upon the whole we insist, therefore:

1st. That by the former decision in this very cause, as well as that on the second appeal in Wilson's case, the legal correctness of the defendants' prayers is conclusively established, and is no longer an open question; that the prayers being the same, their correctness is necessarily established, unless there is clearly shown to be some material variation as to the points presented by those prayers, between the evidence in the present and that in the former cases: and that there is no such variation, the only evidence withdrawn being that as to the escheat of "Bold Venture," which withdrawal, if affecting at all, only gives additional strength to said points, and the evidence in the case, with this exception, being the same or substantially the same, as to those points, as on the former appeals.

2nd. That the correctness of the defendants' prayers, thus conclusively established, necessarily negatives every point in conflict with them. And by reference to them, as granted in this case and affirmed by [**27]  both of the former decisions of the Court of Appeals, it will be seen that they maintain "that 'Bold Venture' is a bar to the plaintiff's recovery, upon no other facts to be found by the jury but the grant, and the true location by the defendants of 'Bold Venture,'" and maintain this in the face of, and against all the, evidence in the cause-- and under the authority of the well established decisions of this court, these prayers could not have correctly been affirmed, if there were any evidence in the cause, or any inferences which a jury could properly make from it, to affect the correctness of those prayers, and that their affirmance is therefore necessarily a decision, that these single facts of the grant and the true location of "Bold Venture" make it a bar to the plaintiff's recovery in the face of, or notwithstanding all the, other evidence in the cause and all inferences from it, and, therefore, necessarily negatives every point which would assert that "Bold Venture" is not a bar, upon that other evidence, or any part of it, or any inferences from it.

3rd. That the plaintiff's prayers, so far as they are material to the case, or would deny that "Bold Venture" is a bar to [**28]  the plaintiff's recovery, although granted as proved and truly located, are all of them founded upon evidence which was before the court on the former appeals, or some fact to be inferred by the jury from that evidence, and were therefore properly rejected. And that even if the questions presented by them were open questions, they, so far as they are material to the appeal, not only conflict with the former decisions as to the effect of "Bold Venture," but would be untenable if there had been no such decisions.

Reverdy Johnson on the same side.

1st. The questions which have been settled: The plaintiff claims title as owner of part of "Mountenay's Neck," and the privileges granted by the act of 1745, ch. 9, and 1773, ch. 4. The defendants in the first case claimed title under Fell's Point. The land in dispute was made by filling up the water, and this was done by the defendants, and paid for by them. The first case decided, that owners of "Mountenay's Neck" were entitled to priority of right on account of seniority of patents, as against the owners of Fell's Point; that the evidence as to the filling up was irrelevant, and that the plaintiffs were entitled, no matter how filled [**29]  up. When the case went back the defendants defended themselves under the title of "Bold Venture," which was older than "Mountenay's Neck," in reference to the act of 1745. The patent of "Mountenay's Neck" was granted in 1663; in 1695, "Bold Venture" was granted to Oulton, and its first line calls to run with "Mountenay's Neck," as to its second and third lines. At this time the act of 1745 was not passed, and the owners of "Mountenay's Neck" had then no right to fill up. The plaintiffs base their claim exclusively upon the act of 1745. This court, in 1 Gill, have decided, that the act of 1745 was to be construed in subordination to the rights of grants then existing. They have also decided in that case, that "Bold Venture" was properly located, as insisted by the defendants, and embraced the property in dispute. The plaintiffs then attempted to assail the patent of "Bold Venture:"--1st. Because the State, by the original grant to Mountenay, in 1663, giving the lines to the water, the power to grant "Bold Venture" was gone. 2nd. The particular grant was void, on the ground of fraud in obtaining the patent of "Bold Venture," because it was land covered by water. The court decided both [**30]  these objections to the grant of "Bold Venture," and by this decision have established:--1st, that the patent of "Bold Venture" was a valid patent; 2nd, the true location was that made by defendants, and covered the land in dispute in this case. The direct point then before the court, and the only one on which the defendants could have stood, was the legal effect of the grant of "Bold Venture" upon the plaintiff's title. 1 Gill, 478, 511. The first prayer of the defendant is on page 478, and this is disposed of on pages 511, 512. The court, though they do not expressly refer to the act of 1773, yet the principle of the decision would apply as well to this act as to the act of 1745. It is, that "Bold Venture" is a good title, and that the act of 1745 does not give the power to the owners of "Mountenay's Neck" to improve over the land granted by the patent of "Bold Venture." This, of course, settles the power to grant "Bold Venture," and that all objections to it, except the single one referring to the act of 1773, have been overruled.

The act of 1790, under which procedendos are granted, necessarily makes the decisions of the appellate court in that case decisive on the second [**31]  trial, and if the court below follows this decision, there is no error in their action whatever, the appellate court may afterwards think of the propriety of its first decision. 3 H. & J., 462. The case of Hammond vs. Ridgely, 5 H. & J., decides nothing upon the question. See Judge Buchanan's opinion in that case, 278. They all hold, that in the case the decision of the appellate court is decisive, no matter whether they afterwards changed their opinion or not. And again, this case does not come within the rules there laid down by any of the judges. There is here no egregious mistake or any great rule of public policy to be settled. I assume, then, that whatever has been decided by the Court of Appeals in this case, is to be regarded as the settled law of the case. This court has not the legal right or power to change the law of this case, as heretofore decided in it.

The validity and operation of the grant of "Bold Venture" is therefore settled. The effect of the act of 1745 upon the title of the plaintiff, is identical with that of the act of 1773. What then is supposed to be open? There are but two grounds:--1st. That the act of 1773 is now supposed to be first introduced as [**32]  evidence. 2nd. Evidence supposed to show that at the date of that act "Bold Venture" had escheated to the State. In 1 Gill, 484, is an agreement in relation to the plat of 1773. This agreement shows that there was before the court below, and of course before this court, the plat of the addition to the town in 1773. This plat will show that it was made under the act of 1773, ch. 4. In that case also they had evidence of the escheat of "Bold Venture," and evidence of "Roger's Inspection." This escheat warrant is prima facie evidence that the original patentee had died without issue at the date of the warrant, which was in 1759, subsequent to the act of 1745. They now withdraw all the evidence relating to "Roger's Inspection," and that relating to the escheat of "Bold Venture," both record and parol, they intended to try the cause under the procedendo, without any evidence of the escheat of "Bold Venture." Now concede that the act of 1773 is for the first time brought to this court in this appeal, what effect has this act, standing by itself, upon Mountenay's title, independent of the escheat of "Bold Venture?" It was nothing more than the effect of the act of 1745 upon the same grants.  [**33]  This act of 1773 only places the owner of the land added, on the same level as to rights and privileges with the owners of the land in the old town. The same thing, therefore, which would inhibit the owner of the land in the old town from improving their land into the water, would also prevent the owner of the eighty acres added by the act of 1773. Now if "Bold Venture" is a flat bar under the act of 1745, it must also be, aside of the question of escheat, a flat bar under the act of 1773. So the introduction of the act of 1773 leaves the parties where they stood before, (1 Gill, 512,) because it left "Bold Venture" still an outstanding title.

Is there any evidence of the escheat of "Bold Venture" before 1773? I see none, and there is in the former trial no evidence of this escheat, except that which was withdrawn in this case. The whole supposed evidence on this subject is hypothetically put in the plaintiff's tenth prayer. The ninth prayer admits, that the plaintiff's right to recover under the act of 1773, depends upon the escheat of "Bold Venture." The tenth prayer contains this supposed evidence. This goes upon the assumption that the legislature would not pass the act of [**34]  1773, unless they had title to "Bold Venture," but this does not follow. These acts do not relate to the lots themselves, but is a general act, that wherever there are lots bordering on the water, the owners thereof may improve into the water. "Bold Venture" was then granted, and the fact that it was covered by water did not give the right to Mountenay to improve upon it, any more than if it had been fast land. The mere fact of the grant of "Bold Venture" in 1695, is no evidence that it had escheated in 1773. But the second proposition is as to the age of John Oulton when the grant in 1695 was made. But this is no evidence that he was dead in 1773, without heirs. He would be then but ninety-nine years of age. Then again the third proposition is as to the non-claim of possession by Oulton, or any person under him. In the former case it was decided as against the defendants, that the fact of non-possession under the Mountenay title, would not bar the claim of the plaintiff, because the land was covered by water and possession could not be taken of it. Now if that was good as against the defendants, the same ought now to be held as against the plaintiff. Again, the non-adduction of a [**35]  will is insisted on, but the fact that a party dies without a will, is no evidence that he died without heirs, either collateral or lineal. But the question is not open; because the court in the former case have ruled two propositions, either of which will bar the plaintiff, and, in 6 Gill, have decided the whole question.

As to the eighth prayer, the court will not lay down abstract propositions which have no foundation in the evidence in the cause. 2 Howard, 843. The rule is gratified by showing, that the title is somewhere existing in some party who could, upon it, maintain ejectment, which was this case. But there is no ground of reversal if the court think our prayers were properly granted, because under them the plaintiff could not have recovered.

Grafton L. Dulany for the appellant, in reply.

1st. The subject of dispute is one of vast value, and the rights of the parties to this suit will determine those of many others similarly situated. If this judgment is affirmed, there will be a large tract of land left without an owner worth three or four millions of dollars. The defendants have no title, and it has been decided that they have none. Their defence is strictly [**36]  a technical one--an outstanding title in a third party, yet they do not pretend that any third party is in existence who could recover against either party to this controversy.

It is said that whatever questions were expressly, or sub sulentio, or by inference, decided in the other cases, must bind here. And the position is even assumed, that if there was evidence which the plaintiff might have offered and did not offer, he is bound. But this was a trial under a procedendo, and we had a right to alter the case. 8 Gill, 39.

The second, fourth, seventh and eighth prayers all proceed upon the same principle under a new state of facts, and that is, that a defendant in ejectment may plead an outstanding title for his protection, but it must be a subsisting, available title upon which a party could recover in ejectment against both the contending parties. These prayers were refused; and the question is, whether this refusal was legally correct? There is nothing abstract in the eighth prayer, for it would have decided the case. It was granted in the other case by Judges Archer and Le Grand. 6 Gill, 161. These prayers go upon the ground, that there is no proof respecting Oulton,  [**37]  whether he is dead or not, and, therefore, that the title that was once in him is now in us to support our prima facie case.

The whole extent to which Judge Buchanan goes in the case in 5 H. & J., 276, Hammond vs. Ridgely, is to show that the judgment of the Court of Appeals is only conclusive on the court below. There is no constitutional or statutory prohibition upon this court to prevent a reversal of its own decisions. The writ of procedendo was provided for the purpose of preventing the delay of a new suit, which was before required in case of the reversal of a judgment.

The plaintiff has a good prima facie title, as shown by the cases in 1 Gill and 11 G. & J. This has been so decided, notwithstanding what was said in regard to the deed to Hammond. Anderson is the naked trustee, and the act of 1831, ch. 211, sec. 11, devolves the estate upon the heir at common law. The chain of title is perfect within the boundaries of "Mountenay's Neck." Then we claim under the act of 1773, as extending the act of 1745, and also under the act of 1816, ch. 29. The decision in 11 G. & J., 358, 359, decides, that we have the right to make the improvement, and that it avails for the benefit [**38]  of the eldest riparian proprietor in cases of doubtful or conflicting titles. It is assumed, therefore, that the title in the plaintiff is perfect, and now the outstanding title is simply set up. Why will an outstanding title bar? It is because if there be a recovery by the plaintiff, he will be ousted by the third party, whom the court say has good title. In this case the principle would avail to protect a wrong doer, which cannot be done. But again, this title must be subsisting in some person in existence capable of suing and maintaining the suit against each party. A plaintiff must prove a title from the State, and when the defendant sets up an outstanding title, he must show the same proof as the plaintiff. 3 Johns. Rep., 380, 381. Here no person appeared, and the court say the presumption is that the title was gone. 4 Johns., 210. 3 Wash. C. C. R., 498, 501. 6 Johns., 257. 3 Wheat., 224. 2 H. & J., 125. He must show that the parties claiming under the outstanding title are in existence. It would be the greatest abuse of the principle to permit its use as attempted in this case.

2nd. Was there evidence of Oulton's death before 1773? Before there was documentary proof, which [**39]  the court rejected. The evidence is, that the patent to Oulton was granted in 1695, and this is the whole; in 1773 a title to enter the land thus covered by water was granted to the riparian proprietors. Oulton is presumed in law to be dead. There is no one coming forward to claim this land. This very absence is evidence, calculated to show that the title of Oulton has long since gone and been reinvested in the State. This, taken in connection with the acts of the legislature, is conclusive. 1 H. & McH., 206. A simple adduction of the patent to the plaintiff will entitle him to recover. This assumes that the State has the title or she could not grant it; and he who impeaches it must show that the State had no power when it exercised the right of granting by the act of 1773. The State cannot give what it does not possess, consequently the granting of a patent necessarily supposes that the State had title. The act of 1773, therefore, supposes the title to be in the State at the time of the passage of that act, which gives to all riparian owners the right to improve into the water. Until the contrary is proved, it is presumed that the State had this right, which it exercised by the act [**40]  of 1773. What is the proof that she had not the title? It is the fact, that in 1695 she had granted the land to Oulton; but this does not destroy the presumption, that at the date of the act of 1773 the State had title, because the presumption arises from the act itself.

The court have not decided any thing upon the effect of the act of 1773. It was not relied upon in argument, nor is it in any manner alluded to in the opinion of the court in that case. As a title paper, it has never been under the consideration of the court. The law of 1773 is public to a certain extent, but this does not prevent its being a private law. Dwarris on Stat., 9 Law Lib., 34.

The granting of the three prayers of the defendant does not alter the case. The court, in the former case, granted these prayers, and still reversed the judgment and sent the case back. If this is conclusive, then the case must be now reversed again.

The right to improve is a sort of incorporeal hereditament annexed to the land. 4 G. & J., 144. The act of 1773 as a grant, had, in all respects, the effect of a grant. You will presume title from a law as well as from a patent. 12 Pet., 454. 2 Howard, 344. The act of 1784 [**41]  is referred to in 11 G. & J., as being a strong confirmation of the act of 1745.

11 G. & J., 361, gives the construction to the act of 1745, and gives the title to the elder riparian proprietor, and asserts that the right to improve is property; so also it is decided in 1 Gill, 501.

The rights of riparian owners is that of alluvion, and has its foundation in the patent, and is co-existent with it. This right of improvement, granted by this statute, harmonizes with and is an extension of the right of alluvion. There is no difference between them, except that the one is made by nature and the other artificially. This right, it has been decided, attaches to the oldest title. 11 G. & J., 358.

At common law the riparian right of alluvion is incident to every riparian owner. They subsist in the original patent. 5 H. & J., 200, 203. It has never been decided that it is competent for the State to grant land to another covered by water, in front of land granted by an elder patent, so as to prevent the rights of alluvion attaching to the riparian owner. 2 Md. Ch. Decisions, 485. 5 G. & J., 367, 375, gives an interpretation to the act of 1745, and recognises most fully the rights [**42]  of riparian owners, which cannot be violated even by the legislature. 4 H. & McH., 547. These authorities are also referred to in 1 Gill, 501, and approved. The only difficulty is that that case is in direct conflict with the principles of those cases, and of the principles in the case itself. 2 Md. Ch. Decisions, 486. 6 Gill, 170. 9 G. & J., 510.

In 2 H. & McH., 244, part of the land now in dispute was adjudicated upon, and that case is conclusive of this.  

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

OPINIONBY:
TUCK 

OPINION:

 [*164]  TUCK, J., delivered the opinion of this court.
We are of opinion that the Court of Appeals has already settled most of the questions presented by the record before us.  11 Gill & Johns., 351. 1 Gill, 430. 6 Gill, 121.
It is said, however, on the part of the appellants, that in view of the large amount of property involved in this case, and in another in this court, and of other property held under similar titles, it would not be improper for us to revise and overrule the opinions of our predecessors if we should think that they erred in deciding the cases which we have mentioned. The appellants [**43]  found their right to recover upon the act of 1745, ch. 9, and other acts and ordinances of the city of Baltimore, in connection with their title as owners of part of a tract of land called "Mountenay's Neck." These have received a construction without which the grant of "Mountenay" 

 [*165]  can be of no service to the plaintiffs in maintaining their action; yet, while they contend that that interpretation must be adhered to, as the law of the case, by which valuable improvements made by others under a mistaken view of the law, and without any cost to the appellants, will be secured to them, unless the claim be defeated on other grounds, we are told that other opinions of the same learned tribunal pronounced in these cases, after full argument and consideration, are not to be regarded as authority. We have not been able to discover a sufficient reason for making this an exception to the almost uninterrupted practice of all courts, of receiving their own decisions as of binding force. We are not prepared to say that cases will not arise in which we shall feel ourselves constrained to, withhold our assent to adjudged cases. The reported decisions show that this has been done,  [**44]  and it may occur again. But, in the language of Mr. Justice Earle, whose opinion has been invoked by the appellant's counsel on this question, "the solemn adjudication of an appellate court of last resort, ought, on general principles of judicial propriety, to be approached with caution, and perhaps they should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed. On a second trial in ejectment between the same parties, and those claiming under them on the same subject matter, I should say they ought to be considered conclusive, unless, which is hardly a supposable case, glaring injustice has been done, or some egregious blunder has been committed. But to give the binding decision those conclusive qualities it ought to be explicitly declared, and perfectly understood, and, to become the law of the case, it ought definitively to settle the rights of the litigant parties. If an exposition is given to a will or deed (and so of an act of Assembly) fully defining the rights of the parties, or any other opinion is expressed settling the title to the thing in dispute between them, it should be deemed irrevocable, and never again touched,  [**45]  where the same persons and those claiming under them, are concerned in the contestation. If the Court of Appeals have disposed definitively of the subject, and fully and explicitly determined the rights of the parties, this court ought to yield to 

 [*166]  the judgment, whatever our individual opinions may be of its correctness. This is not, however, in my apprehension the character of that decision;" &c. 5 Har. and Johns., 278, Hammond vs. Ridgely. We do not understand the counsel for the appellants as denying that, if on a second appeal it appears that the court below ruled in conformity with the principles settled by the previous decision, their judgment must be affirmed. It is manifest that in such a case no error can be imputed to the inferior tribunal.  7 Gill, 244, 333. 1 Md. Rep., 394. But it is said that we are not concluded by the opinion in Wilson vs. Inloes, though involving substantially the same titles and relating to property in the same city, and similarly situated. The Court of Appeals in 1 Gill, and 6 Gill, followed the decisions in 11 Gill and Johns.; and so in 6 Gill, they considered that what had been [**46]  settled in 1 Gill was no longer open for consideration. If as a general rule upon principles of judicial propriety, and in view of the importance of having the law fixed and certain, a court respects its own decisions even in analogous cases, there would seem to be more reason for adhering to them where the facts are the same, though between different parties. These cases demonstrate that neither the counsel nor the court were insensible to the importance of the subject before them. Three of the four judges who sat in Wilson vs. Inloes, 6 Gill, had decided Casey's appeal in 1 Gill. After full argument and consideration the judgment of the court below was affirmed, in which C. J. Archer had united, so that we have the authority of five of the judges for what was there decided. Far from there being any reason, on the ground of public interest, or manifest error, for our reviewing that opinion, we feel no difficulty in recognizing it as an authoritative decision. Whatever, therefore, was decided in 1 Gill and 6 Gill must be taken as the law, unless it appears that the record presents a materially different case. The lessors of the plaintiffs, Wilson and Casey,  [**47]   claimed certain lots in the city of Baltimore, shown by the plat at page 487, 1 Gill, as incident to their ownership of parts of a tract of land called "Mountenay's Neck," patented in 1663, which lots had become fast land by improvements made 

 [*167]  into the water, under the act of 1745 ch. 9, sec. 10, and other acts and ordinances of the corporate authorities of Baltimore, mentioned in the proceedings. It is conceded that no part of the property in controversy is embraced within the lines of "Mountenay." The Court of Appeals in 11 Gill and Johns., 351, decided, that the act of 1745, granted a franchise to the owners of water lots; that the vested right of improvement thereby conferred, and all improvements when made, no matter by whom, enured to the benefit of those claiming under the senior grant in that case, that is to say, that they became incident to "Mountenay's Neck," and not to "Fell's Prospect" which was patented after the passage of the act; and also that the improvements authorised by that act were those to be made by improvers in front of their own lots, not of their neighbors, as had previously been settled in 5 G. & J. 368. [**48]  The defendants, in both cases, afterwards, adapting their defence to this construction of the act of Assembly, and to show that the owners of "Mountenay" had no authority themselves, to extend their water line, and could not, therefore, claim the improvements made by others, offered in evidence the patent of "Bold Venture" granted to Oulton in 1695, by which, as they said, the State had, before the legislative grant of 1745, parted with all interest in and right over the land adjoining the water line of "Mountenay," as shown by M. N. on the plat. The court decided that the State had authority to make this grant although the land was covered by navigable water, and that the patent was not void for any reasons assigned by the appellant's counsel, and which have again been urged before us. The necessary consequence of this pretension of the defendants, if sustained by the court, would be to defeat the plaintiff's actions, unless they could show that the State had, before the passage of the act of 1745, become reinvested with the title to what had been previously granted to John Oulton; because, if the State did not then own "Bold Venture, there was nothing on the water [**49]  line M. N. of "Mountenay," on which the act of 1745 could operate in favor of the owners of that tract. They could not have extended their improvements beyond that line without encroaching upon the property of 

 [*168]  their neighbors. Accordingly the plaintiffs offered evidence to show that "Bold Venture" had escheated before the year 1745. The Court of Appeals, however, decided that such was not the effect of the evidence offered on this point, and that, as the act of 1745 did not grant any right acquired by the State subsequently to its passage, the pretensions of the plaintiffs, as derived under that act, must yield to those claiming under "Bold Venture," patented in 1695. The defendants in this case had prayed the court to instruct the jury that "if they find that the tract called 'Bold Venture' was granted as given in evidence by the defendants, and that the same is truly located on the plats, then the patent of 'Mountenay's Neck' gives no title to the lessor of the plaintiffs, to the lot of ground for which the defendants have taken defence." This instruction the Court of Appeals (1 Gill 511,) held, should have been granted. "Bold  [**50]   Venture" embracing all the land between the line M. N. and the city dock, covers, of course, the ground now in controversy, as effectually as if it had been fast land at the time "Bold Venture" was originally surveyed;" and (on page 512) "'Bold Venture' bars the plaintiff's recovery against any of the defendants;" "we approve the refusal to grant the plaintiff's prayer in the fifth exception," which was that upon the hypothesis there stated, the plaintiff was entitled to recover against all the defendants except Inloes. In Wilson vs. Inloes, 6 Gill, the defendants offered three prayers, identical with those offered by them in the present case, as to which this court said, (page 171:) "In granting the three prayers of the defendant the court below merely carried out some of the undeniable rules of our ejectment law, and sustained the principles decided in Casey vs. Inloes, 1 Gill 430." These extracts clearly indicate that the Court of Appeals were of opinion that "Bold Venture" was a complete bar to the plaintiff's actions, so long as they failed to show that it had escheated to the State prior to 1745. But the counsel for the appellants contend [**51]  that if this had been the view of the court they would not have sent the case back for a new trial, and they rely upon what is said by the court at page 510, as evidence that the court did not intend to conclude 

 [*169]  them by the opinion and judgment in that case, viz: "as far as regards any conflict of rights between these parties, Inloes and the other defendants had, under the act of 1745, a right to extend westwardly, in front of their lots, to the line of the eastern end of the city dock, extended northwardly; that is to say, to the west side of Caroline street, and no further; and the lessor of the plaintiff had the right to extend her grounds to the city dock, at the south side of Lancaster street. Upon the foregoing views the plaintiffs' fifteenth prayer ought to have been granted." Although a procedendo will not be granted when this court can see that the plaintiff must fail in his action, it does not follow that the granting such writ implies that he must ultimately succeed; and it could not have been discovered, from an inspection of the record, that the plaintiffs would not on another trial be able to meet successfully the defence on which the defendants had relied,  [**52]  by removing "Bold Venture" out of their way. As to the passage of the opinion above quoted it may be remarked that we must consider what the court said in connection with the subject matter of the prayer then under consideration. They were disposing of the exceptions in their order; not one word is said of "Bold Venture" in that part of the opinion, but it treats of a different portion of the evidence, and the rights of the parties to improve in front of their lots under the act of 1745, and without reference to the grant of "Bold Venture." But when the court, in order, reach the prayers of the defendants we perceive that they consider "Bold Venture," in the face of all the testimony, as a flat bar to the plaintiffs' recovery; and, therefore, approve of the court's refusal to grant their second prayer in the third exception, and their prayer in the fifth exception, in which that title had not been noticed by the plaintiffs.
But it is contended that this case is now different in material respects, from what it was on the trial of the former appeal; and this difference is supposed to consist in the withdrawal of all the testimony relating to the escheat of "Bold Venture,  [**53]  " and to the death of Oulton; and to the boundaries of said tract, and of the patent of "Roger's Inspection," and all papers relating thereto; and in the offering of the act of 1773, 

 [*170]  ch. 4, which it is said was not before in evidence. The case on the part of the defendants is the same. It is manifest that the abandonment of all questions as to the locations of the title papers cannot alter their construction or effect upon each other. On the former appeal it was held that the evidence then offered to prove the escheat of "Bold Venture" before 1745, was insufficient for that purpose. It is now contended, that in the absence of that testimony, and upon the present condition of the record, it may be inferred that Oulton died intestate and without heirs before 1773, when, as it is said, that part of "Mountenay" was added to Baltimore town, and the privileges of the act of 1745 were extended over it. According to this view of the plaintiff's case they abandon the act of 1745, except as evidence to show what "immunities and privileges" were conferred upon the owners of "Mountenay" when it became part of Baltimore town under the act of 1773, and they claim title [**54]  from the time of the passage of that act. Having, as we suppose, stated substantially the case as now presented we proceed to dispose of the prayers, all of which on the part of the plaintiffs, in our opinion, were properly refused. As to the first, we deem it unnecessary to inquire whether the present appellants were properly made parties, after the death of Mrs. Casey, because, this prayer being obnoxious to other objections, it is proper to dispose of it on these grounds. The object of the act of 1745, (and the effect of that of 1773, according to the view now taken by the appellants' counsel) was to authorise the owners of water lots to acquire a right to vacant land covered by water, without applying to the land office in the usual way. It was a legislative grant of a franchise for and in consideration of certain improvements from which material and important benefits would result to the public. These improvements could have been made only on vacant property of the State, such as she could rightfully grant. The former decisions of this court have conclusively settled that this right did not belong to the owners on the water line M. N. of "Mountenay," because the land outside [**55]  of and adjoining that line had been previously granted by the State to John Oulton, in the legitimate exercise of her authority. 

 [*171]  This prayer assumes that when this part of "Mountenay" became part of Baltimore, under the act of 1773, the privileges conferred by the act of 1745, attached to and became vested in the owners of water lots, on that line; and that it operated as a grant to improve in front of their lots on that line, and that, therefore, if the jury should find certain facts enumerated in the prayer, the plaintiffs were entitled to recover, without the prayer's taking any notice of the patent of "Bold Venture," or submitting to the jury any hypothesis upon which they were required to find, as preliminary to the plaintiff's title, that Oulton's had become extinct prior to the act of 1773. It was argued, on the part of the appellants, that what the State does is presumed to be right until the contrary appears, and that we must, therefore, suppose that the State had title to this property when that act passed. If we were now dealing with an act of Assembly professing in terms to grant a particular parcel of land the argument might apply. But there is a plain [**56]  distinction between such an act or a patent specifying the thing granted, and an act which grants a right generally, and operates merely in favor of those who may subsequently show themselves entitled to the benefit of its provisions, as being in a condition to avail themselves of the franchise. An escheat patent is prima facie evidence that the land was liable to escheat at the date of the warrant, and an act of Assembly reciting that the property had escheated, and making a grant, would have the same effect. Suppose, instead of this act of 1773, the appellants had relied upon a patent of the same date granting the land in dispute, but silent as to Oulton's title, and that the question was between the patent of 1695 and the one now supposed, (as it is here between that patent and the supposed legislative grant of 1773,) can it be doubted that the elder grant would prevail, if relied on by the defendants, unless it appeared that the title to "Bold Venture" had gone back to the State before 1773? If, however, the junior grant recites an escheat, the elder patent must give place to it, unless it be shown that the land had not escheated. The onus of proof is shifted.  Hall  [**57]   

 [*172]  vs. Gittings, 2 H. & J. 112. A plaintiff must recover upon his own title. If he shows a case entitling him to recover, the defendant must answer that case or submit to a verdict. But here the plaintiffs' pretensions, so far as founded upon the grant of "Mountenay," and the act of 1773, were repelled, by showing that before 1773 the State had parted with all that she had owned in front of "Mountenay." As a reply to this, the prayer asserts that Oulton had died intestate and without heirs, for which, as a presumption of law, we think there was no warrant; and if it was designed to have been found by the jury, it was error not to have been so submitted to them. "It is a general presumption, that things once proved to have existed in a particular state are understood as continuing in that state, until the contrary be established by evidence, either direct or presumptive. Thus, where seisin of an estate has been shown its continuance will be presumed." Best on Presumptions, ch. 6.
But can this be said to be an open question? It appears that the plat of the addition to Baltimore was before the court on the former appeal in this case, and the act of 1773 was [**58]  necessarily, also, before the court; because, apart from the reference by the plat to the act under which it was made, operating as a grant of the public domain, and affecting the rights of navigation and fishery, by allowing improvements to be made out into navigable water, we think it must have been judicially noticed by the court as a public law. But in the case of Wilson vs. Inloes, 6 Gill, both the act and the plat were in evidence. It cannot be said that the point now made was passed over without notice. The notes of the counsel, taken by the reporter, show, that the title of the plaintiffs was strongly pressed in the argument before this court, in connection with this plat and act of Assembly. True, the court does not advert to that portion of the argument, but we cannot suppose that the plaintiffs would have been denied the benefit of it, if the court had considered that the patent of "Bold Venture" had been fully met, and put out of the case. We are disposed to think that the title now 

 [*173]  set up was classed by the court with those points on which it was not deemed necessary to express any opinion, because they had been settled in 1 Gill. See 6 Gill [**59]  159.
The second, fourth and eighth prayers relate to the question of outstanding title. We do not think that the doctrines of the law applicable to this defence in ejectment can avail the plaintiffs in this case. The plaintiff must always, in the first instance, make out a legal and possessary title to the premises in question, and the defendant's evidence may be confined to falsifying his adversary's proofs, or rebutting the presumptions which may arise from them. He need not offer any evidence of title in himself, or of title in a third person. It is sufficient if he makes it appear to the jury that a legal and possessary title does not subsist in the plaintiff. Adams on Ejectment, 285.  7 G. & J. 62. 2 Greenlf. on Ev., sec. 331. And this the defendants here do, by showing that at the time when the title is said to have passed from the State, by the act of 1773, she had no title which she could have conveyed. There can be nothing clearer than that a plaintiff must be defeated, if it appears that the party under whom he claims the land in dispute had no title, no matter in whom the right may really be. But if he shows a prima facie case, the burden [**60]  of proof is thrown upon the defendant.
As to the absence of proof of possession mentioned in the fourth prayer, it may be observed that the nature of the property was not such as to admit of possession and acts of ownership in the ordinary way. The patentee of "Bold Venture" could only claim in subordination to the rights of the public, as to fishing and navigation. And as this property was not made fast land until a few years before the commencement of the suit, we do not perceive how he could have claimed the possession before that time. The Court of Appeals have said, that the defendants could not have held it adversely by possession for this very reason. Whilst he was under no obligation to have made fast land out of the water, others had no right to invade his property.  1 Gill 497.
The third, fifth and sixth prayers treat the defendants as 

 [*174]  intruders, in the absence of proof of an available outstanding title. Much of what we have said applies to these; from which it follows, that, as the plaintiffs did not show a sufficient title, they cannot require proof of title in the defendants, or any third person. The fifth and sixth [**61]  were properly refused for another reason. The former does not specify the property to which it was intended to apply, to wit: "the square from ----- street to the water," neither the square nor the water being mentioned; and as the sixth is predicated on the fifth, it also was properly refused.
The seventh prayer was properly refused, because no act of 1816 had been offered in evidence; and if so, the particular act of that session is not specified in the prayer. The ninth prayer is obviously wrong, because it assumes the escheat of "Bold Venture" upon the death of Oulton without issue. But a similar point to the one designed to have been presented by this prayer is raised by the tenth, which asserts that the act of 1773 is itself evidence, connected with the facts stated in the prayer, that John Oulton had died intestate and without heirs before 1773. The Court of Appeals, with these facts before them in the former trials, did not recognise this pretension of the appellants, even when supported by the direct evidence offered on the question of escheat. We cannot perceive that the plaintiffs' case is made stronger by the absence of this testimony. The act of [**62]  Assembly is not evidence, per se, of any thing in regard to John Oulton. It can only avail the plaintiffs as proof of certain facts of which there is no legal presumption, though they need not be established by direct proof. Nor does the law presume that a person who is proved to be dead left no heirs. The death of a person may be presumed after a long lapse of time, as was done in Doe on the demise of Oldnall, vs. Deakin and Wooley, 3 Carr. and Payne, 402, where the persons who were said to be dead, would, if alive, have been one hundred and fifty years old. When persons are known to have survived ninety and an hundred years, we cannot say that others have died at an earlier age, without some evidence on the subject. And, in addition to 

 [*175]  the death of Oulton, the jury were to have found, by this prayer, that his whole race was extinct before 1773. For this, we think, there was not sufficient evidence. In an action of ejectment the lessor of the plaintiff claimed under a person who died without issue, but who had had a younger brother, who many years before went abroad, and, according to repute in the family, had died abroad, and the witness never had heard [**63]  in the family that he was married. This was prima facie evidence of his having died without issue. "But where the death only is proved in such case, without some negative proof of the existence of issue, it is not sufficient, the plaintiff being bound to remove every possibility of title in another, before he can recover against the person in possession." Richards vs. Richards, 15 East, 293, note. 2 Greenlf. on Ev., sec. 534. So far as this prayer is predicated on an absence of claim of title by persons representing Oulton, the character of the property, as before remarked on the fourth prayer, is a sufficient reason for its rejection.
From these views, it follows that we concur with the county court in granting the three prayers of the defendants, in doing which we but sanction what the Court of Appeals has said in the other cases substantially the same with this.
Judgment affirmed with costs. 

24 of 48 DOCUMENTS 

PHINEAS THURSTON, Surv. Partner of ARTHUR L. FOGG, vs. THOMAS LLOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 283; 1853 Md. LEXIS 32 

DECEMBER, 1853, Decided 

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

This was an action of assumpsit, brought by the appellee against the appellant, upon a promissory note, dated the 12th of July 1847, for $ 200, at sixty days, payable to the appellee, or order, and purporting to be signed by "Fogg and Thurston." The declaration contained a count upon the note and the common money counts.

Exception. The plaintiff offered the note, and proved that the signature of Fogg and Thurston thereto was in the handwriting of Fogg, formerly a partner in the late firm of Fogg and Thurston, who kept the Fountain Inn. That witness, who was in the employ of the firm for about nine months, partly in 1846 and partly in 1847, as assistant book-keeper and clerk, was frequently sent by Thurston to various persons in the city of Baltimore to borrow money for the use of the firm; that upon such occasions witness would take a memorandum of the amount wanted, and return with the money when he received it, but he has no recollection of ever having taken upon these occasions a promissory note from Thurston, of Fogg and Thurston, or of Thurston for the money so to be borrowed; that upon such occasions the arrangement for the money appeared [**2]  to have been previously made between Thurston and the person from whom witness got it; that similar transactions took place at the instance of Fogg, but with different persons from those with whom Thurston had communication, the former having one set of lenders and the latter another; that all the loans witness so obtained were made for the use of the firm, and the proceeds invariably brought to, or accounted for, by witness to Thurston, who was exclusively, so far as witness knew, the financial partner of the concern; that Thurston often requested Fogg to go out and borrow money, and the latter would go or send witness; that the money so borrowed was used to pay the expenses and notes of the firm, many of which were given for borrowed money; that Thurston upon one occasion desired witness to request Fogg to go and borrow money of the plaintiff, and that he well knew that money was borrowed by Fogg from the plaintiff for the use of the firm.

The defendant then proved, that the co-partnership of Fogg and Thurston commenced on the 12th of October 1846, and terminated by dissolution on the 12th of August 1847, and that Thurston had capital for the management of the concern; that [**3]  on the 4th of September 1847, plaintiff purchased of the firm of Lawrence, Thompson & Co, of which the witness was a partner, brandy to the amount of $ 373.70, upon a credit of six months, and upon the same day, or the day following the delivery thereof, said he would pay therefor in cash, upon getting the discount off for the six months' credit, which arrangement was agreed to, and a short time thereafter plaintiff called at his store, witness then being out, and settled for the brandy by giving in payment the note in question, and another of one Soper, having about sixty days to run, and the balance in cash; that when witness returned and saw the note of Fogg and Thurston, he suspected there was something wrong about it, because it was not signed in the manner nor in the same handwriting that their notes, (many of which he had seen,) were usually signed, and under this impression witness took it to Thurston to know if it was all right, and in consequence of that interview, returned the note to the plaintiff and received cash in lieu thereof; that all the notes of Fogg and Thurston witness ever saw before were signed in the handwriting of Thurston.

The plaintiff then proved by [**4]  another witness, who was his assistant bar-keeper, that Fogg frequently in 1846 and 1847 came to plaintiff to borrow money for the use, as witness understood, of the firm, and that plaintiff frequently loaned him money, but witness never saw or knew of any note being given to the plaintiff for any such loans; that the course of dealing between plaintiff and Fogg and Thurston was, that the latter, when they were short of money, would borrow of the plaintiff as one friend or neighbor would of another, and return the amount borrowed in a few days thereafter, and he frequently saw money so borrowed and returned.

The defendant then offered the books of the plaintiff, containing the account of all the money transactions and dealings between the plaintiff and the firm of Fogg and Thurston. In this book there is an entry charging said firm with $ 200 cash, loaned July 12th, 1847.

The plaintiff then asked two instructions, which are fully stated in the opinion of this court. These prayers the court, (FRICK, C. J., and LE GRAND, A. J.,) granted, and the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The court has the right to instruct the jury, that there is no evidence sufficient in law to establish the fact sought to be proved.

Where a note is proved to have been signed by one member of an existing firm in the partnership name, the legal presumption is, that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part of the defence.

The granting a prayer at the instance of the plaintiff that there was no evidence of a certain fact, though the instruction be regarded as an abstraction, is not cause for reversal upon appeal by defendant, if there was no such evidence, because the defendant was not prejudiced thereby.  

COUNSEL:
St. George W. Teackle for [**5]  the appellant, insisted, that the evidence stated above tends to disprove the prima facie case made by the note itself:--1st. The plaintiff's first witness proves, that no note was given by defendants to plaintiff for any money witness borrowed, and that he never knew Fogg to sign the name of the firm to any note, and that Thurston was the financial partner. 2nd. The testimony of plaintiff's bar-keeper is to the same effect, that he never knew any note to be given when the defendants borrowed money of the plaintiff. 3rd. The account furnished from the books of the plaintiff show that no note was ever given, for there is none credited. 4th. A legitimate inference might be drawn by the jury from the purchase of the brandy, that the plaintiff had not the note in his possession at that time, otherwise he would then have passed it in part payment to the vendors of the brandy, and therefore that it was ante-dated; they might also have inferred from this transaction that there was collusion between plaintiff and Fogg, either to secure a private debt of Fogg or for some other improper purpose.

Now it is the settled law of this State, that if there be the slightest evidence in any case,  [**6]  no matter how weak the jury alone are entitled to have it and judge of it. (2 G. & J., 404, Davis vs. Barney. 2 H. & G., 189, Ferguson vs. Tucker. 4 H. & J., 516, Burt vs. Gwinn,) and it is submitted there is evidence from which the jury might have found the facts negatived by the plaintiff's first prayer. But this prayer also takes from the jury their exclusive province of finding what the note was given for, and makes the court decide what was the consideration of it as a question of law. The fact that it was given for a partnership debt is as material and necessary to be found to entitle the plaintiff to recover, as that it was signed in the partnership name by either of the partners during the partnership, and ought to have been put to the jury.

The second prayer was also erroneously granted:--1st, because there was evidence from which the jury might properly have found collusion between the plaintiff and Fogg, and that the note was given for a private debt of the latter. 2nd, because it puts no question to the jury essential to entitle the plaintiff to recover, but solely instructs them that there was no evidence of certain theories of facts--certain abstract propositions--which [**7]  even, if in fact there was no such evidence, the plaintiff's right to recover would not follow or be in anywise affected.

Vivian Brent for the appellee.

We submit that there is no evidence to rebut the prima facie case made out, if the jury find the facts left to them in the plaintiff's first prayer, and that until rebutted prima facie evidence in judgment of law is sufficient to establish the case. 6 Pet., 622, Kelly vs. Jackson. 14 Pet., 334, United States vs. Wiggins. The only question then is, as to the power of the court to instruct the jury that there is no evidence in the case of the matters stated in the prayers. On this point the cases in 7 H. & J., 36, and 7 G. & J., 20, Cole vs. Hebb, are conclusive. As to the power of one partner to bind the partnership, see 11 Johns. Rep., 544. 5 Wendell, 223. 17 Seargt. and Rawle, 165. Collyer on Partnership, 401, 404. 15 Wendell, 364. 16 Wendell, 505. Chitty on Bills, 31. 7 H. & J., 47, 28. There was no evidence that the note was ante-dated, or that it was not on partnership account. On the contrary the defendant's own testimony, from the books of the plaintiff, shows that the money was advanced for the partnership.  

JUDGES:
The [**8]  cause was argued before ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*287]  ECCLESTON, J., delivered the opinion of this court.
The first instruction given by the court below, at the instance of the plaintiff is, "that there is no evidence that the note in controversy was ante-dated, or that it was given for a private debt of either member of the firm, or for any purpose other than a partnership transaction; and, therefore, the plaintiff had a right to recover, if the jury believed from the evidence that the note was signed in the partnership name, by either of the partners, during the existence of the partnership."
After a full and minute examination of the testimony, we 

 [*288]  do not perceive any evidence legally tending to prove the note was ante-dated, or given for the separate liability of either partner, or for any transaction not of a partnership character. For the right of the court to tell the jury, there is no evidence sufficient in law, to establish the fact sought to be proved, see Farmers Bank of Maryland, vs. Duvall, 7 G. & J. 78. It is needless to refer to the other cases on the subject. Under the circumstances the plaintiff had [**9]  a right to recover if the jury believed the note was signed in the manner stated in the prayer.
The appellant considers this instruction erroneous, because it does not submit to the jury the question, whether the consideration of the note was a partnership debt. This, he says, is a material fact, to be established by proof, on the part of the plaintiff. We do not consider the objection a valid one. In cases similar to the present, the general rule is, that where a note is proved to have been signed by one member of an existing firm, in the partnership name, the legal presumption is, that it was given for a joint indebtedness in the regular course of partnership dealings, until the contrary is shown on the part of the defence.  Doty vs. Bates, 11 Johns. Rep. 546. Mifflin vs. Smith, 17, Serg. & Rawle, 165, 170.  Whitaker vs. Brown, 16 Wend. 505. Story on Part., sec. 102, note 1, and note 1 to sec. 127 on page 192.
We have said there is no evidence contradicting this presumption of law, or in other words, there is no proof of the note having been given for any other than a partnership transaction; and we may add, that [**10]  there is evidence calculated to prove, the consideration of the note was a loan of money to the firm. If there had been evidence to show the note was based upon a separate liability, the objection relied upon, might have been urged with propriety; but in the absence of such proof, there was no error in granting the prayer.
The second instruction is, "that there is no evidence of collusion between Fogg and Lloyd, whereby the latter agreed to take the note of the firm for the individual debt of Fogg."
The appellee insists that there is evidence from which the 

 [*289]  jury might have found collusion between the plaintiff and Fogg, and that the note was for the private debt of the latter. What has been said in regard to the proof in the cause whilst considering the first prayer renders it unnecessary to say more on that subject at this time.
Another objection to the last prayer, urged in the printed argument of the appellant's counsel is, that it "puts no question to the jury essential to entitle the plaintiff to recover, but solely instructs them that there is no evidence of certain theories of facts--certain abstract propositions--which, even if in fact there was no such [**11]  evidence, the plaintiff's right to recover would not recover, or be in anywise affected."
Assuming, without admitting, the instruction is an abstraction, still we cannot reverse the judgment, because the defendant was not prejudiced by it. If there had been evidence of collusion, then such an instruction, would have been erroneous, and subject to reversal, as it would be giving a prayer at the instance of the plaintiff, disregarding the proof of the opposite party. But as in our opinion there is no proof, legally tending to establish collusion; the court having told the jury there was no such evidence, the appellee could not be injured by the instruction, for the plain and manifest reason, that he had no proof on which to sustain such a defence. If a prayer in this case had been granted at the instance of the appellee, that there was testimony offered or given, which, if believed by the jury to be true, did tend to prove collusion, such an instruction might properly have been complained of by the plaintiff, because by it the jury might have been misled, and brought to the conclusion that such proof was in the cause, when in reality none such existed. We, therefore, affirm the judgment.  [**12]  
Judgment affirmed. 

25 of 48 DOCUMENTS 

WILLIAM WEST vs. ANDREW FLANNAGAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 36; 1853 Md. LEXIS 14 

JUNE, 1853, Decided 

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

The bill in this case was filed by the appellee, on the 4th of March 1852, and alleges that complainant and one Trimble were partners in the business of making and repairing vessels, under the firm of Flannagan and Trimble, which began on the 1st of January 1843 and ended by the death of Trimble, on the 6th of August 1850, leaving complainant, as survivor, in possession of the partnership property; that this partnership was the successor of a previous one for the same business of Goodwin & Co., of which complainant was also a partner, and which was dissolved on the 1st of January 1843, and its effects, including the railway afterwards mentioned, assigned to Flannagan and Trimble. That in 1842, Goodwin & Co. constructed and owned a marine railway for hauling vessels out of the water to be repaired, and Flannagan and Trimble, in 1846, constructed and owned another such railway, the title and possession to both of which is now in complainant; that these railways are inclined plains, made partly on the shore and partly in and under the water of the harbor of Baltimore, into which they pass by a gentle grade, so as [**2]  to facilitate the hauling up of vessels by machinery; that they are necessarily made strong to bear the heavy weight on them, and are supported by piles driven deep in the bottom of the harbor, and cut off at varying depths under the water to give the necessary inclination to the ways, and from the character of the work, requiring great precision and skill in constructing the parts under water, and some of them to the depth of eighteen or nineteen feet, the expense of making them was $ 16,000 or thereabouts; that the length of one is about three hundred and eighty feet, of which one hundred and eighty are under water, of the other four hundred and twenty feet, of which two hundred and twenty are under water; that they are constructed of wood and iron, and calculated, with inconsiderable repairs, to last for twenty years or thereabouts, and required twelve months to construct them; that their chief expense was for labor, and all the materials now capable of being taken away and put to other uses would not bring more than $ 2000, if as much.

The bill further alleges, that the wharf on which said railways are constructed belongs to West, the appellant, who is owner in fee of all [**3]  the lots on which they are made except three, which belong to Flannagan and Trimble; that said lots have been rented from year to year by Flannagan and Trimble, both prior and since the construction of said railways, at a rent therein stated. That the construction of said railways took place with the knowledge and approbation and acquiescence, and by the implied leave and license thereby of the said West, whose office was hard by all the time, who was frequently present during their construction, furnished the materials for the machine to cut the piles, and expressed his approval of the manner in which the work was done; that they would not have been made if the parties making them had supposed there was any probability of their removal whilst fit for use, and that West, during their construction, never gave their makers any reason to suppose that they would be so removed; that the rent was a fair one; that to obviate any difficulty, complainant has offered West to take a lease for ninety-nine years renewable forever, at a rent, or to buy the lots at a price, to be fixed by three disinterested witnesses, which West has as often refused; and that the assertion and exercise by West of [**4]  any right to resume, at this time, possession of said lots, and compel complainant to break up his railways, will operate as a fraud on him.

The bill then avers that West has given complainant notice to quit, and has had a warrant of forcible detainer served upon him to turn him out of possession. That under the circumstances before stated, he has obtained a right of property in said structures on West's lots, and the right to continue and use them while they last, subject only to the payment of a reasonable rent, which he admits may be raised from time to time as the lots appreciate in value; that it is against equity that West, without any complaint as to the rent now paid, should resume possession and compel complainant to break up his railways at a ruinous sacrifice, when he well knew that those concerned would never have made them except upon the faith that they would be permitted to use them so long as they were fit for use; and complainant offers to pay such advanced rent for the lots as shall, upon legal evidence produced for that purpose in this cause, appear just.

The bill then prays for a decree that complainant is entitled to maintain and use the said railways [**5]  so long as they last, subject to the payment of the present rent, or such other rent as the court shall deem equitable, and for an injunction to restrain West from prosecuting further his warrant of detainer, or otherwise disturbing complainant's possession or use of said railways while they last and the rents therefor are duly paid. The injunction was granted as prayed.

The answer of the appellant admits the partnership of Flannagan and Trimble, and its successorship to Goodwin & Co., which latter firm commenced in 1830, and about the year 1842, constructed a marine railway, which was immediately preceded by one built on the same site and used for the same purpose as far back as 1835; that Flannagan and Trimble, in 1846, built another alongside of that of 1842, which has since been used by them for the purposes of such a structure, and that both are now in possession of complainant, and the title to them is in him so far as to authorise him to remove them on quitting respondent's property on which they are used. It also admits the manner of their construction as charged in the bill, but as to their cost he knows nothing, except that complainant, in 1850, told him that up to that [**6]  time they had cost about $ 12,000. It avers that by repairs which a careful man might make, renewing the decayed or broken parts at once, they might be indefinitely continued, and certainly for a much longer period than twenty years. Respondent admits that he is owner of the wharf on which said railways are built and of all the lots over which they are made except three, as charged in the bill, but avers that they also extend over two streets dedicated to public use and liable to be opened at any time, which streets existed as they do now when the railways were built. He admits that these lots were rented of him from year to year by Flannagan and Trimble, and Goodwin & Co., before the railways of 1842 and 1846 were built, and that when the latter firm so rented them in the year    , there was then erected and in use the earliest railway which preceded that of 1842, and he refers to an agreement to rent for one year during the existence of the earliest railway, containing stipulations for the removal thereof, to show that the cost and other matters relied on in the bill, as to those of 1842 and 1846, were not available to give any privileges beyond those ordinarily enjoyed by tenants [**7]  from year to year, but rather the contrary. As to the allegation as to the sufficiency of the rent he further avers, that before the building of the railway of 1846, complainant applied to him for a permanent lease at an increased rent, which lease he always refused to give, declaring to complainant that he would not put the lots beyond his control, and that if complainant put and kept railways on them, it was at the risk of being removed when he wanted to improve them, at the same time assuring the complainant, that so long as the lots were rented for a ship yard, he would give him the preference. That having determined so to improve the lots, he has instituted proceedings for their recovery, as stated in the bill; that he has built on property hard by, six three-story brick warehouses, and has foundations of others prepared, the use of which, when completed, will be materially interfered with by the use of said lots as a ship-yard, and that he will never permit them to be so used if he can prevent it. He admits that he knew of the fact of the construction of these railways, but does not admit that even if he had disapproved of it, it would have been competent to him to object to [**8]  any use complainant or his predecessors thought proper to make of the property during their tenancy from year to year; nor if competent, was there any obligation on him to make the objection, in order to protect his rights as landlord, the tenant holding under a title as well known to himself as to the landlord; and denies that by not objecting to their construction he in any way prejudiced his rights as landlord. He explicitly denies that any contract, obligation, leave or license was ever given or intended to be given, either expressly or by implication, to complainant or his predecessors or any of them, for any other use or occupation of said lots than as tenants from year to year, liable to be removed on due legal notice. And he insists that any such right, leave or license to use and occupy his land, as claimed in the bill, is such an interest in land as could not pass except by writing, as required by the statute of frauds, of which he claims the benefit, as if pleaded.

The answer also denies the allegation, that the railways would not have been erected if the parties making them had supposed there was any probability of their removal while fit for use, as they were erected [**9]  in the very face of his refusal to give a lease for years of said lots, or to rent them except from year to year, the first railway being made under an agreement for a yearly renting that required its removal at the end of the year, and the last in the face of his refusal to give more than a tenancy from year to year. He denies that the rent now paid is a fair rent, except as for a tenant from year to year, liable to removal on due notice. He admits that complainant has offered to take a lease for ninety-nine years or to buy the property, as stated in the bill, and that he has refused said offer which was made to him several times, and amongst others before the erection of the last railway, and always refused, as he had the right to do. He also denies that the court has any right to fix and determine what is a proper rent now or hereafter to be paid for the use of his property.

After the filing of the answer there was a motion for the dissolution of the injunction, and testimony taken, to be considered on the hearing thereof. On the part of the complainant, John Brown proves a conversation between the parties, in 1845, in which Flannagan said to West, "see what I am spending on [**10]  your ground," to which West replied, "spend on, sir, you shan't be disturbed, and every thing shall be settled in an amicable way or to your satisfaction;" and also stated twice if not thrice for Flannagan to spend on, that all should be right. Other witnesses proved the cost and value of the railways, as charged in the bill. Samuel Kirby, examined on the part of defendant to prove Flannagan's admissions, on cross-examination proved, that in these conversations, Flannagan said West told him he should not be disturbed, and that having asked Flannagan if, under the same circumstances, he would put valuable improvements on a lot having but twelve months time in it? his reply was, that under the same assurances from the same man he would. Wesley Farrell proved, that in a conversation between the parties, in 1845, West said Flannagan "would have to confide in him." Langly B. Cully proves that West said to Mr. Goodwin, "put what improvements you please on this property, I shall charge you in proportion thereto." On the part of the defendant it was proved, that the railways were located over streets, as charged in the answer; that West repeatedly refused to give a lease for more than a year,  [**11]  and that the railways did injury to his other property, and that by constantly renewing the defective parts, they might be kept fit for use for an indefinite time.

By consent of parties, a pro forma decree was passed continuing the injunction till the final hearing, from which the defendant appealed.  

DISPOSITION:
Decree reversed, injunction dissolved and bill dismissed with costs to the defendant, in both courts.  

HEADNOTES:

A tenant constructed certain marine railways at heavy expense upon the leased premises, and, as he alleged, "with the knowledge, approbation and acquiescence, and by the implied leave and license" of his landlord, which he would not have made if he had supposed there was any probability of their removal while fit for use; and that the landlord well knew he never would have incurred the expense of their construction, but upon the faith that he should be permitted to use them as long as they were fit for use. The tenant held under a lease from year to year, and repeatedly requested his landlord to give him a more permanent lease, who as often refused, and afterwards gave notice to his tenant to quit. HELD:

That from these facts, there are no equities entitling the tenant to an injunction restraining the landlord from proceeding to gain possession of the premises.

Implied contracts are only sustained in order to supply the place of express agreements, and the latter never yield to the former unless by the express or implied understanding of the parties that such shall be the result.

An express agreement admitted to be in full force, negatives an implied inconsistent agreement relating to the same subject matter.

The lease from year to year being established and recognised by both parties, they are in law supposed to know the nature and incidents of such a tenancy.

The improvements made in this case by the tenant and permitted and sanctioned by the landlord, are in perfect consistency with the terms of a tenancy from year to year, and the tenant must be presumed to have acted under this lease with his eyes open to the rights and powers it conferred both upon himself and the landlord.

The knowledge, approbation and acquiescence, and the implied leave and license of the landlord for these improvements, could no more enlarge the rights of the tenant under the lease than an opposite course could have curtailed them.

The force of an answer responsive to the bill can only be avoided by the contradictory testimony of two witnesses, or of one supported by pregnant circumstances.  

COUNSEL:
John H. B. Latrobe for the appellant.

The object of the bill is to obtain the specific performance of an alleged agreement. The injunction is ancillary, and unless a case is shown by the bill which would, upon final hearing, authorise the specific performance of the contract, it will be dissolved. 4 Gill, 477, Geiger vs. Green. 2 Md. Ch. Decisions, 534. The complainant must recover upon the case made by the bill. 4 G. & J., 437. 2 Md. Ch. Decisions, 537. Now what is the case made by the bill? The complainant is a tenant from year to year,--the bill starts with this allegation--and this excludes the idea of any other contract than that resulting from such tenancy. The bill alleges, that the railways were built with the knowledge of the defendant, and his implied leave,  [**12]  acquiescence, &c., and that they would not have been built if those making them supposed they would be removed, and that defendant never gave them reason to suppose he would require them to be removed, and asks that complainant may be permitted to use them as long as they last, and that the court shall hear testimony of what the rents shall be. The complainant knew he was but a tenant from year to year, and yet he asks that these railways may be contined, and that defendant shall receive the rent. This is taking a man's property against his consent. To give the complainant the slightest equity, there must be an inconsistency between the erection of a railway and a tenancy from year to year. But these railways are but the mere tools of a ship-builder, like the vat of the soap-maker, the spring-house of the gardener, the steam-engine of the miner, that may be put upon the land at the tenant's risk. There is then no case made by the bill. He asks the court upon the simple fact that he put up the railways to imply a contract, but he did this with his eyes open, knowing his title, and if he had put up an Astor House on the lots, he could not successfully ask the court to aid him.

But [**13]  proof has been taken. This is valuable only so far as connected with the showing of the bill; it is clear that a new case cannot be made out. Now how far does the testimony corroborate the bill? does it show a contract, express or implied, under which the railways were built? The assent of West was not necessary to the structure, for it was also put over the streets over which West had no control whatever. This fact is potent against the equity of the bill as to the question of assent. But a railway was built in 1835, of which there is no testimony of assent,--it was built merely under a lease from year to year, with no agreement, express or implied, as to its continuance. There is again no testimony of West's assent to the road of 1842. As to that of 1846 the testimony is, that West, in 1844, refused to give a lease when pressed to give one. There is nothing like a contract.

But suppose I am wrong in this, and that there is a contract, what is it? Vague and uncertain,--not such as equity will enforce. It wants mutuality--it wants a limit as to time--it wants a stipulation as to rent. It is not mutual, because there is no obligation upon Flannagan to keep the roads in repair.  [**14]  4 Gill, 476, 477. 7 Gill, 124, Tyson vs. Watts. 2 Md. Ch. Decisions, 404. It has no limit as to time, because the roads may be kept in repair indefinitely. 2 Md. Ch. Decisions, 534. It contains no stipulations for rent, and this is an objection. 26 Wendell, 55, Diffield vs. Whitlock. Again, the contract must be clear, definite and unequivocal. 2 Story's Eq., sec. 764. 4 Gill, 477, Geiger vs. Green. 2 Md. Ch. Decisions, 534. 4 Sandford, 95. The court must make a contract here to get at anything tangible, but this they cannot do; they cannot interfere to make a contract for the parties. 7 Gill, 499, Emory vs. Owings. 2 Story's Eq., sec. 764. 65 Law Lib., 45, 62. 26 Wendell, 55.

But suppose there is a contract certain and definite, it is still a parol contract, and therefore void under the statute of frauds. A license coupled with an interest in land can only be created by deed. 13 Mees. and Wels., 837, and note by Editor, though not so as to a license not coupled with an interest in land. 11 Eng. C. L. Rep., 207. A parol license to do an act on the land of another, which may affect the owner in the use of the land, is within the statute and void. 5 Barbour's S. C. Rep., 379, Houghtaling [**15]  vs. Houghtaling. See also 4 Sandford, 72. 6 Hill, 63. 1 G. & J., 377, Hays vs. Richardson. Possession by a tenant who was in possession at the time of the contract, will not be considered a part performance. 65 Law Lib., 524.

J. Mason Campbell for the appellee.

There is no evidence in the record that the streets over which the railways were built, are upon the plot of the city, but it is proved that they have never been opened, and as far as the railways extend, the land on both sides is occupied either by West or Flannagan, the only parties authorised to open them.

These railways cost at least $ 16,000. If removed, the materials would be worth little or nothing, not more than $ 2000. The destruction therefore is a total one if West at once exercises his legal rights, and the question is, whether such a destruction will be permitted by a court of equity? This depends upon the case made by the bill and evidence. The equity of the bill is, that the roads were constructed by the leave and license of West, with his knowledge, approbation, acquiescence and permission. The answer admits knowledge, approbation and acquiescence, but denies that they constitute a leave or license.  [**16]  This is the question between us. The evidence shows that West resided in the immediate vicinity of the lots, was cognizant of every thing done upon them, was actually upon the spot looking at what was going on, critically examining the work and expressing his approbation of it. His knowledge then was complete. His approbation is equally full, for he told Flannagan to spend on, that he should not be disturbed and to confide in him. The bill charges that he furnished a part of the materials, which is not denied by the answer, and on this motion is therefore to be taken as true. This acquiescence is also fully proved; the existing roads were built not upon terms, as was the case with the original one, but upon a simple acquiescence, as full and complete as words could make it. Is it to be supposed that Flannagan would have incurred this immense expenditure with no assurances? Such an assumption would be monstrous; but the facts of the case, upon bill, answer and evidence, are conclusive upon this subject.

Now, upon such a case as this, where heavy expenditures are made on the land of another with the latter's consent, what is the rule in equity? It is well settled, that without any [**17]  contract between the parties, equity will not permit the owner of land to lie by and see another improve upon it, and then deal with his property to the improver's injury as if the improver were a wrong doer. 8 G. & J., 108. 2 White and Tudor's Eq. Cases, 87, Earl of Oxford's case. 2 Eq. Cases Abr., 522. 5 Ves., 690, Jackson vs. Cator. 31 Eng. Ch. Rep., 304. Powell vs. Thomas. And this principle applies to cases where the expenditure is made by a tenant from year to year. 7 Ves., 231, Dann vs. Spurrier. 12 Ves., 78, Pilling vs. Armitage, 7 Eng. Law and Eq. Rep., 212, The Rockdale Canal Co. vs. King. 23 Eng. Ch. Rep., 26, Sutherland vs. Briggs. Nor is this interference of equity obnoxious to the criticism that the statute of frauds must be violated to allow it, for, independently of the acts of part performance proved in this case, it is now settled in this country, that a right of property may exist in a permanent structure erected by one man on the land of another, apart from any interest or estate in the land itself. Equity, under such circumstances, will protect the licensee in the use of what he has acquired by his license, on the ground that he is a purchaser for a valuable consideration,  [**18]  and entitled to what he has paid for. 2 Amer. Leading Cases, 511.

It is said on the other side that this is a bill for the specific performance of a contract, but this is not so, and all the cases cited, therefore, fail to be applicable. This case comes under a different head of equity; the prayer of the bill is, that complainant is entitled to have the roads as long as they exist. It alleges that this right is about to be disturbed, and seeks to prevent this being done. A bill for specific performance always asks, that the legal title to the land on which acts of part performance are due may be decreed to the complainant. This case is different, and is like that of White vs. Flannigain, 1 Md. Rep., 525. We ask that our equitable rights may not be interfered with. This raises the question, whether one may not have a recognised right of property in a structure erected on the land of another? 2 Amer. Leading Cases, 524. It is upon this theory that the bill was filed, and it has nothing to do with specific performance. But if this position of specific performance were insisted upon, the cases are not altogether with the appellant. 2 Story's Eq., sec. 798. This is a contract which [**19]  cannot be specifically performed, and where equity will give the innocent expender the expenditures he has incurred.

As to the question of license, the case in 13 Mees. and Wels., 855, note and cases there cited, shows that the case of Leadbitter vs. Wood, is not altogether unquestioned, but has been considerably qualified by the decisions in this country. There are certain licenses which cannot be revoked without tender to the licensee of all the money he has expended under the license. The case followed in this State is 8 East, 308, Winter vs. Brockwell. A license executed is not countermandable. 2 Gill, 227, Addison vs. Hack, adopts the case of Winter vs. Brockwell. The statute of frauds in such cases does not apply. The difference between a license when set up in a court of law or in a court of equity, has been decided in this country in the case in 14 Searg. and Rawle, 267. See also 4 Searg. and Rawle, 241, Le Fevre vs. Le Fevre. We claim by virtue of a license from West, under which we have made heavy expeditures, and we say that in equity we are free from the statute of frauds--the license is irrevocable, and its revocation would act as a direct fraud.

Reverdy Johnson [**20]  on the same side.

There are two points presented by the appellants, which are sufficiently distinct to argue the whole case upon. The first is, that the appellee has presented no case by his bill; and the second, that if he has a case as by his bill, it is denied by the answer and disproved by the evidence.

1st. Has the appellee made a case by the bill entitling him to the relief asked, or any thing like the relief asked? The bill alleges that the complainant, who was a ship-builder, erected the railways at great expense, and the loss cast upon him, if now forced to take them away, will be the difference between $ 2000 and $ 16,000; that these ways were made with the knowledge and approbation of the defendant--that he furnished part of the materials; that they would not have been made and the expense incurred, had the party making them supposed they would be liable to be removed; that complainant had obtained a right of property in the structures thus erected; that he and West well knew that the expense would not have been incurred except upon the faith that they would not be disturbed so long as they should last. The case then is that of a tenant from year to year making [**21]  expenditures to the extent of $ 16,000 with the consent of the landlord, which he would not have made except upon the faith that he would not be compelled to remove them so long as they would be fit for use. The prayer of the bill is, that he may be quieted in the possession and enjoyment of this right. The question then is, whether this case thus presented is not one for equitable relief in the manner proposed by the bill?

2nd. Supposing the bill presents a case, it is said it is denied by the answer and evidence. But the answer admits every thing except that there was any assurance that the ways should continue, and there is no proof on the part of the defendant negativing the case made by the bill. The only proof on his side is, that from time to time he refused to give a lease different from that of one from year to year;--there is no proof that West ever notified the complainant that he designed to take away from him the use of the roads. He was told to spend on, you shan't be disturbed, everything shall be settled in an amicable way or to your satisfaction; that he should not be disturbed; that West would not remove him to give the lots to any one else for a ship yard at [**22]  any price. This evidence shows that Flannagan would not have made this expenditure except for the assurances thus given. The entire value of the structure was in its use there, upon the spot where it was erected. He would have been a madman to have engaged in such an expense, except upon assurances that he would not be disturbed. West must also have known that Flannagan would not so have expended his money without such assurance.

Now as to the law: Is not this a case for the interposition of equity? Why is it not? First, it is said, because the acquiescence is not in conflict with the right of the landlord,--that the lessee had the right to erect the structure there as tenant from year to year. But this is not the question here--this is not the whole case. The question is, did he erect the structure and expend his money simply as tenant? As tenant he could have built a palace or paved it with gold, and if he did so simply as tenant, he must bear the loss when turned out; but if he built the palace or laid the pavement with the assurance that he should have the use of them, then a question of good faith arises. Where a party stands by and sees another spending his money under the [**23]  belief that the title is in him, it is a fraud for the party afterwards to dispossess him. This is a general principle, and covers every variety of case where one expends money supposing he has the right to hold and enjoy the fruits of his labor. 1 Md. Rep., 475, Hoffman vs. Smith. It applies a fortiori here, where the expenditure was made upon the faith and express assurance that he should have the benefit of his expenditure. Mere silence will estop a party, and if the omission to speak will create an equitable estoppel a fortiori will such estoppel be created in a case where there is an actual speaking, inducing the party to make the expenditure upon the promise that he would have the benefit of it? Suppose West had said when applied to, "I cannot give a lease, but go on and spend your money, you shall not be disturbed," and Flannagan had gone on to do so, and West had turned round and said, "I have caught the man, and as soon as he puts the railway down I will turn him out," would not this be a case of actual fraud?

Is it true that such a contract as this is not protected in equity because of the statute of frauds? I say not. 3 Kent, 452, (5th Ed.) 2 Gill, 224, 226, Addison [**24]  vs. Hack. 1 Story's Eq., sec. 338. 31 Eng. Ch. Rep., 300, Powell vs. Thomas. 23 Eng. Ch. Rep., 26, Sutherland vs. Briggs. 13 Mees. and Wels., 855, and note. The case of Dann vs. Spurrier, 7 Ves., 231, covers the case at bar and has never been questioned--not a doubt has ever been cast upon it.

Will not the court interfere by injunction? We have made out such a case as Lord Eldon, in 7 Ves., 231, says would entitled the party to relief upon final decree. The agreement set up here is, that we are to have the railway as long as it lasts. How are we to have it? Either at the present rent or a different one. If West had designed to charge more, he ought to have told us so. It is not a bill for a specific execution, but we ask to be quieted in the possession of this structure which we have put upon his lot, and under assurances that we should not be disturbed in the use of it.

John V. L. McMahon for the appellant, in reply.

There is no difference between us as to the point that the injunction must be dissolved, unless the case made by the bill shows such an agreement as the court could or would, at final hearing, enforce by the decree. The cases cited (4 Gill, 475, 477. 2 [**25]  Md. Ch. Decisions, 534,) fully sustain it. The injunction is always ancillary to some right, either legal or equitable.

The tenancy from year to year is by consent ended; we have given him notice to quit, and upon his own showing, the old tenancy ceased the moment he put up the railways. He alleges, as a substitute for the tenancy from year to year, that a prolonged tenancy was created. The right which he claims is not a license, it is a claim for a lease--he asks for possession of land upon the payment of a rent, and this, as all the books say, is a lease. What is the duration of this interest? he asks to keep the railway as long as it lasts, at least for twenty years,--it is for an uncertain period, and this brings it within the statute of frauds. 11 Eng. C. L. Rep., 207. The rent is not fixed and the court is to fix it, and there is to be a sliding scale to be adjusted by the court who is to be the landlord. It is not pretended that this is a legal claim; the bill asserts it to be an equitable one. But if this right is claimed by any contract, either express or implied, it is clearly within the statute, for it is a claim of an interest in lands for at least twenty years. The [**26]  claim to the exclusive use of land, and to keep the owner out is an estate or interest in land. 11 Eng. C. L. Rep., 207. 13 Mees. and Wels., 837. It is such as cannot pass by any parol contract. It is claimed upon the ground of fraud or upon an acquiescense, which would amount to fraud. Upon the ground of fraud the case cannot be made out, except upon some contract, or some negotiation or treaty upon which the party was induced to act.

The bill does not state that there was any assurance from West of any other title. He alleges, as his only title, that he was in as tenant from year to year. His equity is that being thus in, he went on and put down fixtures in the way of his trade, with the consent of his landlord and his approbation. This is the bill upon which an injunction is asked. How useless the discussion upon the question of fixtures, which may be removed, if the tenant can have the right to stay with them as long as they last!!

The cases cited on the other side all go upon the ground of mistake as to title, and forfeiture of title by reason of some secret lien or trust, which was unknown to the party making the expenditure. But this is a case of open title, known [**27]  to both parties--they are bound to know it. Young vs, Frost, 1 Md. Rep., 377. Casey vs. Inloes, 1 Gill, 430.

But the expenditures here made are not of a character to raise an equity--they are not for the benefit of the land. 4 Sandford, 92, 94, and the case in 12 Ves., 84, Pilling vs. Armitage, cited on the other side. The case in 7 Ves., 231, was the case of a written agreement for a lease, and there was a mistake upon the construction of it, and the party then asked for a specific performance of the alleged agreement. The case in 23 Eng. Ch. Rep., 32, is one for the specific performance of an agreement to give a lease for a specific duration.

There is no such principle as this bill seeks to set up, that equity will decree a lease to a tenant under such circumstances as these, uncoupled with any allegation of mistake as to title. The ground of fraud therefore fails. If you acted upon the theory of fraud, how would you decree this lease? You cannot do it without some agreement, or contract, or treaty, for a lease.

But upon the answer what doubt can there be? The whole ground of the bill is upon the silence of West, not upon any promise or assurance on his part that he [**28]  would not disturb the complainant. The answer explicitly denies any such assurance, and on the contrary avers, that he told Flannagan that he would remove them whenever he wanted to improve the lots. If there was a shadow of equity in the bill, the answer has denied it, and standing upon bill and answer, before the act of 1835, ch. 380, the answer must preponderate. That act gave the right to take testimony in support of the bill. If the answer is to be looked to, there is an end of the case, whether the evidence is in or out. Flannagan does not say in his bill that he made these roads upon any assurance or promise on the part of West. If there was any such promise, he had every inducement to put it in his bill. He had $ 16,000 at stake, yet he fails to pledge his conscience to any such promise.

The improvements were not for the amelioration of the estate. We do not want to take the fruits of his labor,--we want it away--it is a great inconvenience to us,--our warehouses are obstructed whenever there is a ship on the ways.

The evidence relied on is suspicious--he failed to make the averment in the bill--but what is it? It shows that the work was not commenced upon the faith [**29]  of such assurances--the witness says the work was going on when the conversation was held. The only assurance ever given was, that West would not let anybody else have the lots for a ship-yard at any price.

There is no agreement shown which a court of equity will execute, and if any, it is wanting in the essential element, of the rent to be paid, uncertain as to the duration of the term or interest claimed, and is wanting in mutuality. 7 Gill, 124, 130, 155, 156, 449. 4 Sandford, 95. 2 Story's Eq., secs. 763 to 767. 65 Law Lib., 524, 525. 1 Gill, 383. 26 Wendell, 55. 2 Md. Ch. Decisions, 404, 405, 538. 1 Do., 348, 349. 4 Gill, 477. 3 Md. Rep., 480, Young vs. The Ches. and Ohio Canal Co.

There must be proof of the identical contract. There is no contract alleged by the bill or proved by the evidence. But suppose there was, there is nothing to take it out of the statute of frauds. There is no allegation of acts of part performance or proof of them. His possession was under the contract of lease from year to year, and he had the right to put the road down under this title. There must be mutuality. What right have we to make Flannagan stay there a single day? Mutuality must be [**30]  determined by the contract itself, not by what occurs subsequently. Suppose we had gone into court and asked for a decree requiring Flannagan to stay there! it is needless to state the result.

That the right claimed by the appellee is such an interest in lands as could not, either under the statute of frauds or our registry acts be created by mere parol agreement or license, and especially not by any mere implied lease or license, see 11 Eng. C. L. Rep., 207, 209, 212. 13 Mees. and Wels., 837. 15 Wendell, 380, 392, 393. 6 Hill, 61. 5 Barbour's S. C. Rep., 379, 383, 384. 4 Sandford, 72. 1 G. & J., 377 to 385. 2 Gill, 228, 229.

That there can be no implication of such an interest in lands or of an agreement to give it, from the mere fact of the expenditures on the appellant's property, with his knowledge and without objection, the appellee knowing the appellant's title as well as his own, and confessedly holding the premises and entitled to the occupation and use of them as tenant from year to year, see 1 Gill, 401, 402. 1 Md. Rep., 400, 490. Upon the whole then we insist:

1st. That the case made by the bill presents no equity entitling the complainant to the injunction.  [**31]  Its equity is grounded on the allegation that the appellee, or his predecessors, whilst confessedly but lessees from year to year of the premises, put down the railways at a large cost to them, for the purposes of their trade and business as ship-builders: that said railways were so put down, with the knowledge, approbation and acquiescence of the appellant, and his implied leave or license thereby: and that they would not have been put down if they had supposed there was any probability of their removal whilst fit for use, and that West never gave them any reason to suppose that they would be so removed. And it is maintained for the appellant--that the appellee and his predecessors, confessedly holding said premises under the appellant as his tenants from year to year, and having the right to put the structures there for the purposes of their trade, could not and did not, by the making of such structures and their expenditures thereby, acquire any right as against their lessor (the appellant) to keep possession of said leased premises after their said lease was duly ended, even if said railways were put down with the knowledge, approbation and acquiescence of the appellant, and the [**32]  appellant gave them no reason to suppose they would be liable to removal--that the title to the premises claimed by the bill, and as ancillary to which the injunction is prayed and granted, is the right, as lessees of the appellant, to keep the premises after the expiration of their tenancy from year to year, and so long as said railways can be kept up and fit for use by repairs, subject to the payment of a reasonable rent, which, they admit, may be raised from time to time as the lots appreciate in value: that the bill does not allege or show any agreement on the part of the appellant to give any such title, or any lease or agreement for it except the tenancy from year to year: and that even if it had been so alleged or shown, it could give the appellee no title to the premises, after the tenancy from year to year was duly ended by the notice, nor any right to the injunction granted.

2nd. That the equity of the bill, if there was any, is removed by the averments of the answer responsive to it: and that the evidence taken, to support the allegations of the bill, does not help the case, or entitle the appellee to the continuance of the injunction.  

JUDGES:
The cause was argued before [**33]  LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*55]  MASON, J., delivered the opinion of this court.
The alleged equities of the present bill consist in the averments that the complainant as tenant of the defendant had made certain marine railways, at a heavy expense, upon the demised premises; that "the construction of said railways took place with the knowledge and approbation and acquiescence, and by the implied leave and license of the said West, whose office was hard by all the time, and who was frequently present during their construction, and furnished materials for the machine with which the piles were cut, and expressed his approval of the manner in which the work was done; and that said railways would not have been made if the parties making them had supposed there was any probability of their removal while fit for use, and that said West during their construction never gave their makers any reason to suppose that they would be so removed;" and that "it is well known to said West, that your orator and those concerned would never have encountered the expenses of their construction, but upon the faith that they would be permitted to use them, so long as they [**34]  were fit for use;" and then complains, "that notwithstanding the premises, the said West has given him notice to quit," &c.
It is admitted by the complainant in his bill, that he and his predecessors held the property of the defendants, under a lease from year to year; and it is also admitted and proved, 

 [*56]  that he repeatedly requested West to give him a more permanent lease, and that West as often refused.
From such a state of facts we cannot recognise any equities entitling the complainant to the injunction prayed for in his bill.
The defendant on the one hand relies upon the express contract between himself and the complainant, that the latter should hold and enjoy the property as tenant from year to year, as the rule by which their respective rights, in the present transaction are to be governed; while the complainant sets up an implied agreement or license creating rights wholly inconsistent with those existing under the express contract or lease.
The terms of the lease or contract are expressly established by the admissions of both parties; while the facts, out of which grows the alleged implied contract or license, are denied by the defendant, and are [**35]  far from being satisfactorily established by the evidence.
As a general rule implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former unless by the express or implied understanding of the parties that such should be the result. Indeed an express agreement, admitted to be, as this one is, in full force, negatives an implied, inconsistent agreement, relating to the same subject matter. Therefore conceding that there was no dispute about the facts charged in the bill, and out of which the implication of a contract or license might under other circumstances arise in the absence of an express contract, yet, we can discover no reasons why the general rule should be departed from, in the present instance, and the implied contract substituted in the place of the one expressly established and still recognised as continuing, up to the time of filing the bill.
The lease from year to year being established and recognised by both parties, they are in law supposed to know the nature and incidents of such a tenancy. The improvements 

 [*57]  made by the complainant and permitted and sanctioned [**36]  by the defendant, are in perfect consistency with the terms of the lease under which the former was enjoying the property, and, therefore, no other implication of a contract or license is necessary as a justification or authority for the conduct of the complainant in making those improvements, than is to be drawn from the lease itself. He must be presumed to have been acting under and by virtue of the lease, and with his eyes open as to the rights and powers conferred by that lease, upon both himself and the defendant; and "the knowledge, approbation and acquiescence, and the implied leave and license" of the defendant, could have had no more to do with enlarging the rights of the complainant under the lease, than an opposite course would have had in curtailing them.
Such then is the case as made by the bill. But admitting et gratia argumenti, that the allegations of the bill do actually disclose equities in favor of the complainant, how are those equities affected by the subsequent proceedings in the case?
In the first place the answer swears away every substantial equitable allegation made by the bill, and if the case stood alone upon bill and answer the complainant would be [**37]  out of court. But it is contended that the force of the answer is broken, and the averments of the bill established by the proof in the cause. Is this true? The force of an answer, responsive to the bill, can only be avoided by the contradicting testimony of two witnesses, or by the testimony of one, supported by pregnant circumstances. The complainant's witnesses do not sufficiently concur in their statements so as to destroy the weight of the answer taken in connection with the defendant's proof. As to the circumstances developed in the progress of the trial, so far from being pregnant with support of complainant's case, they in fact mainly tend to sustain the truth of the answer. The anxiety of the complainant to obtain a more permanent lease than the subsisting one, and the refusal of the defendant to grant it, are facts almost conclusive that the defendant did not intend to surrender the rights he held under the then existing 

 [*58]  lease, one of which was the right to terminate the tenancy at the end of any one year. And admitting what the witnesses say to be undenied, that the defendant said, complainant must confide in him, and that he would not disturb him in  [**38]   the use of the roads, and that they were built upon the faith that the defendant would not interfere with him, &c., and that all this evidence supported the averments of the bill; still the demand at this time by the defendant to be restored to the possession of his property, would not be in conflict with the obligations imposed upon him by such promises and assurances. How long was the complainant, under the above assurances, to remain undisturbed in the enjoyment and use of the defendant's property? For two, four, or seven years? If so, the pledged faith of the defendant was not violated. The first railway was used for more than ten, the other for more than seven years. But it is said the obligation is, to allow the complainant to enjoy the road as long as it lasts, or is fit for use. Is then the first defect or break in the road, requiring repair or renewal, to amount to a forfeiture or termination of the complainant's rights? Clearly not, we presume, for this doubtless repeatedly occurred during the period in which he was undisturbed in the use of the roads: for one of the witnesses says "these railways require constant repair and watchfulness to keep them in working order."  [**39]  If these repairs are once allowed when and where are they to end? The same witness says, and no doubt truthfully, "by constantly renewing the defective parts, the railway might be kept fit for use for an indefinite time." Thus the license would become perpetual. Such an interest in realty, little less than a fee-simple estate, could hardly be supposed to rest upon so flimsy a basis as the one set up by the complainant.
A striking peculiarity of this case is to be found in the circumstance that the complainant has proved a better case than he has made in his bill. If the conduct of the defendant as shown by the witnesses had induced the faith upon which the complainant acted, is it not singular that at the time he filed his bill that conduct did not occur to him so that he might 

 [*59]  have averred it? The equity alleged to be raised by the proof, consists in the fact, assumed to have been proved, that the railways were made upon the faith that the defendant would permit the complainant to use them as long as they were fit for use. The evidence establishes no such fact, so far from showing that these improvements were made upon the faith of the acts and conversations of [**40]  the defendant, the proof is express that those acts and conversations took place after one of the roads had been completed, and while the other was in progress of construction.
Upon the whole we regard the doctrine contended for by the appellee on the present appeal, as fraught with the most serious and dangerous consequences, and we cannot see that it is sustained by any sound principle, or well adjudicated decision. It amounts virtually to the assertion of the right in this court under certain circumstances, to condemn the property of one individual, against his will, for the private beneficial purposes of another.
The views already expressed will render unnecessary any opinion upon the subject of the operation of the statute of frauds upon the present transaction.
The decree in the present case, which was a pro forma decree continuing the injunction, must be reversed.
Decree reversed, injunction dissolved and bill dismissed with costs to the defendant, in both courts. 

26 of 48 DOCUMENTS 

GEORGE WADSWORTH vs. SAMUEL MANNING, JAMES H. STIMPSON, ALEX. S. MCTAVISH, and JOSIAS PENNINGTON, Trustee of EMILY MCTAVISH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 59; 1853 Md. LEXIS 15 

JUNE, 1853, Decided 

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

The bill in this case was filed by the appellant on the 14th of August 1851, stating that in 1849, he became possessed of the right to mine zinc ore on certain lands in Lehigh county, Pennsylvania, for the space of three years from the 1st of January 1850, which ore was of unexampled purity and richness, yielding over sixty per cent of clear metal, but could only be rendered profitable by being manufactured into metals and paints, and that for this purpose he, on the 1st of December 1849, entered into the contract in writing with the defendants, Manning, Stimpson & Co., the terms of which are sufficiently stated in the opinion of this court; the defendants thereby agreeing to devote their time and attention to the conduct of the business. The bill then charges that the plaintiff delivered in pursuance of this contract, 746 tons of ore, when defendants refused to receive any more, leaving a balance of $ 1600 due on what had been delivered. That defendants leased for six years a lot on the south side of the basin in the city of Baltimore, and put up buildings and machinery thereon, but at very heavy and unnecessary [**2]  cost, because of their gross ignorance and negligence, and then refused to go on with the contract never having in fact worked up a single pound of ore, and have perverted the buildings from their proper object, to the making of sulphuric acid for their own exclusive profit and benefit. It further states that Manning and McTavish sold out their interest in said partnership to Stimpson, who has endeavored to supplant the plaintiff in the mining privilege: that plaintiff offered to take the work, furnish the capital, and carry out the contract, and give ample security for the performance of this offer. It then alleges that the defendant, Mrs Emily McTavish, through her trustee, Josias Pennington, claims an interest in the lot and buildings under a mortgage from Stimpson, to secure money loaned by her to him, and charges that she had knowledge of said contract before she took her mortgage, and, therefore, that it is subject to the plaintiff's rights under said contract. The bill then prays for the appointment of a receiver, to whom he offers to furnish money to work up the ores; compensation for his alleged losses by reason of the non-compliance of defendants with the terms of their contract,  [**3]  and for an injunction restraining defendants from using the buildings for the manufacture of sulphuric acid, and Mrs. McTavish from enforcing her mortgage, and for general relief. The injunction was granted as prayed.

The answers of Mrs. McTavish and Pennington, her trustee, set up the mortgage for her benefit, and deny all knowledge of the contract between the complainant and Manning, Stimpson & Co., at the time of its execution, and until a long time thereafter. The answer of Stimpson avers that the undertaking was a new business, that plaintiff induced him to enter into it by false representations, as to the cost of the buildings and machinery, he (plaintiff) saying that they would not cost more than $ 5000, but their actual cost was more than $ 22,000: that he paid the plaintiff $ 6016.81, on account of said ore, and the latter has sued him at law for the balance claimed. He then states the dissolution of the partnership, the loan by Mrs. McTavish to him, the mortgage to secure it, and her ignorance of the terms of his agreement with the plaintiff. He then denies that the ore can be profitably worked, and avers that it cannot be worked upon the terms agreed upon without loss [**4]  and injury to all parties concerned. The answer of Manning admits the statements of the bill and confirms its allegations.

A motion was then made to dissolve the injunction and testimony taken to be used at the hearing thereof. This testimony consisted principally of the estimates of scientific men as to the cost of manufacturing the ore, and the probable profits per ton. These estimates differed greatly, some showing a profit of $ 45 per ton, others $ 70, others $ 80, with a corresponding difference as to the cost of manufacture.

The court below (FRICK, J.,) passed a decree dissolving the injunction and dismissing the bill, from which the complainant appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

The appellant being the owner of a zinc mine, entered into a written agreement with the appellees, by which he agreed to furnish 2000 tons of ore per annum, for three years, on being paid $ 10 per ton therefor, and they, to provide suitable buildings and machinery for its conversion into paints, &c., and to divide with him the profits in the proportion of one-fourth to themselves, and the remainder to him: the costs of the buildings and machinery to be paid out of the profits after a specified time. HELD:

That this agreement constituted a partnership between the parties; and if a proper case were presented a specified performance of it would be decreed.

The appellant under this agreement furnished 746 tons of ore, receiving therefor $ 5860, leaving $ 1600 still due, when the appellees refused to receive any more, or to appropriate the buildings to the purpose of its manufacture, upon the ground that the business could only be followed by the ruin of all parties concerned. The time specified for which the appellant was to furnish the ore had expired, the business was proved to be hazardous and uncertain, and the buildings and machinery entirely unfit for its manufacture. HELD:

That in such a case equity ought not to decree a specific performance, if the appellant has full and adequate remedy at law; and it is clear, that his redress is ample and complete at law.

A decree for specific performance is not ex debito justitioe, but rests in the sound discretion of the court, to be given or refused as the particular circumstances of each case may demand.

Though one partner cannot sue another at law, in an action of account, unless there be an account stated, yet he may in covenant, if the articles be under seal and any agreement in them be violated.

If the partners agree to contribute each a particular sum, an action will lie by one against the other to recover it, and the sum agreed to be advanced will be the measure of damages.

Where a partnership consists of more than two, and they have contributed severally in different proportions, and one withdraws in violation of their mutual agreement, each has his remedy for the breach.

It is an indisputable proposition that in every instance where an action if covenant is maintainable for the breach of a covenant in a deed of co-partnership, an action of assumpsit can be maintained if the partnership instead of being by deed were contracted verbally or in writing only.

The failure of the appellees in this case to comply with their contract to furnish the buildings and machinery gave the appellant a clear right to maintain his action of assumpsit at law against them, for any damages thereby occasioned him, and a jury is the proper tribunal to ascertain the extent of such damage.  

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The appellant contends that he is entitled to a decree for a partial specific performance of his contract with the defendants, and that the court below ought to have directed the appointment of a receiver to take possession of the works of the defendant and appellant, with the machinery and materials on hand, and work up the same, as had been agreed upon; or that the appellant himself, should have been permitted so to do; that the motion [**5]  to dissolve the injunction should have been overruled by the court below, and the injunction continued: wherefore the court erred in dissolving said injunction, and dismissing the bill filed in the cause; and, at any rate, that the same should have been modified, and not absolutely dissolved. 3 Atk., 385. 2 Story's Eq., 28, 31, 34. See also same vol., secs. 717, 718. Story on Partnership, 476.

2nd. That for the violation of the agreement on the part of the defendant, as proved by the evidence, there was no complete and adequate remedy at law, by an action for damages by the appellant, and that, therefore, equity will interfere in his behalf, and he ought not to be driven before a legal tribunal. 3 Atk., 385. 2 Story's Eq., sec. 718. 1 Simons and Stewart, 607. 2 Ves., Sr., 629. 5 Munf., 442.

3rd. That the evidence that one of the defendants, Stimpson, was very heavily indebted, and so much in want of money, as to lead to a just apprehension of his solvency; nor does it appear that Manning or McTavish are, either of them, worth any thing, which in equity is another reason and ground for its interposition on behalf of the appellant, as the pecuniary inability of the parties [**6]  would render an action at law against them useless. 2 Story's Eq., 31.

4th. That upon the facts disclosed by the record, it appears that the defendant, Stimpson, misapplied, with the concurrence and assent of his co-defendants, the partnership property, to his individual interest and purposes, excluding his co-partners, especially the appellant, from any participation in the management thereof, and, was guilty of gross misconduct towards the appellant. Wherefore the court below ought to have decreed a dissolution of the partnership, and appointed a receiver to wind up the concerns of the partnership; or that complainant should have gone on with the business himself, and an injunction granted to prevent his being interrupted by Stimpson. Story on Partnership, sec. 228, and note. 1 Story's Eq., pp. 622, 623, 333, 339, 340, and note. Gow. on Partnership, 110, 114. 19 Ves., 148. 18 Ves., 281. 1 Bland, 418.

5th. That the mortgage to Mrs. McTavish ought not to have prevented the granting of the injunction, because she took the property as bound by the previous contract of the partners with complainant, and the doctrine, "caveat emptor," applied, and that, at any rate, the interest [**7]  which she had, should not have prevented the injunction as to Stimpson. 7 H. & J., 320, Kemp's Ex'x vs. McPherson. Do., 458. 4 H. & J., 269. 2 Bland, 542. 2 H. & J., 176, 415. There was enough to put her upon inquiry. 3 Gill, 137. 1 Md. Rep., 403, Price vs. Bevans and McDonald. 3 Do., 334, Baxter and Wife vs. Sewell.

6th. The court erred in pronouncing a final decree dismissing the bill in this case, because it had not been set down for hearing except upon the motion to dissolve the injunction.

Charles J. Pennington and T. P. Scott for the appellees

1st. The main object of the bill is to obtain a specific performance of the alleged contract between the appellant and Manning, Stimpson & Co., and the prayer for an injunction and receiver is only incidental. A decree for a specific performance is not ex debito justitioe, but rests entirely in the discretion of the court. 4 Gill, 472, Geiger vs. Green. 5 Gill, 223, Gurly vs. Hiteshue. 7 Gill, 124, Tyson vs. Watts. The contract was made upon the representations of the complainant, that the business would be profitable--all parties designed to carry it out, if possible, and Stimpson only refused when he found it would not [**8]  be profitable. The court must look into the circumstances of the case at the time the specific execution is asked. 1 H. & J., 124. Where a mistake is made in a contract of this kind, or where one party labors under a misapprehension, it will not be enforced. The contract must be fair, reasonable and just. 3 Atk., 385. 67 Law. Lib., 43, 146. The very terms of the contract show, that the parties did not understand the nature of it or what would be the result of the experiment. Neither party knew anything about the manufacture of the article. The witnesses differ in their estimate of the cost to at least $ 100,000 per annum; and there is the same difference as to the probable profits--they differ between $ 300,000 gain and $ 80,000 loss. Is this a case where the court in the exercise of a sound discretion will decree the specific performance of the contract?

2nd. Again, the improbability of a favorable result from the undertaking in consequence of the short time Stimpson has in the lot of ground, and the short time the appellant has in the mines, is sufficient to induce the court to refuse the decree for specific performance, and to leave the parties to their remedy at law. Stimpson [**9]  had but a six years lease of the lot, and Wadsworth's lease of the mine is now out; how then are you to decree a specific execution?--to carry on a manufacturing enterprise of so large a nature?

3rd. The mortgage from Stimpson to Mrs. McTavish having been made in good faith, and without any knowledge on her part, she is not to be disturbed even if the appellant had a good claim as against Stimpson. The property mortgaged to her was not partnership effects, but she advanced the money with which the lot was purchased, and this gave her a prior lien. 67 Law Lib., 90. Her mortgage was not only for a past debt, but for a present advance. Wadsworth's name is not mentioned in it--he had nothing to do with the lot--the mining interest was his, but the lot was Stimpson's. The mortgagee takes nothing in the mine, although it is embraced in the mortgage, simply because Stimpson had nothing to give therein. The two pieces of property are entirely distinct. The answer of Mrs. McTavish positively denies that she had notice, and this is responsive and is evidence. Again, her mortgage is protected by the act of 1826, ch. 192, sec. 8, from injunction, unless the appellant shall bring himself within [**10]  the provisions of that act, which he has not done. By this act no person except a party to the deed or one who claims some right accruing after the recording of the mortgage, can ask for an injunction restraining the enforcement of it. The appellant occupies neither position.

4th. If the court is satisfied that a case is not made out for relief, the bill was properly dismissed though set down for hearing upon motion to dissolve the injunction. 4 Gill, 463, 471, 477, 478.

Thos. S. Alexander for the appellant, in reply.

The dismissal of the bill upon motion to dissolve is not warranted by the English practice; and the cases in this State (cited in 4 Gill,) only decide that where the plaintiff, upon his own showing, cannot have relief the bill will be dismissed, and to this extent only do they go. If the bill makes a case entitling the party to some sort of relief, it ought to be held over until final hearing.

The agreement gives Manning, Stimpson & Co. an interest in equity in the mines, and Wadsworth an interest in equity in the buildings erected for the manufacture of the ore. The defendants, in fraud of the agreement, have not worked up the ore furnished; and Stimpson [**11]  has also, in fraud of the agreement, executed a mortgage of the property to Mrs. McTavish for money advanced on his own account. The bill asks for a specific performance of the contract so far as to work up the ore furnished, and that money may be supplied under the agreement; and it asks, first, that as defendants are insolvent, the work shall be carried on by a receiver, with the funds furnished by Wadsworth himself; and in the alternative, it asks for a dissolution of the partnership, the appointment of a receiver to work up the ore now on hand, and for an injunction prohibiting the use of the buildings--the partnership property--for any other purpose than that contemplated by the agreement; in other words, that partnership property shall not be used, except for partnership purposes. The answer of Stimpson admits the agreement set out in the bill, but insists that there was a subsidiary verbal agreement differing from and explanatory of the written one; but Manning, another partner, denies this and says the written agreement is the true one. Mrs. McTavish, in her answer, admits that her advances were to pay the general partnership debts of the firm, and her mortgage is on the partnership [**12]  property.

The partnership is determined by lapse of time, we cannot then, of course, ask for a specific execution of the whole agreement, but still, if we offer funds to carry on the manufacture and to work up the ore on hand, it can be done. The cases in 3 Atk., 383 and 10 Ves., 161, are almost identical with this, and show that courts of equity are in the habit of decreeing specific performance in such cases. There is no want of mutuality in the contract; the proof is that there is but one other such mine in the country, and the ore was of unexampled purity and richness; both parties had their eyes open as to the amount of the profits and the share that each was to receive. A specific performance would therefore be decreed if the partnership now existed.

But we have a right to the alternative relief asked in the bill. The buildings are all partnership property, erected by the firm with partnership funds, and actually expended under the direction of Wadsworth for the purposes of the partnership. Every thing acquired for the purpose of the partnership is partnership property, and to be treated as part thereof. Story on Partnership, 98. This property then is to be treated [**13]  as partnership property, and is now to be converted into money for the purpose of distribution, and the only question is as to the proper distribution of it. This could be most properly and advantageously done by causing the ore to be manufactured and then sold. Courts of equity usually wind up partnerships by directing a sale, but this is not always done. If Wadsworth will undertake to indemnify the concern against loss, the court will provide that the receiver shall go on and work up the ore, and has the power to do so. The case is then made out as against Manning, Stimpson & Co.

Now as to Mrs. McTavish: It can be shown that she had actual notice. She says she had no notice of the contract, but she says she heard that this firm was engaged in the manufacture of zinc into paints, and that she induced her son to withdraw from it. She therefore knew what was going on and to what purposes the buildings were applied. She knew the fact that Manning & Co. had some interest in the mines derived from Wadsworth, and she should have gone to him and have found out what this contract was. The case of Price and Bevans vs. McDonald, 1 Md. Rep., 403, is conclusive upon this question of notice.  [**14]  Her mortgage is upon partnership property, and will not prevent the closing up of the partnership. On this point we do not ask that she shall be prohibited from selling the interest she had under the mortgage; we only ask that the partnership property shall not be diverted from its use. She came in with notice of our equities as against the firm, and is it possible that she cannot be enjoined? The defendants are liable for all the profits they have made by reason of the misapplication of the partnership property.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*68]  LE GRAND, C. J., delivered the opinion of this court.
We discover no error in the decree of the Superior Court. The pleadings and proof show, plainly enough, that it is not such a case as to demand of a court of equity a decree for the specific performance of the contract relied upon, nor to justify its interposition, by way of injunction, against the rights of the mortgagee.
It seems that the appellant, having an interest in a zinc mine in Pennsylvania, was anxious to make some arrangement by which it could be manufactured into paints, &c., and, with this view, entered [**15]  into a contract with the defendants, Stimpson, Manning and McTavish, by which it was agreed on his part, to furnish each year, for the period of three years, two thousand tons of the ore, on his being paid ten dollars per ton; the other parties stipulating to provide suitable buildings and machinery for its conversion into paints, &c., and to divide with him the profits of the enterprise, in the proportion of one-fourth to themselves and the remainder to him. It was also agreed, that the cost of the buildings and machinery, after 

 [*69]  a specified time, was to be paid out of the profits. In pursuance of this agreement the complainant, from time to time, delivered in all seven hundred and forty-six tons of the ore, and received therefor $ 5860, leaving a balance of $ 1600 still due. The other parties refused to receive or pay for any more of the ore, and, also, to appropriate the buildings to the purpose of its manufacture as contemplated; alleging as a reason, that the manufacture of the ore, as originally designed, could only be followed by the ruin of all the parties concerned.
It seems that Manning and Alexander S. McTavish, dissatisfied with the prospect of profits to be [**16]  realised from the business, disposed of their interest to Stimpson, who, to secure Mrs. McTavish for loans made to him, mortgaged the buildings and machinery.
The bill prays for the appointment of a receiver to take possession of the premises, and work up the ore; or, that the plaintiff be permitted to do so; for compensation for alleged losses, and that Mrs. McTavish may be restrained from enforcing her mortgage.
We regard the agreement, of date the 1st day of December 1849, as establishing a partnership between the complainant and those who at that time constituted the firm of Stimpson, Manning & Co., and did this appear to us to be a proper case, we would decree a performance of it.
The testimony shows that the business was one uncertain and speculative in its character. Scientific and practical persons differ most widely in their estimates in regard to the cost of conducting it; so much so, indeed, as to render it impossible for this court to see, with any degree of certainty, what would have been the probable result of the operation had the works been carried on in conformity with the stipulations of the agreement. By its terms the complainant was bound to furnish, each year,  [**17]  for the period of three years, two thousand tons of ore, and, according to the testimony of the witnesses, the cost of its manufacture was wholly uncertain. Some of them compute it at forty dollars per ton more than others, making a difference in the operations of three years of upwards 

 [*70]  of two hundred thousand dollars, or of four hundred thousand dollars in six years, if the business should be so long continued. Such disagreement in the opinions of those supposed, from their scientific knowledge and actual experience, to be well acquainted with the business, was well calculated to induce the most adventurous to pause.
As was properly remarked by counsel, a decree for specific performance is not ex debito justitioe, but rests in the sound discretion of the court, to be given or refused as the particular circumstances of each case may demand. In the particular one now under consideration, it is manifest to us, the purposes of justice would not be subserved by granting the prayer of the bill. The time specified for which the complainant was bound to furnish the ore has expired, and it is abundantly shown that the buildings and machinery are not adapted to its manufacture. [**18]  In such a case a court of equity ought not to decree a specific performance, if the party complaining has a full and adequate remedy at law; and, we hold it clear, if the complainant can make out the allegations of his bill, his redress is ample and complete at law.
Although it is true that one partner cannot sue another at law in an action of account, unless there be an account stated, yet it is equally so, that he may in covenant, if the articles be under seal, and any covenant or agreement in them be violated. If the partners agree to contribute each a particular sum, an action will lie by one partner against the other to recover it, and the sum agreed to be advanced will be the measure of the damages. Terrill vs. Richards, 1 Nott and McCord's Rep., 20. So where the partnership consists of more than two persons, and they have contributed severally, and in different proportions, and one of them withdraws from the co-partnership, in violation of their mutual agreement, each has his remedy for the breach.  Dunham vs. Gillis, 8 Mass. 462. And it has been held, where a sole trader covenants in consideration of a certain sum being paid to him in instalments, [**19]  and after one instalment is paid he becomes a bankrupt, that his assignees may maintain an action for the 

 [*71]  remaining instalments. These, and the like, are cases where the articles are under seal. But, to use the language of Mr. Gow, in his Treatise on Partnership, page 72, "it may be advanced as an indisputable proposition, that, in whatever instances an action of covenant is maintainable for the breach of a covenant comprised in a deed of co-partnership, in the same instances an action of assumpsit can be sustained, if the partnership, instead of being constituted by deed, were contracted verbally or by writing only."
Now we consider the case as made by the bill as one of total failure on the part of Stimpson, Manning and McTavish, to fulfil their agreement. In principle--for they did grind an half ton of the ore--like the case of Gale vs. Leckie, 2 Starkie 107. In that case one person agreed with another to furnish him with a manuscript to be printed by the latter, the profits to be equally divided between them. It appeared that a portion of the manuscript had been furnished, and that the work of printing had gone to the extent of upwards [**20]  of three hundred pages, when the defendant refused to furnish any more matter for the printer. It was held that an action of special assumpsit would lie in such a case, and that it ought not to be considered as an action for partnership profits, but for refusing to contribute the labor of the defendant towards the attainment of profits. So in the case now before us: the complainant alleges a refusal, on the part of those with whom he has contracted, either to contribute their labor and attention, or appropriate the proper buildings to the manufacture of the ore. If this allegation be maintainable, then he has a clear right to sustain his action of assumpsit for the non-performance of the engagement on their part.
These views dispose of the objection to Mrs. McTavish's mortgage. We do not regard the complainant as having any lien on the buildings on the south side of the basin. They were not erected out of funds of the partnership. The fact is, the defendants who constituted the firm of Stimpson, Manning & Co., refused to comply with their contract, in other words, they failed to furnish the necessary buildings and machinery, 

 [*72]  and they are, therefore, responsible to the complainant [**21]  for any damage which their non-compliance with their contract may have occasioned him. A jury is the proper tribunal to ascertain their extent.
For these reasons we affirm the decree of the court below.
Decree affirmed with costs. 

27 of 48 DOCUMENTS 

WILLIAM E. MAYHEW vs. WILLIAM BOYD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 102; 1853 Md. LEXIS 75 

DECEMBER, 1853, Decided 

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

Assumpsit by the appellant, as holder, against the appellee, as endorser, of a promissory note for $ 900, drawn by one W. B. Pyfer, in favor of one Robert Close, dated October 25th, 1848, and payable in one year after date. Plea non-assumpsit.

Exception. The making, endorsement and protest of the note, and due notice thereof to the defendant were admitted. The defendant then offered in evidence a mortgage executed by Pyfer, the maker of the note, to Mayhew, the plaintiff, of certain household furniture in a hotel in Baltimore city. This mortgage bears the same date as the note, and recites Pyfer's indebtedness to Mayhew for $ 2089.23, for which he had given three notes of the same date with the mortgage, one payable to Boyd and the other two to Close, and endorsed by Boyd and Close, one for $ 900, at one year, (being the one in suit,) another for $ 594.61, at six months, and the other for $ 594.62, at four months. The condition was, that if Pyfer should pay to Mayhew the said sum of $ 2089.23 "according to the tenor and effect of said notes," the mortgage should be void; otherwise, Mayhew might sell the mortgaged property and apply the proceeds [**2]  to the payment thereof and the balance to the mortgagor.

When the note for $ 594.62, at four months, became due it was protested and due notice given to the endorsers; and shortly afterwards another note for $ 614.39, dated 8th of March 1849, was made by Pyfer, payable at forty days, to Close, and endorsed by him and Boyd, by way of renewal of the protested note, including the principal, interest and costs of protest of the original note, and the interest for the time the new note had to run, which was delivered by Close to Mayhew, who thereupon delivered to him the said original note. It was further in proof, that on the 8th of April 1849, after the original but before the new note or either of the others mentioned in the mortgage became due, by the consent of the mortgagor and the authority of the mortgagee, the mortgaged property was sold and the proceeds paid over to Mayhew, who applied them to the notes as they fell due. The fund was more than sufficient to pay the two first falling due, which were not demanded of Pyfer nor protested, nor any notice given to the endorsers of their payment or non-payment. The sale was fairly made; and it was proved that Pyfer's house was well [**3]  furnished in the summer of 1849, and that he went to California in June 1849, taking with him property or merchandise to the amount of $ 400 or $ 500, and died there in 1850. It was further proved, that Close and Boyd endorsed said notes at the request of Pyfer; and when they called on Mayhew and proposed to become endorsers on said notes mentioned in the mortgage, it was understood and agreed that Pyfer would execute said mortgage. Upon the whole evidence the plaintiff offered three prayers, in substance as follows:

1st. This prayer, after leaving to the jury to find the sale of the mortgaged property by the mutual consent of Pyfer and Mayhew, and payment over of the proceeds to the latter by the former on account of the indebtedness mentioned in the mortgage before the notes for $ 614.39 and $ 594.61 became due, asserts Mayhew's right to apply the same to pay said notes without any demand on Pyfer or giving any notice to the endorsers of their payment or non-payment; provided the first was a renewal of one of the original notes which was not otherwise paid, and that he was not bound to credit the note in suit with any more of said proceeds than may remain after paying those [**4]  two.

2nd. This prayer leaves to the jury to find the making, endorsement and protest of the note in suit, that Mayhew fairly applied the proceeds of sale to pay the notes secured by the mortgage, that the sale was fair and with the consent of the mortgagor, and such application left only a balance of the last note due, (the one sued on,) and then asserts that Mayhew was under no legal obligation to protest the two former notes in order to hold Boyd liable on the one in suit.

3rd. This asserts that if the jury find that no actual loss or damage was sustained by Boyd from the sale of the mortgaged property and application of the proceeds as above stated, then the facts of the sale being made before the time limited for it in the mortgage and without the consent of Boyd are not sufficient of themselves entirely to bar the plaintiff's right to recover in this action.

The defendant then asked an instruction, that if the jury find the making and endorsement by Close and Boyd of the notes as mentioned in the mortgage; that Pyfer executed said mortgage to secure their payment; that the note for $ 594.62 was paid and settled by another for $ 614.39, drawn by Pyfer and endorsed [**5]  by Close and Boyd; that Mayhew, before said notes or either of them became due, sold the mortgaged property without the consent of Close and Boyd or either of them; that the notes for $ 614.39 and $ 594.61 were not protested for non-payment, and Close and Boyd did not receive, and Mayhew made no effort to give them, any notice of their non-payment; that Pyfer, at the time the two last mentioned notes became due, was in such circumstances that Close and Boyd could or might have recovered their amount from him; that the proceeds of said sale amounted to more than the note sued on with interest and were received by Mayhew, then he is not entitled to recover.

The court, (FRICK, C. J. and LE GRAND, A. J.,) rejected the plaintiff's prayers and granted that of the defendant. To this ruling the plaintiff excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An endorsement of three notes was made, in consideration of the execution, at the same time by the maker to the holder of a mortgage, by the terms of which the mortgagee was to sell the property only on default of the maker to pay the notes at their maturity. When the first note was due it was dishonored, but by the assent of all parties a new one was substituted in its place. The mortgagee, after the original, but before the new note or any of the others matured, sold the property with the assent of the mortgagor, but not of the endorser, applied the proceeds to pay the two first notes without protesting them, and sued the endorser upon the third. HELD:

That the right to sell, which accrued upon the dishonor of the first note, was taken from the mortgagee by the substitution of the new one in its place, and the sale before the maturity of the latter was a violation of the contract between the parties and discharged the endorser.

Any dealings with the principal debtor by the creditor which amount to a departure from the contract by which a surety is to be bound, and which, by possibility, might materially vary or enlarge the latter's liability without his assent, discharges the surety. 

COUNSEL:
Edward Otis Hinkley for the appellant argued at length the following points:

1. A right to sell the mortgaged property accrued to Mayhew, the mortgagee, upon the non-payment by Pyfer, the mortgagor, of the note for $ 594.62 at its maturity, on the 28th of February 1849. 6 G. & J. 72,  [**6]  74, Jamieson vs. Bruce. 1 Md. Ch. Decisions, 92, Brown vs. Stewart. 3 Bland, 125, 178, 179, Salmon vs. Clagett, and the same case in the Court of Appeals, 5 G. & J. 315.

2. The renewal of that note, on the 8th of March following, by a note for $ 614.39, at forty days, made and endorsed by the same parties without any new consideration or express covenant, did not extinguish nor impair, nor even suspend the said right of sale. The only effect it could have, if any, was to postpone the right of a personal action at law upon the original or new note until the maturity of the latter. The mortgage was a distinct security, and the right of sale a right in rem. Theobald on Principal and Surety, 191, (1 Law Lib., 113, 115.) 1 Bland, 236, 282, Lingan vs. Henderson. 1 Zabriskie's Rep., 634, Pintard vs. Davis. 8 Blackf., 190, Carr vs. Howard. 6 How., 279, United States vs. Hodge, et al. 2 Bland, 663 to 669, Andrews vs. Scotton. 13 Illinois Rep., 68, Bonham vs. Galloway, et al. 3 Strobhart's Eq. Rep., 63, 64, Lang vs. Brevard. 12 B. Monroe, 45, Rice vs. Downing. 6 Iredell, 218, Shelton vs. Hampton. 12 Do., 242, Ponder vs. Carter.

3. If the receipt of the new note by Mayhew did impliedly [**7]  suspend the exercise of the right of sale, it could be a favor to Pyfer only, and this he waived by ordering and sanctioning the sale made, and by ordering the proceeds to be paid to Mayhew, the mortgagee. 2 H. & G., 98, David vs. Grahame.

4. The proceeds being paid over to Mayhew, must, by the terms of the mortgage, at some time and in some way, be applied towards payment of the mortgage debt; and the essential question in the case is, how, being insufficient to satisfy the whole debt, they ought to be applied to the notes given for the security of that debt?

5. They were applicable as far as they would go to the payment of the mortgage debt and notes on the day they were paid to Mayhew, though none of the notes except that which had been renewed had come to maturity. 3 Bland, 179, 180, Salmon vs. Clagett.

6. It is in general the privilege first of the debtor to make the application of his own payments, where there are different debts or items of account to which he may apply them. If he does not exercise the privilege, then the debtor has the right to make the application, and to do this he has some latitude of time allowed him. If neither make it then the law makes [**8]  it. 2 H. & G., 159, 173, Mitchell vs. Dall, and the same case in 4 G. & J. 361, 372. 6 H. & J. 235, 245, Martin vs. Mechanics Bank. Chitty on Bills, 402, 403. Theobald on Principal and Surety, 222, (1 Law Lib., 131, 132.) 3 Bing., 71, Williams, et al., vs. Rawlinson.

7. There are circumstances in evidence in this case from which a jury might infer that Pyfer and Mayhew applied, respectively, or intended to apply, the said proceeds to the entire discharge of the first two notes, and the balance only to the one sued on. And there is no evidence that either of them intended to apply them to the entire discharge of this note.

8. If there be no evidence either made or intended to make any application of said proceeds, the justice of the case and the law will apply them to the notes in the order in which they became due, although the endorsers on the first two were not by any means made liable for the payment of them. 3 H. & McH., 390, Wallace vs. Johnson. 4 H. & J. 351, 358, Allstan vs. Contee. Chitty on Bills, 403. 5 Bing. N. C., 461, Mills vs. Fowkes. Theobald on Principal and Surety, 222, (1 Law Lib., 131, 133.) 9 Watts and Seargt., 43, Neff's Appeal. 1 Alabama [**9]  Rep., 23, Cullum vs. Emanuel, et al. 5 How., 202. There was no such contract in this case to extend the time as there was in the case of Hunter vs. Van Bomhorst, 1 Md. 504.

9. The prayer of the defendant is defective in form and ought not to have been granted, because it is not in conformity with material evidence in the cause. It leaves out the fact that Pyfer sold the property, not Mayhew. Again, it leaves a question of law to the jury as to whether the renewal was a payment of the old note.

Charles H. Pitts for the appellee. The sale of the mortgaged property by an arrangement between Pyfer and Mayhew was a fraud upon the sureties. The creditor has no right by collusion with his debtor to change the nature of collaterals held by him for the benefit of sureties, but is bound to protect sureties upon property held as collateral. The case of Commonwealth vs. Vanderslice, 8 Seargt. and Rawle, 452, is in point. As to the indulgence granted to Pyfer by applying the proceeds of sale to the two notes as they became due without protesting them, the sureties themselves, and they alone, have the right to judge of and sanction such indulgence. 8 Bing., 156, Combe, et al., vs.  [**10]  Wolf.

The mortgage shows upon its face that its execution and that of the notes was one entire transaction. The sale of the mortgaged property without notice to the endorsers discharged them. Conceding the truth of the first point made on the other side, the question arises, whether a mortgagee who has acquired a right to sell by reason of forfeiture may not waive that right? This was done by the taking of the new note. Suppose a bill for an injunction had been filed by Pyfer or his sureties to restrain this sale until the new note became due, would a court of equity hesitate a moment to grant it? The sureties have the right to be substituted to all the rights of the creditor upon payment of the notes. Any variation of the contract by the creditor, whether it injures the surety or not, will discharge him. 9 Wheat., 680, 703, Miller vs. Stewart. 2 Caine's Cases, 1, 29, 57, 63, Ludlow vs. Simond. 8 Pick., 122, Baker vs. Briggs. 3 Bland, 173, Salmon vs. Clagett. 6 G. & J. 243, Sasscer vs. Young and Kemp. Chitty on Contracts, 529. 8 Wend., 512, Wright vs. Johnson. 2 Penn. Rep., 27, Bank of Washington vs. Barrington. The sureties were entitled to notice of non-payment as each note [**11]  became due, and receiving none such they had a right to assume that they had been paid. They were by this lulled into a false security to their prejudice. They had the right to make the application of the proceeds, and as prudent men they would have said, pay the $ 900 first. Pyfer was then in Baltimore, and they could have taken steps against him for further security. The sale was, therefore, a violation of the contract and to the prejudice of the sureties.  

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

OPINIONBY:
MASON 

OPINION:

 [*109]  MASON, J., delivered the opinion of this court.
The record in this case shows, that the endorsement by the defendant of Pyfer's notes to the plaintiff was based upon the security afforded by the mortgage, and therefore the mortgage may be regarded as the consideration of the agreement into which the surety entered when he consented to endorse the notes. The terms of the mortgage, therefore, must be strictly complied with by the plaintiff in order to bind the defendant as endorser. One of those terms is, there shall be no sale of the mortgaged property until default of the principal debtor to pay the notes upon their maturity. We think this [**12]  part of the contract between the several parties thereto has been departed from in the sale which has taken place, under the circumstances detailed in the evidence. This sale took place before the maturity and dishonor of the notes in question, and without the assent, and, for all we know, without the knowledge, of the endorsers. It is true the first of the original notes had fallen due and was dishonored, but it is equally true, by the assent of all parties, another note was substituted in the place of it, which thereby took from the plaintiff his right to sell under the mortgage for the non-payment of that note:--the effect of the substitution of the one note for the other was to place the new note in the same relation to the mortgage that the first one had borne. Before these notes became due, as we have already shown, the sale took place.
But it may be said, that although this might have been a departure from the strict letter of the contract between the parties, yet it cannot be shown that the endorsers were prejudiced 

 [*110]  thereby or their liability enlarged. Whether this was of was not the result of the premature sale, does not vary the question. Any dealings with the [**13]  principal debtor by the creditor which amounts to a departure from the contract by which a surety is to be bound, and which by possibility might materially vary or enlarge the latter's liabilities without his assent, operates as a discharge of the surety. In this case it is not improbable, much less impossible, that if the plaintiff had duly protested the first two notes as they fell due and were dishonored, the endorsers, or one of them, might have paid them off, and by immediately suing the debtor thereon might have secured the debt and thereby reserved the whole of the mortgaged property in the hands of the plaintiff for the purpose of meeting the third and last note upon its maturity. The sale of the mortgaged goods, under the circumstances under which it took place, deprived the endorser of the opportunity of pursuing the course we have pointed out, and of the chances, at least, of relieving himself from liability altogether.
Believing that the sale of the property under the circumstances was a violation of the terms of the contract with the endorsers, by which their rights might have been prejudiced, they are thereby discharged.
Judgment affirmed. 

28 of 48 DOCUMENTS 

WILLIAM D. MILLER and WILLIAM E. MAYHEW, vs. ANNE S. WILLIAMSON and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 219; 1853 Md. LEXIS 89 

DECEMBER, 1853, Decided 

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

This appeal is taken from a decision of the chancellor, reported in 2 Md. Ch. Decisions, 94.

The facts of the case are briefly these: Mrs. Mary Ann Jones, by her will, executed in 1841, devised certain real and personal estate to her niece, Anne S. Williamson, wife of Charles A. Williamson, "for her sole and separate use, benefit and behoof" during her natural life, then to her said husband for life if he survived her, then after the death of the longest liver of them to Mrs. Williamson's children and their descendants, if any, and if none, then $ 500 thereof to the appointee of her will, or failing such appointment, to her legal representatives, and the residue to the children of the brother and sister of the testatrix. Mr. Williamson was the executor of this will.

Among the property so devised was a mortgage for $ 7000, due the 17th of September 1848, to foreclose which a bill was filed by Mr. Williamson, as executor, on the 6th of March 1849. Upon this bill a decree was passed under which the mortgaged property was sold, on the 30th of November 1849. The mortgage debt then amounted to $ 9605.17, and the net proceeds of sale, $ 9123.90,  [**2]  were audited to Mr. Williamson, as executor of Mrs. Jones.

The fund thus in court was claimed by Mrs. Williamson, under the will of Mrs. Jones, and also by Miller and Mayhew, in virtue of an assignment, dated 1st of February 1849, of the mortgage claim to them, signed "Chas. A. Williamson, executor and devisee of Mary Ann Jones," to secure the payment of four promissory notes then outstanding, amounting to $ 5632.77, drawn in their favor by Williamson, Sutton & Co., a firm of which Williamson was a partner, and an order accepted by the trustee directing him to satisfy this assignment. They insisted that Williamson, at the time of this assignment, was, as he assumed to be, the sole and legal owner of the mortgage debt; that as executor of Mrs. Jones he settled a final account in the orphans court, on the 9th of October 1848, wherein he charged himself with $ 7000, the principal of the mortgaged debt, as cash received by him, and paid his wife $ 5761.90, the cash balance of the whole estate, and took her release therefor, dated 7th of October 1848, which was executed and acknowledged before a justice of the peace, and filed and recorded in the orphans court; that by virtue of this [**3]  settlement he became the owner of the mortgage debt; that when he applied to them for the loan, he offered to secure it by an assignment of said mortgage debt, which they would not have taken but upon an assurance that he made it with the knowledge of his wife and after a full satisfaction of all her claims against it.

Mrs. Williamson insisted on her part, that the release was executed by her without consideration. The parties entitled in remainder also claimed to have the fund invested for their ultimate benefit.

To support the claim of his wife Williamson was examined, and proved that nothing was paid by him to her in consideration of her release of October 7th, 1848, and that she never received any part of the property therein mentioned nor any security therefor; that he closed the account in the orphans court by his wife's release because the Register insisted on its being closed, and got his wife to execute the release as a matter of form; that his wife was never present in the orphans court in reference to the estate; that she executed the release at his request, and did not know of the assignment to Miller and Mayhew until after the failure of the firm of Williamson,  [**4]  Sutton & Co.; that he considered he had a right to the mortgage claim, it being personal property, and that he had a right to assign it both in his own capacity and as executor. This witness was cross-examined by Miller and Mayhew, but his testimony was excepted to by them on the ground that he was not a competent witness for his wife.

Mr. Glocker, a clerk in the Register's office, proved that he prepared the account passed by Williamson: the latter asked witness if he could charge himself with the mortgage, though it had not been collected, and witness told him he could do so, and transfer the mortgage to his wife and take her release; Williamson said the mortgage debt had not been collected or settled, witness did not know what arrangement had been made with Mrs. Williamson, but supposed the mortgage had been transferred to her when the release was signed. The mortgage was stated as cash, in order to close the account; the account was not passed until two years or so after it was prepared by witness. This testimony was excepted to, so far as Williamson's declarations were concerned, as hearsay, and further because his declarations to others are inadmissible on points wherein [**5]  his own evidence would be so.

The chancellor decided in favor of Mrs. Williamson's claim, and Miller and Mayhew appealed. The above statement is sufficient for the understanding of the opinion of this court, though a more full one is given by the chancellor in his opinion, in 2 Md. Ch. Decisions, 94.  

DISPOSITION:
Cause sent to the Circuit Court for Baltimore city, under act of 1854, ch. 183.  

HEADNOTES:

An assignment by a party as "executor and devisee," independent of any other fact, passes only his interest as devisee, or what the law authorises him to dispose of in his capacity of executor.

Apart from the act of 1843, ch. 304, an executor might sell, or raise money on, the property of the deceased in the regular execution of his duty, and the party dealing with him is not bound to inquire into his object.

But if the party dealing with him has reasonable ground for believing the executor intended to misapply the money, or was in the very transaction applying it to his own private use, he can take no advantage from the operation.

The fact that the executor executed the assignment to secure a debt due the assignees by a mercantile firm, of which he was a member, is sufficient, in contemplation of law, to notify them that he was about to commit a devastavit.

As a general proposition, a party is authorised to rely upon the disclosures of the public records in support of his title, but it is equally true that he is affected by the equities in others which these records exhibit.

An assignment by a party as "executor and devisee," is notice to the assignee of the will and its contents.

A husband is not a competent witness in behalf of the interest of his wife in her separate estate; the exceptions to the general rule are principally, if not exclusively, in cases where, she, if not permitted to testify, would be exposed, without remedy, to personal injury.

The declarations of the husband, made at the time he was passing his account as executor and taking a release from his wife, are admissible as part of the res gestae, to show that the release was executed without consideration and as a matter of form.

Though a specific bequest of consumable articles vests the absolute property in the legatee for life, yet, if it be the apparent intention of the testator that the thing shall not be consumed, but shall go to the party in remainder, the courts will, in case of danger, compel the tenant for life to give security.

A feme covert has no right to dispose of her separate estate unless that power be given to her by the instrument making the settlement, and where such power is given it must be exercised in the manner specified in the instrument.

A mortgage debt was devised to the separate use of a married woman during her life and then over. HELD, that the executor ought to apply to the orphans court for an order to invest the money secured by the mortgage, and not to pay it over to the legatee for life.

A wife cannot recover from her husband arrears of pin-money where she has not yearly demanded it, but she is entitled to arrears of interest upon a mortgage debt part of her separate estate. 

COUNSEL:
Wm. F. Frick and Thos. S. Alexander for the appellants, argued the following points.

1st. That at the time of the assignment by Williamson to the appellants of the mortgage debt, his duties and responsibilities, as executor of Mrs. Jones, had, by virtue of the final account settled by him in the orphans court, ceased and determined. That the effect of that settlement was to make said debt his individual property, and though it might be necessary and proper for him still to use his title of executor, in dealing with that mortgage, for the purposes of collection, or assignment, or sale thereof, yet the beneficial interest therein was his own, and he could no longer be charged with a devastavit in respect to any disposition he might make of it. 2 Gill 134, Ridenour vs. Keller. 2 G. & J.  [**6]   86, Allender vs. Riston. 7 Johns. Ch. Rep., 20, Sutherland vs. Brush. Act of 1843, ch. 304. 1 Williams on Ex'rs, 408.

2nd. That the legal intent and effect of the proceedings in the orphans court, of October 9, 1848, was this: That Mrs. Williamson, the legatee for life of the estate, and the wife of the executor, was fully satisfied for all her claims against the estate, for principal, and must be presumed to have waived all her claims against her husband for arrears of interest: for principal by receipt of the chattels, and cash balance without interest, found to be in the hands of the executor on final settlement; and for arrears of interest, by the annual support and maintenance which she received from her husband, from the death of the testatrix, up to the date of her release. That the legatees in remainder after that settlement had no further claim upon the executor, and their only protection for their rights was by a proceeding for investment of the principal of the estate against the legatee for life. That by the maintenance of his wife, the payment to her of $ 5761.90, and his over-payment of debts and legacies, and his credit to the estate of the principal of said mortgage [**7]  as cash, the executor became entitled to deal with said mortgage, and all arrears of interest thereon as his own, and under the pleadings and evidence, the assignment of the mortgage to the appellants must be deemed to be valid, and the proceeds of sale to be applicable to the payment, in the first place, of their claim. 6 G. & J. 25, Boyd vs. Boyd. 3 Russ., 149, Bartlett vs. Gillard. 3 Sim., 370, Carter vs. Anderson. 1 Russ. & Mylne., 190, Lynn vs. Ashton. 13 Sim., 643, Beresford vs. Archbishop of Armagh.

3rd. The averment of Mrs. Williamson, that her release was executed without consideration, is unsupported by proof: 1st, because her husband cannot be a witness for her at all. 1 Greenlf. on Ev., secs. 341, 345, note 1, and sec. 108, note 2. Our cross-examination does not in equity make him our witness, or estop us from excepting to his competency, where the cross-examination was as to the subject upon which he had been examined in chief. 2nd, because his evidence is inadmissible to contradict his recorded oath, that he paid her the sum mentioned in the release. 3rd, because his declarations to Glocker on this point are not evidence. If he cannot be a witness directly to [**8]  prove non-payment, how can his declarations proved by some third person be used for this purpose? How can he be a witness indirectly when he cannot be directly? The declarations of a husband or wife are subject to the same exceptions that their testimony is. 1 Greenlf. on Ev., sec. 341, note 6. Again these declarations were not part of the res gestae; most of them were made two years before the settlement of the account and the execution of the release. No separate acknowledgment of the release by the wife was necessary. McQueen on Husband and Wife, 66 Law Lib., 89. Where a wife executes a release in pais, there is no need of a privy examination, and no case can be found sustaining such a proposition. But it is said because she had no jus disponendi, she could not execute the release. If no power is expressly given, Chancellor Kent says, the wife cannot dispose of her separate estate, (2 Kent's Com., 165, 166,) but such is not now the law either in New York or in England. See 2 Leigh, 183, Vizonneau vs. Pegram. 12 G. & J. 236, Gray vs. Crook. But the question here is, whether, when property is settled to the separate use of a feme covert, she has not the power to receive it.

4th.  [**9]  That the orphans court accounts, supposing them not to be correct and conclusive, as between Mr. and Mrs. Williamson, and open to review and resettlement as between them, are nevertheless binding and conclusive, so far as the rights of third parties, acquired under faith in them, are concerned. That the appellants dealt with Williamson, in the faith that he had a valid right to transfer the mortgage; and he had that right, on the supposition that the orphans court accounts were true and correct. They had actual knowledge, derived from Williamson, of the existence of these accounts, and dealt with him in the belief that they were true and fair. And even if they had not actual knowledge of their existence and nature, yet if they dealt with Williamson on the faith of his assurance that he had individually a right to the mortgage and a valid power to transfer it, they are entitled to the benefit of every act of Williamson and Mrs. Williamson, which gave him such right and power, and they are both estopped from denying the conclusiveness and validity of such acts. 9 Gill 185, Kurtz vs. Hillen. That a feme covert is as much bound by fraud in a court of equity as a feme sole, see 1 Drury [**10]  & Warren, 134, Jones vs. Kearney. 2 Madd., 40, Cory vs. Gertcken. Our assignment is prima facie good, and are we not entitled to the benefit of a presumption of notice? Williamson told Miller he had full power to make the assignment, and this assurance was made upon the faith of the papers in the orphans court. If this assurance had been false, we should have been compelled to bear the loss, and where is the justice in saying we shall not have the benefit of them if true? We were bound by the state of the record, and can we not take advantage of it, if in our favor when we should have been bound if it had been to our prejudice?

5th. That the claim of the legatees in remainder against the fund in court is no better than that of Mrs. Williamson, because there is no evidence to support their averment, that there was not payment in fact to Mrs. Williamson. And it is admitted by the chancellor that, if there had been such payment in fact, and that the appellants dealt with Williamson on the faith of such payment, and the final settlement made thereby in the orphans court, they are entitled to the benefit of their assignment. The legatees in remainder may have remedy against the executor [**11]  on his bond, or against Mrs. Williamson for waste, but they cannot follow the fund into the hands of a purchaser from the executor.

6th. That if the legatees in remainder have a right to the investment of the sum of $ 6033.83 for their ultimate benefit, nevertheless the appellants are substituted to all claims of Mr. and Mrs. Williamson against the fund in court. That by means of her release, Mrs. Williamson must be presumed to have transferred to her husband, in consideration of his support and maintenance of her during that period, all interest on the principal of the estate from the death of the testatrix to the date of her release, inasmuch as she expressed herself fully satisfied and paid by receipt of the principal. That to the extent of all such interest in arrear, $ 2715.37, and his overpayments of the estate, amounting to $ 979.10, Williamson had acquired a right in the fund in court, and could therefore lawfully assign it to the appellants. 2 Story's Eq., sec. 1396. 2 Ves., Sr., 190, Peacock vs. Monk. 3 Mylne & Keen, 513, Thrupp vs. Harman. 11 Irish Eq. Rep., 511, Arthur vs. Arthur. 4 Brown's Ch. Rep., 326, Squire vs. Dean. 3 Johns. Ch. Rep., 93, Methodist Episcopal [**12]  Church, vs. Jaques, and same case, 17 Johns., 548, on appeal. 2 Ves. & Bea., 36, Brodie vs. Barry. 1 Macnaghten & Gordon, 599, Caton vs. Rideout. A wife is not entitled to an account against her husband, for arrears of interest or pin-money, 3 Russ., 149, Bartlett vs. Gillard. 3 Sim., 370, Carter vs. Anderson.

F. K. Howard and S. T. Wallis for the appellees, argued the following points:

1st. That the whole claim of the appellants is predicated upon a written assignment signed by Chas. A. Williamson, as "executor and devisee;" that they are precluded from setting up any rights acquired from him in any other capacity, and from giving any evidence to vary the effect of the assignment; that the character of the assignment gave them notice of Williamson's fiduciary position, and of the will which created it; and that they dealt with him at their peril, and subject to all the rights of the parties claiming under the testatrix. 2 Williams on Exc'rs, 612. 7 Ves., 152, Hill vs. Simpson. Lowrey vs. Commercial and Farmers Bank of Baltimore, decided in the Circuit Court for Md. Dist., July 1848, and cited in 2 Md. 167. 7 Johns. Ch. Rep., 155, Field vs. Schieffelin. 2 G. & J. [**13]  98, 99, Allender vs. Riston. Act of 1843, ch. 304.

2nd. That the release of Mrs. Williamson is conclusively shown to have been executed ignorantly and without any consideration, and is besides defective for want of a private examination and acknowledgement; that even if the appellants had known of its existence prior to the assignment under which they claim, they would have taken subject to the right of Mrs. Williamson and the legatees in remainder to impeach it, and to have the account upon which it was predicated reviewed and resettled, such proceedings in the orphans court not being conclusive. 2 Story's Eq., sec. 1395, 3 H. & J. 268, Spedden vs. The State. 2 H. & G., 40, Lowry vs. Tiernan. 1 G. & J. 229, Tiernan vs. Poor. 2 G. & J. 1, Brundige vs. Poor. 11 G. & J. 23, Warfield and Wife. 2 H. & J. 483, Hall vs. Griffith. 7 H. & J. 22, Haslett vs. Glenn. 1 Gill 1, State vs. Reigart.

The above cases show that the release is at most but prima facie evidence of payment and may be rebutted. In this case it was utterly without consideration and was merely a matter of form. Williamson's evidence proves this, and he is a competent witness, having no [**14]  interest in the fund. The rule is, that a husband and wife are not competent witnesses for or against each other:--1st, upon the ground of public policy; and 2nd, because their interests are identical. This rule was established before separate estates for married women were created, and the reason for the rule in such cases no longer exists, and the rule itself should not prevail. See 2 Starkie on Ev., 400. 10 Johns., 44, Fenner vs. Lewis. 10 Pick., 265, Richardson vs. Learned. 22 Pick., 262, Dyer vs. Homer. But having cross-examined him, the appellants cannot object to his testimony. 7 G. & J. 397, Boteler, et al., vs. Beall. 3 Md. Ch. Decisions, 99, Bullett vs. Worthington. But without his testimony they have no standing in court, for without it there is no proof of his indebtedness to them. But it is said his declarations, as testified to by Glocker, are not admissible, because he was not a competent witness himself. Now the fact that a man is not competent as a witness himself is the very reason why his declarations are. But it would be strange to say that we are bound by his acts and cannot show the circumstances surrounding those acts--that he has committed a fraud and we [**15]  cannot show it. These declarations were clearly admissible as part of the res gestae. 3 G. & J. 188, Kolb vs. Whitely. 7 Gill 3, Garner vs. Smith. 9 Gill 222, Powles vs. Dilley. 8 Gill 142, Miller vs. The State.

But this was a settlement by a husband with his wife--a trustee with his cestui que trust; a case which requires uberrima fides, where courts of equity inquire into the transaction with the utmost care and caution. 3 Dessa., 462, Ewing vs. Smith. Hill on Trustees, 156, 157. 2 H. & G., 40, Lowry vs. Tiernan. 1 Story's Eq., sec. 312. 2 Do., sec. 1395. 5 Gill 29, Forbes vs. Forbes. In all such cases the onus is upon the party who claims under the assignment to show the bona fides of the transaction. This again is a release executed by a married woman disposing of an estate over which she had no jus disponendi. This she was not competent to do. The case of Smith vs. Morgan, 8 Gill 139, decides, that neither the husband nor wife, jointly or separately, can, at law, dispose of the wife's separate estate. This was a case at law, but it settles the principle as to equity, because at law the husband and wife, jointly, have the same power over the wife's [**16]  separate estate that the wife alone has in equity, for courts of equity have only made a feme covert as to her separate estate a feme sole. On this point see 2 Kent, 150, 166. 3 Johns. Ch. Rep., 93, Methodist Church vs. Jaques. 4 Yerger, 433, Morgan vs. Elam. 2 Wharton, 15, Thomas vs. Folwell.

But again, the appellants had notice sufficient to put them upon inquiry. They knew, as matter of law, that Williamson was trustee for his wife, and was also executor. 2 Story's Eq., sec. 1380. 1 Gill 1, State vs. Reigart. 3 Md. 550, Ware vs. Richardson. The account in the orphans court was settled in October; the assignment was made in February; the appellants were applied to by Williamson, Sutton & Co., in January, for the loan, and exacted an exorbitant rate of interest. Now could they have supposed that just previous to this he had purchased in this mortgage and paid $ 5000 cash therefor? But again, Williamson was a devisee, and if he acquired a right to the fund by the release he extinguished his own right as devisee, and yet he makes the assignment as "devisee." The use of this word, therefore, was notice to the appellants that the release did not extinguish the right of the [**17]  devisees.

3rd. That the appellants had no knowledge of Mrs. Williamson's release when they took the assignment, and did not part with their money on the faith of it or its legal effect; that, therefore, there is nothing to prevent her relying on its invalidity as against them, to the same extent as against her husband if no assignment had been made, they having notice of Williamson's fiduciary capacity when they dealt with him.

4th. That even if the appellants were otherwise entitled to take any benefit of their assignment, the court would nevertheless, before granting its interposition, give the whole amount to Mrs. Williamson as her equity, under the circumstances of this case. Bell on the Law of Property, 67 Law Lib., 113, 132. 4 G. & J. 282, Duvall vs. Farmers Bank. 11 G. & J. 22, Groverman vs. Diffenderffer. 1 Gill 1, State vs. Reigart.

5th. That the legatees in remainder are entitled to have the property invested for their benefit, and are not precluded, by any act of Williamson or his wife, from setting up all equities against the appellants. 6 H. & J. 484, Darne vs. Catlett. 6 G. & J. 196, Evans vs. Iglehart.  

JUDGES:
The cause was argued before [**18]  LE GRAND, C. J., ECCLESTON, and MASON, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*230]  LE GRAND, C. J., delivered the opinion of this court.
The facts in this case which it is important for us to notice are but few. The appellants' claim rests entirely on the assignment executed on the 1st February 1849, and the effect of the settlement of a final account in the orphans court by Charles A. Williamson, as executor of Mrs. Jones, and the execution of the release to him by his wife, Mrs. Ann S. Williamson.
The assignment of Williamson to the appellants was as "executor and devisee," and, independently of any other fact, could convey to them nothing beyond his interest as devisee, or what in this transaction the law authorised him to dispose of in his capacity as executor. As devisee, his interest under the will of Mrs. Jones was purely contingent, dependent entirely on his surviving his wife. The authority with which he was clothed as executor, will depend on the true nature of the transaction with Miller and Mayhew. Apart from our act of Assembly of 1843, ch. 304, an executor might sell or raise money on the property of the deceased, in the regular execution of his duty, [**19]  and the party dealing with him would not be bound to inquire into his object; but if a party dealing with him knows, or had reasonable ground for believing, that he intended to misapply the money, or was in the very transaction applying it to his own private use, he could take no advantage from the operation.  Albert and Wife, vs. Savings Bank, 2 Md. 159, and the authorities there relied upon.
Now it is clear beyond all possibility of successful controversy, that the assignment and order of Williamson were given to Miller and Mayhew, to secure a debt due by the firm of Williamson, Sutton & Co., a mercantile house of which he was a member. This circumstance sufficiently, in 

 [*231]  contemplation of law, notified the assignees that the executor was about to commit a devastavit. But, it has been urged, that if they had made the proper examination in the orphans court, they would there have discovered a final account had been settled by the executor on the 9th October 1848, and, also, that Mrs. Williamson, his wife, had executed a release to him, and from this it is argued, that whether they knew or not of the final account and release when they [**20]  entered into the transaction, they are nevertheless entitled to invoke these facts in support of their title. It is undoubtedly true, as a general proposition, that a party is authorized to rely upon the disclosures of the public records in support of his title; but it is equally so that he is affected by the equities in others which they exhibit. This being so, how stands the case? Thus: Miller and Mayhew knew, according to the imputation of the law, that the executor was misapplying the funds of the estate, that is, devoting them to his own private purposes; and, moreover, that he professedly acted as executor and devisee, which informed them there was a will on record in which was to be found specified the interests of the objects of the testator's bounty. If, therefore, they entered into the transaction without any knowledge of the final account of the executor, or of the release of Mrs. Williamson, they were not in point of fact deceived by those circumstances; and if, on the other hand, they had examined the public records, they would have seen that the property assigned to them belonged for life to the wife of the executor, and, in a certain contingency, was to go to other [**21]  parties, and thus in fact they would have been affected by any equity of Mrs. Williamson, or of those in remainder. This being so, the question as to the existence of any outstanding equities is presented for our decision, and its solution must depend upon the facts disclosed in evidence and the will of Mrs. Jones under which the property has been acquired.
It is clear from the testimony of the executor, that he did not pay to his wife the sum of money for which she had given her release, but his evidence is objected to on the ground that 

 [*232]  he is incompetent as a witness in behalf of the interest of his wife, and we think the objection well taken. There are but few exceptions to the rule which prohibits husband and wife from testifying for each other, and they relate principally, if not exclusively, to cases where, if she were not permitted to testify, she would be exposed, without remedy, to personal injury. 1 Greenleaf, sec. 343.
But while we sustain the objection to the testimony of Mr. Williamson, we concur with the chancellor in the opinion that the testimony of Mr. Glocker is admissible. The declarations of Williamson, when arranging with him for the preparation [**22]  of the account, are part and parcel of that transaction, and it is apparent, from the whole testimony of the witness, that the account was prepared and the release given by Mrs. Williamson, not because either or both together truly explained the transaction, but to enable the executor to close up the estate by settling a final account. But, apart from these circumstances, it must be obvious to every unprejudiced mind, that the executor did not pay the sum of money mentioned in the release of his wife. That paper bears date the 7th October 1848, and the assignment to Miller and Mayhew the 1st February 1849. The mortgage was not due until 17th September 1848. Now it is clear, from the very terms on which the appellants made the advance, that Williamson was hardly pressed for money, for it is beyond belief that a person in easy circumstances would consent to enter into a contract which subjected him to a most exhorbitant rate of interest; and yet, if we are to believe Williamson paid his wife, we are to believe he anticipated the collection of the mortgage, and then in the course of a few months consented to pledge this very mortgage, on terms perfectly inconsistent with the fact, that [**23]  he was in possession of funds sufficient to enable him to purchase out the mortgage security from the estate of which he was executor. We think all the circumstances surrounding the whole case, show plainly enough that Mrs. Williamson never did receive the money; and also that Miller and Mayhew, when they received the assignment, were wholly 

 [*233]  ignorant of the settlement of the final account by the executor and the execution of the release by his wife. They no doubt supposed, as it is manifest both he and Mr. Glocker did, that he was entitled to the property as his own, jure mariti. But be this as it may, they took from him the title which he had as executor and devisee, and we have shown that the law denies to an executor the power to dispose of the assets of the estate for his own advantage, and if he attempt to do it with the knowledge of his assignee, or under such circumstances as reasonably ought to put the latter on the inquiry, that he can take no advantage from it. If there be any case in which such knowledge can be imputed, this is that case. The evidence shows they received the assignment in security for the payment of a debt, having no connection whatever [**24]  with the estate of Mrs. Jones, and must therefore be taken as affected with all the equities, either of Mrs. Williamson or of the parties in remainder. If they were not apprised of the release until after this controversy commenced, they were not in fact deceived by it, and therefore not induced by it to deal with the executor.
If it avail anything, then it must be because of the force given to it by the law independently of their knowledge, and this involves the inquiry, how far Mrs. Williamson had the right to dispose of the interest acquired under the will of her aunt, Mrs. Jones, for if she had no right to dispose of the estate and thus defeat the interests of the parties in remainder, her act was illegal and of no effect.
Although it has been held in this State, that a specific bequest of consumable articles vests the absolute property in the legatee for life, ( Evans vs. Iglehart, 6 Gill & Johns. 171,) still it has never been denied anywhere, that if it be the apparent intention of the testator that the thing shall not be consumed, but shall go to the party in remainder, that in case of danger the courts will interfere and compel the tenant [**25]  for life to give security. So in the case of Boyd and others, vs.  Dennis Boyd, 6 Gill & Johns. 25, where the devise was as follows: "$ 10,000, of which you (the devisee) are already in possession 

 [*234]  of the greatest part, is to be at your disposition, and for your use, free of interest, during your natural life, but after your death to be invested in bank stock," &c., the court held, that the tenant for life could not be compelled to give security for the amount of the devise, in absence of proof of the same being in danger; but this was placed distinctly on the ground that the language of the will was peculiarly strong and emphatic; the devisee "was to have the use and disposition of the property free of interest during his life."
In the case now before us it is beyond all cavil, that it was the intention of the testatrix, that in the event of the death of Mr. and Mrs. Williamson without issue, that the estate devised was to be enjoyed by the parties indicated by her, and who are now before us asking that their interests may be protected; we think they are entitled to the relief which they solicit.
In the case of Smith's Ex'cr, vs. Morgan, 8 Gill 133, [**26]  although the court held at law neither the wife alone, nor the husband and wife conjointly, can divest the wife's interest in property to which she is entitled to her sole and separate use, yet they declined to decide the question, whether the wife is to be considered in a court of equity as a feme sole, with power to dispose, or possessing only such powers as the instrument which confers her title bestows.
In the case of Tiernan vs. Poor, 1 G. & J. 216, the court say: "It is not meant to intimate in any thing which has been said, that however the complainant might suffer by a reliance upon the conduct of those with whom he contracted, that this contract could be enforced against the right of disposition contained in the deed of trust. That would constitute a paramount law, governing and controlling every contract in relation to it, and it need be scarcely necessary to say that no decree could pass against her, to carry into effect any contract she might make, unless such contract were within the limits of her jus disponendi." In the cases of Tiernan vs. Poor, 1 Gill & Johns. 216, and Brundige vs. Poor, 2 Gill & Johns. 1, [**27]  the deed of settlement provided, that the separate property 

 [*235]  of the wife should be held in trust, "for the sole and separate use, benefit and behoof, of the said Deborah, (the wife,) for life, so that she be suffered to take and receive the entire profits thereof to her own separate use, without being subject to the control of the said Dudley, or of any future husband, &c., and in nowise answerable for the payment of his or their debts or engagements, and subject to be sold and conveyed by the said Deborah absolutely, in such manner as she may think proper." In the case of Warfield and Wife, 11 Gill & Johnson 23, the court held, that the will under which the fund was derived did not contemplate a settlement to her separate use, and therefore it was competent to husband and wife, on their joint application, to authorize the husband to withdraw the fund from chancery.
From this review of the decisions in our State, it appears it never has been decided that the wife has the right to dispose of her separate estate, unless that power be given to her by the instrument making the settlement, nor where such power is exercised in a manner different [**28]  from that pointed out in the deed or will, as the case may be. So far from it, it is expressly said, in the case of Tiernan vs. Poor, that the right of disposition contained in the deed constitutes a paramount law, and that no decree could pass to enforce any contract, unless such contract be within the limits of her jus disponendi.
Besides this, had the appellants made the proper inquiry they would have discovered, to say the least, that it was extremely questionable, under the law of this State, whether the wife, as tenant for life, had the right to receive and receipt for the money. In the case of Evans, et al., vs. Iglehart, et al., 6 Gill & Johns. 171, speaking of the duties of the executor, the court say: "If the surplus or residue thus bequeathed consists of money or property, whose use is the conversion into money, and which it could not for that reason be intended, should be specifically enjoyed nor consumed in the use, but be by the executor converted into money, for the benefit of the estate; as for example, a quantity of merchandise, a crop 

 [*236]  of tobacco, or the like, an investment thereof must be made by the executor, [**29]  in some safe and productive fund, or it must be put out on adequate securities, and most properly under the authority and direction of the orphans court, or a court of equity, so as to secure the dividends, interest or income, to the legatee for life, and the principal after his death to the legatee in remainder."
According to this decision, which has never been overruled, Mr. Williamson, as executor, ought to have applied to the orphans court for an order to invest the money secured by the mortgage, and not have assumed to hand it over to the legatee for life, to be consumed to the prejudice of the rights of those in remainder.
We do not think, as contended in argument, that the appellants are entitled to the interest due on the mortgage, which was not embraced in the final account of the executor. It stands on an entirely different footing from the cases of pin-money which were cited at the bar. In that class of cases, the wife or her representative is interdicted from recovering where she has not yearly demanded it, whatever may be due for pin-money for the years which have elapsed, and this doctrine rests on the idea, that the allowance of pin-money is for the adornment of the [**30]  person of the wife, and as the husband has supported her in the meantime, the presumption is, that she has been compensated by other allowances in lieu of pin-money. 2 Bright on Husband and Wife, 289, and the authorities there collected. But with the private estate the case is wholly different. In all such cases it is her property and may be reclaimed at any time, her husband standing in the relation to her of trustee.
On the whole we are of opinion, the evidence shows that Miller and Mayhew dealt with Williamson, not as purchaser, but as executor and devisee, and, as such, he could not assign, as they claim he did, the estate of his testatrix for his own debt, and that when the transaction was consummated, they had actual knowledge he was so applying the funds of the estate to his own purposes. We also think it equally obvious 

 [*237]  Mrs. Williamson never received the amount specified in the release, and that she and those in remainder are entitled to that sum, with interest due on the mortgage to be invested for their benefit. The investment, however, should be so made as to secure to the complainants the interest on the sum during the life of Mr. Williamson, if he [**31]  should survive his wife. He had clearly the right to dispose of his contingent life estate, and the complainants are entitled to have the fund so invested, as to secure to themselves the interest on it during the survivorship of Mr. Williamson, if such an event should occur. Holding these views, concurring as they do in the main with those expressed by the chancellor, we neither affirm nor reverse his decree, but will sign such an one in the premises as ought to have been passed. The case under the act of 1854, ch. 183, must go to the circuit court for the city of Baltimore, to which court the trustee, T. Parkin Scott, Esq., mentioned in the proceedings, will report his proceeding under our decree.
Cause sent to the Circuit Court for Baltimore city, under act of 1854, ch. 183.  

29 of 48 DOCUMENTS 

PHILIP FRANCIS THOMAS, Comptroller, vs. JAS. S. OWENS, Treasurer.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 189; 1853 Md. LEXIS 24 

JUNE, 1853, Decided 

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

The appeal in this case was taken from an order of the circuit court refusing to grant a writ of mandamus, applied for by the appellant. The facts of the case are fully stated in the opinion of this court and in the following opinion of the court below, delivered by BREWER, J., upon the passage of the order appealed from:

"This case was very ably argued and three points discussed: 1st. At what time did the salary of the Comptroller commence? at the time of his election, at the time of his taking the oath prescribed by the constitution for all officers, or at the time of his taking the oath and giving bond as prescribed by the act of 1852, ch. 12? The petitioner contending for the first and the defendant for the last, or, at least, for the second proposition. 2nd. Whether the Treasurer was authorised to pay any part of the Comptroller's salary not included in the appropriation bills? 3rd. Whether this court has the power to issue a mandamus in the present case? I do not consider it necessary to argue at length either of the latter points, or to express upon them any decided opinion, which, as emanating from a circuit court,  [**2]  would have but little weight and no authority, and as I concur with the defendant upon his view of the first point. My impression, however, is, that this court has the power to issue a mandamus in the present case, but that the Treasurer is not authorised and cannot be compelled to pay any amount from the treasury, unless an appropriation be made for that purpose by the legislature, in pursuance of and in conformity with art. 3, sec. 20, and art. 6, sec. 2, of the constitution of the State. With regard to the first question, I have no doubt that generally all officers hereafter to be elected under the present constitution, will be entitled to their salaries from the time of their election. The acceptance of the officer is presumed, according to legal principles, and that presumption is confirmed by his subsequent qualification. Some short time must necessarily elapse before the result of the election can be officially and legally ascertained, and a commission, as evidence of that fact, issued to the officer. He may after that be too sicle to qualify, or be prevented by many accidents from doing so immediately; until he does qualify according to law, and takes upon himself legally and [**3]  fully the duties of his station, he is entitled to receive nothing; but when he does so, his character as officer relates back to the period of his election, and entitles him to his salary from that time. The case may be made otherwise as to any particular office, by any special provision, or where the office is not vacant until the qualification of the successor. Such I believe has been the practice in this State, and under the general government. But when a new constitution is to be formed to supersede an old one, in order to prevent an interregnum, special provisions must be made, necessarily, to enable each department of the new government, and each officer in it, to take their allotted places, as convenience and perhaps necessity will admit, each new officer to supersede the old, and the constitution may be for a considerable time in this state of transition. One circuit court, with its one judge, may be completely organized, while in another part of the State the old district court, with its three judges, may remain, and so with other parts of the government. With a view to this, the provisions of the constitution, with regard to the holding over of officers, must have been framed.  [**4]  It could hardly have been intended, that the corresponding parts of the old and new constitutions should exist simultaneously-- that there should be a district and a circuit court at the same time in the same section of the State, or the old and new treasury department existing at the same time. Let us now look at the actual provisions of the constitution with regard to the treasury department. By the old constitution the Treasurer had the whole control of it. By the 1st section of the 6th article of the new constitution, "a Comptroller is to be chosen by the qualified electors of the State at each election of the members of the House of Delegates, who shall receive an annual salary of $ 2500," and a Treasurer, "to be appointed by the two houses of the legislature at each session thereof." Both the Comptroller and the Treasurer are required to take the oath prescribed for all officers by the 4th section of the 1st article, but they are also to take another oath, and to give bond as the legislature shall prescribe. The Comptroller and the Treasurer, together, constituted the new treasury department; and the Comptroller could not be invested with the power of his office until the legislature [**5]  had prescribed the oath and the bond, and he should have taken the one and given the other, nor until the Treasurer had been appointed and done the same. The department could not be complete without the qualification of both officers. The new Comptroller could not be engrafted upon the old Treasurer to constitute the department, because the old Treasurer had the exclusive control of the Treasury, held under his old tenure and authority until he should be superseded, pursuant to the provisions of the constitution, and until his successor should be duly qualified. Article 10, section 8. Neither could the Treasurer assume the duties of his office until the Comptroller should be duly qualified, for he could pay nothing or receive nothing until the Comptroller issued his drafts. Both of these officers constituted the successor of the old Treasurer, and until both had qualified he could not be superseded. The Comptroller alone could not, in any possible view of the case, be considered his successor. It might be claimed for the Treasurer with some degree of plausibility; neither of them, however, represented him fully; neither succeeded to all his duties. Most of the other salaried officers [**6]  of the State were authorised by the constitution, including the judges, by whose cases this of the Comptroller has been attempted to be illustrated, to terminate the offices and holding of their predecessors as soon after their election as they should think proper by qualifying themselves. The Comptroller could not. The time and mode of his qualification depended, by the provisions of the constitution, upon another department of the government, which could not hold its session, by the provisions of the same constitution, until the fourth Wednesday of January, and to whom some time must necessarily be allowed for convenient action. Art. 6, sec. 1, and art. 3, sec. 7. The Comptroller is to be elected at each election of members of the House of Delegates. They, with most all other officers, are to be chosen on the first Wednesday in November, then to serve for two years from the day of their election; and it has been contended that the Comptroller, therefore, is to serve for two years from the day of his election, and his office to commence from the day of his election. And the concluding counsel, who argued the whole case with his usual great ability, has said, that as to salary, at [**7]  least it commenced on that day; his office enduring for two years, commencing on the day of his election and ending on the day of the next election by the people, and his salary being $ 2500 annually. It appears to me that the Comptroller is not in a better situation, as to this, than any other officers elected at the same period. There is no provision in the constitution that he "is to serve for two years from the day of his election," if that would make any difference, and notwithstanding the provision with regard to the delegates, they are paid a per diem compensation, and though after their session has commenced at the prescribed period, (the first Wednesday of January,) they have conceived themselves entitled to that per diem whether they attend or not, I have never understood that it was contended by them or any one else that they were entitled to it for the whole period of their election. For some extent, all public officers hold their offices from the day of their election. It authorises some of them to qualify when they please, others, as the Comptroller and the legislature, when the prescribed period arrives; but they hold not as to their salary but as to their office alone,  [**8]  it being more of a right to hold, incomplete until that time, than an actual holding. As to the salary being annual, it seems to me to mean that the occupant of the office was to receive this salary at that rate in proportion to the time he occupied it. The appointee in the place of one dead or resigned is entitled to the same annual salary, yet he holds only part of the year. Art. 6, sec. 1. The case of the judges is also adduced as an illustration and confirmation of the views of the petitioner. The judges of the Court of Appeals, by the fourth section of article fourth, "shall hold their offices for the term of ten years from the time of their election," but the judges of the circuit courts and the courts in Baltimore shall hold their offices for the term of ten years, omitting "from the time of their election." I understood the concluding counsel to say in this part of his argument, that there was no difference as to the effect of these two provisions, but that both must mean that they should hold from the time of their election; but if a difference was intended by the framers of the constitution, we may, as to the Court of Appeals, conceive a reason why that difference was made.  [**9]  In the old judiciary system, established by the act of 1804, ch. 55, the State was divided into districts, and for each three judges were to be appointed, "one of whom should be styled in the commission chief judge, and the other two, associate judges of the district for which they should be appointed." By the fifth section it was provided, that the Court of Appeals should be composed of the chief judges of the several judicial districts of the State. They had no distinct separate appointment as judges of the Court of Appeals. They, with their associates, were judges of the districts, and were to be superseded as such by the qualification of the circuit judge, who was, in fact, their successor, and might qualify immediately after his election; and as soon as one circuit judge should qualify, all judges of the district, identified with that circuit, would be superseded, the integrity of the Court of Appeals would be broken, and the remnant could not occupy that position. The new Court of Appeals might be considered the successor of the old, but no one judge could be the successor of any individual judge so as to supersede him. But the framers of the constitution probably entertaining [**10]  this opinion, and foreseeing that not only one but all the circuit judges might qualify immediately, intended to provide, that the new Court of Appeals should hold their offices from the time of their election, more especially as the court, by the provision of the constitution, was to sit very shortly after the election. The provision, therefore, with regard to that court might be a sensible, proper, and necessary one. With regard to the judges of the circuit courts, the case is certainly different. The 8th section of article 10th unquestionably applies to them. The old judges of the district courts held and might exercise in all respects their offices, and were, therefore, entitled to their salaries until the circuit judges qualified. There could not be, as I repeat, a district and a circuit court in one and the same territorial division. The same principle applies, as I have before said, to the treasury department. There could not be two treasuries, or one treasury and part of another at the same time. I cannot think that the framers of the constitution ever intended that there should be two co-existent officers, identically the same, and two salaries payable for the same offices,  [**11]  and it would require a very clear and positive provision to induce me to think otherwise. It appears from the Treasurer's answer to the petition, that a part of the amount claimed by the petitioner is admitted to be due, but no appropriation having been made for its payment and the draft specifying a larger amount, I do not see how this court can compel the Treasurer to pay it." 

DISPOSITION:
Order affirmed.  

HEADNOTES:

The 1st section of the 6th article of the constitution provides, that the Comptroller shall be "chosen at each election of members of the House of Delegates," and the 4th section of the 3rd article provides, that the members of the House of Delegates shall be elected "to serve for two years from the day of their election." HELD:

That it does not necessarily follow, from the language of either or both these sections, that they fix the term of service of the Comptroller at two years from the day of his election.

The 4th section of the 1st article provides, that every person elected or appointed to any office under the constitution, shall take the oath therein prescribed "before he shall enter upon the duties of such office." HELD:

That the Comptroller could not be considered as in office, and entitled to the salary affixed to that office, until he qualified by taking the oath prescribed by this section; such qualification is an indispensable prerequisite to his investiture with the authority and responsibilities of the office.

Such qualification does not, by operation of law, relate back to the day of his election, and entitle him to compensation from that time.

The dictum in Marbury vs. Madison, 1 Cranch., 151, that "a commission bears date, and the salary of the officer commences from his appointment, and not from the transmission or acceptance of his commission," cannot receive the assent of this court, as a proposition applicable to every instance of a commissioned officer.

The design of the constitution of this State, and of its framers, in this respect, was to make no gratuities, but to pay for services actually rendered, and that no one under it is authorised to claim a salary attached to an office, until he has accepted and qualified himself by taking the prescribed oath.

Though it is nowhere expressly said in the constitution that the Comptroller shall continue in office until his successor is duly qualified, yet it is obvious from its spirit and policy, as manifested in its provisions affecting other officers in this respect, that it was not its design that there should be an interregnum in the office of Comptroller.

The 1st section of the 6th article provides, that the Comptroller and Treasurer "shall take such oath and enter into such bonds, &c., as the legislature shall prescribe," and by the act of 1852, ch. 12, the legislature prescribed an additional oath, and fixed the form and penalty of the bonds. HELD:

That persons elected to these offices prior to the passage of that act, were constitutionally in office when they qualified by taking the oath prescribed by the 4th section of the 1st article of the constitution, and were entitled to their salaries from that time; the passage of that act was not a necessary prerequisite to a constitutional qualification.

All that was required of them was to qualify according to existing laws, liable however to any demand the legislature might thereafter make on them, and on their failure to comply therewith, to be deemed as having resigned their offices.

Where the constitution defines the qualification of an officer, it is not within the power of the legislature to change or superadd to it, unless the power be expressly or by necessary implication given to it.

Under the grant of power given in the 1st section of the 6th article, it is competent to the legislature at any time to alter the oath or bond prescribed by the act of 1852, ch. 12; the exercise of this power is not confined to its first exertion by the legislature, but extends to all time.

A subsequent exercise of legislative power altering the oath or bond prescribed by the act of 1852, ch. 12, could not have the effect of rendering the acts of these officers who had complied therewith illegal and void, yet such would be the irresistible consequence, if the construction that there could be no constitutional qualification until the passage of that act were the true one.

The constitution, proprio vigore, makes the appropriation for the payment of the salaries fixed in it, by declaring the amount "shall" be "received" by the particular officer; this is an appropriation by law; by the supreme law of the State, and no legislative act making appropriations for such salaries is necessary.

Each and all departments of the government are subordinate to the constitution which creates and defines their limits; whatever it commands, is the supreme and uncontrollable law of the land.

The 20th section of the 3rd article, that "no money shall be drawn from the treasury of the State, except in accordance with an appropriation made by law," was obviously inserted to prevent the expenditure of the people's treasure without their consent, either as expressed by themselves in the organic law, or by constitutional acts of the legislature.

Its purpose is to secure regularity, punctuality and fidelity, in the disbursements of the public money.

In the construction of any instrument the whole paper ought to be considered, that the will of its framers may be truly and accurately ascertained; the objects contemplated and the purposes to be subserved should be constantly kept in view, and the language used interpreted in reference to the manifest intent.

The people, by their adoption of the constitution, made the appropriation for the salaries of the officers fixed by it, and this fiat of the supreme will cannot be nullified by the ipse dixit of a mere ministerial officer, such as the Treasurer.

In assigning the powers of government to three different departments, the constitution intended to secure to each its independency of action, and the more effectually to ensure this, it ascertained and appropriated the salary they are severally to receive, and inhibited the legislature from diminishing it.

An opposite construction would countenance the paradox, that a co-ordinate branch of the government could stop its whole machinery, by refusing to pay the salaries of those upon whom is devolved the discharge of the duties of the other branches.

The duty of the Treasurer under the constitution is to disburse the public moneys on the warrant of the Comptroller, and not otherwise; the duty of adjusting and settling all public accounts is exclusively conferred upon the Comptroller.

The Treasurer is to respect such adjustment and settlement, and on the warrant of the Comptroller to pay the amount subject to the restrictions:--1st, that the warrant must be in proper form; 2nd, that there must be an appropriation by law; and 3rd, that there must be funds in the treasury to meet the demand.

He has nothing to do with the elements of accounts; it is the duty of the Comptroller to ascertain the audit, if there be an appropriation by law; the Treasurer is not required to preserve accounts, that duty is imposed on the Comptroller.

If there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial, and if payment be refused mandamus is the proper remedy.

The party injured by the delay consequent upon his delinquency may sue his official bond, or bring a special action on the case against him.

The warrant in this case directed the Treasurer to pay a particular sum in payment of so much salary due the Comptroller, "to be paid pursuant to the provisions of the constitution, and also pursuant to chapter -- of 1853." HELD:

That the payment of this warrant was properly refused by the Treasurer, because it did not show on its face the particular act under which it was drawn.  

COUNSEL:
Thomas G. Pratt for the appellant.

1st. As to the period when the salary commences: This depends upon the construction of the constitution. 1st sec., art. 6, requires the Comptroller to be elected on the day of the election of delegates to the General Assembly. The election by the people was substituted for the executive appointments, and confers upon the parties elected all the rights and privileges conferred upon them by the appointments previous to the adoption of the new constitution. If any officers previously appointed would have been entitled to their salary from the day of their appointment, the same officers will be entitled to their salaries from the day of their election. The officers received their pay when appointed by the governor from the date of their commission,  [**12]  because the commission was the appointment. But now the commissions are mere certificates of election, certifying that upon some preceding day the people elected the party to the office; they do not confer the power to discharge the duties of the office. This officer was elected on the 5th of November 1851. The view of the judge below, that the Treasurer and Comptroller constitute one department, and succeed the old Treasurer, is manifestly erroneous. He had not bonded on the 1st of January 1852, yet the legislature, by the act of 1852, ch. 119, gave the salary to the Comptroller from the 1st of January 1852. This shows that his bonding and taking the oath which was prescribed by the act of 1852, ch. 12, was not the period from which his salary was to commence. The same act of 1852, ch. 119, gave to the judges of this court their salary from the 1st of January 1852, and yet the constitution requires them to hold a court on the 1st of December preceding, and they did so qualify and hold their court, and it is conceded that from that day they are entitled to their salary. The convention designed that the Comptroller should receive his pay from the time of his election, because there [**13]  was a new department to be organised and commenced. It is known that from the date of his election he was engaged in making preparation for this organization, examining the systems of other States that had established like departments, and making all necessary and needful preparations for the duties of his office. There is no doubt the constitution designed to give an annual salary of $ 2500 to this officer, and this is an appropriation of this sum annually to the Comptroller. The ground taken on the other side is, that he was not to enter on the discharge of the duties of his office on the day of his election--he can never do this from the day of the election--but the constitution does not require him to hold over till his successor qualifies--he is to hold only till the election of his successor; thus there will always be, according to the construction on the other side, a period when there will be no Comptroller, and hence the provision of the constitution that the salary shall be $ 2500 will be defeated. 2 G. & J., 278. The same argument that would give to the successor of the late Comptroller the salary from the day of his appointment, would likewise give the same to the late [**14]  Comptroller. That the officer is entitled from the day of his appointment, is sanctioned by the practice of every State in the Union, and by that of the United States. The salary commences from the appointment, and not from the delivery of the commission. 1 Cranch., 161, Marbury vs. Madison. Unless this construction is the true one, this court will have to fix the period when the salary is to commence. The counsel on the other side say it commenced from the time he took the oath and qualified, by giving bond, &c., but this construction the legislature have repudiated. The election undoubtedly conferred on the officer elected some constitutional right which was beyond the control of the legislature. Yet if the legislature should refuse to prescribe the oath and bond until his term expired, according to the theory on the other side, he would not be entitled to his salary. What them becomes of the rights conferred upon the officer by the constitution?

2nd. The constitution appropriates the money for the payment of this salary, and no legislative appropriation is necessary. Suppose the legislature should appropriate less than $ 2500; have they the power to repeal or annul this provision [**15]  of the constitution? They cannot do it by direct legislation, neither can they do it by non action. Suppose they had passed a law abolishing this office, this court would not hear an argument on the constitutionality of such a law. There can be no distinction drawn between this office and any other offices in the constitution. If the legislature can abolish this by refusing the appropriation, so they can every other one where the salary is fixed by the constitution. No man can doubt but that the intention of the constitution was to place this matter beyond the control of the legislature. It has been the pride of Maryland that its judiciary should be independent, hence the salaries and terms of office of the judges are fixed by the constitution. So it is with the librarian; the constitution, in order that the legislature might not have control over him, fixes the salary and term of his office. Art. 4, sec. 4, gives to the judges their term of office for ten years from the time of election, and gives them the salary of $ 2500 annually. The design of this was to render the judges independent of any appropriation on the part of the legislature. But it is supposed that art. 3, sec. 20,  [**16]  renders an appropriation necessary. But if the constitution has appropriated this money to a particular officer, the question arises, is not this an appropriation "by law?" The constitution is the supreme law of the State, and no legislative action in this particular is necessary. The two clauses, (that of art. 6, sec. 1, and art. 3, sec. 20,) are found in the same instrument, and are to be construed in pari materia. The 20th sec. of art. 3, refers to an entirely different class of cases, and was designed to effect different objects. Why require the legislature to appropriate, when they have not the power to refuse, in reference to the salaries of officers fixed by the constitution? The object of the 20th sec., art 3, was to require the law, which makes an expenditure for any particular purpose, such as building a bridge, &c., to fix the amount of money to be expended in it. Such was the construction and practice under the old constitution, for these very words were put into the old constitution by the act of 1843, ch. 399, confirmed by the act of 1844, ch. 86, yet from that time down to the adoption of the new constitution, no general appropriation bill, such as that of 1852, was [**17]  ever passed for the salaries of the judges, &c.: because the legislature then knew that where a law made an appropriation, there was no necessity for another law for the same purpose. Art. 56 of old constitution, was the only provision in reference to the salaries of the judges of the Court of Appeals, and under this the judges were paid, without any other law making an appropriation for them.

3rd. The appellant is entitled to the remedy by mandamus. This point assumes the establishment of the antecedent propositions. 4 H. & McH., 449, Rankel vs. Winemiller, speaks of the character of the writ of mandamus. Wherever there is an established right in a citizen, and he has no legal remedy, the writ of mandamus is the remedy ex necessitate. 1 Cranch., 154. The act of 1806, ch. 90, sec. 9, confers on the county courts all the power which the general court previously had, and the latter, by the case in 4 H. & McH., 449, had all the power that the court of King's Bench in England had. So that the circuit court in this case had all the power over the subject of mandamus that the court of King's Bench in England has. That a mandamus will lie in such a case, see 12 Pet., 626, Stockton vs.  [**18]  Stokes. Ib., 609, Kendall vs. The United States. The treasurer has no discretion, and the courts, ex necessitate, have the power to command him to do the act. Was it the design of the constitution that the Treasurer should have any discretion over this subject? This is a question of vital importance to the public at large, and requires a sound construction from this court.

Jervis Spencer for the appellee.

There were several questions discussed in this case in the lower court, and the same questions arise here.

1st. That it is not competent for the courts to assume an indirect jurisdiction over the State through its officer, and by a mandamus or any other proceeding take the money out of the treasury, which may be required to meet other pressing emergencies. Such a power in the courts would be an infringement upon State sovereignty. 14 Pet., 518. 6 How., 100. 2 Texas, 498. It is submitted that this cannot be regarded as a proceeding against the Treasurer individually, apart from his character as the custodiary of the treasury of the state. 11 How., 289.

2nd. If it could be so regarded it could only be upon the assumption, that by the order of the State he held the [**19]  money for the use of the relator, not in his official character, and separated from the treasury, in which case he might be sued in a simple action of assumpsit for money had and received. The Mayor vs. Howard, 6 H. & J., 394. 1 H. & G., 265. Cowp., 476.

3rd. The application for the mandamus assumes, that the salary commences from the day of election. If this be correct, the principle applies to other officers multo fortiori. The language of the constitution, as to the Comptroller, is: "There shall be a treasury department, consisting of a Comptroller, chosen by the qualified electors of the State, at each election of members of the House of Delegates, who shall receive an annual salary of $ 2500." It will be observed that the word here is "chosen." The Comptroller shall be "chosen," without any specification of the time when he shall go in or when he shall go out of his office. He shall be Comptroller when he duly qualifies; and as there is no limitation prescribed, he holds, necessarily, until superseded by another officer duly qualified. This the constitution clearly implies. The same section says: "In case of a vacancy by death or otherwise, the governor, by and with the advice [**20]  and consent of the Senate, shall fill such vacancy by appointment, to continue until another election by the people," &c., &c., "and the qualification of the successor." As the vacancy is understood to exist until the qualification of the successor, the original appointment must necessarily be understood to be for the same period. It is absurd to talk about filling a vacancy by "death or otherwise," to continue longer than the original appointment. We therefore contend, that in these words there is nothing specific as to the term of office, only he shall be chosen and receive $ 2500 a year as long as he continues in office. But there are other words in the section that are specific. "The Comptroller shall take such oath and enter into such bond as the legislature shall prescribe." In pursuance of this requirement of the constitution, the legislature passed an act prescribing the oath to be taken and the bond to be executed, on the 13th February 1852, and the Comptroller complied with the act on the 19th of the same month. His term could commence then only. It is contended for the relator, that he was in office and drew his salary before complying with the act. Can this be? If so, this [**21]  part of the constitution was a nullity and the act of the legislature worse than idle. If he was in the office and competent to perform the duties and receive the emoluments before the law was passed, its passage would not have ousted him, and he could have gone on as well without an oath or bond afterwards as before. The Comptroller was certainly chosen subject to the constitutional restrictions, to wit, that he should give bond and take the oath that the legislature should prescribe. This was a matter of common prudence which the Convention could not have overlooked, and necessarily preliminary to an assumption of the control of the treasury of the State. The ground taken for the Comptroller does not only render the aforesaid provision of the constitution and act passed under it nugatory, but it abolishes the 4th sec. of the 1st art. of the constitution, which prescribes, that "every person elected or appointed to any office of profit or trust under the constitution or law, made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe the following oath," &c.

I have said, that if the Comptroller can claim his salary from the day of his [**22]  election, the right would be much clearer as to other officers. As to senators the constitution says, art. 3, sec. 2, they "shall serve for four years from the day of their election," and the delegates shall be elected "to serve for two years from the day of their election," art. 3, sec. 4; and again, "the senators and delegates shall receive a per diem of four dollars, and such mileage as may be allowed by law," art. 3, sec. 30. We all know that the members of the legislature are liable to be called upon every day in the year in their legislative capacity, and surely these provisions would make a much stronger case for them, if they should demand from the day of their election during the whole two years, than the Comptroller can possibly make. Yet if they should make such a demand, they would hardly be listened to patiently. The same peculiarity applies to nearly all the other officers, the sections of the constitution which prescribe their terms making them commence from the day of election, (subject of course to the qualifications expressed in other sections,) except the Treasurer and Comptroller, as if it had studiously guarded against the use of any language which could be construed [**23]  to recognize them as in office until they had taken the oath and bonded, this being an essential security in consequence of the pecuniary trust.

But the position of the plaintiff involves another construction that we cannot regard as any thing less than a monstrosity. They say the Comptroller is entitled to his salary from the day of election, although he qualified and was capable of performing the duties of the office not until over three months afterwards. If this be good law with regard to the Comptroller, it is good in application to all other officers in the State. They say they can claim by virtue of the election, without qualification and services. Another set might claim who were in office waiting the qualification of successors, and thus a liability would attach upon the State to pay two sets of officers. The old Treasurer was undeniably in office until the full qualification of the Comptroller and Treasurer, (art. 10, sec. 8,) establishing the new treasury department.

4th. We likewise say that there is nothing certain and specific in the petition and application of the relator in this case. He says so much money was due him as Comptroller; but how was it due? This [**24]  he does not show. Whether he claims from such a day and gives so much credit, leaving the balance he claims, or claims from such another day and gives another credit does not appear. The case would require an examination of accounts, which the court will never entertain upon an application for a mandamus. The petition and answer make an issue of fact as to the sum due, which cannot be thus tried. 14 Pet., 518. 6 How., 100. 9 Smedes and Marshall, 89.

5th. But if every thing else was right in support of the application, jurisdiction, term of office, salary, and balance due and admitted, the application could not be granted, because the Treasurer had no authority to pay without an appropriation for the purpose. Art. 3, sec. 20.

It is maintained on the part of the relator, that this case is an exception, as the salary is fixed by the constitution. But we submit that this can make no difference. Every law is a part of the constitution, as much as the leaf that grows out of the tree is part of the tree. What is enacted by the constitution is no more the law and no more binding than an act of the legislature, passed by the authority of the constitution. In their effect and operation [**25]  they are both alike. The State sovereignty retains to itself the right to say whether money shall be paid out or not, as there may be emergencies of rebellion, foreign invasion, &c., which may require all its resources. It would be destitute of the means of self-preservation if the ordinary revenue could be paid out by the revenue officers, in paying the ordinary expenses, without special authority.

Charles F. Mayer on the same side.

The question when the salary of the Comptroller commences is not raised in the case; the petition does not state the time, and the question is not properly before the court. The only allegation is, that on a certain day he drew a warrant upon the Treasurer, which the latter refused to pay, and he asks a mandamus to compel him to pay it. This opens up questions of importance. What are the powers of the Treasurer? What are his duties under the constitution? If the constitution interposes an insurmountable barrier to the demand of the appellant, those barriers cannot be broken through, even though the appellant may have a right to his salary from the day of his election.

The Treasurer is not an appendage or a subordinate of the Comptroller--he [**26]  has his duties defined and prescribed by the constitution itself as much as the Comptroller. He is to pay upon warrants issued by the Comptroller, but he is not obliged to pay every warrant that may be issued blindly, without examination. The 20th sec. of the 3rd art., expressly says, that no money shall be drawn from the treasury except in accordance with an appropriation made by law, and every such law shall distinctly specify the sum appropriated and the object to which it shall be applied. This is as much binding upon the Treasurer as upon the Comptroller. Sec. 2, art. 6, requires the Comptroller to grant, under regulations prescribed by law, all warrants for moneys to be paid out of the treasury, in pursuance of appropriations by law. In this case the Comptroller is the judge in his own case, draws the warrant in his own favor, and in such a case every thing was calling upon the Treasurer to be cautious, even if he were to be regarded as a mere ministerial officer. The question then is, has there been a law appropriating the specific sum called for in this warrant? Such has never been done. The only one relied upon is the act of 1852, ch. 119, making appropriations for the expenditures [**27]  of the State for the year 1852. This act appropriates so much as may be necessary for that year from the 1st of January 1852. This requires an account--an ascertainment of what may be due. There is no averment in the application that this sum was due him from a particular day.

The question here involves the sovereignty of the legislature. The State cannot be subjected to judicial action--it cannot be sued. This mandamus strikes at the property of the State. A mandamus will not lie to control an executive officer in his discretion or judgment. 14 Pet., 515. There may be a right without a remedy--there is such a thing as prerogative--there is such a thing as immunity from suit. The case of Reeside, (11 Howard,) shows that even a set-off against the United States will not be allowed. You are not to presume that every sovereignty has the means to pay its debts, or that it would be willing so to do. You are not to assume that the legislature will not perform its duty, but whatever the injury may be, this court cannot usurp the power and attempt to coerce an officer of a co-ordinate branch of the government to perform his duty.

The power of the legislature over the treasure of [**28]  the State, is an essential, vital, prerogative, inherent in all republican institutions. 3 Story's Com. on the Cons., sec. 1340. 1st sec., 6th art., says the Comptroller shall receive an annual salary of $ 2500. This is not an appropriation of that amount by law to him for his salary. The organic law cannot operate as an appropriation under a republican government.

But again we say the salary commences only from the time of actual qualification. Art. 10, sec. 8. By the terms of this section, the old Treasurer was in office until both qualified, and neither were in office until that qualification took place. The taking the oath prescribed by the constitution, does not put him in office--he was only in when the oath and bond were taken and given as required by the act of 1852, ch. 12. This case is distinguished from the case of appointments under the general government, where the commission is the appointment itself. 2 Kent. Com., 259; although they do not take the oaths, their acts are valid, and if nothing more had been required than the taking of the oath, there might be a question that his salary commenced from the day of his election. But here he was required to give bond also.  [**29]  In the case of collectors under the United States, there is an express act of Congress, that they may delay giving bond for three months after entering upon the duties of his office. Gordon's Digest, 345. Salary is a compensation commensurate with service. The constitution never contemplated the idea that two officers should be in office at the same time, and receiving at the same time the salaries of the same office. Though such may have been the practice of the general government, yet it furnishes no rule for us. There is no parallel in the provisions in reference to the judges; for their term is defined to be for ten years. The proper construction of the term "yearly salary of $ 2500," is, that the officer is to be compensated at the rate of $ 2500 per year. We insist therefore:

1st. The Treasurer of the western shore, appointed under the old constitution, combined in his office the functions of the present Comptroller and Treasurer, and retained all his official power, until both the Comptroller and new Treasurer qualified; until which qualification the Comptroller could not be deemed to be in office, and therefore could not have his salary commence. The oath by the constitution [**30]  prescribed for the Comptroller as an officer elected, need not have been taken immediately on election, and did not, when taken, avail as a "qualification."

2nd. The commission prescribed by the constitution to be issued to the Comptroller, confers on him no authority and founds no rights, but is merely a certificate of his election.

3rd. The Treasurer has no power to pay out any moneys of the State, unless under the legislature's specific appropriation. Such is the provision of the constitution, and would be the restriction on that officer if the provision had not existed. The legislature is necessarily the peculiar guardian of the State's treasury, and alone must dispose of its funds.

4th. The legislature is the government, administering the constitution. The office of the constitution is, to lay down the objects and the principles for legislation. A constitution is not an enactment executing itself, or operating as an act of legislation, unless where the provisions, from their very nature, are independent of legislation to carry them out, and are in themselves a rule of action, or a limitation of right, to the citizen. The constitution cannot operate, therefore, as [**31]  an appropriation bill; and in fixing salaries, it but gives power to the legislature to pay them as the legislature may direct and regulate, and as the means of the State, to be ascertained or recognised by the legislature, may allow. The Treasurer is necessarily but the mere agent of the legislature, as his administrative superior, and as the only active sovereignty of the State. The different branches of the government, legislative, and judicial, and executive, being constitutionally, and, under republican organization, necessarily, distinct, each is in its sphere supreme and uncontrollable by the other, save only where the action of either the legislature or executive department violates the constitution, and is made then a subject for the judiciary's intervention. The judiciary is incompetent to supply the omissions or quicken the action of the legislative authority, and cannot do the justice which it is the constitutional province of the legislature to render, whether by general or special legislative action. The constitution is directory to the legislature. There is no judicial redress where the duty thus enjoined is neglected by the legislature, or even wilfully disregarded [**32]  and slighted. The judicial power, in other words, is not suppletory to the legislative under our constitution, or under any republican system.

Reverdy Johnson for the appellant, in reply.

There are three questions involved in the case, and it is important that an opinion should be pronounced upon them all: 1st. What is the time from which the salary of the Comptroller is to date? 2nd. Is he entitled to be paid in the absence of an appropriation by the legislature for that purpose. 3rd. Whether the remedy is by mandamus?

The Comptroller was elected 5th of November 1851; his commission issued on the 8th of December 1851. He took the oath required by the constitution, on the 10th of December 1851. He took the additional oath and gave bond, as required by the act of 1852, ch. 12, on the 19th of February 1852.

The petition states his election, his qualification, that he entered upon the duties of his office, and continued therein until the 20th of April 1853, that he is entitled to his salary under the constitution, and the drawing of the warrant for his salary then due. The petition shows the entire case-- and if he is not entitled to relief it is because he has no [**33]  case, not because there is any defect in the petition itself. The answer does not take issue upon the ground that there is no funds in hand, but upon the ground that the salary begins to run from the 19th of February 1852.

Now from what time is he entitled to the salary? This depends upon the true construction of the constitution in that particular. Art. 6 organises the treasury department. The great practical difficulty was, that under the old constitution there was no check upon the Treasurer. It was thought proper to divide the department, in order that the two officers might be a check, each upon the other. By the 10th sec. of art. 10, it was to go into effect on the 4th of July 1851, and on that day supersede the old constitution. In the general the old constitution was to become extinct on that day. The treasury department would have been out of existence then, except for the provision continuing the officers in office. Under these two provisions alone, (art. 6, and 10th sec. 10th art.,) there would have been no treasury department at all after the 4th of July, unless the new treasury department was to come into existence soon thereafter. The point of time from which the [**34]  salary of both Comptroller and Treasurer commences, we contend, is the election of the former and the appointment of the latter. By art. 6, sec. 1, the Comptroller is to be chosen at a particular time, and to have an annual salary of $ 2500; not a salary for the time he may serve, but from the time of the election, that being the only time mentioned in that connection. The same provision is made in reference to the Treasurer; he is to receive $ 2500 from the time of his appointment, that being the time mentioned in the clause specifying his appointment. The construction, on the other side, would require the interpolation of the words, "from the time he qualified," into the clause. The Comptroller is to be elected at each election of the members of the House of Delegates; this is made certain by the 4th and 5th secs. of art. 3. The first election of delegates was to take place on the 1st Wednesday of November 1851, and they were to serve for two years. Hence it necessarily follows, that the Comptroller's term of service is to be two years. And it is just as if the constitution had said that the Comptroller should be elected to serve for two years from the day of his election. It is [**35]  impossible that I can be wrong in this. The judge below admits that the judges of this court are entitled to their pay for the ten years, without reference to qualification, and that the same is true in reference to the future elections of Comptrollers, but does not admit that it applies to the first election. The same section of 6th article provides for a vacancy occurring by death, or some positive act on the part of the incumbent. The inference from this is, that the officer who does accept and qualify is in office from his election, because it contemplates that there shall be no vacancy. Marbury vs. Madison, 1 Cranch., 274. If a party refuses to accept, there is a vacancy in that office, and the successor is appointed to the vacancy occurring by reason of such refusal to accept. Now if Governor Thomas had died or refused to accept, the appointing power would have filled such vacancy by appointment. Such vacancy would have been filled, not upon the ground that there never had been a Comptroller, but upon the ground that the office had been once filled and the vacancy had occurred therein. There is no difference between the term chosen, as used in reference to the Comptroller, and [**36]  election, as used in reference to the judges. This provision, in reference to a vacancy, has nothing to do with the time when the first Comptroller was to be in office--there was no person to hold the office then, for there was no such office in existence. Who was to continue till he should qualify? But it was necessary, in case of a vacancy, that the appointee should hold until the qualification of his successor, because without such provision the appointee's term would have expired with the election of a new officer, and the office would then have been vacant. But in reference to the Comptroller elected, there is no provision for his holding over until the qualification of his successor; he necessarily goes out at the termination of the period for which he was elected. There is a different provision in relation to the lottery commissioner and state librarian; they are expressly elected to hold until their successors are duly qualified. So with state's attornies. When the convention intended an officer to come into office subsequent to the day he was elected, they provide for it as in the case of the commissioner of the land office. Sec. 6, art. 7. So with the governor, in art. 2,  [**37]  sec. 1. So with all civil officers, in art. 3, sec. 14. But it is said on the other side, that the Comptroller was only in office from the time he took the oath and gave the bond, as prescribed by the act of 1852, ch. 12. By the 4th sec. of art. 1, every officer is required to take an oath before he shall enter upon the duties of the office. One would infer from this, that when he did take it he was entitled to enter upon those duties. But it is said, the Comptroller is required to take such other oaths and enter into such bonds as the legislature shall prescribe. The legislature is not required, in terms, to prescribe any new oath or bond; they may have thought none necessary. This act of 1852, ch. 12, may be repealed, and then the old machinery would come back, according to the theory of the other side. The 8th sec. of the 10th art., it is said, is against our views, and this is the section relied upon by the judge below. The practice of the general government, where there is an afficer absent and another acting in his place, is for both to receive salaries. The salary goes on--absence or sickness does not forfeit salary. If he never performs the duties of his office he is still [**38]  entitled to his salary. This goes upon the general principle, that it would be unjust in the general to require this inquiry into conduct; the government leaves it to the discretion of each individual. This practice prevails, because the officer appointed is in from the time of his appointment. Whenever, therefore, the Comptroller and Treasurer qualified, the qualification of each, so far as salary is concerned, relates back to his election or appointment, even conceding that the Comptroller and Treasurer, conjointly, succeeded the old Treasurer. But such a construction is not the true one. These two officers do not, conjointly, succeed the old officer. The Comptroller is elected;--the Treasurer is appointed by the legislature. Now suppose the Treasurer will not take the oath or cannot give the bond, and that the Comptroller has done all he was required to do, is he to be kept out of his salary by the act of another, over which he has no control? The proper construction is, that the old Treasurer is in office as Treasurer until the new Treasurer is appointed, and if the Comptroller is elected, he exercises the same check over him that he would have over the new one if appointed. But [**39]  he is expressly prohibited from taking any fees or accepting any other office--compelled to come to Annapolis--and yet, because some other officer over whom he has no control has not taken the oath and given the bond, he is not to get his salary. The legislature cannot interfere with the tenure and term of office, or the day of election. Sec. 6, art. 10. Any construction, therefore, which would give to the legislature the power to interfere with the term of office must be erroneous. That the legislature took a different view of the time of the commencement of the salary of the Comptroller from that contended for on the other side, is evident from the act of 1852, ch. 119. They did not prescribe the oath or require the bond until the 13th of February 1852, yet, on the 30th of March, they made an appropriation for a salary of $ 2500 from the 1st of January preceding. The words, "so much thereof as may be necessary," have no reference to such a case as this. This act was passed with a view to provide for all contingent, though estimated, expenses; if the estimate should turn out short of the appropriation, the whole appropriation was not to be paid, and to such a case as this and not [**40]  to the case of salaries, which are fixed and due under the constitution, these words have reference. In the absence of any constitutional provision, an officer in for a particular period goes out when the period expires. 2 G. & J., 278.

2nd. There is, in point of fact, an appropriation from the 1st of January 1852 to the 1st of January 1853. The legislature considered the appropriation of 1852 exhausted, because they, this year, have appropriated $ 2500 for the salary of the Comptroller, from the 1st of January 1853 to the 1st of January 1854. So far, therefore, as our right to the salary from the 1st of January 1852 is concerned, it does not lie in the mouth of the Treasurer to say that there is no appropriation. But there is no necessity for an appropriation at all. This is an important question and one of great interest. Before the act of 1843, money was paid out of the treasury without any specific appropriation. That act was passed, but did not affect the practice in reference to salaried officers, because the constitution itself specified the particular sums due to each. The object of such a clause is to take the disbursement out of the control of the executive. 3 Story's [**41]  Com. on Cons., secs. 1340, 1342. That object is not furthered by the construction put upon this clause by the other side. That it was not the design that the legislature should be able to stop the wheels of government by refusing to appropriate, is manifest from the fact that the constitution fixes the salary. What is the practical object the constitution had in view in thus fixing the salaries? It was to render the judges and other officers independent; this will be practically defeated if the legislature have the power to pay or refuse to pay. But it is not only fixed, but the constitution says they "shall receive" so much, which shall not be diminished. But do they not diminish if they pay but part? When the constitution says that the judges shall receive so much every year, it means that they shall receive it from the treasury. Is not this an appropriation? What is an appropriation--it is not setting apart a particular heap of dollars for each officer. The only question is, what is an appropriation within the meaning of sec. 20 of art. 3? The appropriation for salaried officers was not thought necessary by the committee on finance, it was not in the original draft of the appropriation [**42]  bill, and was only put in from abundant caution.

3rd. Is the mandamus the remedy? The Treasurer is nothing more nor less than a paymaster, bound to pay upon the order of his superior, the Comptroller. The respective powers of these two officers are defined in art. 6. The one is elected by the people, the other by the legislature: because the people would have more confidence in an officer elected by them, they have given almost all the power to him--he is to adjust, settle and preserve all accounts. This takes the question of all accounts between debtor and creditors of the State from the treasurer. The vouchers are all placed in the office of the Comptroller. He is to adjust the account between the claimant and the State when the State is debtor; between the State and the debtor when the State is the creditor. He is to grant all warrants for the payment of money, &c. The Treasurer is only to keep the moneys of the State. He shall receive and disburse the same upon warrants drawn by the Comptroller, and not otherwise--he has no discretion-- he cannot go behind the warrant. The adjustment by the Comptroller, so far as the Treasurer is concerned, is final and conclusive upon the [**43]  latter. He cannot even receive without the authority of the Comptroller. The obligation to receive upon the warrant of the Comptroller is identical with the obligation to pay; the power to dispute the one involves the power to dispute the other. How does the Treasurer, officially, know that the Comptroller took the oath of office on a particular day? The voucher of this, if it be a voucher, is in the office of the Comptroller, and the Treasurer has no business with it. The decision of the Comptroller is final upon him. Mandamus is the proper remedy where there is no right in the officer to judge or to exercise his discretion. The right to judge and actual judging are quite different things. There was actual judging in the case of Stockton and Stokes, vs. Kendall, 12 Pet., 625, 640, yet the Supreme court said mandamus was the remedy. Marbury vs. Madison, 1 Cranch., 161, asserts the true doctrine on this subject. The nature of the thing to be done, and not the office held by the officer, is the test whether a mandamus shall lie or not. The case in 14 Pet., and the other cases cited on the other side, all establish, that Marbury vs. Madison and Stockton and Stokes were law, but refused [**44]  the mandamus, because the officer in those cases had the right to judge and exercise his discretion. So at last we come back to the question, whether the Treasurer had the right to judge in this case?--whether he can go behind the warrant of the Comptroller? This, we have demonstrated, he cannot do.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*218contd]  

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LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the circuit court for Anne Arundel county, refusing to grant a writ of mandamus to be directed to the appellee, commanding him to pay the amount of a draft drawn upon him by the late Comptroller of the State treasury.
The petition of the applicant stated, that he was duly elected Comptroller of the treasury on the 5th day of November 1851, and, that after having qualified, according to the constitution and laws of this State, he entered upon the discharge of the duties of the office, and continued [**45]  therein until the 20th day of April 1853: that on the 15th day of April, he issued a warrant on the appellee, who was then, (and who is still,) the Treasurer of the State, for the sum of $ 1111.11, "in payment of so much salary due him as Comptroller of the treasury department, to be paid pursuant to the provisions of the constitution, and also pursuant to chapter -- of 1853:" that he caused payment of said warrant to be demanded of the Treasurer, and that he refused to pay the same.
To this petition the appellee answered, objecting to the issue on several grounds, which are in substance as follows:
1st. That as Treasurer of the State of Maryland, he is not liable to the supervision or control of the circuit court in the manner prayed for in the petition.
2nd. That no sufficient appropriation has been made by law, specifying a sum applicable to the payment of the amount claimed by the petitioner.
3rd. That the petitioner did not qualify as Comptroller, according to the constitution and laws of this State, until the 24th day of February, in the year 1852, and remained in office until the 20th April 1853: that he has been paid out of the treasury of the State for his services [**46]  as Comptroller the sum of $ 2595.83.

 [*219]  There were other objections interposed, but they are all resolvable into those which we have given.
The difference between the Treasurer and the late Comptroller in regard to the amount of the claim of the latter, consists in this: The Treasurer is of opinion he is only entitled to be paid from the 24th day of February, while the late Comptroller holds, that he is entitled to be paid from the day of his election, the 5th of November 1851.
We agree with neither of these opinions.
The 1st section of the 6th article of the constitution, provides for the establishment of a treasury department, "consisting of a Comptroller, chosen by the qualified electors of the State, at each election of members of the House of Delegates, who shall receive an annual salary of two thousand, five hundred dollars; and of a Treasurer, to be appointed by the two houses of the legislature, at each session thereof, on joint ballot, who shall receive an annual salary of two thousand, five hundred dollars."
The 4th section of the 3rd article declares, that "the members of the House of Delegates shall be elected by the qualified voters of the [**47]  counties and the city of Baltimore respectively, to serve for two years from the day of their election."
It has been contended on the part of the appellant, that these two sections ought to be considered together, and that they fix the term of service of the Comptroller at two years from the day of his election. This, in our judgment, does not necessarily follow from the language of either or both. The 1st section of the 6th article merely provides, that the Comptroller shall be "chosen" at each election of members of the House of Delegates, and not, as in the case of the delegates, that he "shall serve for two years from the day of the election."
There are other clauses in the constitution which have an important bearing on the true interpretation of the language of the constitution in regard to the Comptroller. The time is specified from which the Executive, the Judges of the Court of Appeals, District Attorneys, Lottery Commissioner, and other officers, are to hold. And the 4th section of the 1st article of 

 [*220]  the constitution provides, "that every person elected or appointed to any office of profit or trust under the constitution [**48]  or laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe" the oath or affirmation given in the section.
Now, we hold, that the late Comptroller could not be considered as in office until he qualified by taking the oath prescribed by the 4th section of the 1st article. After his election and commission by the Governor, he had the right to invest himself with the powers and entitle himself to the salary, by qualifying in the manner pointed out by the constitution; but, until he actually did qualify, he was no more Comptroller than any other citizen; his qualification being an indispensable prerequisite to his investiture with the authority and responsibilities of the office.
But, it is said, that although he would not be permitted to discharge the duties of the office until his qualification, yet, when he did qualify, such qualification by operation of law, would relate back to the day of his election, and entitle him to compensation from that time. There is a dictum in the case of Marbury vs. Madison, 1 Cranch. 137, which gives color to such a doctrine. It is there said, "a commission [**49]  bears date, and the salary of the officer commences from his appointment, and not from the transmission or acceptance of his commission." This opinion was not necessary to the decision of the case, and, as a proposition applicable to every instance of a commissioned officer, we cannot give it our assent. We must give to the constitution under which we live a common sense interpretation, and it is clear to our minds the purpose, in this regard, of its framers, was to make no gratuities, but to pay for services actually rendered, and that no one under it is authorised to claim a salary attached to an office, until he has accepted it and qualified himself by taking the prescribed oath. In fact the constitution expressly declares, that "if any person elected or appointed to office, shall refuse or neglect to take the said oath or affirmation, he shall be considered as having refused to accept the said office."

 [*221]  The constitution provided, that the first election under it should be holden on the 5th day of November 1851; and, as it made an election of Comptroller by the electors of the whole State necessary, it was obvious to every one, that their choice could not be [**50]  made known at the seat of government on the day it took place, and, as a necessary consequence of this, that he could not be commissioned and qualified at that time. A candidate for public favor must be aware of this, and be assumed to have agreed to accept the office which he solicits, subject to the effect of the delay incident to the ascertainment of the state of the poll and the issue of his commission; and, as a general thing, he suffers little or no diminution of salary from the circumstance, for the like delay attends the qualification of his successor, which, in most cases, prolongs his term until he is superseded by his successor's qualification. It is urged, however, that the Comptroller elected in 1851, would not be authorised to hold on until his successor qualified; that his term of service would expire on the 5th day of November 1853. We have already said, we see nothing in the constitution which fixes his term of service at two years from the day of his election, and although it is not anywhere expressly said in the constitution, that he shall continue in his office until his successor has been duly elected, commissioned and qualified, yet, it is obvious to us, that [**51]  looking to the spirit and policy of the constitution, as manifested in its provisions affecting the other officers of the government, in regard to whom it is provided, they shall continue in office until superseded by their qualified successors, that it was not the design of the framers of the constitution there should be an interregnum in the office of Comptroller, and thereby suspend for the time the whole operations of the Treasury department of the State. Such a state of things might be fraught with the most calamitous results; the dishonor, for instance, of the State's faith and credit. And, in this view, we are strengthened by the 1st section of the 6th article, which provides, that when the Governor fills a vacancy in the office of Comptroller, 

 [*222]  his appointee shall "continue until another election by the people and the qualification of the successor."
From this it follows, we are of opinion, that the appellant was not legally the Comptroller of the treasury, nor entitled to the salary affixed to that office until he qualified, according to the requirements of the constitution, which he did, on the 10th day of December 1851.
But it is said, that inasmuch as the [**52]  1st section of the 6th article of the constitution declares, that "the Comptroller and the Treasurer shall keep their offices at the seat of government, and shall take such oath and enter into such bonds, for the faithful discharge of their duties, as the legislature shall prescribe;" and as the legislature did not prescribe an additional oath to that set out in the constitution, nor fix the form and penalty of the bond until the passage of the act of 1852, ch. 12, there could be no qualification within the meaning of the constitution.
If this be true, then, in the event of a vacancy occurring by death, resignation or otherwise in the office of Treasurer before the passage of the act of 1852, it would have had the effect wholly to suspend the operations of the department; for, according to the argument, no Treasurer appointed by the governor, or by the legislature on joint ballot, could have rightfully entered on the discharge of the duties of the office until after the passage of that act. All he could have done, before he could have assumed to act as Treasurer, would have been to take the oath and give the bond which the constitution and the then existing laws prescribed. [**53]  If the 1st section of the 6th article of the constitution inhibited the late Comptroller from entering on his duties until the passage of the act of 1852, ch. 12; it equally interdicted a Treasurer, for it is, in terms, just as applicable to the Treasurer as it is to the Comptroller; and, therefore, if such a construction of the constitution were sanctioned, it would necessarily follow, that a Treasurer appointed prior to the act of 1852, from the time he assumed to act as such until he gave the bond and took the oath prescribed by that act, would have acted illegally 

 [*223]  and in defiance of the requirements of the constitution, and as a consequence, all his acts would have been void as being without warrant of law; in other words, the whole operations of the government would have been stopped.
The truth is, there is no force in the argument. In adopting the constitution, the people designed to secure to themselves all the safeguards which that instrument was intended to cast around their liberties and property; and prominent among these was the supervisory and controlling power of a Comptroller of the treasury department. The instrument provided for his election, commission [**54]  and qualification, and when these took place he was constitutionally inducted into office.
The authority given in the 1st section of the 6th article to the legislature, to prescribe an oath and to require a bond other than those fixed by the constitution and existing laws, was placed there to guard against consequences which would have resulted from the operation of a well known and universally acknowledged principle of law.
Where a constitution defines the qualification of an officer, it is not within the power of the legislature to change or superadd to it, unless the power be expressly, or by necessary implication, given to it; and hence, the framers of the constitution, in the indulgence of an enlightened foresight, empowered the legislature to make such additional exactions of the Treasurer and Comptroller, in the way of bond or oath, as in its judgment, from time to time, the safety or exigencies of the State might require. Under this grant of power, it is competent to the legislature, at any time, to alter the oath or bond prescribed by the act of 1852.
Now, we understood the counsel for the Treasurer to concede, that the late Comptroller was properly in office so [**55]  soon as he had complied with the requirements of the act. And yet, if their argument in regard to that act be valid, it follows, as an irresistible consequence, that both the Treasurer and Comptroller, although properly inducted into office, would have all their acts rendered illegal and void by a subsequent exercise of legislative power, for it must be borne in mind, 

 [*224]  that the exercise of the power is not confined to its first exertion by the legislature, but extends to all time.
It is obvious the grant of power was made for the reason which we have given; and that all that was required of persons elected to the offices of Comptroller and Treasurer was to qualify according to existing laws, liable, however, to any demand the legislature might thereafter make on them; and on their failure to comply therewith, to be deemed as having resigned their offices.
The next question for our consideration is, whether there was an appropriation, and if so, to what extent?
The Treasurer insists that he is alone responsible to the legislature, and that the late Comptroller is only to be paid from the 24th of February 1852, the day on which he gave the bond and took the [**56]  oath prescribed by the act of the session of 1852.
The legislature took a different view of the matter, for they, by act of 1852, ch. 119, directed the payment of salary to the Comptroller from the first of January of that year, and at their last session, in passing the general appropriation act, did so, as is to be plainly gathered from it, on the hypothesis, that the $ 2500 which had been appropriated by the act of the preceding session for the salary of the Comptroller had been exhausted, and, therefore, voted another $ 2500 for his salary from the 1st day of January 1853 to the 1st day of January 1854. It is clear, therefore, if a legislative appropriation be necessary to justify the Treasurer in paying the salary of the Comptroller, such appropriation was made from the 1st day of January 1852; and consequently on this head there is no force in the objection, except in so far as the period antecedent to the 1st of January 1852 is concerned. For the period subsequent to that time, the appropriation and the direction to pay it are undeniably adequate and specific.
The inquiry then is, is there an appropriation for the period intervening between the 10th of December 1851--the [**57]  time from which we think he is entitled to pay--and the 1st day of January 1852?

 [*225]  We are of opinion the constitution, proprio vigore, makes such appropriation.
Under our system of government its powers are wisely distributed to different departments; each and all are subordinate to the constitution, which creates and defines their limits; whatever it commands is the supreme and uncontrollable law of the land.
This is not denied directly, although it is inferentially, substantially and practically. It is said, that inasmuch as the 20th section of the 3rd article of the constitution declares, "No money shall be drawn from the Treasury of the State, except in accordance with an appropriation made by law;" that an act of Assembly must precede the withdrawal, and inasmuch as none such has been passed covering the period antecedent to the 1st of January 1852, there is, therefore, no appropriation by law for that time. To this reasoning we cannot yield our consent.
In the construction of any instrument the whole paper ought to be considered, that the will of its framers may be truly and accurately ascertained; the objects contemplated and the purposes [**58]  to be subserved should be constantly kept in view, and the language used interpreted in reference to the manifest intent.
Now what could have been the purpose of the clause in the constitution to which we have referred? It was obviously inserted to prevent the expenditure of the people's treasure without their consent, either as expressed by themselves in the organic law, or by their representatives in constitutional acts of legislation. To use the language of Justice Story, (3 Vol. Com. on Con., sec., 1342,) its purpose "is to secure regularity, punctuality and fidelity in the disbursements of the public money;" and, as said by Judge Tucker, in his commentaries, (1 Tucker's Blac., Appendix, 362,) "All the expenses of government being paid by the people, it is the right of the people, not only not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money." 

 [*226]  Such a provision, says the same learned writer, "forms a salutary check, not only upon the extravagance and profusion in which the executive department might indulge itself, and its adherents [**59]  and dependents; but also against any misappropriation which a rapacious, ambitious or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments where there is responsibility and where there is none."
These being the purposes and objects of the clause, the question is:--Have the people given their consent to the payment of the salary of the Comptroller? That they have done so is palpably manifest. They have said he "shall receive an annual salary of two thousand, five hundred dollars." They have not merely said he may claim such a sum, but, emphatically, that he "shall receive" it. It is impossible for human language to be less ambiguous or more positive. The people, in their organic law,--which is paramount to all other law--have not only given their consent, but they have imperatively issued [**60]  their commands that the particular officer "shall receive" it. How is their will obeyed if it be within the power of the Treasurer, or any one else, to withhold it from caprice, unfaithfulness to duty, or from mistaken judgment? To allow of such a power in that officer would be to put him above the constitution, whose creature he is. It would be to invest him with authority to annul the sovereign will; in fact, to stop the wheels of government and reduce things into the wildest confusion. The constitution has said the officer "shall receive" his salary, and this fiat of the supreme will is not to be nullified by the mere ipse dixit of a mere ministerial officer, for such, and none other, is the Treasurer.

 [*227]  In assigning the powers of government to three different departments, the constitution intended to secure to each its independency of action, and the more certainly and effectually to ensure this, it has ascertained and appropriated the salary they are severally to receive; and it has inhibited the legislature from diminishing it. Were it not for such a provision, the whole government would exist only by the permission of the legislature.  [**61]  It can only be carried on through the instrumentality of individuals, and their services can only be obtained by being paid for. The framers of the constitution, and the people who adopted it, aware of this, determined not to submit the durability of their work to the caprice, passion or prejudice, which possibly might, at times of great excitement, triumphantly rule the action of the legislature; and, therefore, wisely did the work themselves by engrafting in the organic law a provision for the protection of those who should be charged with its execution; in other words, they made the appropriation.
An opposite interpretation would countenance this paradox, that a co-ordinate branch of the government could stop its whole machinery, by refusing to pay the salaries of those upon whom is devolved the discharge of the duties of the other branches; and this too when the constitution expressly declares that these officers "shall receive" their salaries, and that they "shall not be diminished." "It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits,  [**62]  and declaring that those limits may be passed at pleasure." 1 Cranch 178.
Now, it is presumed, it would not be contended by any one, however hazardous, that if the legislature were to pass an act diminishing the salary of the governor, or of any other officer whose salary is fixed by the constitution, that such an exercise of power would be rightful and constitutional. If it be not competent to the legislature to take away a part, by what process of reasoning can it be maintained that they can take away the whole? And yet this is the extent to which 

 [*228]  the argument addressed to us goes. It seems to us to be but necessary to state the proposition, to cause its instantaneous rejection.
We hold, for the reasons we have assigned, the people have given their consent to the payment of the salaries fixed in the constitution, by declaring the amount "shall" be "received" by the particular officer; and that this is an appropriation by law--by the supreme law of the State.
The next inquiry for our determination is, whether the remedy invoked is properly applicable to a case like this?
We have already stated we do not think the petitioner [**63]  is entitled to his salary from the day of his election; but as the question in regard to remedy is one of great practical importance, we deem it proper to express our opinion in regard to it. And this necessarily involves an inquiry into the relative powers of the Comptroller and Treasurer, as defined by the constitution.
The 3rd section of article 6th, defines the principal duties of the Treasurer as follows: he "shall receive and keep the moneys of the State, and disburse the same upon warrants drawn by the Comptroller, and not otherwise; he shall take receipts for all moneys paid by him, and all receipts for money received by him shall be endorsed upon warrants signed by the Comptroller, without which warrant, so signed, no acknowledgment of money received into the Treasury shall be valid."
The 2nd section of the same article provides, "the Comptroller shall have the general superintendence of the fiscal affairs of the State," and "superintend and enforce the collection of all taxes and revenue; adjust, settle and preserve all public accounts," &c.
From these two sections it appears:--1st, that it is the duty of the Treasurer to disburse the public moneys [**64]  on the warrant of the Comptroller, and not otherwise; and 2nd, that the duty of adjusting and settling all public accounts is imposed upon the Comptroller.
Looking to these provisions of the constitution, it appears 

 [*229]  to us, that the power of adjusting and settling public accounts is exclusively conferred on the Comptroller, and, in this particular, it is the duty of the Treasurer to respect such adjustment and settlement, and on warrant of the Comptroller to pay the amount; a duty subject only to these reservations: 1st, that the warrant must be in proper form; 2nd, that there must be an appropriation by law; and 3rd, that there must be funds in the treasury to meet the demand. He has nothing to do with the elements of accounts. If there be an appropriation by law, it is the duty of the Comptroller to ascertain the amount. The Treasurer is not required to preserve accounts, that duty is imposed on the Comptroller.
The Comptroller is chosen immediately by the people; the Treasurer by their representatives; and the former have deemed it advisable to entrust the officer of their own choice with duties formerly performed by the [**65]  executive and Treasurer. With the wisdom or imprudence of this disposition we have no concern, except as citizens of the State. The sovereign will has thought proper to endow a particular officer with certain delicate and highly important functions, confiding in the security which his official bond, private and public character, and the responsibilities of his oath, afford. As human government cannot be carried on without reposing confidence somewhere, all human ingenuity can suggest as guards against faithlessness, ignorance, or corruption in office, are those which have been thrown round the Comptroller. His case constitutes no exception to the rules applicable to other officers to whom is confided public trusts: in regard to him, the same risks must be incurred as are encountered in regard to the Treasurer and other officers. Confidence, arising out of the history of past life, is, after all, what is most generally viewed as furnishing the surest guaranty of future fidelity. But, be this as it may, the people have conferred the power, and so long as it be rightfully exercised, it is controlling.
We have said there is an appropriation, and that the petitioner is entitled to be paid [**66]  from the 10th day of December 

 [*230]  1852, the day on which he qualified; and in such a case, if payment be refused, mandamus is the proper remedy.
When there is an appropriation, and a proper warrant drawn by the Comptroller and presented to the Treasurer, his duty is purely ministerial: all he has to do in such a case, is to count out the money; an act ministerial, and nothing else. If he refuse to perform it, the law will compel him, and the party injured by the delay consequent upon his delinquency, may sue his official bond, or bring a special action on the case. It is the pride and boast of our political institutions, that no man is above or irresponsible to the law; and, to use the language of Chief Justice Marshall, (1 Cranch. 177,) "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must decide that case [**67]  conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules govern. This is the very essence of judicial power."
In the case of Amos Kendall, Postmaster General of the United States, vs. Stokes, 14 Peters 472, it was held by the Supreme Court of the United States, that it was competent to compel the postmaster general, by mandamus, to do a ministerial act--in that case, the giving, on the books of the department, a credit authorised by an act of Congress. And also held, that the mandamus could not be considered as seeking to direct or control the postmaster general in the discharge of his official duty, partaking, in any respect, of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the president had any authority to deny or control. That case, in principle, is the same as would be the one in which the Treasurer of this State should refuse to comply with the requirements of the 

 [*231]  law. See also the case of The King vs. The Lords Commissioners of the Treasury, 31 Eng. Com. Law Rep. 72. [**68]  
Waiving all objection which might be urged to the particular form of the proceedings, we are of opinion, that the Treasurer properly refused to pay this warrant, because it did not show on its face the particular law under which it was drawn. It professes to have been issued under the constitution and an act of Assembly, without designating what particular act. For these reasons, and because the Comptroller in his petition claimed more than he was entitled to, we affirm the order of the circuit court refusing the mandamus.
Order affirmed.
Judge MASON having heard only a part of the arguments in this case, (those of Messrs. Pratt and Spencer,) consequently did not participate in the decision. He requests the Reporter to say, that having examined the questions involved in the controversy, he fully concurs with the opinion of the majority of the court, as delivered by the Chief Justice.  

DISSENTBY:
ECCLESTON 

DISSENT:

 [*215contd]  
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ECCLESTON, J., concurred with the majority of the court [**69]  in the affirmance of the order, but dissented upon one point, upon which he delivered the following dissenting opinion:
I concur with the majority of the court in their conclusions, except in reference to the period at which the salary of the Comptroller commenced. According to my construction of the constitution, he was not qualified to perform the duties of the office, until he took the oath and gave the bond prescribed by the act of 1852, ch. 12.
Believing, as I do, that salary is given as compensation for services, I cannot understand how an officer can be entitled to salary for any period of time, during which he could not legitimately perform his official duties.
There can be no doubt that the convention intended this officer should give bond. And if so, the provision was designed to protect the State against official misconduct. Simply taking the oath prescribed in the 4th sec. of the 1st art. of the constitution, it is manifest, was not deemed sufficient to afford the necessary protection. For after requiring all 

 [*216]  officers to take the oath just mentioned, it is provided in the 1st sec. of the 6th art., that the Comptroller shall take such oath and give such [**70]  bond as the legislature shall prescribe. After making this provision for the security of the State, how can it be supposed the convention did not intend to require a full compliance with the act of the legislature, before the duties of the office could be assumed? If the bond be necessary for any portion of time during the performance of official duty, it must be equally necessary during the whole term of office; if the protection of the State against misconduct of the officer is the object to be attained.
Suppose that subsequent to the act of the legislature the Comptroller had refused to comply with its provisions, insisting that he was already in office, and would perform its duties and demand his salary, upon the ground that he had taken the oath directed in the 1st article, could it be successfully maintained that he had the right to do so? I think not. If not, then why? It could only be for the reason that he was not qualified. And yet, in the supposed case, every requisite to constitute him Comptroller would exist, except a compliance with the legislative act.
There was no necessity for permitting the officer to enter upon his duties before the action of the legislature, for [**71]  the 8th sec. of the 10th art. provides, that the officers holding commissions under the old constitution, should continue to hold and exercise their offices, according to their existing tenure, until they should be superseded pursuant to the new constitution, and until their successors should be duly qualified. Under this provision the Treasurer was authorised to continue, and in fact did continue, to perform the duties of the treasury department, until after the passage of the act in reference to the qualification of the Treasurer and Comptroller.
The authority of the legislature to pass such a law, and the imperative obligation of the officer to comply with its terms, are to be found in the 6th article of the constitution. And, in my judgment, not only did that instrument give authority to the legislature to act in the premises, but when, in relation 

 [*217]  to that important branch of the government, the treasury department, it declared that the Comptroller "shall take such oath and enter into such bond, for the faithful discharge of his duties, as the legislature shall prescribe," it imposed a duty upon the legislature to pass a law on the subject. When passed under such [**72]  express requirement of the constitution, compliance with the provisions of the act became as necessary preliminary steps in the qualification of the Comptroller, as if the same provisions had been set forth in the constitution itself.
It will avail nothing to say that the construction here contended for, would authorise the legislature, by refusing to act, virtually to nullify an election by the people and to repeal the constitution, in regard to the office of Comptroller. In every constitution there must be trusts or powers confided to the different branches of the government; a failure or refusal to perform which, would render nugatory and void some of the most important provisions of the organic law, and deprive individuals of valuable rights, for which there can be no relief, except through the ballot box, by removing the delinquent officers. Notwithstanding such inconveniences may result from the necessary imperfection of all human affairs, yet when the creation of rights, or the completion of those which are imperfect, depends upon legislative enactments, such rights are not created or perfected, in consequence of the failure to act. If the possibility of neglect to execute,  [**73]  or of a corrupt execution of, a power, is a sound argument against its existence, then there are no constitutional powers, for any of them may be neglected or corruptly executed.
Suppose a vacancy in the office of Treasurer, occasioned by death, during the session of the legislature. Now, if they should neglect or refuse to appoint a successor, and after their adjournment the governor should decline filling the vacancy, the treasury department would be in quite as bad a predicament, as it would be placed by the construction for which I have been contending, even if the legislature had refused to pass any law in regard to the oath and bond of the Comptroller, 

 [*218]  and yet I presume it will not be said that the legislature and governor have no power of appointment under the supposed circumstances.  

30 of 48 DOCUMENTS 

DANIEL O'NEILL vs. WILLIAM J. COLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 107; 1853 Md. LEXIS 20 

JUNE, 1853, Decided 

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

The bill in this case was filed by the appellee, on the 4th of December 1850, against the appellant and others, stating in substance that by deed, dated the 17th of April 1843, Catharine Drake conveyed to complainant certain property in that deed described, and all other her property, in trust for her use during her life, with absolute power in any manner, and free from the control of any future husband to dispose of said property, and in the event of a failure on her part to exercise said power, then for the use of complainant and his heirs. That by deed, dated the 27th of February 1843, the said Catharine Drake had mortgaged parcel of the property conveyed in trust as aforesaid to complainant, to secure payment of the sum of $ 448.71, with interest, due from her to him, which debt remains unpaid. That after the execution and enrolment of said deed of trust, the said Catharine intermarried with the defendant, Daniel O'Neill, and afterwards, on the 28th of August 1850, died without having made any disposition of said trust property, save only of a parcel which she conveyed to Margaret Ann O'Neill, by deed, dated the 12th of April 1848, in consequence [**2]  whereof, the complainant became entitled absolutely to the property conveyed to him as aforesaid. That at the time of the death of said Catharine, the said trust property was and now is in the occupation of tenants paying rents, who have received notice of complainant's right with regard to the premises, and have been required to pay the rents to him. But that said O'Neill, pretending to act at times for the next of kin and heirs at law of said Catharine and at other times in his own right, has interfered with said tenants, so that they refuse to pay their rents to the complainant, who is thereby aggrieved and unable out of said rents to pay ground rents and taxes on said property, and to repair the buildings thereon.

The bill was filed against O'Neill as surviving husband, Henry Lechler and Elizabeth Fleming as heirs at law of said Catharine and the tenants of the property; and to the end that the title of the complainant to said premises may be quieted, prays for an injunction to prevent said O'Neill, Lechler and Fleming from intermeddling with said rents, and that a receiver may be appointed to collect and apply them under the direction of the court and for general relief.  [**3]  The injunction was granted as prayed, but the application for a receiver was ordered to stand over until the coming in of the answers.

The deed of trust referred to was filed as an exhibit with the bill. It professes to convey the grantor's interest in property which had been conveyed by William Drake to James Mowatt by deed, dated the 3rd of January 1825, and by William Krebs to James Mowatt by deed, dated the 2nd of February 1825, and by Charles Feinour and William Drake to Cole, the complainant, by deed, dated the 17th of December 1839, and "all other the property, estate and effects, real, personal and mixed to which" the grantor "has any right, title or interest, whether in possession, remainder or otherwise." The trusts of this deed are as stated in the bill. It was dated the 17th of April 1843, executed by the grantor's making her mark, and was recorded on the 19th of the same month.

The deed from Drake to Mowatt, referred to in said deed of trust, conveys three parcels of leasehold property in the city of Baltimore to the grantee, in trust for "the sole and exclusive use and benefit of Catharine Drake, wife of the said William Drake, her executors, administrators [**4]  and assigns, forever, free, clear and discharged of any control of her husband, with full and complete power and authority" to her "to convey, transfer and dispose of the same by indenture of assignment under her hand and seal, or by her last will and testament." The deed from Krebs to Mowatt conveys to the grantee a lot of ground in said city, in trust "for the sole and exclusive use and benefit of Catharine Drake, wife of William Drake, her heirs and assigns forever, with full power and authority to her to sell and dispose or convey the same by deed during her life, or devise the same by last will." The property conveyed by the deed from Feinour and Drake to Cole, in trust for the said Catharine, was leasehold, and was by her conveyed to Margaret Ann O'Neill, as stated in the bill.

There was also filed, as an exhibit with the bill, a deed, dated the 27th of March 1843, from Christian G. Peters to said Cole, conveying certain leasehold property, in trust "for the sole and exclusive use and benefit of Catharine Drake, widow of William Drake, deceased, and that free, clear and discharged from the claims of any husband she may hereafter have and without being liable for his debts,  [**5]  and with power to her to sell, dispose of, or devise the same, absolutely, and in the event of the failure of such disposition or devise, then in trust for her heirs."

The answer of O'Neill, after a formal commencement, viz: "This defendant now and at all times hereafter saving and reserving to himself all and all manner of exceptions to the said bill and to the relief sought, both of form and substance, and to the jurisdiction of this court in the premises for answer," &c., avers that he has no knowledge whatever of the pretended deed of the 17th of April 1843, except so far as he has heard since the death of his said wife; that he never knew or heard of it until after her death, and has never seen the original thereof. He denies its execution, acknowledgment and delivery, and the legal effect and operation thereof contended for by the complainant, even if it were executed in the usual legal form; and avers that the said Catharine could not write or read manuscript. The answer further avers, that about two months prior to the date of said pretended deed, the said Catharine and defendant became engaged to be married to each other, and appointed a time for the celebration of said [**6]  marriage; and that defendant, on the 11th of April 1843, obtained a license therefor, and they were afterwards, on the 14th of May 1843, in pursuance of said engagement, married, and that they lived together as man and wife thenceforth until the death of the said Catharine, on the 28th of August 1850. It then insists that said deed, if executed at all, was withheld and kept secret from him until after the death of his wife; and he avers that he would not have married her had he known of the execution thereof, and that it is in fraud of his marital rights, and he therefore claims all the leasehold property, as survivor of his said wife.

The answers of Lechler and Fleming, the brother and sister of the said Catharine, likewise deny all knowledge of the execution of the deed of the 17th of April 1843, until after the death of their sister; and aver that if executed at all it was in contemplation of said marriage and without the knowledge or consent of said O'Neill, and is in fraud of his marital rights and void. Mrs. Fleming states in her answer, that about three years ago she visited her sister and had frequent conversations with her, during which the said Catharine spoke of a mortgage [**7]  she had given the complainant, but never mentioned or alluded to the supposed deed of the 17th of April 1843. The tenants answered, stating that they had been warned by each of the parties not to pay the rents to the other, and have no further knowledge on the subject.

After the coming in of the answers, the defendants, at March term 1851, moved for a dissolution of the injunction; and at the same term the general replication was filed and a commission to take testimony issued by consent, and a motion made by the complainant for the appointment of a receiver. These motions were heard together, and, on the 24th of July 1851, an order was passed continuing the injunction until final hearing. The opinion of the chancellor, (JOHNSON,) delivered upon the passage of this order, is reported in 3 Md. Ch. Decisions, 174. On the 28th of same month another order was passed appointing a receiver as prayed.

Under the commission, the original deed of trust of the 17th of April 1843 was filed. Upon this deed was this certificate: "Signed, sealed, delivered, and the contents of this deed fully explained to the grantor in our presence and by us. T. Hanson Belt, Jas. P. Heath." The acknowledgment [**8]  was in due form, before the same persons and justices of the peace, they certifying therein that they knew the grantor of their own knowledge.

Various witnesses were then examined. John H. Ing for the complainant deposed, that he prepared the deed of the 13th of April; that a rough draft of it was taken by witness and Cole to the residence of Mrs. Drake, and was read to her by witness in the presence of Cole, the object being to know if it met her approval; she did approve of it, suggested no alterations, and on the same night witness copied the deed from this rough draft and destroyed the latter. That having understood, as one of the reasons for the execution of this deed, that a marriage was about to be had between Mrs. Drake and O'Neill, witness prepared a memorandum in writing to be signed by O'Neill and recorded with the deed, the purport of which, as near as he now recollects, was an acknowledgment that he, O'Neill, had seen and read the deed intended to be executed by Mrs. Drake prior to her marriage with him; that he approved of it, gave it his sanction, and that this memorandum was signed by him to be evidence of such knowledge, and that he would do what was necessary [**9]  to be done by him in carrying out the purposes of the deed; that this paper was taken with the deed to the house of Mrs. Drake, to whom it was explained, and then placed in the hands of O'Neill, who had been sent for, but he did not sign it while witness was present; what has become of this paper witness has no personal knowledge, never having seen it since. (Notice was given to the counsel of the defendant to produce the paper.) That the deed being then unexecuted, was briefly explained to O'Neill, in the presence of Mrs. Drake, as a paper that was designed to convey all her property to Mr. Cole in trust, so that Mrs. Drake might have the same control over it as if she remained single, and shortly after this explanation, witness and Mr. Cole left.

Victoria Williams deposed, that after the engagement Mrs. Drake said she would not marry O'Neill, until all her property was settled on herself; she said this to any and every one: that the engagement was broken off, because O'Neill refused to sign a paper that was left at the house to be signed. This was on the 11th of April, the day fixed for the wedding, and when the wedding supper was prepared, and guests invited. That this paper [**10]  was in the same handwriting as the deed. That Mrs. Drake took witness with her to the office of Mr. Cole, and gave instructions to him to have her property settled entirely on herself, so that she could do as she wished with it in case she should marry again. Cole then asked her to name the parties to whom it was to go after her death. She replied she would do that at some future day; that shortly after this the deed was brought to the house, about the time of the proposed wedding, and Mrs. Drake took it herself to have it executed. That the paper above referred to was signed by O'Neill on the night the actual marriage occurred, and Mr. John Krous witnessed the signature, and the last that witness saw of it was in the hands of Mrs. Drake that night. This witness also proved, that Mr. Cole was intimately acquainted with Mrs. Drake and her former husband, Wm. Drake, that she would do nothing without consulting him, he was a great favorite, was once sent for by her when she was ill to make her will; this was during her widowhood.

James P. Heath deposed, that the deed was acknowledged at his office before himself and Belt; that he read and explained the deed to Mrs. Drake, and asked [**11]  her if she wished any alteration made, and she replied no, that it was what she wished. Upon cross-examination this witness stated, that he would not swear that he read the deed to Mrs. Drake; she might have said that she had had the deed already read to her; she said the deed was the very thing she wanted; witness explained the deed to her, and told her that the object of it was to secure her property to herself; he did not inform her that said deed provided that Mr. Cole should have the property after her death, if she died without disposing of it, no such thing was mentioned in her presence; witness told her that nobody could dispose of the property but herself.

Charity Hunt, for the defendants, deposed, that she had been for many years intimate with Mrs. Drake, and had held conversations with her in regard to her property. She told witness that Mr. Cole held a mortgage on the house in which she resided, but never told her anything about the deed; after her marriage with O'Neill, she told witness that he and his daughter Margaret would receive all the property she possessed, as they had been so kind to her.

Other witnesses for the defendants proved similar conversations [**12]  and declarations of Mrs. Drake. The defendants also offered a certificate of the clerk of Baltimore county, that the deed was deposited for record in his office, on the 19th of April 1843, and the recording charged to William J. Cole, to whom the deed was afterwards delivered.

The complainant excepted to the testimony, so far as it relates to the truth of the certificate of the justices, as to the reading or the explaining of the contents of said deed to the grantor by them, such testimony being objected to as incompetent and inadmissible. Also to such parts thereof as professes to detail declarations of the said Catharine, made subsequent to the execution of the deed, under which the complainant claims title, in derogation of that deed.

The defendant, O'Neill, also excepted to all the testimony offered by the complainant to prove that he, O'Neill, had knowledge of the execution of the deed of trust of the 17th of April 1843, because it is not alleged in the bill that he had suck knowledge. Also to all the testimony offered to prove the execution of the paper said to have been signed by him on the night of his marriage, because the existence of any such paper is not alleged [**13]  in the bill.

The cause being then set down for final hearing, the chancellor being of opinion that the title of the complainant to the relief prayed by his bill, had been in no respect impaired by the evidence taken since the order of the 24th of July 1851, passed a decree making the injunction perpetual, and reestablishing and affirming the order appointing the receiver. From this decree the defendant, O'Neill, appealed.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

The registration of a deed executed by a feme sole shortly before her marriage, conveying her property to a trustee for her sole and separate use during life, with power of disposing thereof by deed or will, and in case of failure of such disposition, then for the benefit of the trustee and his heirs, is constructive notice of the deed to the intended husband.

A wife who had executed such a deed, died without making any disposition of the property, and the trustee then filed a bill against her surviving husband and heirs at law, claiming the property under the deed and asking to be quieted in the possession thereof, which possession the defendants were interfering with. HELD, that it was not necessary for him to aver in this bill that the husband had notice of the deed before his marriage.

Exceptions by defendant to the admissibility of testimony upon the subject of such notice because the bill did not aver it, do not raise this objection to the bill by supplying the place of exceptions to its averments.

The defendant in his answer having denied knowledge of the deed under which the complainant claimed, the latter could, without amending his bill, offer proof on this point; it was within the issue raised by the defendant himself.

The general reservation of exceptions in the commencement of an answer, cannot be relied upon as raising exceptions to the jurisdiction of the court; neither can it perform the office of a general demurrer, or of exceptions to the averments of the bill.

When no exceptions are taken to the jurisdiction in the court below, the objection in this court is too late, under the act of 1841, ch. 163.  

COUNSEL:
J. Mason Campbell for the appellant.

O'Neill excepts to all the evidence tending to show that he had knowledge of the deed, because such knowledge was not charged in the bill, and also that he had knowledge of the particular paper executed by him, because this too was not affirmed to exist by the bill. These exceptions are important, because the defendant was not called upon to answer as to these matters, and the effect of his answer on these points was sought to be thus easily evaded. These exceptions also raise the question of jurisdiction.

The effect of the bill is to substitute this suit for an ejectment at law. If the bill states the title to be a legal one, the complainant has stated himself out of court. This [**14]  title, whether legal or equitable, depends upon the character of the deeds conveying the property to Mrs. Drake, referred to in the deed of the 17th of April 1843. All these deeds, though in trust, confer upon her the power of alienation,--indeed a feme covert cannot have property except with the right of alienation. The assent of the trustee was not necessary to her conveyances. The deed to Cole was by virtue of the power contained in the previous deeds. What necessity was there for it, if it only conveyed the equitable title? The intention of the deed was not only to convey the title, but to execute the power under the former deeds. Cole therefore had the full legal title to every tittle of this property, and why should he not assert it at law?

The deed of trust to Cole does not embrace the property covered by the deed to Peters to him, in March 1843. This deed is not mentioned or referred to in the deed of trust. The words of the latter deed are, every thing she had in presenti. The deed from Peters gave her a life estate, with power to dispose of a fee, and where there is an interest coupled with a power, a conveyance will not work the execution of the power without intent [**15]  to execute the power. 4 Kent's Com., 335, 336.

Again, the deed of the 17th of April, was a fraud upon the marital rights of O'Neill. It was made pending the treaty of marriage and after the intention to marry had been formed. He had no knowledge of it. If the complainant intended to assert his claim under the deed, he ought to have alleged in his bill knowledge and assent on the part of the husband. 65 Law Lib., 310. The doctrine of constructive notice from the recording of the deed, is not applicable to such a case as this.

Charles F. Mayer for the appellee.

Mrs. Drake had property settled upon her, in order to protect it against her then, or any future husband. On the eve of her second marriage, she determined that this property should be further assured to her. The first attempted marriage was broken off. After this she determined to execute this conveyance,--no treaty for marriage was then pending. O'Neill had been repelled, and there was therefore no fraud upon his marital rights. Neither was there concealment; the deed was immediately put upon the public records, and this registration was notice to him of the title. This fact alone is enough--decisive of the whole [**16]  case, for registration conveys notice; but more than this, pains were taken to apprise him of this very deed. He executed the paper referred to by the witnesses, which contained an acknowledgment of notice of the deed; this paper we have given the other side notice to produce, and they not having done so, we have given full evidence of its contents. But we are told the bill does not charge its existence. It would have been sheer folly to have anticipated the defence; every equity pleader knows and appreciates the reason why the bill was framed as it was.

The exception to the jurisdiction has not been properly taken under the act of 1841, ch. 163. The answer in its formal commencement only relies upon the right to except, but it does not make the exception. But suppose there was an exception, what is the bill? It makes a clear case for the interference of equity. 10 Johns. Rep., 587. 4 Johns. Ch. Rep., 287. 10 G. & J., 487, Matthews vs. Ward's Lessee.

In discussing the title conveyed to Cole, the counsel on the other side seems to have forgotten the distinction between a use and a trust. Where there is a trust, the trustee cannot be divested of his trust estate by any act [**17]  of the cestui que trust; the latter could not maintain ejectment. This is not the case of the execution of a power; when that is done, the party comes in under the original grantor, the original deed creating the power. Where real estate is given to a feme covert in trust, it is not true that she thereby has the power of disposing of it. If the old landmarks of the law are still standing, Cole has nothing but the equitable title under this deed. The deed from Peters, in which it is said Mrs. Drake had but a life estate, is a deed of leasehold property only; the error on the other side is in mistaking it for a deed of realty.

Now supposing equity has jurisdiction, what is the defence? It is said the deed is fraudulent upon the marital rights of O'Neill, but of this there is not a shadow of proof. She always manifested a fixed desire to secure the property to her own use. There were in fact no marital rights to be defrauded, because she already had the full control over the property. There must be something like actual fraud to make the deed void. 1 Mylne and Keene, 616, (7 Cond. Eng. Ch. Rep., 188.) There is no case which makes any difference where there is an ultimate limitation [**18]  to others than the kin of the lady. There must be actual concealment from the husband. 1 Ves., Jr., 22.

Again, parol proof cannot be allowed to impeach the deed, and the declarations of the grantor, made subsequently to its execution, are inadmissible. 3 H. & McH., 321.

Thomas S. Alexander on the same side.

Absence of notice is one of the defences set up in avoidance of the deed, which is conceded to be good as between the grantor and grantee. O'Neill therefore stands in the same predicament as he would if he claimed as against Cole, as a purchaser for valuable consideration, other than marriage, without notice. This want of notice he must show. Our bill is therefore perfect. To test this, could O'Neill have demurred generally to it, relying upon this defect? There is no case in which a demurrer to a bill, on the ground that it does not aver notice to a subsequent purchaser, has been sustained. The want of notice is matter of avoidance set up as a defence. The question then is, cannot we use evidence to show that he had actual notice? This proof is clear and convincing. The first marriage feast was broken up by the refusal of O'Neill to sign the paper referred to. After [**19]  this the deed was executed and placed upon the public records of the country.

O'Neill could not set up an adverse possession against Cole if he had title under Mrs. Drake, for there is no adverse possession as between husband and wife. 5 H. & J., 226, Bowie vs. O'Neale. 5 Johns. Ch. Rep., 407. The act of 1832, ch. 302, sec. 5, would cure all defects upon the face of this bill--there are no exceptions to its averments here. The bill is therefore perfect upon its face, and the question now is upon the admissibility of evidence, and this is to be treated as if the bill contained an averment of notice, if that was necessary. We could use all these parts of the depositions which go to show that O'Neill had notice of Mrs. Drake's purpose to execute the deed, even if we had not laid a foundation for secondary evidence in relation to the paper. But we have sufficiently laid the foundation--notice to counsel is notice to the party. But there is other evidence of notice. Mrs. O'Neill, after marriage, received the rents and profits, and there is no evidence that O'Neill ever interfered with the property. Her declarations are spread through the record that she intended to do as she pleased [**20]  with her property--she actually conveyed a part without the intervention of O'Neill, her husband.

Then the fact of the registration of the deed two days after it was executed, is conclusive of this whole case--it shows that neither Mrs. D. nor Cole designed to conceal the fact of its execution. Registration is constructive notice to all persons claiming subsequently. 1 Story's Eq., sec. 403. As against a purchaser for valuable consideration, and a creditor attacking it under the statute of Elizabeth, there could be no doubt it would be constructive notice. Why should it not be so in the case of a husband? If he avows that he marries with the intention of getting an estate, let him examine the records.

It was necessary to show that a treaty for marriage was subsisting, on the 17th of April. McQueen on Husband and Wife, 36. The person intended must be shown. Fraud is the only ground upon which the husband is to be relieved. White's Eq. Cases, 206, (65 Law Lib., 310.) Unless you can find a fraudulent concealment on the part of Mrs. Drake the decree ought to be affirmed. The husband alone can complain of the fraud upon his marital rights. He must show that he would be aggrieved [**21]  by the act if permitted to remain in force. The appeal is taken by O'Neill alone--the heirs at law cannot, therefore, complain. O'Neill would have no interest in the property, even if this deed were out of the way. The deed from Drake would continue through a subsequent coverture, and was not confined to the first mortgage, see chancellor's opinion on this point, 3 Md. Ch. Decisions, 174. The cases in 6 Simmons, 121, Knight vs. Knight, and Bevan vs. Bevan, 9 Cond. Eng. Ch. Rep., 199, only decide that if the intent of the party upon the face of the instrument is apparent, that then it should only apply to the first marriage--that intent may be gratified. Here the intent is clear, that the deed should continue through a subsequent coverture. 4 Wheat., 126. The case in 4 Mylne and Craig, 377, (18 Cond. Eng. Ch. Rep., 376,) overrules Massey vs. Parker, and permits a restrictive clause to be annexed to an estate to a married woman, which continues during coverture, and if she becomes discovert this clause falls, but revives again upon a subsequent coverture. 2 Story's Eq., sec. 1384, note 2.

The deed of Peters to Cole upon its face applies to future husbands. But it is insisted that [**22]  the property in Peters' deed did not pass by the deed of the 17th of April. But this is not so, for the concluding clause of the granting part of the deed expressly passes chattels, and the previous deeds referred to only pass lands. This clause, therefore, cannot be referred to these deeds, but the words were intended to have an operative effect upon property not mentioned in the previous deeds. There are terms in this deed of the 17th of April indicative of her intent to pass her estate and execute the power. The entire interest in the leasehold property passed to Mrs. D. under Peters' deed. The difference between power and estate is not applicable here. Her power was simply to dispose of her estate--not a power of appointment at all.

As to the question of jurisdiction: There is no plea or exception to the jurisdiction, (act of 1841, ch. 163,) unless it is found in the caption of the answer of O'Neill. This is not a plea or exception, but is a saving and reserving to himself of the right hereafter to make the objection if he thinks proper to do so. Story's Eq. Pl., secs. 694, 870. But if properly taken it would avail nothing. Uses in leasehold property are not executed by the [**23]  statute, her interest, therefore, was equitable. She had no power of appointment, and there never can be a power of appointing which transfers the legal title in property. Here Cole's interest was but an equitable one and he could not maintain ejectment even against an intruder. But again, the deed of Peters conveys leasehold to Cole in trust for Mrs. Drake, and he has the right to come into equity and ask for directions as to the execution of the trust.

The ground of the numerous tenants and the prevention of multiplicity of suits would give jurisdiction, but it is not taken because it is not necessary. The prayer of the bill is that a decree may be passed for the settlement and quieting of our title, and the injunction is asked as ancilliary to this relief.

T. P. Scott for the appellant, in reply.

The deed is fraudulent and void:--1st, as against the grantor herself; 2nd, as against the marital rights of O'Neill.

1st. It is void as against Mrs. Drake. There was an engagement of marriage between the parties. Instead of a marriage settlement in the ordinary form, there was first to be a deed and then a paper executed attached to it: why was this course pursued if [**24]  this was a fair transaction? Mrs. D. who was unable to read or write, gave instruction to have her property settled entirely upon herself, she said she would name the parties to whom it was to go in case of her death at a future day. Her object was that the property should be settled to her own use as if single. This was already done. The deed was drawn contrary to her instructions, and Mr. Coale was made the party beneficially interested. If she did not consent to it, it was a fraud. She assented to the rough draft of the deed, but this rough draft is not produced. It is not said that it was copied accurately or without alteration. The deed when drawn out was not read at the time it was executed; it was briefly explained, but the obnoxious clause was entirely suppressed. There is no evidence that she was aware of this clause. Heath cannot say that he read the deed to her. His explanation was that the object was to secure the property to her use. He did not tell her that Cole was to have it after her death. This was studiously kept from her. We then have the appellee urging the execution of the deed, and when asked to say to whom she wanted the property to go, she refused, and yet [**25]  the deed is executed and the appellee's name is inserted. This is not her deed, she made her mark to it when she was uninformed of its contents, and could not read it.

2nd. It is a fraud upon the marital right of O'Neill, unless he assented to it or knew it. The complainant must aver knowledge. When Cole procured the deed under which he took a benefit he knew that Mrs. D. was about to be married, and when he undertakes to set up this deed he must aver notice and assent on the part of the intended husband without which the deed was void. He has not so averred in the bill and how then can he offer evidence of it? The allegata and probata must correspond. 3 G. & J., 153, Hoye vs. Brewer. This exception throws out all the evidence of Ing and Williams, as to the execution of the paper by O'Neill. But suppose this testimony is not thrown out, there is still no proof of the assent of O'Neill to this deed. He may have assented to the execution of a deed securing her property to her, yet there is no evidence of assent to this deed. He in fact had no notice of it, this he swears to in his answer and the proof sustains it.

Are we to presume knowledge from the fact of recording? The [**26]  object of recording is to protect purchasers. Under the circumstances of this case the law will not impute knowledge. He assented to execute a paper expressing his assent to execute at a future day a deed, and this was all he did assent to. A deed executed after treaty of marriage is fraudulent, unless ratified by the husband. 2 Ves. Jr., 194. 7 Cond. Ch. Rep., 191, 188, 317, 321. 1 Russell, 485, Goddart vs. Snow. 65 Law Lib., 305, 307. 4 Mylne and Craig, 408, 417. 1 Bevans, 1, 34. 6 Simons, 121, 126, (9 Cond. Eng. Ch. Rep., 199, 201.) 10 Simons, 254. American Cases, 4 Wash. C. C. Rep., 224. 4 Wharton, 126. 9 B. Munroe, 475. 6 G. & J., 356.

As to the question of jurisdiction, see 10 G. & J., 443. The mere naked legal trustee could have recovered. The appellee, therefore, had remedy at law as to the Peter's property.

Where parties claim from the same source it is not necessary to trace title from the State. But by the true interpretation of the instrument she took but a life estate, with a power of appointment, she then makes a deed to Cole, and this life estate is all that passes to him by the deed.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, MASON and TUCK,  [**27]  J.  

OPINIONBY:
TUCK 

OPINION:

 [*122]  TUCK, J., delivered the opinion of this court.
This bill was filed by the appellee against the appellant, and others, for an injunction, which was granted. After the answers were filed the chancellor passed an order continuing the injunction, and on taking evidence under a commission issued by consent, a final decree was passed making the injunction perpetual. From this decree the appellant, one of the defendants, has appealed.
Much of the argument of the counsel for the appellant sought to show that the chancellor in his opinion accompanying the order continuing the injunction, had taken an erroneous view of the law applicable to the case as then before him. It is not necessary to express our views upon the neglect discussed by his honor, because the evidence subsequently brought into the cause, in our opinion, relieves the case of all difficulty. We are also relieved from considering the character and construction of the deeds mentioned in the proceedings, believing that Mrs. O'Neill, then Mrs. Drake, understood and voluntarily executed the conveyance now charged to be void as against the appellant.
It appears that after the marriage engagement had [**28]  been broken off, Mrs. Drake executed the deed in question, and that it was recorded on the second day thereafter. Subsequently the engagement was renewed and the marriage took place. If the recording of this deed were not constructive evidence of knowledge on the part of O'Neill--and we are of opinion that such was the effect. 1 Story's Eq., 403--the testimony very clearly shows that he had actual knowledge of the existence 

 [*123]  and character of the conveyance before his intermarriage with the grantor.
If the appellant had reason to suppose that his late wife before their marriage, had been imposed upon, or induced to execute a conveyance of which she did not know the contents and meaning, it was quite proper for him to resist the attempt of the appellee to possess himself of the property. In this we think he has failed; and, if, failing in this, he seeks to make out a case of fraud in law upon his marital rights, there is no reason why he should not be bound by the notice which our recording acts imputes to others when seeking to vacate conveyances, or when claiming against them.
It was objected that the complainant did not, in his bill, aver that the appellant had notice [**29]  of the deed before his marriage. This is not made the ground of exception in the court below; and, besides, we do not think that a party in pleading, in a case like this, must negative every hypothesis on which the defendant may possibly rest his defence. The bill shows a case entitling the complainant to relief, and that is all that is required. It is said, however, that the exceptions to the the testimony sufficiently raise this objection to the bill. We do not concur in this view. The defendants denied knowledge of the deed under which the complainant claims. It then became necessary for him to furnish this proof, which he might well do without amending his bill. It was within the issue raised by the defendant himself. Upon the sufficiency of the exceptions on both sides for any purpose we express no opinion. See Berrett vs. Oliver, 7 Gill and Johns., 191.
Upon the question of jurisdiction we think, clearly, that the point is made too late, under the act of 1841, ch. 163. The object and use of the general reservation at the commencement of an answer is explained in Story's Eq. Pl., secs. 694, 870. In our judgment it has no application to the present case. It might as [**30]  well be relied upon as a general demurrer, or as an exception to the sufficiency of the averments of the bill of complaint, which office most clearly it could not perform.
Decree affirmed, with costs. 

31 of 48 DOCUMENTS 

JOHN COATES and WM. C. GLENN, vs. JAMES A. SANGSTON, ET AL., Garnishees of EDWARD CUNNINGHAM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 121; 1853 Md. LEXIS 77 

DECEMBER, 1853, Decided 

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

This was an attachment on warrant, issued by the appellants, on the 13th of November 1848, against Cunningham, as an absconding debtor, and on the same day laid in the hands of the Sangstons, as garnishees. The affidavit of one of the plaintiffs, made before the justice who ordered the writ, states, that he is credibly informed and believes Cunningham "is actually run away and fled from justice, and removed from his place of abode with intent to injure and defraud his creditors."

The garnishees appeared and plead:--1st, non-assumpsit for Cunninghim; and 2nd, nulla bona in their hands. The plaintiffs joined issue upon the first plea and replied to the second, that the garnishees, "on the day of laying the attachment in their hands," had goods, credits, &c.; on which replication issue was joined by the defendants.

Exception. The plaintiffs proved Cunningham's indebtedness to them in the sum of $ 800 and more; that he had found materials and done work for the garnishees, by building for them two houses and repairing a third, to the value of $ 700 each for the houses and $ 450 for the repairs, and that he had run away.

The defendants [**2]  then offered a written contract signed by Cunningham and dated the 3rd of April 1848, by which he agreed to build for the defendants two small houses and repair a third in the mode therein particularly specified, and to furnish all labor and materials for the same, for $ 1800, of which $ 600 was to be paid during the progress of the work, one-half of the balance in sixty days, and the residue in six months from the finishing of the work.

The other evidence in the case is sufficiently stated in the opinion of this court. It may be proper, however, to state, that the set-offs and allowances claimed by the defendants consisted:--1st, of cash paid him, or others for him, $ 1068.08; 2nd, cash paid the carpenter who completed the work $ 526.78.--this item included a charge of $ 172.36 for putting up a small brick wash-house not mentioned in the contract, on the ground that it had been pulled down by Cunningham. 3rd, cash allowed a tenant of the house repaired for his inconvenience sustained by the delay in the work $ 150; 4th, loss of rent of the two houses to be built occasioned by their not being completed in time $ 256.35; 5th, measurer's bill $ 15;--making in all $ 2016.21.

The [**3]  record then states, "that the testimony of defendants was taken subject to exceptions;" and that "the plaintiffs objected that the testimony offered to show that Cunningham agreed to do said work was inadmissible, but the court overruled such objection and admitted the same for the purpose for which it was offered." The plaintiffs then offered three prayers in substance as follows:

1st. If the jury find the contract and that Cunningham did the work, &c., on the houses mentioned therein, and that defendants took possession of and completed them and had used and rented them, then the plaintiffs were entitled to recover for the value of the work and labor done by Cunningham at the contract valuation, deducting from the same the cost of completing the contract, (but not deducting any unliquidated damages for loss of rent, or taking down or removing other buildings.)

2nd. The second prayer is identical with the first, leaving out the portion in parenthesis.

3rd. If the jury believe the facts in the two preceding prayers, and that Cunningham, after having done the work, &c., as proved in this case, insisted and contended that he had completed his contract with defendants,  [**4]  who sent another carpenter to take charge of the work and finish the buildings and repairs, and said carpenter did so take charge of the work, then the plaintiffs are entitled to recover so much as the work done and materials furnished by Cunningham are reasonably worth, deducting -----.

All these prayers the court, (LE GRAND, A. J.,) rejected, to which ruling, as well as to the opinion of the court admitting the testimony above mentioned, the plaintiffs excepted. The verdict on the first issue was for the plaintiffs, and on the second, "that the defendants, at the time of laying the attachment in their hands, had not, nor at any time since have had, nor now have, any goods," &c., of Cunningham in their hands. The judgment was for the defendants and the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a contract for the performance of work is silent as to the time within which the work is to be done, the law allows a reasonable time, and the declarations of the party who agreed to do the work are admissible to show what he considered such reasonable time.

In case of a simple contract in writing, oral evidence is admissible to show a subsequent agreement enlarging the time or changing the place of performance, or a waiver of, or a parol suppletory agreement supplying something not in, the contract.

A general reservation of the right to object to evidence will not, since the act of 1825, ch. 117, give any right to object in this court unless it has been availed of below by special exceptions to the portions of the testimony deemed inadmissible.

The garnishees offered in evidence the contract under which the defendant, debtor had done work for them, and proved that they had paid certain sums for him. HELD, that in the absence of proof of other dealings between the parties, it was competent for the jury to find that these sums were paid on account of the contract.

Prayers that the plaintiffs could recover from the garnishees "at the rate and valuation of the contract, deducting the cost of completing it," not taking notice of payments they had made to the debtor, are for this reason defective.

The principle of recovery on a contract is very different from that on a quantum valebat or meruit; in the latter the plaintiff can claim only what, under all the circumstances, his labor, services or materials may be worth.

The law will not sanction a recovery upon the ground of contract when the claimant has neither performed his part of its stipulations nor shown any reason for his non-performance.

It is not the duty of courts to instruct the jury unless applied to for that purpose, and then they may grant or refuse prayers as offered, or add qualifications, or reject all and instruct the jury in their own words.  

COUNSEL:
S. Teackle Wallis for the appellants, insisted, that as the testimony was taken subject to exception, the appellants can raise here any objection apparent on the record which they might have raised in the court below, and under the exception to the evidence he argued at length the following points:

1st. That Cunningham's statements of the time within which he had contracted to [**5]  do the work were not admissible to show what was a reasonable time for its completion:--First. Because "reasonable time" is an inference of law in the absence of stipulation, and proof of an express contract cannot establish an implied one. A man may contract to do work in an unreasonably short time if he be sufficiently paid for it or consider himself so. Second. Because if there was any agreement the parties were bound by that, and no proof of "reasonable time" was admissible. If, therefore, the evidence was admissible at all, it could only be as showing what Cunningham had contracted to do; and it was clearly inadmissible to prove "reasonable time," because the instant a contract was proven, "reasonable time" was no longer a thing in controversy. Third. Because if an agreement could be admitted to prove "reasonable time," under any circumstances a parol agreement could not be admitted here where the parties had put their contract in writing. And Fourth. The proof of payments made to or for Cunningham was improperly admitted, because none of them were shown to be on account of the contract or work in controversy, and some of them, indeed, were made long after attachment laid. It [**6]  must be shown they were made on account of the contract; the court cannot assume that they were. 2 Md. 356, Renwick vs. Williams.

In reference to the contract, the learned counsel said the main questions are:--1st. Could Cunningham recover at all for an incomplete contract? 2nd. Could he recover on a quantum meruit for the work done on this contract? On this branch of the case he argued the following points:

2nd. That there being no evidence of Cunningham's having abandoned the work or refused to complete it according to his contract, or of his inability to complete it, or of any request on the part of the appellees that he should do so, the appellees do not show a case in which they had a right to put the houses in the hands of another carpenter without Cunningham's consent, and charge him with such carpenter's work on the premises.

3rd. That even if Cunningham had failed, through his own default, to complete his work in the manner specified in the contract, yet as the work he actually did was valuable to the appellees and was taken and used by them, and availed them to a large extent for their purposes, they were liable to him, and to the appellants in his stead,  [**7]  for the value of such work, to be ascertained by deducting from the contract price the cost to the appellees of finishing the work according to the contract. In all such cases the party who partly performs a contract can recover on a quantum meruit the value of the work he has actually done. 1 Williams' Saunders, 320, Pordage vs. Cole. 1 Leigh's Nisi Prius, 78. 10 East., 306, Ritchie vs. Atkinson. 9 Barn. & Cres., 386, Oxendale vs. Wetherell. 1 Campbell, 38, Farnsworth vs. Garrard. 1 Moody & Robinson, 219, Thornton vs. Place. 2 Crompton & Meeson, 214, Chapell vs. Hickes. 2 Smith's Leading Cases, 14. For the American cases to the same effect, see 7 Pick., 184, Hayward vs. Leonard. 13 Met., 42, Snow vs. Inhabitants of Ware. 6 New Hamp., 492, Britton vs. Turner. 5 G. & J. 263, 264, Watchman and Bratt, vs. Crook. 1 Gill 65, Mulliken vs. Boyce. 11 How., 475, Van Buren vs. Digges. This is not an entire contract for the parties have divided it--a part of the money was to be paid during the progress of the work; whereas, in the cases relied on by the other side, no part of the money was to be paid until the contract was completed. As to entire contracts, see Story on Contracts, sec.  [**8]  22, and 44 Law Lib., 8, 25, 26.

4th. That in any event, the damages for the alleged pulling down of the wash-house, the allowance made to the tenant, and the supposed loss of rent on the other houses were not the proper subject of a discount from Cunningham's claim in this proceeding. The rule for the allowance of damages in such cases is, the amount it will take to put the house in the state required by the contract. Consequential damages will not be allowed. 8 Mees. & Wels., 871, Mondel vs. Steel. 10 Adol. & Ellis, 642, Francis vs. Baker. 2 Cranch, 342, Winchester vs. Hackley. 7 Wheat., 13, Tayloe vs. Sandiford. 9 How., 230, Withers vs. Greene. 15 Wend., 559, Sickels vs. Fort. 21 Wend., 348, Blanchard vs. Ely. 1 Md. 342, Middlekauff vs. Smith.

5th. As to the prayers: There is no evidence that the payments proven were on account of the contract or work in controversy in this case, and consequently the first and second prayers were not defective, even if they withdrew these payments from the jury. But upon a fair construction of them there is no such withdrawal. They put the isolated question of recoupment of damages, and they would not be inconsistent with a prayer on [**9]  the other side asking an allowance for these payments, which prayer it would have been competent for the appellees to offer. 1 Gill 143, Whiteford vs. Burckmyer and Adams. The third prayer, by leaving a blank, was an application to the court to designate the proper deductions to be made, and the court erred in not making the designation. But whether the prayers are defective or not the question, as to the damages which the appellees could recover from Cunningham, is sufficiently raised by the exception to the proof offered as to such damages.

In reply to the argument on the other side that there was nothing due at the time the attachment was laid and that this was the only question raised by the pleadings, Mr. Wallis argued that the finding of the jury covered the case, and that it was too late now to raise any question as to the informality of the pleadings.

John Nelson for the appellees.

This action was instituted on the 13th of November 1848, and the attachment was laid on the same day. The plea is, that the garnishees had not then and have not since had any goods, &c., of Cunningham in their hands, and concludes with a verification. The replication to this tenders [**10]  the issue, whether there was any funds in the hands of the garnishees at the time the attachment was laid. This was all the jury had a right to find and was the only issue in the case. By the contract it is conceded there was then nothing due by the garnishees. It is immaterial whether the payments were made on account of the contract or not, for the whole inquiry is, whether the garnishees were indebted to Cunningham. If he was indebted to them they are not his garnishees.

There was evidence to show that the garnishees were entitled to credit for the payments they had made, yet the prayers exclude this from the jury. If the court had granted them the jury could not deduct this credit, but only the costs of completing the contract. The garnishees were also entitled to a deduction for the imperfect manner in which the work was done. If Cunningham had brought suit to recover on a quantum meruit he would be liable to this set-off, yet the prayers exclude this question also from the jury. Where a prayer undertakes to make a theory it must put in the whole case. The third prayer, in substance, asks the court to instruct the jury the plaintiffs are entitled to recover the whole, deducting [**11]  nothing, and it is said this is an appeal to the court to fill up the blank; that is, that the court would try the plaintiffs' case for them.

But it is said, these questions arise on the exception to the admissibility of the evidence. The record shows no such exception; it states that the evidence was taken subject to exception, but this does not mean that the plaintiff has excepted to it. Only the part is excepted to which relates to Cunningham's statements, and this is the only question on the testimony before this court. The contract is in writing, and contains no stipulation as to the time within which the work was to be done. The law says it must be done in a reasonable time, and we were to prove what was a reasonable time. How were we to show it? We proved it by the strongest of all possible proofs, viz., the declarations of the party who was to do the work. We cannot add a parol agreement to the contract which is in writing, but we can show that he acknowledged he had agreed to do the work in sixty days as evidence of what he regarded a reasonable time; this is no violation of the contract.

But there never was a dollar in the hands of the garnishees applicable to the [**12]  debt of Cunningham. The contract was abandoned by him and he cannot recover. It is not the case of an ill-done contract, but of one voluntarily abandoned. Could he have maintained a quantum meruit for the part he had performed? An unexecuted contract voluntarily abandoned cannot constitute the foundation of an action. This is the distinction running through all the eases, and is recognised by the case in 7 Pick., 184, cited on the other side. See also 2 Mass., 147, Faxon vs. Mansfield. 13 Met., 50, Snow vs. Inhabitants of Ware. 2 Pick., 267, Stark vs. Parker. 14 Mass., 282, Taft vs. Inhabitants of Montague. These cases show the rule in Massachusetts. For the rule in New York, see 13 Johns. Rep., 94, Jennings vs. Camp. 19 Do., 337, Reab vs. Moor. 12 Do., 165, M'Millan vs. Vanderlip. 18 Wend., 187, Champlin vs. Rowley. 8 Cowen, 63, Lantry vs. Parks. The English rule is found in 6 Dow. & Ry., 3, Bates vs. Hudson. 8 Car. & Pay., 126, Rees vs. Lines. 9 Barn. & Cres., 92, Sinclair vs. Bowles. 3 Taunt., 52, Ellis vs. Hanlen. See also 2 Greenlf. on Ev., sec. 104, and the case of Watkins vs. Hodges, et al., 6 H. & J. 38, where the very question at issue is decided.

As to the deduction [**13]  for rent, the authorities are all against the other side. Speculative, contingent and uncertain damages cannot be allowed, but the cases all decide, that where the non-performance of a contract respecting real estate keeps the owner out of possession, indemnity for loss, by way of rent, will be allowed. This is decided in Middlekauff vs. Smith, 1 Md. 341, 342.  

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

OPINIONBY:
TUCK 

OPINION:

 [*128]  TUCK, J., delivered the opinion of this court.
This was a proceeding by attachment, at the instance of the appellants, against Edward Cunningham, as an absconding debtor, which was laid in the hands of the appellees, who appeared as garnishees. Issues were joined on the pleas of 

 [*129]  non-assumpsit by Cunningham and nulla bona as to the defendants. The jury having found for the plaintiffs on the first issue and against them on the second, the record was brought to this court upon an exception taken at the trial by the plaintiffs.
It appears that Cunningham had agreed in writing, not under seal, to perform certain work on houses of the appellees, according to the specifications and upon the terms therein stated. No time [**14]  was mentioned within which it was to be completed. He commenced on the 10th of April 1848, a few days after the date of the contract, and continued the work until October of the same year, after which the witness, who occupied one of the houses during the time that the repairs were made, never saw any more of him. The work was never finished by Cunningham. By the plaintiffs' affidavit, and their own proof, it appeared that he had run away before the 13th November 1848. The appellees, on the 10th of November, three or four weeks after Cunningham had stopped work on the houses, employed another person to complete the repairs. The witness stated that Cunningham's work was very badly done on the front of the house, all the frame being out of square, and the brick houses not near as good work as the house by which they were to have been done, as a pattern. Evidence was offered as to payments made by the appellees and off-sets claimed by them for loss of the rents during the time Cunningham was engaged on the work, which it is unnecessary to state. In relation to this part of the case several questions were elaborately argued by the counsel, involving the character and obligations and remedies [**15]  under the contract, which, if ruled with the appellants, would not change the decision of the appeal, we shall, therefore, express no opinion upon them.
The first point for our consideration arises upon an objection by the plaintiffs to evidence offered by the defendants. It does not distinctly appear how the question was presented below, nor, indeed, what the precise point was upon which the court pronounced its opinion. The objection was made 

 [*130]  "to the admissibility of the testimony offered to show that Cunningham agreed to do the work." Thus broadly stated the objection covered too much, because if allowed it would have excluded the contract under which the work had been undertaken by him, which was clearly admissible. The counsel, however, have argued this point on the assumption, that the objection was made only to Cunningham's declarations as to the time within which he had agreed to finish the work. Thus restricted, we may possibly be reviewing a point not decided by the court below, and hence the propriety of adhering to the record, for although counsel argued the question below as they have here, the court may have overruled the objection on the ground that it embraced [**16]  evidence that was competent as well as some that was not.  3 Gill 220. In this way injustice is sometimes done to inferior tribunals. It is not a case of defect in the record which may be supplied by agreement, but one where an exception presenting one proposition is said to have been designed to raise another. In the present case, however, we feel no difficulty on this subject, because the objection was properly overruled even when taken in the limited sense in which the appellant intended to apply it.
We gather from the record that it was deemed important to ascertain the time within which Cunningham was to have completed his work. The contract being silent on this point, the law allowed a reasonable time, which could only be ascertained by evidence de hors. The defendants proved that Cunningham said, about the time the contract was entered into, and afterwards, that he had agreed to finish the work in sixty days. In disposing of this point we must bear in mind the manner in which it was presented at the trial. There is no question of pleading. It was competent for the defendants to show that they had not violated their agreement with Cunningham by engaging other [**17]  persons to complete the work before the expiration of the time within which he was to have done it. To this end they offered, by the testimony objected to, to prove that it was to have been finished in 

 [*131]  sixty days, more than that time having elapsed before it was placed in other hands. As a question, merely, of reasonable time, we do not perceive why it should have been rejected. The opinion of any expert would have been received. The fact that Cunningham had said that he was to do the work in sixty days is evidence that he considered that a reasonable time; and his opinion, if not conclusive, was surely admissible against himself. The evidence merely tended to prove a fact, in regard to which the contract was silent.
In 1 Greenlf. Ev., sec. 304, it is said to be well settled, that in a case of simple contract in writing, oral evidence is admissible to show, that by a subsequent agreement the time of performance was enlarged, or the place of performance changed; or that the agreement itself was waived or abandoned. Also, that it is competent to prove an additional suppletory agreement, by parol, by which something is supplied that is not in the contract. The same principle [**18]  is recognized in Reed vs. Chambers, 6 G. & J. 490, where a written contract was entered into in relation to land, and subsequently a verbal agreement was made as to the manner in which the title should be secured to the purchaser, it was held, that the parol agreement "was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured. It was, in effect, to carry the contract into execution, and not to add to, vary, or change it." See also Watkins vs. Hodges and Lansdale, 6 H. & J. 38.
The counsel for the appellant insists, that because "the testimony of defendants was taken subject to exceptions," it is competent for him to raise any objection here, apparent on the record, that he might have presented below; and, under this impression, he has discussed several points which we need not decide, because we do not agree that this can be done. We sit as an appellate tribunal, and, since the act of 1825, ch. 117, can only pass upon what may be decided below. A general reservation of such right to object to evidence sometimes facilitates the trial of the cause, and is 

 [*132]  allowed [**19]  for convenience. It secures no right to object here, unless it has been availed of below by specially directing the court's attention to the portions of testimony deemed inadmissible. Then, if the objection be allowed, the court will say to the jury that such proof is not to be considered in the cause; and its ruling either way is the proper subject of appeal.
The plaintiffs' three prayers, we think, were properly rejected. The first and second claimed compensation for the work and labor done by Cunningham "at the rate and valuation of the contract, deducting from the same the cost of completing the contract," not taking any notice of the payments that had been made by the defendants to Cunningham, for which he was certainly entitled to an allowance. The appellants' counsel insists, that there was no evidence of any payments made under this contract, but in this we cannot concur. The defendants offered the contract in evidence, and "also gave in evidence that they had paid as follows to said Cunningham," (exhibiting an account of their payments.) It does not positively appear that these sums were paid on this contract, but in the absence of proof of other dealings between them, it [**20]  was competent for the jury to have found that they were applicable in the manner claimed by the defendants.  Guy vs. Tams, 6 Gill 82.
These prayers are also obnoxious to other objections. By them the jury might have compensated Cunningham at the contract price without having found that he had performed his work according to the contract, because the prayers do not submit that question for their consideration. Again, if the jury had been left to find that the work was done according to the contract, the party was not entitled to that rate of payment when the work had not been so done; even if, under any circumstances, he could have claimed payment upon that basis after having abandoned the work in an unfinished state, subjected the other party to loss, and left him to complete it himself, of which there was evidence before the court and jury. The principle of recovery upon a contract is very 

 [*133]  different from that upon a quantum valebat or meruit. By the latter form of action the plaintiff can claim only what, under all the circumstances, his labor or services, or materials, may be worth. In Watchman and Bratt, vs. Crook, 5 G. & J. 239, [**21]  the court said: "If after work is done, though not pursuant to the contract, the party for whom it is done accepts it, it would seem right and proper that he should pay for it what it is worth. This justice would require, and the principles of law do not forbid it." Here the contract stipulated that "all the work should be done in the best manner." We have seen that the work done was very imperfect and that it was at last left unfinished or abandoned, and the owners injured by the delay. It is impossible that the law can sanction a recovery on the ground of contract, when the claimant has neither performed his part of its stipulations nor shown any reason for his non-performance. If the doctrine of these prayers prevailed, it would induce injustice and fraud in the community; consequences which it is the duty of courts of justice, as far as practicable, to prevent. Ram on Legal Judgments, section 9.
The third prayer, conceding that it is not imperfect on its face as is insisted by the appellees' counsel, claims compensation according to the value of the work done and materials found by Cunningham. But it does not require the jury to credit the defendants for payments made [**22]  by them to Cunningham, for which we think it was properly refused. The appellants' counsel, however, suggests, that the counsel who tried the case below left the prayer in a condition for the court to state what deductions it was proper for the jury to allow, and that the court should have granted the prayer, qualified by its view of the law governing the whole case. We do not deem this a ground for reversing the judgment. It is not the duty of courts to instruct the jury unless appealed to for that purpose, and then they may grant or refuse prayers as offered, or they may add qualifications, or reject all the prayers and instruct the jury in their own words. See 2 Md. 63, Keener vs. Harrod, and the cases there cited.
Judgment affirmed. 

32 of 48 DOCUMENTS 

THE FRANKLIN FIRE INSURANCE COMPANY OF PHILADELPHIA, vs. ALEXANDER HAMILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 170; 1853 Md. LEXIS 83 

DECEMBER, 1853, Decided 

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

Covenant by the appellee against the appellants, upon an insurance policy for "$ 3000 on goods," "viz: on steam engine $ 500, on machinery $ 2500, of a plaster mill, contained in a three-story brick warehouse," &c. By the terms of the policy the company agreed to pay, to the extent of $ 3000, all damage or loss occasioned by fire, within one year, to said property, "unless the said company shall, within thirty days after the proof of such damage or loss, furnish the insured with the like quantity of any or all of the said goods, and of the same quality, as those so injured by fire, or shall make good the damage or loss by paying therefor, according to an estimate thereof to be made by arbitrators indifferently chosen," &c. The assured was required to give notice to the company forthwith of any loss by fire, and as soon as possible thereafter deliver a particular account and furnish satisfactory proof of such loss. This is the second appeal in this case, the facts being substantially the same as those upon the first appeal, reported in 6 Gill 87. The different condition of the pleadings is fully stated in the opinion of this court upon the [**2]  present appeal.

Exception. The plaintiff excepted to the admissibility of the testimony of Smith and Neale, (see 6 Gill 89 to 91,) under any of the first five defences relied upon by defendants, which exception the court, (FRICK, C. J., PURVIANCE and LE GRAND, A. J.,) sustained, and to this ruling the defendants excepted. The verdict was for the plaintiff for $ 2444.48, that upon the former trial having been in his favor for $ 3049.80. The court having overruled a motion for a new trial, and given judgment in accordance with the verdict, the defendants appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

An insurance policy for $ 3000 on machinery, bound the company to pay that sum, in case of damage or loss by fire, unless they "shall, within thirty days after proof of such damage or loss, furnish the insured with a like quantity of any or all of the said goods, and of the same quality as those injured by the fire, or shall make good the damage or loss by paying therefor," &c. HELD:

1st. The company had the right, under this policy, to pay the damages in money, or repair the old machinery within thirty days, so as to make it as good as it was before the fire.

2nd. In covenant upon this policy the defendants may show, by parol, that after their liability to repair accrued by their election to do so, and before the expiration of the thirty days, they made a valid arrangement with the plaintiff, by which the time for making the repairs was extended beyond the thirty days, and performance of this agreement by them discharges the covenant.

3rd. Enlargement of the time of performance, waiver of performance by the plaintiff, accord and satisfaction, or tender of performance, after the accrual by election of the liability to repair, are good defences to an action on this policy, and parol proof is admissible to sustain them.

In an action upon a bond the defendant may show by parol that the plaintiff has waived a compliance with its conditions; he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.

The case of Watchman and Bratt, vs. Crook, 5 G. & J. 239, decides, that a plaintiff suing upon a contract cannot give in evidence a parol agreement varying or changing its terms, but does not decide that a defendant cannot avail himself of such a defence.

A defendant should never be prevented from making a just and moral defence to any action, because he might, as plaintiff, enforce that defence in a separate and independent action at law.

But this principle in actions of covenant must be taken as applicable in general to defences resting upon parol agreements, made subsequent to a breach of the covenant, or after the happening of the event by which the liability of the defendant has become fixed.

Accord and satisfaction is something more than strict performance or payment; it is doing that by the covenantor which the covenantee accepts in lieu of a performance of the terms of the covenant. 

COUNSEL:
St. George W. Teackle for the appellants.

1st. The evidence was admissible to prove an enlargement of the time of performance stipulated for in the policy. It is not a question as to the interpolation of terms into a written contract, but whether, by a subsequent distinct parol agreement, the time for the performance of a contract under seal may not be enlarged? When such evidence comes by way of defence, no case can be found in which it has been rejected. The case of Watchman and Bratt, vs. Crook, 5 G. & J. 239, cited and relied upon by the other side, was [**3]  the case of a plaintiff acting aggressively upon a contract which he had not performed, and the court said he could not recover upon the contract without showing performance, and could not be permitted in that action to set up a parol agreement to waive the contract, but the case concedes that such an agreement might have been offered by way of defence. The same doctrine is sustained in 2 Wend., 587, 590, 591, Langworthy vs. Smith. 3 Johns., 528, Fleming vs. Gilbert. 9 Do., 115, Freeman vs. Adams. There may even be a substituted contract. 14 Johns., 330, Lattimore vs. Harsen. See also 7 Cowen, 48, Dearborn vs. Cross. 1 Bailey's Rep., 538, Neil vs. Tilman, (note a.) Breese's Rep., 132, Baker vs. Whiteside. 4 Seargt. & Rawle, 241, Le Fevre vs. Le Fevre. Such is the law in England. 1 Esp., 35, Ratcliff vs. Pemberton.

2nd. It was admissible to show a waiver of the condition of the covenant. This depends upon the former position and follows as a necessary consequence from it, for the enlargement of the time of performance necessarily waives the contract.

3rd. It was admissible to show accord and satisfaction. 22 Eng. C. L. Rep., 89, Good vs. Cheesman. 23 Do., 165, Cartwright vs.  [**4]  Cooke. I agree that accord and satisfaction before breach is not a good plea, because until then there is nothing to satisfy. But here there was a breach, for the property was burned and the mode of satisfaction alone was left open.

4th. It was admissible as tender of performance and refusal. 14 Pick., 156, Lord vs. Tyler. 2 Bibb., 219, Majors vs. Hickman. 4 Wash. C. C. Rep., 622, United States vs. Howell. 8 Iredell, 179, State vs. Cordon. 10 Do., 193, Cabe vs. Jameson.

5th. It was admissible to show fraud. The contract of insurance is purely one of indemnity, of the purest good faith, and the evidence shows that the plaintiff intended and designed a fraud, for the damage complained of was repaired by an expenditure of only $ 300, and yet the plaintiff, by his own agreement, having got rid of the thirty days, comes in with his bill of $ 3000 upon the policy.

S. Teackle Wallis for the appellee.

We are trying an action of covenant, and the principles of the common law governing that action are alone applicable to the case. We therefore insist that the proposed testimony was inadmissible for any of the purposes for which it was offered, because:

1st. The policy [**5]  does not give the company the right to elect to repair, but imposes the obligation to pay. The property insured was goods and chattels within the terms of the policy, and the insurers were bound to furnish the insured with the like quantity and quality of any or all said goods, or to pay the damages. An offer to repair was therefore no compliance with the requirements of the covenant.

2nd. The testimony shows that the agreement to extend the time was made before the estimate of loss was furnished, and therefore before breach of the covenant. The breach did not occur upon the happening of the fire. The contract is that if a fire occurs in one year, and the party gives notice and furnishes his estimate and proof of loss, &c., and the agreement was made more than two weeks before this estimate was made. Suppose the case of a bond payable one year after the happening of a certain event; it cannot be said there is a breach after such event has happened, but before the year has elapsed. The authorities are clear that a parol agreement before breach cannot be pleaded in an action of covenant. 1 Chitty's Pl., 487, 488. 1 Leigh's Nisi Prius, 699. 29 Law Lib., 75, 76, 79. 3 H. & J. [**6]  291, Peters vs. Johnson. 5 G. & J. 239, Watchman and Bratt, vs. Crook. 4 G. & J. 305, Geiser vs. Kershner. 6 H. & J. 38, Watkins vs. Hodges. 1 H. & J. 675, Harper vs. Hampton. Such is the law in England. 8 East, 344, Braddick vs. Thompson. 7 Taunt., 656, Thompson vs. Brown. 8 Do., 31, Sellers vs. Bickford. Do., 596, Cordwent vs. Hunt. 40 Eng. C. L. Rep., 609, West vs. Blakeway. Even in New York, loose as the rule is, it has been restricted within limits narrower than those contended for on the other side. 13 Wend., 71, Delacroix vs. Bulkley. 10 Do., 180, Suydam vs. Jones. The case in 4 Wash. C. C. Rep., 420, concedes that a parol agreement made with the defendant himself would not discharge the covenant. See also 3 Term Rep., 590, Littler vs. Holland.

Reverdy Johnson on the same side.

It will be conceded there was no contract upon which we could recover except the policy. Now what was this? It was a contract by which they insured us to the amount of $ 3000 upon certain goods, and in case they were injured, they were to pay us the damage or repair, (according to the theory on the other side,) within thirty days. We must sue upon this policy, and to recover [**7]  must aver and prove:--1st, the execution of the policy; 2nd, the fire; 3rd, notice of loss; 4th, estimate of loss; 5th, expiration of thirty days. Now if there had been an agreement to repair within a less time, say ten days, and the underwriters had said they would do so or pay, could we have sued on the policy until after the thirty days? I submit not. It is perfectly well settled, that where there is a contract to pay money on a certain day, no matter what is done in the mean time, no right to sue upon the contract arises until the time comes round. Now if a shorter time would not deprive us of the right to sue, it would seem to follow that we ought not to be deprived of our right because the parol agreement dispensed the time for more than thirty days. Now why is this? Because it is a different contract. A contract under seal cannot be discharged except by a contract under seal, or performance. This is a fixed rule. Now is there any exception or qualification which will take this case out of its operation? This evidence is offered for five purposes. If admissible for either, it is impossible to conceive a case in which a contract under seal may not be waived by a subsequent parol [**8]  agreement.

It may be that a suit may be instituted upon such subsequent parol agreement by the party injured by it, but when suit is brought upon the original contract he must show compliance with the terms of it, or its release by a contract under seal. Such was the case of Watchman and Bratt. If, by a parol agreement, any vital part of the original contract under seal is varied or waived, it cannot be set up as a defence to a suit upon the contract. 8 Taunt., 596, Cordwent vs. Hunt, was a case where a landlord was prevented from putting up a building by request of the tenant, yet the latter sued him upon his lease, under seal, for not putting up the building and recovered, though this subsequent request was set up by way of defence. In 13 Wendell, 71, Delacroix vs. Bulkley, it is decided, that a sealed executory agreement cannot be released or varied by any kind of parol agreement.

But it is also clear, that if a breach has occured, within the meaning of the law, which can be compensated in damages, these may be released by a parol agreement. Now to bring this case within this exception, they must show that we could sue before the agreement was made. We could not sue when [**9]  the policy was made nor after the fire, for we were to furnish an estimate of the loss; we could not sue until the expiration of the thirty days. The agreement was made a few days after the fire, and of course before the breach in contemplation of law had occurred. What is meant by a sealed instrument being broken is, that a right of action then accrues; and this right of action is what may be waived by a parol agreement.

I have so far considered the right to repair as vested in the company under the policy. If they had no right to repair, of course the evidence was properly rejected. Now had they this right? It was an insurance on goods as distinguished from one upon real estate. In such case the obligation is to furnish other goods of the same quantity and quality, or to pay the money.

John Nelson for the appellants, in reply.

The parol agreement was made for the benefit of the assured and at his request, and was fully carried out by the company. It is argued that this evidence was not admissible in an action for damages:--1st, because the company had no right to elect to repair, and the agreement was, therefore, a nude pact. Even if there was no such stipulation in [**10]  the policy, it might be an inquiry whether the agreement to repair would not be as valid as if embodied in the policy itself. But there is no ground for this question, for the true construction of the policy gives the right to elect to repair. The goods were to be restored. How restored but by reparation? The only mode of returning the goods was by repairing them. Such has been the view of all the counsel in the case up to this time. The nar assumes it; the prayers at the original trial assume it; so in the second trial the plaintiff's prayer assumes the same thing. When the case came up to the Court of Appeals, in 6 Gill 87, no such question was raised or argued, but the court assumed such to be construction of the contract.

2nd. Assuming the company had the right to elect, the question occurs as to the admissibility of the evidence under the pleadings. The object of a policy is to protect a party against fire: it is an indemnity against the consequences of fire. This policy proposes to accomplish this in two ways:--1st, by repair; 2nd, by payment. Now when did the liability for the damages attach under the policy? Was it superinduced by the fire, or was it dependent upon [**11]  any thing subsequent to the fire? We say the occurrence of the fire being the casus contemplated by the policy, fixed the liability of the company, not the notice or the estimate of loss, for these are but the means of ascertaining the quantum of damages; they do not fix the liability of the company, which arises from the policy and the fire. If the party elected to repair, the policy did not require any estimate of loss. The loss was incurred by the fire,--the means of ascertaining the damages was to be in one of the two ways, by repairing or estimating the loss. This is the contract to which the principles of the authorities are to be applied. The principles are:--1st. Where the terms of the covenant are absolute to do certain things, no parol evidence can be received by which to discharge them. 2nd. Where the covenant is sounding in damages and a breach has occurred, there parol evidence may be offered as to recompensing the damages. I admit the law of the first proposition, but no case can be found in which an agreement to enlarge or extend the time of the performance of the contract is not good, provided it be founded upon a good consideration. So in the case of unascertained [**12]  damages, the evidence was admissible under all the pleas of the defendant. The case of Watchman and Bratt, 5 G. & J. 239, only decided that the plaintiff could not maintain the suit, because he was obliged to set out the performance of the obligations of the covenant, which were conditions precedent to the payment of the money--time being of the essence of the contract. The court say, that though the parties cannot recover upon the original covenant, they may recover upon the subsequent agreement: this, of course, concedes that they had the right to make--that it was not void but was valid, and founded upon a sufficient consideration. The plaintiff here could have sued upon the subsequent agreement. The case in 3 H. & J. 291, Peters vs. Johnson, asserts no other principle. The case in 4 G. & J. 305, was one of a partial payment, which does not discharge one from the obligation to pay the whole. The case in 6 H. & J. 38, Watkins vs. Hodges, et al., was an action of assumpsit, and decides that such a contract may be extended by agreement of parties, but they do not say, that in case of a sealed contract the agreement to extend the time is not good. There is then no Maryland [**13]  case which decides, that the agreement is not good and binding between the parties, and if violated would have been the foundation for an action. The English cases, 1 East., 619, Heard vs. Wadham, is the same as that of Watchman and Bratt, that a plaintiff could not maintain an action upon the covenant without avering and proving the performance of the conditions precedent; in 625 it is conceded that a party may defensively set up an agreement to extend the time. The case in 16 East., 344, Braddick vs. Thompson, decides, that an agreement by parol, without any consideration, to abandon and relinquish the whole covenant could not be pleaded. This does not touch the question as to the extension of the time of performance. Such is the distinction taken in all the cases. The case in 7 Taunt., 656, Thompson vs. Brown, (2 Eng. C. L. Rep., 247,) was an action upon a charter-party which had not been complied with, and is like that in 1 East., where a party cannot sue upon a covenant which he has not himself performed.

The case in 8 Taunt., 596, Cordwent vs. Hunt, is the only case where a defendant set up the plea, and that was one, the effect of which was to discharge and rescind the [**14]  entire contract, not one to extend the time. The covenant was one to do some absolute fixed thing and not one sounding in damages.

The cases on which we rely maintain the doctrine for which we contend, that in the case of a defendant he may set up the defence. 1 Esp., 35, expressly decides, that a contract to enlarge the time for the discharge of a vessel beyond the terms of the charter-party was a good and valid defence to any claim for damage, and was a bar to the action. This is precisely our case. In 2 Wendell, 587, a parol enlargement of the time set up in the sealed instrument for the performance of the covenants is decided to be good. 3 Johns. Rep., 528, Fleming vs. Gilbert; 9 Johns., 116, Adams vs. Freeman, both recognise the distinction between plaintiffs and defendants. So in 7 Cowen, 50, and 10 Iredell, 193.

But upon another defence the evidence was clearly admissible. We have plead tender and readiness to perform and refusal on the part of the plaintiff to accept. Can there be a doubt but that in an action upon a covenant performance or a tender to perform is a good defence? Breese, 132, Baker vs. Whiteside. 1 Bailey, 538, note a. In a policy of insurance you [**15]  may waive every stipulation by parol. Allegre vs. Maryland Ins. Co., 6 H. & J. 408, shows, that if a company refuses to pay, this waives the obligation to produce the estimate of loss. If they can do this may they not waive or enlarge the time? The right of action immediately accrues upon the refusal.

As to the question of fraud: It would be monstrous if a party could put an underwriter off his guard by such an agreement as this, and then come in and sue for the non-compliance which he had himself superinduced.  

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

OPINIONBY:
MASON 

OPINION:

 [*179]  MASON, J., delivered the opinion of this court.
This case has already been before this court and is reported in 6 Gill 87. Upon the former appeal it was held that there was but one plea in the case, that of non infregit, and that the evidence offered by the defendants was inadmissible under that plea.
The case as now presented shows, that upon the second trial in the court below under a procedendo, the defendants relied upon six additional defences, which, under the agreement between the parties, we are to treat as having been regularly pleaded.  [**16]  
These defences are:--1st, enlargement of the time of the performance of the covenant; 2nd, a waiver of performance by the plaintiff, &c.; 3rd, accord and satisfaction; 4th, tender of performance, &c.; 5th, fraud, and 6th, all other defences properly pleadable, &c.
The admissibility of the testimony of Smith and Neale, under the above state of pleadings, is the question presented by the present record.
The defendants attempted to show by these witnesses, that they had elected under the policy of insurance, to repair the injured property, which consisted of machinery, and that two or three days after the fire they had offered to repair said machinery, but that by the consent and request of the plaintiff said repairs were agreed to be postponed, and the period of thirty days allowed by the policy for that purpose, enlarged, 

 [*180]  until the house could be repaired so as to protect the machinery from the weather, and that by virtue of that understanding the repairs were not made within the thirty days, but eventually and in a reasonable time the machinery was repaired, and placed in as good condition as it was before the fire.
This testimony is objected to upon two grounds:  [**17]  --1st. Because the policy required the defendants to pay the damages in money, or to "furnish the insured with the like quantity of any or all the said goods, and of the same quality as those so injured by the fire," and that to offer to repair would be no compliance with the requirements of the covenant; and 2nd. Because the original agreement was under seal, and therefore no evidence of any subsequent parol agreement would be admissible to vary or modify the covenant.
As to the first objection: The extent of the obligation of the insurance company under this policy, was to place the insured in as good a condition as he was before the fire occured. This was to be done in one of two ways:--first by paying the damages sustained in money; or secondly, by renewing the machinery. It would seem to be a full compliance with the latter branch of this obligation, if the defendants had so far renewed or repaired the old machinery as to have made it as good as it was before the fire. If this had been done within the thirty days provided for in the policy of insurance, the terms of the covenant would have been complied with, and the defendants discharged. Any evidence therefore which would [**18]  tend to show that this had been done, we think, would clearly have been admissible under the pleadings in the cause. Ellmaker vs. Franklin Ins. Co., 5 Barr. (Penn. Rep.,) 183. 11 Metcalf 195. Angell on Insurance, sec. 268.
Nor do we think the second objection urged to the admissibility of this testimony tenable.
The defendants did not propose to show by this evidence, as was contended by the plaintiff, that an independent parol agreement had been substituted by the parties in the place of the original covenant, and that the latter had thereby been superseded. The evidence objected to tended to show, in 

 [*181]  our judgment, that after the liability of the defendants had accrued, a valid arrangement was made by the contracting parties, by way of adjustment of the matters in controversy between them, and that the same had been performed by the defendants. If this be true the defendants were discharged, and of course the testimony was admissible. It is not necessary to say whether, technically speaking, a breach of the covenant had actually taken place. It is sufficient that the defendants' liability to repair, (by their election to repair, instead of paying the [**19]  damages in money,) had accrued. They were therefore in a condition to tender performance of the terms of the covenant, to offer accord and satisfaction, or to do other acts by way of adjustment, which would operate as a discharge of the covenant. In this condition of their case, any evidence offered by the defendants resting in parol, would be admissible to show the existence of the defences relied upon by them in their pleas.
We have examined the numerous authorities cited in argument, and we can find no case based upon well adjudged principles which conflicts with these views. On the contrary, most of the cases support them. In our judgment they are founded in good sense and sound justice. An opposite doctrine would be fraught with mischief and injustice, and would be promotive of fraud.
We can discover no material difference between this case and that of Fleming vs. Gilbert, 3 Johns. Rep. 528. In the latter case the defendant did, within the time limited, tender to perform the stipulations of his covenant or bond, but the plaintiff discharged him from the strict and literal performance of the bond, and entered into another engagement with him respecting the [**20]  matter. Upon this state of the case, Judge Thompson, who delivered the opinion of the court, announces these principles, which we think apply with equal force to the case we are now considering: "The plaintiff's conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, and I see no infringement of any rule or principle of law in permitting parol evidence of 

 [*182]  such waiver. It is a sound principle, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned." The case of Delacroix vs. Bulkley, 13 Wend. 71, which is perhaps one of the strongest cases that can be relied upon to support the plaintiff's view of this case, does not question the soundness of the principles announced in Fleming vs. Gilbert, but, on the contrary, sanctions them in the strongest terms.
In this case the proof is, the defendants, under the policy, elected to repair the machinery, as they were at liberty to do, and actually offered so to do, but, at the instance of the plaintiff, the repairs were not made within the time limited by the contract, in order that in the mean time he might [**21]  be able to rebuild the house in which the machinery stood, and thus protect it from the weather. To allow the plaintiff under such circumstances to insist upon the strict letter of the covenant, would be wholly to repudiate the sound and equitable principles established in Fleming vs. Gilbert.
Other cases we think fully sustain the defences relied upon by the defendants in their several pleas. 1 Espinasse 35.  14 Johns., 330. 2 Wendell, 587. 1 Bailey 538, (note a.) 1 Roll. Abr., 553, pl. 5.  1 Strange 535. Doug., 691. 8 Iredell 179. 10 Iredell 193. Breese Rep., 132.  22 Eng. Com. L. R. 89. 23 Ibid. 165.  Allegre vs. Md. Ins. Co., 6 Har. & Johns. 408.
In a very recent English case, Spence vs. Healey, 20 Eng. Law and Eq. Rep., 337, the defendant pleaded to an action of covenant, "that before action and before any breach of the said covenant, he satisfied and discharged the plaintiff's claim," &c. Baron Parke, in delivering the opinion of the court upon this plea, said, "the plea is bad. Wherever damages only are sought to be recovered,  [**22]   such a plea affords a good answer to the action; but where the covenant is for the payment of a sum certain, the covenantee has a right to object that the discharge is not by deed." Baron Martin concurred with Baron Parke, but even as to where the sum is certain, found "it difficult to see the correctness of the reasons upon which the 

 [*183]  rule is founded." In this sentiment the judge who delivers this opinion fully concurs.
The prominent characteristic which distinguishes this case from the case of Watchman and Bratt, vs. Crook, 5 Gill & Johns. 239, so strongly pressed upon us in argument by the appellee's counsel, consists in the circumstance, that here the alleged parol agreement is offered by way of defence to a recovery for a breach of the covenant, while in the former case the parol agreement was deemed inadmissible as evidence for the plaintiff, who was seeking to enforce the covenant. In such a case the plaintiff is held to abide strictly by the form of action which he may have selected.
If the doctrines of Watchman vs. Crook, are to control this case, as contended by the appellee, to what result would they lead? The insurance company [**23]  having made a valid parol agreement relating to the policy of insurance, with which they had complied in good faith, and had thus morally, at least, discharged their obligations to the plaintiff, are not permitted to set up that agreement as a defence to an action on the covenant, but on the contrary, the making, and compliance with that agreement, are to constitute the breach of the original covenant, and furnish the basis for the damages assessed by the jury. But we are told, that under the authority of Watchman and Bratt, vs. Crook, the defendants, while they could not set up this parol contract against the covenant, would nevertheless have an independent right of action against the plaintiff for its violation. If this be true, what would be the measure of damages in an action upon this parol agreement? Clearly the appellants would be entitled to recover from the appellee, what the latter had before recovered from them in this action of covenant. It must be conceded, if Smith's and Neale's testimony is to be believed, the appellants were in no default in this transaction, and therefore unless they recovered in the subsequent suit from the appellee, the same amount which he had [**24]  previously recovered in this action, injustice would be done to the extent precisely of the difference between the two verdicts. Can any principle of law be sound 

 [*184]  or just that would not only sanction, but require such circuity in legal proceedings to attain the ends of justice?
The case of Watchman, et. al., vs. Crook, does not sanction such a circuitous proceeding. That case decides, that the plaintiffs having selected to sue in covenant, cannot in that action give in evidence a parol agreement varying or changing its terms. If they desired to abandon the covenant and sue to enforce the parol contract, they ought to have selected the proper form of action for that purpose. But the court have not said in that case that a defendant could not avail himself of such a defence, though it rested in parol in a suit to enforce the covenant.
The case of Jewell and others, vs.  Schroeppel, 4 Cowen 564, might be supposed to favor a different doctrine. It appears that the covenant in that case had not been complied with within the time specified, though the work to be done was afterwards, with the knowledge and approbation of the covenantee, prosecuted [**25]  and completed by the covenantor. The former brought a suit against the latter on the covenant, for not having completed the work according to the contract, and recovered damages for its breach. Subsequently the covenantor sued in assumpsit for his work, labor, &c., (which is the case reported in 4 Cowen,) and also recovered for the work actually done.
The suit on the covenant differs materially from the one now before us. In the first place, it does not appear whether the defendant set up as a defence to the action on the covenant the facts which constituted the grounds of his recovery in his subsequent action of assumpsit; and in the second place, it does not appear in the reported case whether the failure to complete the work within the time prescribed by the covenant resulted from any act of the plaintiff in the first suit. In such a case, if the work was not completed within the period stipulated, though it should be done and accepted afterwards, it would amount to a breach of the covenant, for which damages could be recovered; otherwise, however, if the time of the performance of the covenant had been enlarged, as in this case, with the approbation or at the instance [**26]  of the covenantee.

 [*185]  A defendant should never be prevented from making a just and moral defence to any action instituted against him merely because he might, in the character of plaintiff, enforce that defence in a separate and independent action at law. This principle, however, in actions of covenant must be taken as applicable in general to defences resting upon parol agreements which have arisen subsequent to a breach of the covenant, or after the happening of the event by which the liability of the defendant has become fixed.
If then in this case it be ascertained, that at the time the alleged parol agreement was made, a breach of the covenant had taken place, or that the liability under it had accrued and become fixed by the occurrence of the fire and the defendants' election to repair, then the new parol contract must be taken as a discharge of the defendants' obligation under the covenant.
The argument of the appellee's counsel upon this point seems to be based upon the assumption, that the breach or liability, and the right to sue, in every instance, were inseperable, and occur at one and the same moment. This is not true, at least in this case. The attaching of [**27]  the defendants' liability will be attended with the same legal consequences as if a breach in its technical sense had taken place, though the right to sue had not accrued. When the company elected to repair the machinery their liability commenced, if it did not, in fact, date from the time of the fire. After the defendants elected to repair, their obligation to do so, within the thirty days, became as clearly determined as their obligation to pay the damages in money, after the expiration of the thirty days, would have been; and in either case it will readily be seen that any adjustment between the parties, by way of enlarging the time of performance, or waiver, or accord and satisfaction, or tender to perform, and the like, must have taken place before the obligation was discharged, or otherwise it would have been of no avail.
If, as is contended, the grounds of these defences, to be binding, could only arise after the expiration of the thirty days, stipulated in the contract, and after the right to sue accrued, it is plain that the defendants would be deprived either of the 

 [*186]  alternative right to repair or of the equally clear right of tendering to perform, offering [**28]  accord and satisfaction, accepting an enlargement of the time within which the repairs were to be made, &c.
It would seem that accord and satisfaction was something other than strict performance or payment. It is doing that by the covenantor which the covenantee accepts in lieu of a performance of the terms of the covenant. If this be true, at what period could the defendants in this action tender accord and satisfaction, and the plaintiff accept the same in reference to the former's obligation to repair, unless it was done during the interval of the thirty days, allowed for making the repairs? Before the fire, or proof of damage, there was nothing to accord and satisfy. After the repairs were made, in accordance with the terms of the covenant, it would then be too late to accord and satisfy, or to make any adjustment, at least, of that branch of the defendants' liability.
We are, for the reasons expressed, of the opinion, that the testimony of the witnesses, Neale and Smith, was admissible under the pleadings in the cause, and that it was error in the court below to reject it. We therefore reverse the judgment and remand the cause.
Judgment reversed and procedendo awarded.  [**29]   

33 of 48 DOCUMENTS 

NATHANIEL WILLIAMS, ET AL., Exc'rs of HANNAH K. CHASE, vs. DANIEL B. BANKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 198; 1853 Md. LEXIS 86 

DECEMBER, 1853, Decided 

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

Assumpsit against the appellants by the appellee, as holder of a promissory note drawn by the appellants' intestate.

Exception. The only exception in the case was taken by the defendants to the refusal of the court, (FRICK C. J., and LE GRAND A. J.,) to admit the deposition of William Chase Barney, taken under the circumstances stated in the opinion of this court.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where depositions de bene esse are taken under the act of 1828, ch. 165, a strict compliance with the requirements of the statute and the order of the court must appear in the commissioner's return, and a departure from the order of the court as to the time of taking the deposition will, under ordinary circumstances, vitiate the proceeding and render the deposition inadmissible as evidence in the cause.

But the presence of the adverse party, by his counsel and his cross-examination of the witness, is equivalent to an agreement to waive any irregularity as to the time and place when or where the deposition is taken, and he cannot afterwards object to the deposition for any such irregularity. 

COUNSEL:
Robert J. Brent and Henry May for the appellants.

The deposition showed the court that the counsel of the appellee appeared before the commissioner at the time of the execution of the deposition, which had by consent been postponed, and cross-examined the witness. Upon this fact being thus made known to the court, the deposition ought to have been admitted to the jury. The presence of the appellee by his counsel and examining the witness, was a waiver of all previous irregularities. 1 Pet., 307, Mechanics Bank of Alexandria vs. Seton, The taking of such depositions is only to be strictly construed, when taken in the absence of the opposing party or his counsel. 1 Pet., 351, Bell vs. Morrison. The only object of fixing a day [**2]  is to give the parties notice, and if it appears that they did in fact attend, and examine and cross-examine the witness, it would be the sheerest trifling to allow them afterwards to object. In the case of Harris vs. Wall, 7 How., 705, it appears that the counsel, though present, distinctly "declined to take any part in the proceedings," and it is clear from the reasoning of the court that if he had taken "any part it would have been a waiver of the irregularity, as the same court had decided in 1 Pet., 307. The cases cited by the appellee are all where the proceedings were ex-parte, and taken in the absence of the other side, or as in 7 How., 705, where, though present, he refused to take any part in it. On the other hand there are an infinite number of cases to show that the presence of counsel, and his cross-examining the witness, amounts to a waiver of any irregularity as to the time or place when or where the deposition is executed. See 7 Cowen, 59, Jackson vs. Kent. Do., 69, Wait vs. Whitney. 2 Bibb., 316, Talbott vs. Bradford. 4 Do., 480, Rogers vs. Barnett. Minor's Rep., 407, Rogers vs. Wilson. 19 Wend., 437, Kimball vs. Davis. 2 Dallas, 157, Stewart vs. Ross. 2 Penn. Rep.  [**3]  , 200, Patterson vs. Patterson. 4 Greenleaf, 387, King vs. Upton.

Charles H. Pitts and John Nelson for the appellee, relied upon the cases of Collins and wife, vs. Elliott, 1 H. & J. 2, and Harris vs. Wall, 7 How., 705, as illustrating the rule of strictness applicable to questions of this kind.  

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

OPINIONBY:
MASON 

OPINION:

 [*200]  MASON, J., delivered the opinion of this court.
As there is no question made upon the pleadings in this case, we deem it unnecessary to refer to them.
On the 8th of December 1848, the county court, upon application of the defendants, ordered the testimony of William Chase Barney to be taken under the act of 1828, ch. 165, before one of the commissioners of that court, on the 12th day of December 1848, to be used de bene esse, provided a copy of the order be duly served on the plaintiff or his attorney. The order was regularly served, and Barney's testimony was taken by the commissioner on the 16th day of December 1848, and (as appears by the commissioner's return,) in the presence of the attorney of the plaintiff. On the 20th 

 [*201]  December 1848, the commission was reopened,  [**4]  and the witness was cross-examined by the plaintiff.
At the trial, the plaintiff offered in evidence the promissory note upon which suit was brought, and proved the signature of Mrs. Chase thereto, and the endorsement thereon to be in the handwriting of the payee, and then rested his case.
The defendants then offered to read to the jury the deposition of William Chase Barney, already referred to, but the plaintiff objected to its admissibility, and the court sustained the objection and rejected the testimony.
The admissibility of this testimony is the only question involved in this appeal, and the sole ground upon which its inadmissibility is based, consists in the circumstance that the order of the court directed the deposition to be taken on the 12th day of December, whereas the return of the commissioner shows that the deposition was not taken in fact until the 16th of December.
A strict compliance with the requirements of the statute, as well as the order of the court, is necessary to the validity of this proceeding, all of which should appear in the commissioner's return. Therefore, under ordinary circumstances, the departure by the commissioner from the order of the [**5]  court, as to the time of taking the deposition, would vitiate his proceedings and render the deposition inadmissible as evidence in the cause.  Young and Wife, vs. Mackall, 4 Md. 362.
The formalities required in taking testimony under a commission, as to time, place, &c., are required chiefly for the protection of the adverse party, and to secure to him the right to participate in the examination of the witnesses, if he chooses to do so. But if, on the other hand, he thinks proper to waive his right to a strict compliance with the directions of the commission, and agrees to its execution in an informal way, he cannot afterwards object to the proceeding upon the ground of its irregularity in this respect. The question here is, does the fact of the plaintiff's presence by his counsel, and the cross-examination by him of the witness, amount to an assent to the informal execution of the commission? We 

 [*202]  think it does, and that he cannot afterwards object to an irregularity in the proceeding of the commissioner, which he virtually sanctioned and agreed to by his presence and conduct.
In the case of Harris vs. Wall, 7 Howard 693, a case relied [**6]  on by the appellee, it appears that the counsel, though present when the testimony was taken, declined to take any part in the proceedings, and it would appear from the reasoning of the court, if he had participated, as in this case, it would have amounted to a waiver of the irregularity. We think therefore that the presence of the counsel, and his cross-examination of the witnesses, was equivalent to an agreement to waive any irregularity as to the time and place when or where the deposition is executed.  Jackson vs. Kent, 7 Cowen 59. Talbott vs. Bradford, 2 Bibb 316. Stewart vs. Ross, 2 Dallas 157.  1 Peters 307.
Judgment reversed and procedendo awarded. 

34 of 48 DOCUMENTS 

HORATIO G. ARMSTRONG vs. THOS. C. RISTEAU'S Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 256; 1853 Md. LEXIS 91 

DECEMBER, 1853, Decided 

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

Ejectment by the appellee against the appellant for part of a tract of land called "Darnallsylvania." Plea, non cul., and defence on warrant. The whole tract belonged many years ago to Hercules Courtenay, and as both parties claimed under him, it was agreed to dispense with the location of any earlier title than his. The following sketch, taken from the plats in the case and explanations thereof, will sufficiently illustrate the location of the land and explain the references thereto in the opinion of this court:

[SEE DRAWING IN ORIGINAL]

Explanations of the aforegoing Plat.

1. The outer lines of the aforegoing enclose the whole tract called "Darnallsylvania."

2. The lines of the land in dispute begin at 10 and run thence to B, called "black B," near which is the cherry tree spoken of in the plaintiff's first prayer; thence to E, called "black E;" thence to c, called "red C;" thence to b, called "red B;" thence to 9, and thence to the beginning.

3. D is the point admitted to be the beginning of the first line of "Darnallsylvania."

4. G, called "black G," indicates a "stone and hickory," admitted to be the beginning [**2]  of the second line of "Darnallsylvania."

5. a, called "red A," is the end of the second and beginning of the third line of Armstrong's title deed.

6. A, called "black A," is the point at which, (as the witnesses say,) Risteau and H. W. Chambers planted a stone, as the boundary of their lands and as the beginning of the division line between them.

7. The fences spoken of by the witnesses run from A to B, from B to C, and from 9 to 10, at which latter point is a gate, called by the witnesses "Armstrong's gate," through which the road leading into and terminating upon Armstrong's land passes.

8. There is no fence from 9 to b on the south side of the land in dispute, on which side it adjoins other wood-land in the possession of Risteau, which latter is not entirely enclosed, being open on the line between it and that of Ridgely's heirs.

Exception. After the testimony (which, both written and oral, is sufficiently stated in the opinion of this court,) had been offered, the plaintiff asked three instructions to the jury, in substance as follows:

1st. If they shall believe that the plaintiff, and those under whom he claims, have had exclusive and continuous possession [**3]  of the land in controversy for a period of twenty years and upwards prior to the institution of this suit, and that he and they, during all that time, exercised their rights of property over said land openly, and with the knowledge and consent of the adjoining proprietors, under whom the defendant claims, and that the said adjoining proprietors always recognized the fence spoken of by the witnesses, and cornering at the cherry tree, as a division fence between them and those under whom the plaintiff claims; and if they shall also believe that H. W. Chambers, under whom the defendant claims, and when owner of the adjoining land, did, together with the present plaintiff, plant a stone at black A, on the second line of "Darnallsylvania," as the beginning of the divisional line between the parts of "Darnallsylvania" respectively owned by him and the plaintiff, then the plaintiff is entitled to recover.

2nd. If they shall believe that the plaintiff and those under whom he claims have had exclusive, adverse and continuous possession of the land in controversy for twenty years and upwards prior to the institution of this suit, then he is entitled to recover.

3rd. This prayer, after [**4]  submitting to the jury the finding of the facts stated in the first, asserts, that then they are bound to presume a deed for the land in controversy to have been executed to the plaintiff, or those under whom he claims, by the adjoining proprietors, under whom the defendant claims.

The defendant also asked three instructions, substantially as follows:

1st. If the jury find the several deeds and wills given in evidence by the defendant, and that they are truly located, and that according to the courses and distances of said title, and agreeably to the beginning of "Darnallsylvania," as laid down on the plats and admitted by both parties, the second line of the defendant's land begins at black G on the plats, and runs thence to red A, and that the third line thereof runs to red B, and the fourth to red C, then the defendant is entitled to the land for which he has taken defence and the plaintiff is not entitled to recover.

2nd. This prayer objects to the admissibility of all the evidence offered by the plaintiff in regard to the acts of the plaintiff and others, under whom he claims, in cutting wood upon the land in dispute, inasmuch as the places of said cuttings are [**5]  not located on the plats; nor does it appear that they were pointed out by the witnesses examined in this case to the surveyor at the time of the survey.

3rd. If they find the facts set forth in his first prayer; and further, that defendant and those under whom he claims have been in the quiet and peaceable possession and actual occupancy, by cultivation and residence, of all that part of the land embraced within his deed to the north and east of the fence, designated on the plat as running from black A, in the second line of "Darnallsylvania," and thence south-east to black B, and thence to C; and that the land claimed by the plaintiff, within the lines of the defendant's deed, was and is not now enclosed, but is entirely open and unenclosed on the east side of the road to defendant's land, as laid down on the plats, which has been used by him and those under whom he claims, and which terminates upon his property; and further, that the land so claimed by the plaintiff is also open and unenclosed upon the south side thereof, then no acts of sparsim cutting, as given in evidence by the plaintiff, constitute such an exclusive possession, no matter from what continuance of time,  [**6]  as will enable him to recover in this action.

The court, (FRICK, C. J., and LE GRAND, A. J.,) granted all the prayers of the plaintiff and rejected all those of the defendant, and to this ruling the latter excepted, and the verdict and judgment being against him he appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Twenty years adverse possession of land will enable a plaintiff to maintain ejectment against a defendant having the paper title who has ousted him.

Possession for twenty years, by force of the statute of James 1, ch. 16, is like a descent at common law, and tolls the entry of the person having right, and though the very right be in the defendant, yet he cannot justify his ejecting the plaintiff.

In the case of Doe vs. Reade, 8 East, 353, the plaintiff did not have twenty years adverse possession before the entry of the defendant having the legal title, and therefore does not sustain the position for which it is cited in 2 Archbold's Nisi Prius, 318.

The common opinion among eminent jurists, whose learning and experience were often employed in ejectment causes in this State, may be appealed to as evidence of what the law was then considered to be on a point upon which there are no adjudged cases to the contrary.

In cases of mixed possession actual enclosure is necessary to defeat the title of the real owner, and as between him and a wrong-doer it makes no difference whether he is in actual possession of any part of the land or not, for in either case the title by possession prevails only to the extent of actual enclosure.

Possession of part by him who has title to the whole is possession of the whole, and he cannot be barred by adding together the different possessions and acts of the defendant at long intervals so as to make out twenty years.

Where different persons enter in succession without title, the last cannot tack the possessions of his predecessors to his own so as to make out continuity of possession sufficient to bar the entry of the owner, for the moment the first quits, the legal possession of the owner is restored, and the entry of the next occupant constitutes him a new disseizor.

Parol admissions of one, under whom the defendant claims, that the land belonged to the plaintiff, and that he and the plaintiff had planted a boundary and agreed upon a line of division between them, may be evidence of boundary, location and possession, but not to prove title in the plaintiff by possession when he has admitted that defendant's deed embraces the land in dispute.

Where the beginnings of the two first lines of a tract of land are admitted by the locations of both parties on the plats, the jury are concluded thereby, and when the two first lines of the defendant's deed run with the lines whose beginnings are thus admitted, the jury must find the beginning of his third line as located by the defendant.

Fences upon three sides only of an oblong or square piece of land are not a sufficient enclosure to make an adverse possession, so as to vest title in a wrong-doer as against the real owner, though such fences exclude the latter from the use and enjoyment of the land.

One of the elements of title by adverse possession is that it must be a hostile invasion of another's rights; if there be consent on the part of the owner the entry for the purpose of doing the act is not tortious.

To authorise the presumption of a deed the possession must be actual, adverse, exclusive and continuous, and under claim of title, and if the prayer does not leave the finding of these facts to the jury it is erroneous.

Where an object is located on the plats and known to the witness, he may give evidence of any cutting on, or user or cultivation of, the land in any particular direction from such object, without any location of the places where such cutting was done.

A witness sworn on the survey may give evidence of the general possession of the land located on the plats, and of acts of ownership generally over the same, without any particular location of the places where the acts of ownership were performed.  

COUNSEL:
Charles F. Mayer and Grafton L. Dulany for the appellant.

Both parties claim under Hercules Courtenay. The defendant's deed gives him a clear and perfect title to all the land embraced in it, and it is admitted that its true location embraces the land in controversy. The plaintiff relies upon possession alone. Two questions arise upon the plaintiff's prayers, and the first and third prayer of the defendant:-- 1st. Will an adverse and continuous possession for more than twenty years enable a party, relying upon such possession alone for his title, to maintain, as plaintiff, ejectment against the true owner who has ousted him and gained quiet and peaceable possession of the land? 2nd. If the first proposition should be decided in the affirmative, is the possession of the plaintiff in this case of such a character as will enable him to maintain the action?  [**7]  

1st. It is a rule of strict observance in this State, that a party who brings ejectment must show a legal title and right to the land itself, and that he must have this title against all the world. The act of limitations quiets the possession of the party who is in possession and acting on the defensive; and though twenty years continuous adverse possession might enable the possessor to recover against a wrong-doer who has ejected him, yet there is no Maryland case which has decided that he can maintain the action against the true owner. The reason for this is obvious, for the entry of the true owner where the possession becomes vacant is not a trespass; when he once gets possession his title sanctifies his seizin; he is then in as of his old right. In 2 Archbold's Nisi Prius, 318, it is said, "if a party against whom the twenty years have run obtain quiet possession of the land, he is then in as of his old right, and may set up his right and title as a defence to any ejectment that may be brought against him, in the same manner as if he had never been out of possession." 8 East, 353, Doe vs. Reade. 2 Seargt. & Rawle, 57. It is not necessary for the true owner to show that he [**8]  has been in possession at some time during twenty-one years before suit, (6 Seargt. & Rawle, 21, Hawk vs. Senseman; 1 Munf., 162, Clay vs. White,) for the title confers the seizin, and though the seizin be divorced from the title the latter still remains, and when the true owner gets the possession he is in of his old right, even though he obtains possession by disseizin. In the case cited from L'd Raymond, 741, it is not said the plaintiff was acting against the party having the true title; nor is it said in Dorsey on Ejectment, 31, 43, that such an action can be brought against the true owner. No such case has ever occurred in this State, and we rely upon the reasoning of the authority in Archbold's Nisi Prius, before cited, that such an action cannot be sustained.

2nd. But suppose it be conceded that he can maintain the action, is the plaintiff's possession in this case of such a character as will transfer the title to him? Where possession alone is relied upon to confer title it must be:--1st, definite; 2nd, for twenty years; 3rd, it must be uninterrupted during the twenty years; 4th, it must be an enclosed possession, and 5th, it must be adverse in its origin. If any of these [**9]  requisites are wanting it is not sufficient. So far as enclosure is essential to such a possession, the case of Casey vs. Inloes, 1 Gill 430, 499, 500, is conclusive. See also 3 Wend., 337, Jackson vs. French. The land here is wood-land and is unenclosed upon two sides at least. Now what is meant by enclosure? it means to shut in on all sides, to surround. But it is said the fence spoken of by the witnesses excludes us and is, so far as we are concerned, an enclosure. Now this fence stood there when our deed was executed, and is therefore our fence, being upon our land, and the land in dispute therefore only lies out of our enclosure, and can it be said that because we do not choose to enclose all our land we therefore exclude ourselves, by our own acts, from the part unenclosed, and thereby lose our title to it? We were in possession of the rest of the land embraced in our deed by actual enclosure, and our possession was extended by construction to the limits of our title. Our possession of part with title is possession of the whole. 3 H. & McH., 621, Davidson's Lessee, vs. Beatty. It was therefore a case of mixed possession, and in such a case, where two are in possession of land,  [**10]  it is his possession who has the right, unless he be deprived of it by actual enclosure for twenty years. 9 Gill 277, Cresap's Lessee, vs. Hutson. 1 Gill 500, Casey vs. Inloes, and cases there cited. The defendant being thus in constructive possession of the whole, the acts of the plaintiff in entering and cutting wood from time to time, without actual enclosure, were but repeated trespasses. He might have continued thus to enter and depart for a thousand years and still have gained no title, for the moment the intruder's foot was removed from the land the possession of the true owner was restored, and every fresh entry and every fresh cutting was a distinct trespass. See 2 H. & J. 94, Cheney vs. Ringgold; Do., 122, Hall vs. Gittings; 4 H. & McH., 129, Ridgely vs. Ogle; 5 H. & J. 264, Hammond vs. Ridgely; 2 H. & McH., 260, Lloyd vs. Gordon and Wife; 1 H. & J. 545, Gibson vs. Martin; 2 Johns., 231, Johnson vs. Schoonmaker, besides the cases already cited in 1 Gill and 9 Gill. But again, the possession, such as it is, was not adverse in its origin; it began, if at all, by mutual error, and mistake is never the source of right. 6 H. & J. 500, Lamott vs. Bowly.  [**11]  15 Wend., 597, Sharp vs. Brandow. Where a party comes into possession under the permission of the rightful owner, he cannot turn it into an adverse possession. 3 Wash. C. C. Rep., 475, Potts vs. Gilbert. We admit that Chambers was under the impression that the land in dispute belonged to the plaintiff, down to the time when the defendant had an actual survey made. The boundary fence was esteemed such by mistake; neither party thought when it was placed there that he was yielding any thing within his title, or gaining any thing beyond it. But the declarations of Chambers are not admissible to prove the fact of possession; they may prove its character as that it was adversary, but not the fact of possession, which must be made out by other and independent proof applicable to the subject. But these declarations were introduced to show title in the plaintiff, and for this purpose they are of no value. The pleadings and admissions on the record show that the legal title was in the defendant, and parol proof to contradict this is inadmissible; a disclaimer is inadmissible to prove title. See on this point 5 Cowen, 133, Jackson vs. Davis. 7 Johns., 186, Jackson vs. Vosburgh. 10 Do., 358,  [**12]  Smith vs. Lorillard. 16 Do., 302, Jackson vs. Cary. 1 H. & McH., 262. Drane vs. Hodges. Adams on Eject., 275. Act of 1786, ch. 33, sec. 6. The dispute here is in fact about boundaries and not about title, and the statute of limitations does not run in such cases, not extending thereto. 1 H. & McH., 84, Miller vs. Hynson. 2 H. & J. 122, Hall vs. Gittings.

3rd. Our third prayer was erroneously rejected, because the places of sparsim cutting not being located, any evidence in regard thereto was inadmissible. 1 Gill 502, Casey vs. Inloes. 2 H. & J. 122, Hall vs. Gittings. But if it be not necessary that each particular place of cutting should be located, we yet insist that the limits within which they took place should be.

J. M. Campbell and John Nelson for the appellee.

The two main questions in the case are:--1st, whether twenty years adverse possession will enable a plaintiff to maintain ejectment against a defendant having the paper title, who has ousted the plaintiff? and 2nd, whether the plaintiff has proved such a possession as entitles him to recover in this action? We maintain the affirmative of both these propositions.

1st. In Casey vs. Inloes,  [**13]  1 Gill 504, the court say, that "nothing short of an actual adverse and continuous possession for twenty years can vest a title in the wrong-doer." This language clearly shows that such possession is competent, not only to divest title from the original owner but to vest it in the possessor. That such is the effect of the statute of limitations of 21st James 1, ch. 16, is settled in England. In 1 Lord Raymond, 741, it was ruled by Lord Holt, that "if A has possession of land for twenty years uninterrupted, and then B gains possession, upon which A brings ejectment, though A is plaintiff his possession for twenty years will be a good title for him, as well as if A had been then in possession, because possession for twenty years now, by virtue of the statute of 21 James 1, is like a descent at common law, which tolls the entry." The same position is laid down in Dorsey on Eject., 43, which cites and relies upon the case in Lord Raymond; and in 4 H. & McH., 72, Plummer vs. Lane, it is said, the plaintiff may trace his title by twenty years uninterrupted and exclusive possession. There is no contrary doctrine to be found anywhere. Why should not this be the law? Risteau has been in [**14]  adverse possession for twenty years; the clear effect of this is that Armstrong could bring no action against him. Why? because he has by lapse of time lost his title, and therefore stands in the same relation to the land that a stranger would, and none other; his right of entry is gone as if by a descent cast, and in case of a descent cast the title is perfect for every purpose--the entry is tolled. It would be strange if he could by mere physical force turn out the true owner, and yet could not as plaintiff maintain an ejectment. Such a principle has never received the sanction of a court of justice.

2nd. Now what are the essential requisites of such a possession? It must be actual, continuous and adverse. The evidence shows actual and continuous possession by Risteau and those under whom he claims, up to the division fence, for more than fifty years; they were in the constant habit of cutting wood and exercising acts of ownership over the land in controversy from 1807 down to the time of the present suit. There is no question of mixed possession here; the evidence is uniform on the point that this fence was the division line and has been so for thirty years. The case of mixed [**15]  possession are where two are in possession, and that of the one having no title is excluded and that of the one having the deed is adjudged to be exclusive, but here the undisputed possession has been in Risteau and those under whom he claims; there never has been a possession by Armstrong, and the question then turns upon the point whether this admittedly exclusive possession was adversary? An adversary possession is a possession inconsistent with the true owner's right, (Dorsey on Eject., 35,) or a claim of title hostile to that of the true owner. This possession, tested by either of these definitions, is adverse. The cutting of timber was inconsistent with the rights of the other party, for it was destructive of his estate. Enclosure does not constitute title; it is but evidence of the claim of title, and is not essential to make an adverse possession. The Court of Appeals, in 1 Gill 500, have said, "actual, adverse and continuous possession for twenty years" will vest title in the wrong-doer; they have not said it must be by enclosure. In Brooke vs. Neale, cited in the note to Dorsey on Eject., 41, it was decided, that adversary possession alone without enclosures, where it [**16]  is not a case of mixed possession, will give title after twenty years. But we have an actual enclosure so far as Armstrong is concerned, for he can only get on this land by getting over the division fence. The testimony clearly shows that this fence was established as a division line. This fence was notice that the party who put it up intended to keep off those on the other side. It was recognised as a boundary fence from the earliest times.

3rd. Upon the finding of the facts submitted in our third prayer, there was the presumption of a conveyance. This position is unequivocally laid down in Casey vs. Inloes, 1 Gill 505. The possession has continued from 1807, and at that time the line stood precisely where it does now. Hearsay is evidence as to boundary and the character of holding. We admit that a party cannot by parol disclaim title, but the rule is not applicable to questions of boundary, and there can be no higher evidence than the declarations of the parties as to where a particular line ran. See 6 Johns., 19, Jackson vs. Shearman; 7 Johns., 176, Ballou vs. Kip, and 2 H. & J. 112, Hall vs. Gittings. But the evidence not only shows acquiescence, but an actual contract [**17]  that this should be the division line, and the case of Smith vs. McAllister, 14 Barbour, 434, is therefore perfectly conclusive of the whole question. There could have been no mistake here, as in the case of Cresap vs. Hutson, 9 Gill for the line was ascertained as a boundary as early as 1798. But suppose there was such mistake, a tortious holding after twenty years will give title, a fortiori, will an erroneous holding have the same effect?

4th. It was not necessary to locate every tree cut. After locating the fence, evidence of cutting on either side of that fence may be given without locating the points of cutting on the plats. General possession of the whole tract, and acts of ownership generally over the same, without any particular location of the places, may be given in evidence. Bowley vs. Deady, Dorsey on Eject., 62. See also 4 H. & McH., 128, Ridgely vs. Ogle, note (a.) 2 H. & J. 87, Cheney vs. Ringgold, and McHenry on Eject., 216.  

JUDGES:
The cause was argued before ECCLESTON, MASON and TUCK, J., first at December term, 1852, and afterwards, by order of the court, was re-argued at the present term.  

OPINIONBY:
TUCK 

OPINION:

 [*268]  TUCK, J., delivered the opinion of this [**18]  court.
The appellee sued the appellant for the recovery of part of a tract of land called "Darnallsylvania." At one time this whole tract belonged to Hercules Courtenay, who was the father of the appellee's wife, and who, in the year 1807, sold three hundred and thirty-one acres thereof to Daniel Chambers, under whom the appellant claims, by a devise to his son, Harry W. Chambers, and subsequent conveyances.
At the trial below, the appellee offered the will of Hercules Courtenay and other documentary evidence, from which it appears that he devised his "dwelling plantation, consisting of parts of Good Hope, Gray's Inspection and 'Darnallsylvania,'" to his wife for life, and at her death to his son, John S. Courtenay. In 1820 the latter conveyed his interest to his mother, who, by her will, dated in 1824, and proved in 1826, directed the lands to be sold and the proceeds to be divided between her said son and Mrs. Risteau. It does not appear that any sale was made under the will, nor in what manner J. S. Courtenay became sole owner of the dwelling plantation of his father; but in 1827 he devised it to Mrs. Risteau and her infant son, and to the survivor, and the heirs and assigns of [**19]  such survivor. The land in controversy is not mentioned in any of these instruments offered on the part of the appellee. It does not appear that Mrs. Risteau was the owner of the whole of her father's estate at the time this action was commenced.
The plaintiff proved various acts of ownership on the part of H. Courtenay, his widow and himself, by cutting wood, timber and rails, for thirty or forty years before the trial; and that certain fences on the north and east of the land in dispute were standing at the time of the trial, where they were forty years before, which were considered the division fences between these farms; that Chambers, the elder, had several times said that the land in dispute belonged to Mr. Courtenay, and that about the year 1832, H. W. Chambers, from whom the defendant purchased, and the appellee had planted a stone at 

 [*269]  the beginning of one of the lines, located by the appellee, as a dividing line between them. There is no proof of possession by John S. Courtenay, nor of the circumstances and manner of the appellee's taking possession of the disputed land. It is wood-land and has fences on three sides, but has none on the south; on that side it adjoins [**20]  wood-land of the Courtenay estate in possession of the appellee, but this is not entirely enclosed, being open on the line between it and the lands of Ridgely's heirs. The locus in quo, part of the Courtenay estate, and Ridgely's land, constitute a considerable body of land, uncultivated and not enclosed, and have so remained for many years. A road passes through the land from the south to the north, leading into Armstrong's possessions through a gate in the fence, laid down by the appellee as the dividing line between the parties. By whom this gate was put there does not appear, but the witnesses speak of it as Armstrong's gate.
On the part of the defendant below it was proved, that Courtenay sold and conveyed to Chambers, the elder, in 1807, three hundred and thirty-one acres, which are included in the deed to the appellant, the lines of which embrace the lot in controversy, if located according to his pretensions. He also proved that he and those under whom he claims have, from the time of Daniel Chambers, the grantee of Courtenay, resided on, occupied, used and cultivated, all the land within the limits of the defendant's deed, except that portion thereof which is claimed [**21]  by the plaintiff.
After having been in the possession of the appellee, and of those under whom he claims, adversely for more than twenty years, as he alleges, the appellant obtained possession by extending his fences according to the lines of his deed, as he claims they should be located. Various locations were made, most of which are disputed by counter-locations, but the explanations of the surveyor show that the parties agree as to the beginning, and first and second lines of the whole tract of "Darnallsylvania."
No question arises on paper title. The prayers of the appellee rest his right to recover on adverse possession by himself 

 [*270]  and those under whom he claims. And two propositions have been relied on by the appellee's counsel, which are supposed to embrace the points chiefly in controversy. These are: First. That twenty years adverse possession will enable a plaintiff to maintain ejectment against a defendant having the paper title, who has ousted the plaintiff. Second. That the plaintiff below has proved such a possession as entitles him to recover in this action.
If the first of these propositions were to be settled according to the English authorities [**22]  alone, we suppose that its correctness could scarcely be questioned. More than a century and a half ago it was decided by Lord Holt, that "if A has possession of land for more than twenty years uninterrupted, and then B gains possession, upon which A brings ejectment, though A is plaintiff, yet his possession for twenty years will be a good title for him as well as if A had then been in possession, because possession for twenty years, by virtue of the statute of James 1, ch. 16, is like a descent at common law, which tolls the entry." Stocker vs. Berny, 1 Lord Raymond 741, (reported in 2 Salk. 421, as Stokes vs. Berry.) The same principle is stated in Buller's N. P., 103, and the reason assigned, "that by the statute, twenty years possession tolls the entry of the person having right, and consequently, though the very right be in the defendant, yet he cannot justify his ejecting the plaintiff."
In Taylor vs. Horde, 1 Burr. 60, Lord Mansfield, in speaking of adverse possession by a defendant in ejectment, said: "Twenty years adverse possession is a positive title in the defendant; it is not a bar to the action or remedy of the plaintiff [**23]  only, but it takes away his right of possession." And subsequently, in the case of Denn vs. Barnard, Cowper, 597, this eminent jurist applied the same doctrine where the plaintiff in ejectment was relying on a title by possession alone. See also Barwick vs. Thompson, 7 Term Rep. 492.
The counsel for the appellant, however, contend that this doctrine does not prevail against a defendant holding the legal title, and they rely on 2 Archbold N. P. 318, (50 Law Lib. 308,) where it is said, "if a party against whom the twenty years have run obtain quiet possession of the land, he 

 [*271]  is then in as of his old right, and may set up his right and title as a defence to any ejectment that may be brought against him, in the same manner as if he had never been out of possession," for which the author cites Doe vs. Reade, 8 East, 353. That case does not sustain this position. There the plaintiff never had had any possession of the premises. She set up a claim under a former possessor, between whom and herself there was no privity. The defendant, with title, had entered into a vacant possession on the death of the last occupant. "The court all agreed,  [**24]  that the defendant being lawfully in possession might defend himself upon his title, though twenty years had run against him before he took possession, such possession not being the possession of the lessor of the plaintiff." The words last quoted, but omitted by Archbold, clearly show that the defendant could not have resisted the title of the plaintiff, if she had had twenty years adverse possession before the entry of the defendant. There are other cases in England in which the decision of Lord Holt is referred to as authority on this point.
We have not been referred to any decision in Maryland in which a plaintiff has recovered on such a title, but there are several cases in which the court, in stating the general doctrines of the law of ejectment, has assumed that an adversary possession for more than twenty years is a positive title, on which a plaintiff may recover. And in the arguments of counsel in the numerous land cases to be found in our reports, there are frequent recognitions of the validity of such titles when relied on by plaintiffs. We mention this as pertinent to the present inquiry, because, in the absence of adjudged cases, the common opinion among eminent [**25]  jurists, whose learning and experience were so often employed in ejectment causes, under the Provincial and State governments, may, we think, be appealed to as evidence of what the law was then considered to be, on a point upon which there are no cases to the contrary. Ram on Legal Judgments, 12.  1 Taunt., 448. 8 Gill 500.
In the case of Plummer vs. Lane, 4 H. & McH. 72, the 

 [*272]  court said, "the plaintiff in ejectment must show a grant of the land for which the action is brought, and a regular title from the grantee; or seizin of the land, and a dying seized of the person under whom the lessor derives his title, and a regular title from the person dying seized, or twenty years uninterrupted and exclusive possession of the land." And in the case of Wood vs. Grundy, 3 H. & J. 13, the court were of opinion that the plaintiff was not entitled to recover, "there being no title deduced from the patentee, &c., and there being no possession proved sufficient to entitle the plaintiff to recover in ejectment without showing title." See also Hutchins vs. Erickson, 1 H. & McH. 339. Helms vs. Howard, 2 H. & McH. 57 at 88, 89. [**26]  3 Do. 621. This view of the question is also taken by the late Judge Dorsey, in his lectures on ejectment, (page 43,) where he says, "twenty years adversary possession not only tolls the right of entry, but enables the party in possession to maintain ejectment," and, "where the claimant does not come within the exceptions of the statute of James, it (the adverse possession) is a bar against all the world;" for which he refers to the case above cited from Lord Raymond, showing that Lord Holt's construction of the statute was understood by him to be the law in this State. See same book, pages 56, 57.
With these opinions before us we might rest the decision of the proposition under consideration, upon the authority of those by whom the law has been thus expounded, more especially as the labor and research of counsel (and of the court) have not produced a single case in which the opposite doctrine has been maintained.  2 Gill 201. But, as the counsel for the appellant contend that the statute was designed for the protection of defendants, and to quiet possessions so long only as they are held; and as this is the first case in this court in which the point has been [**27]  directly presented, its importance is a sufficient reason for briefly alluding to what has been ruled elsewhere, in courts of high authority. Looking to the reason on which the law of limitations is applied, we cannot give to the statute the restricted operation 

 [*273]  suggested by the counsel. It is true that it does protect possessions against plaintiffs showing title, but this effect is produced, because what the law deems a perfect possession, has continued during the whole time prescribed by the statute, and thus given the title to the party who is so possessed. A presumption arises that the rights of the real owners have been extinguished or surrendered, else they would not have acquiesced so long in the possession and use of the property. The right of entry is thereby taken away, and the right to the possession attaches to the possession itself, making a complete title in the occupant. 11 Gill & Johns. 371. 1 Gill 497. Angel on Limitations, 396. The argument of the appellant is fully met by the following cases, in which the question was expressly before the court.
In Pennsylvania, whose statute of limitations, according to Judge Washington, (3 Wash. C. C. 478,) [**28]  is substantially the same as that of 21 James, Tilghman, C. J., held, that the right of possession is acquired by twenty-one years possession, and that this right is not only sufficient to support a defence, but is a positive title, under which one may recover as plaintiff in ejectment. "This," he said, "was the very point decided in Stokes vs. Berry, 2 Salk. 421." So in New York, it is said to be "unquestionably the true rule, and every legal presumption, every consideration of policy requires, that such evidence of right should be taken to be conclusive." Jackson vs. Dieffendorf, 3 Johns. 267. In that case a party who had held possession for thirty-eight years, was turned out by a writ of possession under a judgment by default at suit of the defendants, who were plaintiffs in a former action. The questions were, whether that possession gave title to recover in ejectment, and whether the judgment by default in the former suit was a bar to the action. Both points were ruled with the plaintiff. The same doctrine was affirmed in Jackson vs. Oltz, 8 Wend. 440, where it was held, that a possession for more than twenty years, by the [**29]  plaintiff, had ripened into a title, and that he might recover, although the 

 [*274]  paper title was not in him. See also Day vs. Alverson, 9 Wend. 223.
There are cases to the same effect in some of the other State courts, to which we deem it unnecessary to refer, concluding our views, in affirmance of the first proposition, by referring to the opinion of Mr. Justice Washington, in Holtzapple vs. Phillibaum, 4 Wash. C. C. 356, 368, who held it to be unquestionable law, that an adverse possession in the defendant for a length of time, which will prevent a plaintiff from recovering in ejectment, will also give to the plaintiff, who has had such a possession, a right upon which he may recover; and that to defeat this right when asserted and proved, the adverse party must show either a suit brought, or an entry made within the time which the law prescribes. To the same effect, see the opinion of Thompson, J., in Jackson vs. Porter, 1 Paine's C. C. Rep., 457. Angel on Limitations, ch. 31.
We are next to consider whether the plaintiff had had such possession of the premises in dispute, as entitled him to maintain this ejectment. [**30]  There is great diversity among the cases on the subject of adverse possession. While they agree that it must be adversary, exclusive and continuous, they differ as to the tests by which its character is to be determined. In most of the cases actual enclosure has been held to be indispensable; but in some this has not been considered important, where the nature and position of the property, and the mode of using it, were such as to afford manifest evidence to all persons of an intent to claim the land by adversary possession.  Ewing vs. Burnet, 11 Peters 41, is a case of this kind. See also 2 Smith's Leading Cases, 413, 414, 415. This absence of uniformity is to be observed generally, if not always, where the possession has been held by one party only, and not by both, as a mixed possession. In the latter case, whatever the law may be elsewhere, there can be no doubt that it has been long settled in Maryland, that actual enclosure is necessary to defeat the title of the real owner. In a recent case in the late Court of Appeals, in which the subject 

 [*275]  is discussed, ( Casey vs. Inloes, 1 Gill 430 at 496,) it is said, "the general principle [**31]  is now too well settled to require authorities in its support, that a possessio pedis of part of a tract of land, by him who is legally entitled to the entirety, carries with it the possession to the extent of his legal rights; and no wrong-doer can, in contemplation of law, by entry or the exercise of acts of ownership thereon, acquire the possession of any part thereof without actual enclosure, or ouster, actual or presumptive." And at page 503, "that the title of the rightful owner, in a case of mixed possession, cannot be barred by adding together the different possessions and acts of the defendant, at long intervals, in point of time, so as to make out twenty years, is a principle also well settled. Upon every discontinuance of the possession of the wrong-doer, by operation of law, the possession of the rightful owner is restored, and nothing short of actual, adverse and continuous possession for twenty years, can destroy his rights, or vest a title in the wrong-doer." 2 H. & J. 87, 112. 5 Do. 264. And where different persons enter upon land, in succession, without title, the last possessor cannot tack the possession of his predecessors to his own, so as to make out [**32]  continuity of possession, sufficient to bar the entry of the owner. The possession of one cannot be the possession of the other, because the moment the first occupant quits the possession, the legal possession of the owner is restored, and the entry of the next occupant constitutes him a new disseizor. There is no privity between them.  3 Wash. C. C. 479. There is a diversity among the cases on this last point, but we think that the correct rule is laid down by Judge Washington, and that it is within the reason of the doctrine stated by the Court of Appeals, 1 Gill 503, above quoted.
That the lot in controversy is within the lines of Armstrong's deed, according to this record, cannot be controverted. The beginning and the first and second lines of the whole tract of Darnallsylvania, are admitted to be correctly located on the plots. The appellant's title papers call for and are located precisely as are the first and second lines of the whole 

 [*276]  tract, as far as they profess to run together. The effect of this admission, then, is to establish the beginning of Armstrong's third line so far south on the second line of "Darnallsylvania," as to [**33]  locate the land in dispute north of his third line; because, assuming, as the locations admit, that the beginning of the appellant's second course is at the stone and hickory, (black G,) it is impossible to run his second line according to his title papers without arriving at red A, which is south of the woods claimed by the plaintiff, and consequently within the lines of defendant's deed.
It is said, however, and the evidence shows, that some of those under whom the appellant claims, admitted that this lot belonged to Courtenay, and that Risteau and Chambers had planted a boundary and agreed upon the line as now claimed by the appellee. These admissions may be evidence of boundary, and of the true location of the third line of appellant's deed and of possession, but they certainly cannot be relied on to prove title in the appellee by possession, so long as the admissions above mentioned are on the record. 1 Greenl. Ev., sec. 203. If these locations had been disputed, and a question submitted to the jury as to the correct running of those lines of the whole tract for which the appellant's deeds call, the fact of planting the boundary, and the admissions of Chambers, might have [**34]  been of importance, as tending to show that the land in controversy was not within the lines of his deeds, and that the doctrines of mixed possession did not apply. But we do not perceive how the jury could have found for the plaintiff, on any such question, on the evidence before them, inasmuch as they were concluded by the admissions of the parties, and must have found the beginning and first and second lines of the whole tract, and, consequently, the defendant's third line, as located by him.  Hughes vs. Howard, 3 H. & J. 9. Wilson vs. Inloes, 6 Gill 121, 164. By the prayers, as submitted by the plaintiff, the jury were at liberty to have found for him, although they might have been satisfied from all the evidence that the land was embraced 

 [*277]  within the lines of the appellant's deed, and was a case of mixed possession.
It was insisted on the part of the appellee, that the nature and location of the property, and of the fences, and the conduct of the claimants, were such, as to have given to the plaintiff and to those under whom he claims the exclusive and adversary possession, although there was no fence on the south side, on the principle,  [**35]  that whatever necessarily excluded the defendant and his predecessors from the use and enjoyment of the locus in quo, would have the same effect in law, in vesting title in the possessor, as if it had been entirely enclosed. Without saying how far such a state of things would avail the appellee, if the appellant had not shown title to the land, we think that the argument contravenes the Maryland authorities on such questions as that before us, and that these must prevail. It is true, as suggested by the counsel, that at page 504 of 1 Gill the court used the words "actual, adverse and continuous," without mentioning enclosures; but we cannot suppose that they meant to decide that possession, without enclosure, was sufficient, when they had employed that expression on page 500, and referred to the cases in which it had been held to be indispensable to give title to a wrongdoer. Some of these cases were nearly, if not quite, as favorable in circumstances, for the party claiming by possession, as the present is to the plaintiff. If the position of these parties were reversed on the docket, the case would be not very dissimilar from that of Cheney vs. Ringgold, 2 H. & J. [**36]  87. The plaintiff there, as Armstrong here, was in possession by enclosure of a part of his land. The defendant there, was in possession of a part of the plaintiff's land, by enclosure, as Risteau is of the lot M, lying west of the land in dispute. The defendant proved, that he and those under whom he claimed by descent, (but the appellee here shows no title or privity between himself and the former occupants of the land,) had lived on the land, using the parts exterior to his enclosures, ever since 1762, by cutting wood, rails and other timber thereon, for the use and purposes of the farm; and for 

 [*278]  more than twenty-seven years had been in the actual possession, by cultivation and enclosure, of a part of the land, claiming title to the whole. Yet the court said, that the plaintiff was not barred, because it was a case of mixed possession as to all the land not within the defendant's enclosures, though he was barred as to the land enclosed and cultivated for more than twenty years. It does not appear by whom these fences were erected; it is certain that the appellee did not put them there. Their erection was no act on his part showing an intention to claim the property. He [**37]  used the property as he found it, in the manner spoken of by the witnesses. If this was a fence of the former owners of Armstrong's land, it cannot be called an adverse possession by any person outside of the fence, because that would be to make a man turn himself out of possession of his own land, when he may place his fences on any part of his property, without thereby abandoning his title to what may be left out. In Casey vs. Inloes, the court said that a single line of fence did not make an adverse possession, it was an enclosure or occupation only of what the fence covered. And in 24 Me. 29, it was held, that a single line of fence, that did not appear to complete an enclosure, although it ran across the land of the real owner, and cut off one part from the other, (one part being the disputed land,) did not amount to a dissezin at common law. Why, then, should fences on three sides of a square or oblong piece of land have a more conclusive effect, more especially when in one of them there is a gate through which the owner has access to the land, and, consequently, is not necessarily "excluded from enjoying or participating in the advantages derivable from [**38]  the possession?" 3 H. & McH. 622. If this had been a possession fence, surrounding the land, such as that mentioned in 1 Gill 430, 500, it would not have been sufficient, and we think that such a mode of taking possession would have been more definite and notorious, as evincive of a hostile invasion of the owner's rights, than were all the facts on which the appellee founded his prayers.
The appellee's counsel relied in argument upon the case of 

 [*279]  Smith vs. McAllister, 14 Barbour 434, which does, in its general doctrines, sustain his views; but it is to be observed, that the facts of that case come within the principle of mixed possessions, as recognized in this State. The statement shows that "the land in dispute had, for over twenty-five years, been enclosed within the defendant's enclosure, and occupied and used by him, and those under whom he claimed, and tilled and cultivated in common with their other lands." But if this had not been so we should not, upon this one authority of a sister State, overrule the decisions of our own highest tribunal, requiring actual enclosure to vest title in a party claiming by possession [**39]  alone in cases of mixed possession. The case of Brooke vs. Neale, (Dorsey's Ejectment, 40,) also relied upon by the appellee, we think, does not apply to the one before us. We have shown, in Hoye vs. Swan, (at the present term,) that the defendant in that case was in possession, claiming under deeds for the very land in dispute, when the right of the plaintiff accrued, and therefore he occupied a very different attitude from that of the appellee here.
For these reasons we think that the prayers of the appellee should have been rejected, and that the third of the appellant should have been granted. The first and third of the plaintiff also claimed a verdict for him, if the jury should find that the acts mentioned were exercised openly, and with the knowledge and consent of the adjoining proprietors, under whom the defendant claims, and that they had recognized the fence cornering at the cherry tree as a division fence between them, and those under whom the plaintiff claims. If the acts of ownership relied upon were committed with the consent of the real owners of the land, no title by possession could be founded on them, as assumed by the first prayer, no matter how openly [**40]  they were done. One of the elements of such a title is, that the possession must be a hostile invasion of another's rights.  9 Wheat. 241, 288. If there was consent on the part of the owner, the entry for the purpose of doing the act was not tortious.  Gwynn vs. Jones, 2 G. & J. 173. And as to the presumption of a deed, insisted upon by the 

 [*280]  third prayer, the law requires that the possession should be actual, adverse, exclusive and continuous, and under claim of title, the finding of which facts are not left to the jury.  1 Gill 430, 505. These prayers also authorized the jury to find for the plaintiff, upon being satisfied that the fence cornering at the cherry tree had been recognized as the division line, not noticing the fences on the east and west of the lot, without which they had no guide, but were left to conjecture as to the extent of the plaintiff's claim and right to recover.
The first prayer on the part of the appellant presents a different question. It claims a verdict for the defendant below, upon the hypothesis that the real owner of land, though not in actual possession of any part, may maintain his title,  [**41]  as against a wrong-doer, claiming by a possession commenced, continued and accompanied by acts of ownership, as proved in this cause, provided the land in dispute be not enclosed. It is not necessary here to discuss this question, because it was as directly presented in the case of Hoye vs. Swan, in which we decided, that as between the real owner and one claiming by possession alone, and showing no title, there is no difference in law upon the question of title by adversary possession, whether the owner be in possession of any part of his land or not. In both, the title by possession prevails only to the extent of actual enclosures. The prayer, we think, should have been granted for the reasons assigned in that case.
The appellant's second prayer, as to the admissibility of evidence of sparsim cuttings, was properly rejected. Where an object, as a fence, is located on the plots, and known to the witness, he may give evidence of any cutting on, or user or cultivation of the land, in any particular direction from the fence or other object located. And a witness sworn on the survey may give evidence at the trial, of the general possession of the land located on the plat, and [**42]  of acts of ownership generally over the same, without any particular location of the places where the acts of ownership were performed.  4 H. & McH. 128, note. Bowly vs. Deady, December term 1829, cited in Dorsey's Ejectment, 62.

 [*281]  Reference was made in argument to a supposed mistake in locating some of the lines of the whole tract, under a commission to mark and bound, but this commission is not in evidence, and the testimony of the witnesses is not sufficiently definite to enable us to determine in what the mistake, if any, consisted. We decline expressing any opinion on this part of the case.
Judgment reversed and procedendo awarded.
Note.--The appellant subsequently moved the court to refuse a procedendo in this case, which motion was overruled.  

35 of 48 DOCUMENTS 

DAVID STEUART vs. ELIJAH WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 425; 1853 Md. LEXIS 1 

JUNE, 1853, Decided 

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

This was a petition for freedom, filed by the appellee against the appellant, and the issue tried was freedom vel non.

Exception. The petitioner offered in evidence the will of Catharine Belt, executed in 1825, containing, among others, this clause: "I give and bequeath my negro woman Esther to my son, George Gordon Belt, for and during the natural life of my son, Thomas Hanson Belt, and the children of the said Esther now born, or that may hereafter be born of the said Esther, in trust, for the sole use and benefit of my said son, Thomas Hanson Belt, and upon his death, if the children of the said Esther shall then be alive, I give and bequeath them as follows, viz: I give and bequeath to my grandson, Thomas Hanson Belt, Elijah, son of the said Esther." Also a codicil executed in the same year, in which the testatrix, after referring to the devise in her will of the negroes to her children, directed, "that none of them shall be sold out of the State of Maryland, and I do hereby order and direct, that if any of them should be sold in the State of Maryland, that they shall serve for a term of years, as I hereby direct, viz: the children of [**2]  my woman Esther," &c., "already born, as specified in my said will, or that may hereafter be born, shall be free and emancipated from slavery at twenty-eight years of age, provided they be sold." He then proved that the slave therein called Elijah was the petitioner himself, and that since the death of the testatrix, Thomas Hanson Belt had sold him to the defendant as a slave for life, and that he was, when he filed his petition, over twenty-eight years old.

The defendant then on his part, having first executed a release to the said T. H. Belt, proved by him, that his mother, the said Catharine Belt, in her lifetime, about the year 1812, gave to him a family of negroes, among whom the said Esther was one, and that ever since she has resided with him, in his house and under his control as her master, and has been used and employed by him as his slave; that in the year 1822 or 1824, the petitioner was born of the said Esther in his house, and was exclusively maintained and supported by him, and used and treated as his slave under the gift aforesaid, until he was sold to the defendant.

The petitioner then, with the object and for the limited purpose of impeaching and contradicting [**3]  the statement of said T. H. Belt, gave in evidence the said will; also the inventory of the estate of said testatrix, in which the petitioner, then nine years old, was appraised as a slave for life at $ 160; also the administration account of said George G. Belt, in which he claims an allowance for the petitioner, as devised to him in trust for said T. H. Belt, subject to the provisions of the will.

To the admissibility of each of these papers for the purpose for which they were offered the defendant objected, which objection the court overruled. The petitioner then asked the instruction set out in full in the opinion of this court, and the defendant also asked an instruction, which, (being granted,) it is unnecessary to state. The court, (NESBITT, A. J.,) granted both instructions, and defendant excepted to the granting of the petitioner's prayer, and to the admission of the will, inventory and account, for the purpose for which they were offered. The verdict and judgment were in favor of the petitioner, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A testatrix devised to her grandson the children of her slave Esther, but added, that they should "be free and emancipated from slavery at twenty-eight years of age, provided they be sold." HELD:

That this was a conditional limitation of freedom, which it was competent for the testatrix to make, and was not a restraint upon alienation inconsistent with the right of the legatee to the property, and that it took effect as soon as the slaves were sold and attained the age prescribed.

A witness may be impeached by direct evidence as to his character for truth, or by evidence of his acts or declarations, inconsistent with his testimony at the time, but not by the acts of a third party, of which he is not shown to have been either aware or to have sanctioned.

In a petition for freedom the petitioner offered in evidence the will under which he claimed his freedom, and the defendant proved that the testatrix, long before the execution of the will, gave and delivered the petitioner's mother to the witness as a slave for life, and that whilst the mother was so held in slavery by witness the petitioner was born, and was afterwards sold to defendant. HELD:

That it was error to admit the will, inventory and administration account, disposing of and treating the petitioner as part of the estate of the testatrix, for the purpose of impeaching this witness, there being nothing to show that he had any knowledge of the contents of the will when executed, or authorised or sanctioned the correctness of the inventory or accounts.

The gift of a negro accompanied by delivery is just as effective as if evidenced by a bill of sale, and can only be impeached by showing fraud or the falsity of the witness who proves it.

A prayer that the petitioner was entitled to his freedom, if the jury find that he was the son of Esther, mentioned in the will of the testatrix, and was sold to defendant, and was at the time of filing his petition twenty-eight years old, is defective, because it takes from the jury the finding of the fact whether Esther was the slave of the testatrix. 

COUNSEL:
Grafton L. Dulany for the appellant.

1st. The condition annexed by the will to the absolute [**4]  devise of the slave for life, that he should be free if sold, was repugnant and void. 4 Kent's Com., 130, 131. 2 Caine's Rep., 345, 352. 4 Simons, 141. 10 Coke's Rep., 35, Mary Portington's case. 6 Coke's Rep., 40, Lord Mildmay's case. See also the case of Holliday vs. Negro Emily Ann, decided by the Court of Appeals for the eastern shore at November term 1840, and not reported.

2nd. There is no such sale of the petitioner proved in the case at any time, as would, under the true construction of the will of Mrs. Belt, entitle him to his freedom. The sale as proved was made by the cestui que trust for life, and without the concurrence of the trustee or the remainder man, whose interest could not be defeated by the alienation of the tenant for life.

3rd. There was error in permitting the will of Mrs. Belt, the inventory and administration accounts of G. G. Belt, to be given in evidence to impeach the credit of T. H. Belt, who was in no way connected with either of these papers. 2 H. & J., 402. 1 Starkie's Ev., 145.

John H. B. Latrobe for the appellee.

The questions are:--1st, was the slave held under the will or under the alleged gift to T. H. Belt? 2nd, is the condition [**5]  annexed to the devise valid? and 3rd, has there been such a breach of this condition as to entitle the slave to his freedom?

1st. The first question is one of fact, and was submitted to the jury, and they have passed upon it. A witness may be impeached by acts done or said inconsistent with the facts to which he testifies. 1 Starkie's Ev., 145. Here the party standing by and permitting his mother to dispose of the slave by will, his silence is an admission of the mother's title. He also stood by and saw the administrator return and account for the slave as a part of the mother's estate. Surely this was evidence proper to go to the jury, and their finding is conclusive that the slave was held under the will.

2nd. That the condition was valid is conclusively established by the decision of the Supreme Court, in the case of Williams vs. Ash, 1 Howard, 1. See also 9 Peters, 364.

3rd. That there was a sale and therefore a breach of the condition, is fully established by the testimony of Belt, offered by the appellant himself.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*429]  LE GRAND, C. J., delivered the opinion [**6]  of this court.
This was a petition for freedom. The appellee, who was the petitioner below, claimed his freedom under the will of Mrs. Catharine Belt. By that instrument it is provided, that the children of her slave Esther, who was the mother of the petitioner, should be entitled to their freedom at the age of twenty-eight years; provided they should be sold by the legatee of the testator.
It appears from the evidence that the petitioner was sold to the appellant as a slave for life, and that he was upwards of twenty-eight years of age at the time of the filing of his petition. The case of Williams vs. Ash, 1 Howard 1, establishes, that it is competent for a testator in Maryland, to manumit a slave on the happening of a contingency. In that case, the testatrix bequeathed to her nephew certain slaves, with the following proviso in her will, "that he should not carry them out of the State of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes shall be free for life." It was held by the court that the bequest, under the restrictions imposed by the will, was not a restraint on alienation inconsistent with the right to the property [**7]  bequeathed to the legatee; that it was a conditional limitation of freedom, and took effect the moment the negro was sold.
If, then, there were no other facts proved in the case before us than the will and ownership of Mrs. Belt, the age and sale of the petitioner, he would be clearly entitled to his freedom. But the appellant does not claim under the will of Mrs. Belt, but in opposition to it. It was proved by Thomas H. Belt, that long before the execution of the will of Mrs. 

 [*430]  Belt, the mother was given and delivered to him, and that whilst she was held by him in slavery, the petitioner was born. To rebut this evidence and to impeach the witness, the will of Mrs. Belt, the inventory of her personal estate and administration accounts were given in evidence. In admitting this evidence and, consequently, in granting the prayer founded on it, the court erred. There is nothing in the case to show, that the witness had any knowledge of the contents of the will at the time of its execution, nor is there any evidence from which it could be properly inferred, he authorised or sanctioned the correctness of the inventory of the personal estate of his mother, or of the accounts [**8]  of the administrator.
If the evidence of the witness, Belt, was believed by the jury, the petitioner was not entitled to his freedom, and this evidence was not sought to be impeached in the mode pointed out by the law of evidence. His character for truth should have been assailed by evidence directly to that point, or evidence should have been given of his acts or declarations inconsistent with his testimony at the trial. 1 Starkie's Ev., 210. Nothing of this kind was attempted. The petitioner relied entirely on the acts of a third party, without undertaking to show the witness, in any manner or degree, was either aware of or sanctioned them.
It frequently happens, that evidence is introduced into a cause which is properly admissible at the time it is offered, but which, as the case progresses, proves to be of no legal efficacy. It was undoubtedly competent for the petitioner to lay the foundation of his claim to freedom, by offering in evidence the will of Mrs. Belt; but this will could avail him nothing if the witness, Belt, was believed, because he claimed in opposition to Mrs. Belt's will. Had she executed a bill of sale of Esther, and had it been recorded, it is clear [**9]  any subsequent declarations of her's, whether by last will or otherwise, would have been incompetent to impeach his title. Now a gift of a negro, like the gift of any other personal chattel, when accompanied by delivery, is just as effective as though it were evidenced by a bill of sale, and can only be 

 [*431]  impeached according to the known principles of the law of evidence; either by showing fraud, or the falsity of the witness who proves it. This has not been attempted. Had the administrator of Mrs. Belt brought an action of trover against the defendant, and the witness proved the gift and delivery to him, and the sale by him to the defendant, as he has in this case, undoubtedly the title of the defendant could not have been defeated by the acts or declarations of Mrs. Belt or of her administrator.
But in addition to this, the prayer asked on behalf of the petitioner was erroneous for another reason: It asks the court "to instruct the jury, that if they should find the petitioner was the son of Esther, mentioned in the will of Mrs. Belt, and was sold to the defendant, and was of the full age of twenty-eight years at the time of filing his petition, then their verdict must [**10]  be for the petitioner, unless they should also find the gift as testified to by the witness Belt."
All the facts stated in the prayer might have been found by the jury, and yet it would not, therefore, have followed that the petitioner was entitled to his freedom. The prayer was defective in this:--it took away from the jury the finding of the fact, whether Esther was the slave of Mrs. Belt. Unless she was the slave of Mrs. Belt, nothing she could say in her will could give the issue freedom, and this was a fact to be found by the jury, and not to be pronounced by the court as a conclusion of law.  Ellicott vs. Brown, 2 Md. 75, and the cases there referred to.
Judgment reversed and procedendo awarded. 

36 of 48 DOCUMENTS 

WILLIAM SCOTT vs. JAMES BAY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 431; 1853 Md. LEXIS 2 

JUNE, 1853, Decided 

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

This was an action of trespass on the case, brought by the appellee against the appellant, to recover damages caused by the working of a stone quarry.

The declaration contains two counts. The first states, in substance, that plaintiff and and defendant owned adjoining tracts of land; that upon that of defendant were situated large quarries of rock, near to the boundary line between the two tracts, and near to an ancient dwelling house, occupied by the plaintiff, and which had stood there on his land long prior to the opening of said quarries; that defendant, "not ignorant of the premises, but maliciously contriving and intending to injure" the plaintiff, "and wholly to deprive him of the quiet possession and enjoyment" of his said land and dwelling, and thereby to render the same of less value, caused great damage and injury thereto, "by means of blasting the large bodies or quarries of rock aforesaid, by the explosion of large quantities of gunpowder near the aforesaid tract of land, dwelling and premises, whereby large stones and pieces of rock were thrown in, on, through and around the same in every direction, cutting and breaking the [**2]  doors, window-sashes and roof of the said dwelling house, breaking the window-glass, splitting and cracking the walls and ceiling of the same, it being a large stone dwelling house, and otherwise injuring the said plaintiff by cutting to pieces the window-curtains, blinds and furniture of the said dwelling house, to the great damage and injury of the said plaintiff." The second count charges, that with the same intent and by the same means, stones and rocks were thrown upon the premises of the plaintiff "with great force and violence, destroying the farming instruments, carts and vehicles on the said premises, breaking and injuring the fences on the same, injuring the gardens, killing and wounding the cattle, animals and poultry on the same, and keeping all persons on or about the said premises in constant fear and jeopardy of their lives, rendering a proper attention to business and occupation full of fear and danger, each explosion of gunpowder aforesaid rendering it absolutely necessary to retire for safety to some secure and protected place, and otherwise injuring the said plaintiff by the means aforesaid, thereby rendering the aforesaid tract of land, dwelling and premises of [**3]  far less value and worth" than they otherwise would be. The plea was non cul.

Exception. On the part of the plaintiff it was proved by various witnesses, that the dwelling was built long before the opening of the quarries; that plaintiff bought about ten years before the suit, and the quarries were before and have been continually ever since worked by defendant or his tenants; that defendant was active at the quarries giving directions, &c., that he was aware of the damage done, and once offered a quarter of a dollar to pay for it; when remonstrated with by plaintiff was heard to say, I assume all responsibilities, and upon plaintiff's threatening to sue, told him that he, plaintiff, could not be kicked into a suit. The injuries proved were substantially those complained of in the declaration, and are sufficiently stated also in the opinion.

The defendant on his part, offered testimony by several witnesses to prove, that the quarries were rented during most of the time that the injuries complained of were committed, and that proper precaution was used in the working of the quarries, that timely notice of the blasts was always given by the ringing of a bell, and that plaintiff [**4]  paid less for the property than he had represented, and that his, (defendant's,) tenants, at various times, had repaired the injury done and compensated the plaintiff therefor.

The defendant then offered the three prayers set out in the opinion, all and each of which the court, (FRICK, C. J., PURVIANCE AND LE GRAND, A. J.,) refused to grant and defendant excepted. The jury rendered a verdict for the plaintiff, assessing the damages at $ 1200, and judgment being rendered accordingly the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The working of quarries and blasting of rocks, whereby large quantities of rocks and stones were thrown upon the dwelling house and premises of the plaintiff, breaking the doors, windows, &c., is a case for an action of trespass quare clausum fregit, and not for an action on the case.

Such acts constitute a forcible breaking of the plaintiff's close, and the injuries resulting therefrom would be immediate and not consequential, and hence trespass and not case is the proper remedy.

An injury is considered immediate when the act complained of itself occasions it, and not merely a consequence of that act; the legality or illegality of the original act is not the test whether the remedy should be trespass or case, though the intent is a proper subject for the jury to consider in determining damages.

If, by means of this blasting, "all persons on or about said premises were kept in continual fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger," &c., it would constitute a nuisance, and as such, would form a proper ground for an action on the case.

Diminution of the value of the property for the purpose of renting, and the prevention of the plaintiff's servants from performing their labor, and damage resulting from water passing through a hole in the roof, caused by one of the explosions from the quarries, are consequential damages, and as such, recoverable in case.

In an action of trespass on the case, one count of the nar disclosed injuries recoverable in trespass, the other such as were recoverable in case, and part of the proof, at least, supported the latter count. HELD:

That a prayer which required the court to treat all the injuries complained of as resulting in damages which were recoverable in trespass and not in case is erroneous, and was properly rejected.

Where the defendant had rented his quarries, but was present on several occasions, and by his conduct adopted the acts of his tenants, assumed the responsibility of the acts complained of, and defied legal proceedings, a prayer which asked the court to assume that all the injuries were the acts of the tenants exclusively, is clearly erroneous.

The fact that the defendant used proper precautions in the working of his quarries, constitutes no vindication of him for the injuries resulting to the plaintiff.

Unless a party can show a right either in the nature of a presumed grant or easement, or in some other mode, to use his property in a particular way, he cannot so use it if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions were used or not to prevent the injury complained of.

If one carry on a lawful trade in such a manner as to prove a nuisance to his neighbor, he must answer in damages.  

COUNSEL:
Thomas Parkin Scott for the appellant.

1st. The first prayer, that the plaintiff cannot recover in this form of action, because the acts and doings complained of, if any injury was thereby sustained, were a forcible breaking of the plaintiff's close, and were the direct and immediate cause of the injury, which was not, therefore, in contemplation of law consequential, should have been granted. 8 Eng. C. L. Rep., 301, Wakeman vs. Robinson. 18 Johns. Rep., 257, 261, 285, 288, Percival vs. Hickey. Both counts of the nar charge, that the defendant "maliciously," &c., did the acts; this is a variance between the writ and the nar, of which the defendant [**5]  may take advantage by a prayer, that plaintiff is not entitled to recover in the form of action he has chosen. 16 Wendell, 531, 536. Wherever the injury is immediate on the land of the plaintiff, the action must be trespass quare clausum fregit, and the injury cannot be waived. 14 Eng. C. L. Rep., 355, Morton vs. Shoppee. Where the injury is stated in the nar, or appears on the trial to be wilfully done, the action must be trespass and not case. 3 New Hamp., 465, Dalton vs. Favour. Immediate injury produced by a negligent act, cannot be waived. 3 Conn. Rep., 64, 68, 69, Gates vs. Miles. See also 5 Monroe's Rep., 4, where the question arose on demurrer. 2 Iredell, 42. 2 Eng. C. L. Rep., 294. There can be no waiver of the force as to land. 5 Mees. and Wels., 588, 593. 4 Eng. Law and Eq. Rep., 401. 10 Eng. C. L. Rep., 316. 3 East, 593, 595. 5 G. & J., 489, Grahame vs. Harris. If a gun is fired over towards another's land, it is trespass and not case. In 4 Denio, 311, there was no force used, and that case evidently differs from this. Again, this prayer clearly points to the pleadings, and the question, therefore, can be raised under the act of 1825, ch. 117.

2nd. The plaintiff cannot [**6]  recover for injuries occasioned by the tenants of the quarries. The landlord is not responsible for any acts his tenants may do to the prejudice of another. 1 Chitty on Pl., 67, 71. The employer is liable when the servant acts under his direction, but not when he transcends the line of his duty. 4 Taunton, 649. 6 G. & J., 297, Hungerford vs. Steam Co. 2 H. & G., 319, Brown vs. Purviance. Story on Agency, sec. 454, and note. 12 Eng. C. L. Rep., 313, 316, 317. 6 Mees. and Wels., 510. The liability only attaches when the landlord is in possession. 56 Eng. C. L. Rep., 784, 786, 799 to 804.

3rd. If proper precautions were used in working the quarries, the plaintiff cannot recover, and such precautions were used in this case. 8 Eng. C. L. Rep., 301. All proper precautions must be used in carrying on any business, but there are some that cannot be prosecuted without risk. If a man digs his own ground, and his neighbor's wall falls, without design or negligence, it is damnum absque injuria. 17 Johns. Rep., 92, Panton vs. Holland. 12 Mass. Rep., 220, Thurston vs. Hancock. It is said that the defendant was under an injunction not to work the quarries, but this case had been settled by the [**7]  dismissal of the suit at law, and the injunction would at any time have been dissolved upon motion without notice. 4 Paige, 171, 173, Lasala vs. Holbrook. The quarrying of stone is a lawful, useful and necessary business, and cannot be abandoned.

Charles J. Pennington for the appellee.

1st. The working of the quarry, in the manner in which it was done, constituted a clear nuisance in law, and trespass on the case and not trespass quare clausum fregit, was the proper form of action. The gist of the action is the depreciation and almost total destruction of the value of the property, and the constant interference with the safe possession and enjoyment of it, and not the immediate injury inflicted by the throwing of the stones upon and against the house. That this case is embraced within the definition of a nuisance, see 2 Greenleaf on Ev., sec. 465. That the damages were consequential, and case was, therefore, the proper action, see Browne on Actions at Law, 45 Law Lib., 362 to 421, and cases there cited. Archbold's Nisi Prius, 49 Law Lib., 401 to 420. The firing of a gun, in vacuo, without intention of striking the land of the plaintiff, will support case and not trespass.  [**8]  There is a clear analogy between such a case and the case at bar. 4 Denio, 311, Fish vs. Dodge, is also a case very analogous to this. Where there are both direct and consequential damages, either case or trespass may lie. 6 H. & J., 230, Knott vs. Digges. The first prayer, therefore, was properly rejected.

2nd. The defendant is responsible also for the renting of the quarry if he knew it to be a nuisance. The testimony shows that he was working and superintending it. A landlord cannot create a nuisance and then let out the land with such nuisance upon it without being responsible. Broom on Parties to Actions, 56 Law Lib., 253, and cases there cited. 4 Taunton, 649, Leslie vs. Pounds.

3rd. The third prayer was properly rejected, because it assumes the fact, that defendant had a right to work the quarries. Whenever he used his quarry so as to injure the plaintiff he was liable, whether he used proper caution or not. No man has a right so to use his own property as to injure that of his neighbor. Again, this prayer is objectionable in form, because it assumes that proper precautions were used, when there was no evidence of it in the record. This the court had no right to do.  [**9]  9 G. & J., 250. 11 G. & J., 490. This prayer would also have left to the jury a point of law, as to what constituted proper precautions.

Wm. F. Frick on the same side.

1st. The first question is, should the action have been trespass or case? and it is material to note that it does not arise upon demurrer, as argued on the other side. The question submitted to the court below was, whether, upon the whole evidence, case was the proper form of action? the pleadings were not referred to nor considered by the court. 2 Gill, 436, Randall vs. Glenn. 4 Gill, 421, Stockton vs. Frey. The prayer says, that the plaintiff could not recover in this form of action, not under this particular declaration. See 2 G. & J., 306, as to the policy of the act of 1825, ch. 117. The evidence justifies an action of case rather than trespass; the necessary and unavoidable use of the quarry was to injure the property of the plaintiff, and utterly to depreciate its value, in fact to render it tenantless. These acts were done on the defendant's own land, and that they were done by force, does not make them less a nuisance. The theory of the other side, that because there has been a technical breaking of [**10]  the close, the action must be trespass and not case, is not sustained by the authorities. Lord Raymond, 1399, Reynolds vs. Clarke. To stand on one's own land and fire into the decoy-pond of another was held a nuisance, in note to 11 East, 574, Keeble vs. Hickeringill. See also 7 Car. and Payne, 410, Wells vs. Ody. Strange., 634. 6 Term. Rep., 411, Stone vs. Cartwright. 32 Eng. C. L. Rep., 560. The fact that malice is charged in the nar is not the test of the distinction between trespass and case, neither is the force. Every action on the case, except for negligence, in its inducement avers malice. In an action of trespass vi et armis, there need not be an allegation of force. But the party may waive the trespass and declare for consequential damages, and the fact that the close is broken makes no difference. The case in 5 Mees. and Wels., 588, does not raise the question whether case will lie for trespass to land. It was a case of a plain, naked trespass, with no consequential damages. The court there do not mean to say that in case of consequential, as well as immediate damage to land, you cannot waive the latter and go in case for the former; they merely decide, that where there [**11]  is an immediate damage to land you cannot sue in case for it. But where there are both direct and consequential damages, either trespass or case will lie. Here there were various acts proved that were in fact no breaking of the close, such as the explosions, and concussion of the air following therefrom, &c.

2nd. There was evidence to show that the defendant was working the quarry even when it was under tenancy, and the objection to the second prayer is that it shuts out this proof. But this was a nuisance, and wherever a party rents land, the necessary use of which makes a nuisance, he is responsible for the acts of his tenants. 12 Eng. C. L. Rep., 316, 317, Laugher vs. Pointer, notes the distinction between moveable and fixed property in this respect. If a man erects a nuisance, and lets the land and receives the rent, it is an upholding of the nuisance, and he is liable. 12 Mod., 635, Roswell vs. Prior. 28 Eng. C. L. Rep., 220, Rex vs. Pedly. The renting of property for the purpose of carrying on a nuisance, makes the landlord responsible. 4 Denio, 311, Fish vs. Dodge. If he erects a nuisance and sells the land he is responsible. 3 Denio, 306, Waggoner vs. Jermaine. 7 Mees.  [**12]  and Wels., 455. Thompson vs. Gibson. See also 23 Eng. C. L. Rep., 52, Rex vs. Moore. 1 Denio, 524, People vs. Cunningham 56 Eng. C. L. Rep., 784. Where the landlord interferes with the premises during the tenancy he is responsible. 4 Taunton, 649. Here the defendant said, "I assume all responsibilities," and "sue, you can't be kicked into a suit."

3rd. The third prayer assumes facts that do not exist, and besides the law of it is not correct. The right to quarry is a qualified right, and he cannot do it if he injure his neighbor. This prayer, moreover, leaves to the jury to find that proper precautions were used when there is no such evidence, and the court cannot instruct the jury upon a hypothetical case.

John V. L. McMahon for the appellant, in reply.

The questions presented by the first and second prayers are of some nicety and interest. The plaintiff, as shown by the evidence, purchased the property and put himself down by the side of this quarry, which was then an open and carrying on nuisance, if such a term may be applied to it. He was cognizant of its existence, for at the time of his purchase the defendant was in possession and working it. He did this because [**13]  he was about to carry on the same occupation of which he complains--a rival quarry. The evidence also shows, that the quarry was rented out on bona fide leases for more than four-fifths of the time, and that the larger part, if not the whole of the damage, was done by the tenants, and there is also evidence from which a jury might infer that compensation had been made, which would be a perpetual bar to the action. The plaintiff has got the benefit of an action of trespass, and he now falls back upon the action of case; the trespasses were considered by the jury in assessing damages, and hence the objection to the nature of the action is not, as to its results, a mere formal objection.

Wherever there is injury received from an act of force, no matter how feeble or how great, it is cause for an action of trespass, unless the party can make out a case of election. 1 Chitty on Pl., 144, 145. 3 East, 593, 595. 2 Saunders on Pl. and Ev., 855. Where the consequence flows directly from the act of force, it is proper for an action of trespass. 1 Leigh's N. P., 141. But this is something more; it is not only trespass, but a trespass to the freehold, proper for an action of trespass quare [**14]  clausum fregit. The action on the case is to recover damages where the injury was without force; it is an usurper of the old action of trespass; one of the brevia formata. In cases of negligence you may abandon the tort and go on the ground of negligence; so as to consequential damages, you abandon the trespass altogether and go only for the damages which are not the immediate result of the act. 1 Leigh's N. P., 547. If I stand outside of a man's land and throw anything on it, it is trespass q. c. f. 3 Monroe, 4. 2 Iredell, 42. 3 Barber, 45. 3 East, 593. But where I stand on my own land, and my act begins and ends on it, and injury thereby results to another's land, this is case. But where the act does not take effect until it reaches the land of another, it is trespass. The allegation is here the throwing of stones, in, over and through the land of the plaintiff. The allegation, "whereby" damages resulted, is an allegation that they resulted directly from the trespass. 8 G. & J., 302.

The second count is also an allegation in trespass, and differs only in charging alia enormia as to the direct consequences of the trespass. The distinguishing characteristic of an action of case [**15]  for a nuisance is, that it is a remedy for injuries arising without force. 2 Saunders on Pl. and Ev., 685. No case can be found where case lies, where there is a trespass to land. The agglomeration of trespasses does not constitute a nuisance. What becomes of a trespass with a continuando, if this be law? Suppose there was a demurrer to the second count, would it not be ruled good? This is not a case of variance between the writ and declaration proper for a plea in abatement. 6 Durn. and East, 129, 130. Where there is a mistake in the form of the action, if it be apparent, you may move for a nonsuit, or demur, or move in arrest. Archbold's Pl., 21. 1 Chitty's Pl., 226. Browne on Actions at Law. 45 Law Lib., 395, 396. 10 Eng. C. L. Rep., 316. 4 Eng. Law and Eq. Rep., 401. Whenever there is in the progress of the trial an objection apparent on the declaration which would prevent recovery, it may be taken advantage of by a prayer presenting the question. 5 G. & J., 494. The prayer here raises the question on the pleadings; it speaks of the acts complained of, not those proved; it looks to the gravamen of the charge in the declaration. There is no case of waiver in reference to trespass [**16]  to land; the case in 5 Mees. and Wels., 143, is clear on this point. There is no allegation of negligence; the injury is alleged to be wilful which makes trespass. 45 Law Lib., 261.

2nd. The second prayer concedes the liability of defendant when the quarry was not let out, or when worked by defendant, or his agents or servants, whether let out or not. This prayer only asks exemption where three things concur:--1st, that the quarry was let out; 2nd, that defendant did not work it; and 3rd, that it was not worked by his agents or servants. It therefore raises the naked question of landlord liability for acts done by tenants. The general doctrine of the liability of landlord and tenant is stated in 6 Law Lib., 139. The tenant is in no sense the agent of the landlord. Story on Agency, 454. Lord Littledale, in 12 Eng. C. L. Rep., 313, 316, 317, Laugher vs. Pointer, first opened up the doctrine of a distinction between real and personal estate, as to the renting of nuisances. But this doctrine is repudiated and exploded, and the case overruled by 6 Mees. and Wels., 510; 9 Do., 713, and 40 Eng. C. L. Rep., 178, 179, the last case bringing it down to the simple question as to who was [**17]  the employer? But the whole doctrine of principal and agency is utterly inapplicable to landlord and tenant; there is no principle by which the tenant is held to be the agent or servant of the landlord.

The case of Lesly vs. Pounds, 4 Taunton, is commented on in 56 Eng. C. L. Rep., 801, 802, as no authority to the point of a lease. Where the landlord lets a nuisance, the thing itself being a nuisance, and receives rent, he is responsible, but there is no authority that he is liable for a nuisance made by the tenant. The case in 56 Eng. C. L. Rep., 784 to 804, proceeds on the broad ground, that the landlord out of possession is in no degree responsible for the acts of the tenant, and not upon the ground of his knowledge or ignorance of the use to be made of the property by the tenant, or of the necessary use thereof. The case in 4 Denio, 311, has no authority to rest upon; it is a new doctrine, and is in conflict with 56 Eng. C. L. Rep., 784, and overruled by it. What would be the consequences of this doctrine? It affirms broadly, that if I know to what purpose a man may be about to apply property that I may sell, lease, give or devise to him, I am responsible. It applies as well [**18]  to cases of sale as to leases, to personal as real estate. According to this doctrine, if I loan a pistol to a man, knowing he is to fight a duel, this makes me a murderer; if I loan an axe, and I know the man is going to cut trees upon his neighbor's land, I should be liable in trespass; if I loan my cane, knowing that the man is to commit an assault with it, I am liable for an assault and battery.

3rd. As to the third prayer: If the action be case, as is insisted on the other side, how is the plaintiff to recover, except on the ground of negligence? If he waives the trespass, he must treat the negligence as the cause of action. 18 Johns. Rep., 228. It is incumbent on him to show negligence, and if there is no negligence, there is no right to sue in case. Smith's Leading Cases, 43 Law Lib., 329, 330.  

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

OPINIONBY:
MASON 

OPINION:

 [*442]  MASON, J., delivered the opinion of this court.
The first count in the present declaration clearly discloses 

 [*443]  a case of trespass quare clausum fregit, and not an action on the case. This count alleges, that the appellant caused great injury to the appellee by opening quarries [**19]  and blasting rocks therefrom, whereby large quantities of rocks and stones were thrown upon the dwelling house and premises of the appellee, breaking the doors, windows, &c., and thus depriving him of the quiet possession and enjoyment of his property. Such acts would constitute a forcible breaking of the plaintiff's close, and the injuries resulting therefrom would be immediate and not consequential, and therefore trespass and not case is the proper remedy.
Upon all questions of pleading, Chitty has always been regarded as high authority in Maryland, and to avoid the embarrassment of the present question by a review of the numerous and apparently conflicting authorities cited by counsel, this court is willing to rest this case upon the law, as announced by Chitty, 1 vol., 117. The author there lays down the general principle to be, that "an injury is considered as immediate when the act complained of itself, and not merely a consequence of that act, occasions the injury." This principle, as well as the illustrations given of it by Chitty, embrace a case like the one made by the first count.
It was intimated in argument, that as the defendant was [**20]  pursuing a lawful business, and as there was no design to perpetrate the wrong complained of, therefore the remedy should be case. Chitty, (page 119,) distinctly affirms, that the legality or illegality of the original act is not in general the criterion or test, whether the injury was immediate or consequential, or whether the remedy should be trespass or case. And in the case of Taylor vs. Rainbow, 2 Hen. and Munf., 423, the defendant had negligently, but without design to injure, discharged a gun and wounded the plaintiff, who sued in case. It was held that trespass was the proper remedy, and that it was immaterial whether the injury was committed wilfully or not. The intent, however, is a proper subject for the consideration of the jury in determining the damages.  2 Stark. 213.

 [*444]  The second count is in part obnoxious to the same objection. The averments, however, in that count, "that all persons on or about the said premises were kept in constant fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger," &c., would constitute a nuisance, and as such, would form a proper ground for an action on the [**21]  case.
That the evidence discloses a case of an aggravated wrong to the rights and property of the plaintiff, cannot be denied. It is equally true that most of the plaintiff's testimony disclosed acts, the damages resulting from which were recoverable in trespass and not in case. For instance, all those portions of the testimony showing the direct injury to the plaintiff's property, such as the damage to the roof and walls of the house and grounds, present a case of immediate injury and constitute clearly a trespass. On the other hand it is equally clear, that the evidence which showed the value of the property to have been diminished for the purposes of renting and occupation, and that the plaintiff's servants, through fear, &c., were prevented, to the plaintiff's injury, from performing the labor for which they had been employed; and that the damage which subsequently resulted to the property by means of the water which passed through the hole in the roof, which was caused by one of the explosions, were consequential damages, and as such, recoverable in case.
Upon this state of the pleadings and evidence, the defendant prayed the court to instruct the jury, "that the plaintiff [**22]  cannot recover in this form of action, because the acts and doings complained of, if any injury was thereby sustained by the plaintiff, were a forcible breaking of the plaintiff's close, and were the direct and immediate cause of the injury, and the injury was not, in contemplation of law, consequential upon the acts and doings complained of."
This prayer was defective, if for no other reason, because it required the court to treat all the injuries complained of as resulting in damages which were recoverable in trespass and not in case. We have already shown that one count in the 

 [*445]  declaration disclosed injuries recoverable in case, and that a part, at least, of the testimony supported such a count.
The second prayer of the defendant asks the court to say, "that the plaintiff cannot recover for any injury sustained by him whilst the quarries were let out and not worked by the defendant, but were worked by other persons, not the servants or agents of the defendant."
This prayer presents the proposition, that if the nuisance in question was not occasioned directly by the defendant, but by other persons, not his agents or servants, then he is not liable to damages; in [**23]  other words, that a landlord is not responsible for a nuisance occasioned by his tenant. The evidence in the cause dispenses with the necessity of deciding this distinct proposition. It was proved that on several occasions, at least, the defendant was present, and by his conduct, adopted the acts of his tenants as his own acts. He even, on one occasion, assumed the responsibility of the conduct complained of, and defied legal proceedings against him. Under such a state of facts, it was clearly wrong in the defendant's counsel to ask the court to assume, that all the injuries complained of were occasioned by the tenants exclusively, without the sanction, approbation or adoption of the plaintiff.
The third prayer asserts the legal proposition, "that the defendant had a right to quarry stone from his quarries, and that the plaintiff cannot recover for any injury he may have sustained in consequence of such quarrying, if the jury believe that proper precautions were used in working the quarries, and that such injury was sustained without default of the defendant."
In the first place, there is no sufficient evidence in the record to warrant such a prayer, that proper precautions [**24]  were used in working the quarries. But if proper precautions had been taken, they would still constitute no vindication of the defendant for the injuries resulting to the plaintiff. Unless a party can show a right, either in the nature of a presumed grant or easement, or in some other mode, to use his property 

 [*446]  in a particular way, he cannot use it in that particular way, if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions were used or not to prevent the injury complained of.
It is a rule of the common law, that a man should so use his own property as not to hurt or injure another, and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages. There are many cases in the books where this doctrine has been applied, and among the number are those where a man erects a smith's forge, swine-sty, lime-kiln, tallow-furnace, machine-shop, quarry or privy, so near the dwelling-house of another as to render it unfit for occupation. Bradley vs. Gill, Lutw., 69. Aldred's case, 9 Coke, 58. Jones vs.  [**25]   Powell, Hutton, 135. Morly vs. Pragnel, Cro. Car., 510.  Rich vs. Basterfield, 56 Eng. C. L. Rep. 786. Fish vs. Dodge, 4 Denio 311. And, especially, for the general principles applicable to this case, the court would refer to the case of Hay vs. The Cohoes Company, 3 Barbour, (N. Y.,) 42.
For the reasons assigned, we think the court below was right in rejecting the defendant's prayers, and therefore we affirm its judgment.
Judgment affirmed. 

37 of 48 DOCUMENTS 

RICHARD C. WARFORD vs. REGNEAR VAN SICKLE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 397; 1853 Md. LEXIS 42 

DECEMBER, 1853, Decided 

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

The appeal in this case was taken from an order of the orphans court, awarding issues upon the application of the appellees. The facts of this case are the same as those of the preceding case, except that in the record in this case the issues, six in number, awarded upon the caveat of the appellees, which was filed on the 29th of October 1853, are set out, and are in substance as follows:

1st. Was Rachel Colvin, at the time of executing the will of the 6th of April 1848, of sound and disposing mind and capable of executing a valid deed or contract?

2nd. Was she at or before that time urged to execute the same by importunities, which she was too weak to resist, and under circumstances which did not leave her free in relation to the disposition of her estate?

3rd. Was she at or before that time urged to execute the same by undue influence which she was too weak to resist? &c.

4th. Was the said paper and the execution thereof, the free voluntary act of the said Rachel, to which she was induced with a knowledge of the contents thereof, and without the exercise of the dominion and influence of some person or persons,  [**2]  which prevented the exercise of a sound discretion?

5th. Was said paper and the execution thereof, procured by undue influence, fraudulent devices, misrepresentations, and deceits practiced upon and to her by some person or persons?

6th. Was she at any time subsequent to the execution of said paper, desirous of altering or cancelling the same, and was she prevented therefrom by the management, fraud, undue influence or importunities of some person or persons? 

DISPOSITION:
Order affirmed in part and reversed in part.  

HEADNOTES:

The awarding of issues by the orphans court upon a caveat to a will, substantially the same as those previously granted upon the application of other parties, is a void act and of no effect.  

COUNSEL:
George W. Brown for the appellant.

1st. The orphans court having sent issues on both wills, all the questions raised by these issues were submitted to another tribunal, and a verdict thereon when rendered by the jury and returned to the orphans court, will be conclusive and binding upon all the world. Dorsey's Testamentary Law, 14, 50, 51, 97. 5 Gill, 204. 3 Md. Rep., 462. The orphans court discharged itself of the case as soon as it passed and sent the first issues. If the issues asked by the appellees were properly granted, they may be sent to different tribunals, tried at different times, and different verdicts rendered. What would be the result in such a case?  [**3]  Which verdict is the orphans court to give their judgment upon? The truth is, proceedings upon a will are in the nature of proceedings in rem, and every person is bound to take notice of them.

2nd. If the appellees wished to become parties to the issues previously sent out, they should have applied in a proper time and manner, and having delayed until more than five months have elapsed, since the first were granted and sent, they cannot take advantage of their own negligence, and require the court to grant new issues. Or they should have appealed from the order granting the first issues. Dorsey's Testamentary Law, 15. 10 G. & J., 366. 1 H. & G., 9.

3rd. The issues prayed for by appellees are defective, because they raise questions only on the will of 1848, and exclude from the consideration of the jury the will of 1845. Stride vs. Cooper, 1 Eccl. Rep., 91. Sandford vs. Vaughan, Ib., 28, 30.

4th. The appellees offered no proof of interest in the estate of Rachel Colvin, nor of relationship to her, and are not devisees or legatees in either will, and were, therefore, not entitled, especially at the late period when they appeared in the orphans court, to apply for issues.  [**4]  

Richard T. Merrick for the appellees.

The law gives any person the right to caveat a will, and on a contest to demand issues, and we have come in and ask to be allowed to assert this right. We have done so in proper time, within twelve months after the will was filed, and within six months after the filing of the caveat, and before the rendition of the verdict upon the issues, and before the final judgment of the orphans court upon the will. The only period beyond which parties will not be allowed so to come in and ask for issues, is the rendition of the verdict, and until that time they have such right. Let the race be to those who first get the verdict, and not to those who first get a standing in the orphans court. The act of 1798 says, that whenever there is a contest, issues shall upon the application of any party be sent.

The orphans court does not stand to the court of law, where the issues are sent, in the same relation that one county court stands to another in the case of removal of causes. It stands behind the court of law, and it alone has the power to render judgment upon the verdict. The orphans court formerly had the power of summoning juries themselves,  [**5]  to try the facts in case of disputes, and the county court juries were merely substituted in the place of those. See 5 H. & J., 176. The object of the awarding of issues, as has been well expressed by this court in 3 Md. Rep., 462, is to enable the orphans court "to advertise itself of the real facts in the case." We insist, therefore, that there was no error in the granting of the issues asked for by us.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*399]  LE GRAND, C. J., delivered the opinion of this court.
The facts in this case, with the exception of an additional one, are the same as those of Pegg, et al., vs. Warford, decided at this term, (ante 385,) and the principles recognized in the latter, must govern the decision of this.
It appears from the record, that after the granting of two sets of issues--one at the instance of Pegg and others, and the other at that of Landis and others--on the application of the appellees, 

 [*400]  the orphans court award a third set, relating to the paper purporting to be the will of Miss Colvin, of date 6th of April, 1848. So far as these are substantially the same, as any of those [**6]  previously granted, the awarding of them was a void act and of no effect. The reasons for this opinion, we have assigned in the case to which we have referred. We regard the first three issues granted at the instance of the appellees, as substantially the same in their inquiry, as some of those granted at the instance of Pegg and others, and therefore reverse the order of the orphans court, in so far as they are concerned. The other issues were properly granted, and as to them the order of the orphans court is affirmed.
Order affirmed in part and reversed in part. 

38 of 48 DOCUMENTS 

JOHN MUNDORFF, and MARY, his wife, vs. ELBRIDGE G. KILBOURN and BENJ. HOWARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 459; 1853 Md. LEXIS 53 

DECEMBER, 1853, Decided 

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

This appeal was taken from a decree of the court below dismissing the bill of the appellants, which sought to enforce the specific performance of an alleged parol contract therein stated in reference to the devise of a tract of land.

This contract is alleged to have been made between Mundorff and one Caleb Stansbury, the grandfather of the former's wife, and is stated in the opinion of this court. Stansbury devised only a life estate in the land to complainant's wife, with remainder in fee to his son, Josiah Stansbury, who conveyed to Kilbourn and the latter to Howard. The bill charges that Kilbourn and Howard, prior to their purchase, had notice of complainants' claim, and prays for a conveyance in fee.

An interlocutory decree passed against Howard, but the answer of Kilbourn avers that he purchased the property from Josiah Stansbury, for a full and bone fide consideration, and without notice of the alleged agreement. That the receipt of Mundorff was delivered to him about the time of his purchase, which entirely disproves the claim of complainants, and he relies on his purchase as a bar to any relief against him,  [**2]  and also upon the statute of frauds and limitations.

Mundorff's receipt filed with this answer is as follows: "Received of Mr. Caleb Stansbury two hundred dollars, in full payment of a servant girl named Ruth, and I do hereby relinquish all right, title, claim or interest, that I have or had in and to the said servant girl Ruth, and acknowledge myself to be fully paid, satisfied and contented."

The proof taken is sufficiently stated in the opinion of this court and in the argument of counsel. The court below, (FRICK, C. J.,) at the hearing of the cause dismissed the bill, and complainants appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

In cases for the specific performance of contracts, the complainant must establish the very contract set up in his bill, and all the acts of part performance relied upon must be clear and definite, and refer exclusively to the alleged agreement.

Agreements to devise real estate may be enforced, by specific performance, against the devisees of the land, if it be otherwise disposed of by the party making the agreement, but such agreements are to be dealt with in equity no less strictly than other contracts within the statute of frauds.

All agreements to be executed in equity must be certain and defined, equal and fair, and proved as the law requires, and it is enough to doubt upon any one of these points to refuse relief.

If a party in the sale of a slave gives up to the vendee a part of the purchase money, in the hope that the latter would devise to the former's wife a certain tract of land, this imposes nothing more than an obligation of honor upon the vendee, out of which no action can arise.  

COUNSEL:
Grafton L. Dulany for the appellants. The contract is taken out of the statute of frauds, because the proof shows that it was not reduced to writing, by reason of assurances by the party now making the objection, that it was not necessary, and that the will already contained the clause agreed upon. But the acts of part performance are of themselves sufficient to take it out of the operation of the statute. 3 Gill, 137, Rogers vs. Scarff. 5 Gill, 483, Baynard vs. Norris. 11 G. & J., 314, Moale vs. Buchanan. The proof is that Mundorff and wife entered [**3]  into possession of the land, claiming it in fee and exercising acts of ownership over it, and are now in possession of it. That equity will decree the specific performance of a contract to devise land, see Jeremy's Eq., 435. 1 Story's Eq., secs. 246, 256. 3 Ves., Jr., 38.

The answer of Kilbourn denies that he had knowledge of the claim of Mundorff and wife, but one witness swears positively that this claim was made known to him before his purchase, and this with pregnant circumstances, such as exist in this case, is sufficient to overthrow the answer. There was at least enough in the possession by Mundorff and wife to put him upon inquiry, which in equity is equivalent to notice. 10 G. & J., 316, Hardy and Talburtt, vs. Summers and Wife. The receipt of Mundorff is but prima facie evidence, and may be explained or contradicted by parol. 1 H. & G., 139, Higdon vs. Thomas. 4 H. & J., 9, Gist vs. M. Guire.

E. G. Kilbourn for the appellees. The alleged contract is not proven by competent testimony. The receipt of Mundorff is the written evidence of the sale of the servant, and cannot be contradicted or explained away by oral testimony. 7 Ves., 211, 218, Woollam vs. Hearn. It is [**4]  the highest and best evidence of the contract, and ought not to yield to the unsupported and improbable testimony of the witness, even if his oral testimony could be weighed against it.

2nd. The answer denies all knowledge of the alleged contract, and avers the purchase bona fide, for a full and fair consideration. The only evidence of actual knowledge by the appellee before his purchase, is that of William R. Hiser. The appellee therefore maintains, that inasmuch as the answer denies and is responsive to the allegation of notice in the bill, the testimony of one witness, not corroborated by circumstances, is insufficient to affect the appellee with notice. 2 Story's Eq., sec. 1528.

3rd. The possession by Mundorff, as stated by several of the witnesses, can have no effect, for by the will of Stansbury Mrs. Mundorff had a life estate in the land, and the possession was therefore in accordance with the complainants' rights under the will, and ought rather to bind them to its provisions and prevent inquiry, than put the appellees upon inquiry as to their alleged title.  

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

OPINIONBY:
TUCK 

OPINION:

 [*461]  TUCK, J., delivered [**5]  the opinion of this court.
This is a bill in equity filed by the appellants, seeking the specific performance of a parol agreement relating to land, on the ground of performance by the complainants of their part of the alleged contract. If there were no other objections to the relief sought, we are not satisfied that the evidence in the cause supports the allegations of the bill, and that for this 

 [*462]  reason the decree should be affirmed. We need not multiply authorities to show that, in cases for specific performance, the complainant must establish the very contract set up in the bill; and that all acts of part-performance, relied upon to take the case without the operation of the statute of frauds, must be clear and definite, and refer exclusively to the alleged agreement. 2 Story's Eq., secs. 762, 763, 764.  Wingate vs. Dail, 2 H. & J. 76. Owings vs. Baldwin, 8 Gill 337.  Shepherd vs. Bevin, 9 Gill 32.
The bill states in substance, that Stansbury had purchased from Mundorff a negro girl for three hundred dollars; that Mundorff proposed to give up or release to him one hundred thereof, if he would agree to devise to Mundorff's [**6]  wife in fee-simple, the land mentioned in the proceedings; that Stansbury assented to this, and paid Mundorff one hundred dollars in cash, and gave his note for one hundred, and took a receipt in full for the purchase money. It also states that he required an instrument of writing from Stansbury, but that he did not insist upon it, after he was assured by Stansbury that he had already made his will to that effect, and would not alter it; which however he did by afterwards devising to Mrs. Mundorff a life estate only in the land. Howard did not answer the bill, but Kilbourn's answer puts the complainant to the proof of his case.
The witness relied upon to prove the agreement, who was present at the time, says that Mundorff asked three hundred dollars, and that Stansbury said he would give two hundred, one hundred in cash and one hundred in his promissory note, and would give Mrs. Mundorff this land in fee-simple by his will. After some conversation as to the necessity for having this reduced to writing, and the witness having assured Mundorff that Stansbury had made his will to the effect stated by him, the parties closed the matter by a receipt from Mundorff for two hundred dollars, [**7]  in full for this servant girl, in which Mundorff released all his right and title, and declares himself to be fully paid, satisfied and contented. What the difficulties were, which, as stated by the witness, the parties had met 

 [*463]  at his house to close, we are not informed. Certain it is that it no where appears, that Stansbury agreed to pay three hundred dollars for the servant woman. If the parties were contracting for the woman at that price, it seems strange that a different sum was stated in the receipt. It is said however, that a receipt may be explained, and in this respect differs from other instruments. This is true; but no attempt is made to explain this one. The witness who prepared it, does not state that it was designed to be other than it is, or that it had any relation to the land, as part of the consideration in the purchase of the negro. If it had specified three hundred dollars as the purchase money, it might have been shown that the land constituted a part of that consideration. In Shepherd vs. Bevin, 9 Gill 32, a party was permitted to prove that a receipt for a sum of money as a distributive share, was intended to operate as a payment [**8]  of so much money for land. But that cannot be done here, because the $ 200 is shown to have been paid in another way, in money, and what was taken as its equivalent.
There are cases to show that agreements to devise real estate, may be enforced by specific performance against the devisees, if the land be otherwise disposed of by the party making the agreement. But these we think, are to be dealt with no less strictly in equity, than other contracts within the statute of frauds. Indeed there are considerations which should subject them to a more rigid application of the statute. We do not find in this record sufficient proof that Stansbury designed to bind himself by any obligation such as is now sought to be enforced. A contract imports a mutual agreement of the parties to the same matter. If this alleged contract be decreed to be performed, it must be because Stansbury supposed that he was paying three hundred dollars for the servant, and that Mrs. Mundorff was to have the land at his death, as part of the price. This is by no means clear. It is at least uncertain, whether the parties designed it for a legal obligation. In Walpole vs. Orford, 3 Ves. 402, where [**9]  an attempt was made to set up mutual wills on the footing of 

 [*464]  a contract, the Lord Chancellor laid it down as a general proposition, that all agreements to be executed in equity must be certain and defined; equal and fair; and proved as the law requires; and that it was enough to doubt upon any one of these points to refuse relief, and in the case before him, he found great difficulty in determining whether the transaction was meant to be absolutely binding, or should rest upon honor. In the present cause Mundorff appears to have been aware, that such agreements should be in writing. Yet, when Stansbury declined to bind himself in that way, he remained satisfied with his promise that he would not alter his will, supported by the witness' assurance of his confidence in Stansbury. If he gave up one-third of what he deemed the value of the woman, in the hope that his wife would in consequence of this favor to her grandfather, become the owner of the land at his death, we do not perceive that any thing more than an obligation of honor was imposed on the testator, out of which no action can arise. Wills are ambulatory; they can operate only after the death of the party; and are [**10]  liable to be changed at any time. Hence the utmost certainty should appear to authorize the court to set aside a solemn testamentary act in the manner proposed. It is almost impossible to conceive, that a man will deprive himself of the power of disposing of his property, whatever circumstances may arise to induce him to change his will, except for some controlling family considerations, and upon evidence free from doubt as to the existence of the agreement, and clear from ambiguity as to its terms. The most stringent doctrines of the court should be applied in such cases, especially where the alleged agreement is not in writing, as a protection against speculating arrangements sought to be enforced, as contracts, after one of the parties is no longer here to explain the conduct imputed to him, and defend himself against charges of bad faith or fraud. The subject is discussed by Lord Camden, in Dufour vs. Pereira, 1 Dick. 419. See also Izard vs. Middleton, 1 Desauss. 116. Rivers vs. Rivers, 3 Desauss. 195.

 [*465]  We think that to grant relief on the present record, would be carrying the exceptions farther than the [**11]  decided cases warrant, and against the manifest policy of the statute of frauds. Entertaining these views we need express no opinion on the questions of performance, and notice to the defendants of the equity set up in the bill of complaint.
Decree affirmed with costs. 

39 of 48 DOCUMENTS 

WILLIAM BARKER vs. JACOB AYERS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 202; 1853 Md. LEXIS 87 

DECEMBER, 1853, Decided 

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

Assumpsit by the appellees against the appellant and John Barker, as partners, for goods sold and delivered. The nar charged a joint liability against the appellant and said John Barker, and the record was amended by agreement, so as to show a joint plea of non assumpsit by them. In the course of the trial two exceptions were taken by the appellant to the rulings of the court below, (FRICK, J.,) both of which are fully stated in the opinion of this court. The record was further amended by agreement, so as to make William Barker the only appellant.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In assumpsit against two, as partners, and upon the joint plea of non assumpsit, one defendant is not a competent witness for the other to prove there was no partnership, and that the witness alone was responsible for the claim, but after withdrawing his plea and confessing judgment for the full amount of the claim, with interest and costs, he is no longer interested in the event of the suit, and his competency for the purpose mentioned is restored.

Under a declaration against two charging a joint liability and a joint plea, the plaintiff cannot recover without establishing the joint liability, and the most conclusive proof or unqualified admission of the liability of one defendant, will not entitle the plaintiff to a verdict and judgment against him alone.

A release upon a judgment by confession, necessarily coming from the plaintiff, clearly manifests his consent to the judgment.

Where there is a declaration against two charging a joint liability, and one defendant confesses judgment for the whole claim, he cannot, since the act of 1825, ch. 117, raise in this court the objection that there should have been a joint verdict and judgment, or none.

The fact that the witness is a party to the record does not disqualify him, provided he has no interest in the result of the suit; the reason of the rule which excludes a party to the suit from being a witness is his interest in the result, either as to the claim or costs.

Where the suit is ended as to one of several defendants, and he has no direct interest in its result as to the others, he is a competent witness for them.  

COUNSEL:
F. K. Howard and S. T. Wallis for the appellant.

The only question in this case is, whether John Barker was, under the circumstances, a competent witness for the appellant? The case of Albers vs. Wilkinson, 6 G. & J. 362, was the case of a judgment by default against the party offered as a witness, and is not like the present, where the judgment was by confession. The case of Selby, et al., vs. Clayton, 7 Gill 240, and Owings vs. Emery and Gault, 7 Gill 405, only decide that a legal plaintiff is not a competent witness,  [**2]  because he is responsible for costs; neither of these cases is in point, because in them the party offered as a witness was directly and immediately interested in the event of the suit. In the case of Lizardi vs. Cohen, 3 Gill 430, the court say, they will not look to the fact whether the witness is a party to the record or not, but that his competency will depend solely upon the question whether he is interested or not in the result of the suit. The witness here waived the joinder of the appellant with him, and then said he did not object to the recovery against him in this suit, and confessed judgment for the amount claimed in the nar, with interest and costs, which judgment the plaintiffs accepted by entering up a release thereon. After this was done, what interest had the witness in the result of the suit against the appellant? He could not be placed in a worse position, and his testimony was rather adverse to his own interest, which would have been to establish the partnership so as to compel the appellant to contribute. That the fact that the witness is a party to the record does not of itself disqualify him, see 7 Bing., 395, Worrall vs. Jones. 2 H. & G., 98, Robertson vs.  [**3]  Mills. 2 G. & J. 132, Glenn vs. Von Kapff. 4 Gill 213, Crawford vs. Brooke. Chitty on Pl., 44. 1 Ohio State Rep., 318, Preble Co. Bank, vs. Russell. 1 Greenlf. on Ev., secs. 355, 356. 4 Scammon, 309, Brooks vs. McKinney. 9 Barr., 21, Talmage vs. Burlingame. Do., 112, Mevey vs. Matthews.

As to the question of summons and severance, the case is different from that of Price and Martin, vs. Thomas and George, 4 Md. 514. Instead of a joint judgment, as in that case, there were here separate judgments against each defendant, rendered upon different days, and the appeal is taken by the appellant from the separate judgment against him. Whether the separate judgment against John Barker was properly entered was for the court below to decide, and no question having been raised upon it there none can be here.

Wm. Pinkney Whyte for the appellees.

The suit was against both the Barkers, and they jointly pleaded non assumpsit. No matter how small the interest of the party in the result of the suit may be, it disqualifies him as a witness. 16 Johns., 89, Marquand vs. Webb. The same doctrine is sustained in Albers vs. Wilkinson, 6 G. & J. 362, and in Jordan vs. Trumbo,  [**4]  6 G. & J. 105. In the case of Owings vs. Emery and Gault, 7 Gill 405, the witness was excluded expressly because he was a party to the record. So in Selby, et al., vs. Clayton, 7 Gill 240. See also 1 Barr., 440, Wolf vs. Finks. The case of Worrall vs. Jones, 7 Bing., 395, was a suit upon a bond, and the principal confessed judgment and had no interest in the suit against the other party, whereas here there was a partnership, and the partner was interested in defeating the suit.

But again, the nar charges the defendants as partners, and they enter a joint plea, and in such a case there must be a joint verdict and judgment, or none at all. In cases of a joint contract, where judgment by default is entered against one defendant, and a verdict is afterwards rendered against the other, no judgment can be rendered upon it. 1 Greenlf. on Ev., sec. 356, and notes. 10 Pick, 281, Tuttle vs. Cooper. John Barker, therefore, notwithstanding his confession of judgment against himself, could, if a verdict had been rendered in favor of the appellant, upon appeal, have reversed that judgment, and it was his interest therefore to prove there was no partnership. See also 1 Chitty's Pl.  [**5]  , 44. 2 Starkie on Ev., 83. 1 Philips' Ev., 53. A judgment by default against one defendant will not make him a competent witness for the other. 9 Barr., 21, Talmage vs. Burlingame. 6 G. & J. 358, Albers vs. Wilkinson.

But the appeal should be dismissed, because taken by one without summon and severance, when the judgment was against both. 4 Md. 514, Price and Martin, vs. Thomas and George.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*205]  ECCLESTON, J., delivered the opinion of this court.
The question arising on the first bill of exceptions is, whether John Barker, one of the defendants, could be examined as a witness at the instance of the other defendant, for the purpose of proving there was no partnership between them, so far as related to the claim in controversy, and that he, John Barker, alone was responsible?
When this offer was first made to examine the party as a witness, no judgment had been confessed by him, but the issue then being tried before the jury was upon the joint plea 

 [*206]  of non assumpsit, the nar having charged the defendants as partners, and jointly liable for the claim [**6]  of the plaintiffs.
The bill of exceptions states the offer as intended, "to prove by the defendant, John Barker, who was willing to be examined in that behalf, that the said William was not a partner with him in the Curtis Creek business; that the goods now sued for were furnished to the witness on his individual credit and for his individual business, and that the witness did not resist the right of the plaintiffs to recover against him."
The record did not set out the plea, but this defect has been cured by an agreement stating it to have been a joint plea of non assumpsit.
Under such a declaration and plea, the plaintiffs could not recover without establishing the joint liability of the defendants. The most conclusive proof, or unqualified admission, of the liability of one defendant, could not entitle the plaintiffs to a verdict and judgment against him alone. 1 Chitty on Pl., 44.  Tuttle vs. Cooper, 10 Pick. 281. As the testimony, if believed by the jury, must have released the witness from responsibility, his interest rendered him incompetent.
In the further progress of the cause, the record shows that John Barker withdrew his plea, and then a [**7]  judgment by confession was entered against him for "$ 1200, damages in nar and costs, to be released on payment of $ 552 71, with interest from 11th day of June 1852, and costs." The sum mentioned in the release being the full amount of the plaintiffs' claim.
Subsequent to the entry of this judgment, John was again called by William to testify in his behalf, but being objected to on the ground of incompetency, the court again sustained the objection, and this decision constitutes the basis of the second bill of exceptions.
Whether the plaintiffs could or could not have successfully objected to the entry of this judgment, and insisted upon a judgment against both defendants, or else that the case should 

 [*207]  have proceeded against both until the verdict, is not now a question before us. A release upon a judgment by confession, necessarily coming from the plaintiff, manifests clearly his consent to the judgment.
In the subsequent proceedings John Barker could have no interest whatever, inducing him to prove that William was not answerable for the claim. The interest was in the opposite direction. The judgment fixed John's responsibility for the full amount. He would not [**8]  be bound even for any further accumulation of costs, in the controversy between the plaintiffs and William. If then a verdict against William could not increase the amount of John's liability, what possible interest, in legal contemplation, could he have in so testifying as to produce a different verdict? It will readily appear how his interest might disqualify him from being a witness for the plaintiffs to prove the partnership, because in the event of a judgment against the other party, if the plaintiffs should compel that party to pay one half of the claim, the witness would be relieved to that extent.
But it has been said, so inflexible is the rule which requires there should be either a joint verdict and judgment, or no judgment, under such a nar as the present, charging the defendants as partners, that notwithstanding the judgment by confession, if a verdict had been rendered in favor of the other defendant, John Barker might have reversed the judgment against him, upon appeal. And if so, he was interested in establishing the fact that there was no partnership. This however is not our view of the subject. In Morgan vs. Briscoe and Clarke, 4 Md. 271, [**9]  the court decided, that where a judgment has been confessed, and, of course, where there is no motion in arrest of judgment, since the act of 1825, ch. 117, there can be no reversal, although there may be no declaration. That statute was certainly designed to prevent any mere technical errors in the proceedings from being taken advantage of in the appellate tribunal, which may not appear to have been relied upon below. And the supposed state of facts, which it is said would authorize a reversal, do not present 

 [*208]  very strong equitable grounds for inducing the court so to construe the act as to permit a reversal under such circumstances. The circumstances being; a nar against two defendants charging a joint liability, a joint plea filed, but subsequently withdrawn by one, who then confesses judgment for the claim, is examined, with his consent, by the other, and proves himself solely responsible, which testimony induces the jury to find a verdict in favor of the other defendant; and then, upon appeal, the defendant in the confessed judgment asks to have it reversed, because the joint claim was not established by a joint judgment.
From the remarks of Mr. Greenleaf, [**10]  in sec. 356 in the 1st Vol. of his work on Evidence, and from the language of the court, in Talmage vs. Burlingame, 9 Barr. 21, and in Albers vs. Wilkinson, 6 G. & J. 358, it has been supposed that a judgment by default against one defendant, will not authorize his examination as a witness in favor of the other, because he is still to be considered incompetent on the ground of interest. And this has been urged as sustaining the refusal to admit the testimony in the present instance. But there is a material distinction between a judgment by default, and a judgment like the one before us. The former only decides or settles the liability of the party without ascertaining the extent of it, in a case like the present. And we think that, without deciding whether a judgment by default would have authorized the admission of the testimony, there is a difference between the two judgments, quite sufficient to justify us in holding the one by confession, as fully removing the objection to the competency of the witness, even if that by default might not have a similar effect.
In Preble County Bank, vs. Russell, 1 McCook's Ohio State Rep., 313, a [**11]  judgment by confession was held so effectual in removing the disability of a co-defendant as a witness, that his testimony in behalf of the other defendant was admitted. There the judgment was before the jury had been sworn and here it was after. But we do not perceive how this difference can render testimony inadmissible in this, which was 

 [*209]  not so in that case. Many authorities on the subject are there referred to. And the court come to the conclusion, that according to the later English decisions, the ground of excluding a party as a witness arises alone from his interest in the event. In 1 Greenlf. on Ev., sec. 355, it is said: "The general doctrine is, that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he is a competent witness for them, his own fate being at all events certain." And in Pipe vs. Steele, 2 Adol. & Ellis, N. S., in 42 Eng. Com. Law Rep. 889, Lord Denmon, C. J., said: "The objection that he is a party to the record, which prevailed in Brown vs. Brown, and Mant vs. Mainwaring, has been deliberately overruled in Worrall vs. Jones, a [**12]  case of great authority, in which the Lord Chief Justice Tindal gave the unanimous judgment of the Common Pleas, that a party to the record may be examined as a witness, provided he be disinterested."
The general rule of evidence, which excludes a party on the record from being a witness, has been much relied upon in argument; and it is insisted, that no decision in our State is to be found, which so far qualifies or restricts this rule, as to justify a reversal in this case on account of the refusal to admit the proof offered. There can be no doubt that the authorities establish it as a general proposition, that a party to the suit is not a competent witness; but it is equally true, they declare the reason of the rule to be, that he has an interest either in the object of the suit or in the costs. As, therefore, the law is said to be founded in reason, and what is not reason is not law, it would seem to follow, necessarily, that when the reason of a legal rule ceases to exist the rule does not apply. That the mere fact of being a party does not render him incompetent to testify, is most unequivocally announced in Lizardi, et al., vs. Cohen, et al., 3 Gill 430, [**13]  and the reason for excluding him is, as explicitly stated to be, his interest in the result, either in regard to the claim or the costs. On page 435, the opinion of Judge Washington, in Willings and Francis, vs. Consequa, Peters C. C. R., 307, is referred to, 

 [*210]  in which he speaks of a party being excluded as a witness, and states that the interest he has in the event of the suit, as to costs and the subject in dispute, "lies at the foundation of the rule, and when that interest is removed the objection ceases to exist." The court also refer to the decision pronounced by Chief Justice Tindal, in Worrall vs. Jones, 7 Bing. 395, as maintaining the true and sound doctrine on this subject. The opinions of several other distinguished jurists are noticed, and the court say: "When it appears that the party proposed to be examined is not responsible for the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn, he is not within the operation of the general rule."
When John Barker was called the second time as a witness he had no interest in the cause, which could be beneficially promoted by the testimony [**14]  proposed to be given, and therefore we think he was a competent witness. How far the circumstances disclosed might or might not affect his credibility before the jury we have nothing to say, because it is no part of our duty.
Upon the confession of judgment by John the case was terminated in regard to him, and, in fact, he was no longer a party in the suit subsequently pending between the plaintiffs and William. If this be so, John was then clearly within the principle recognized by Greenleaf, in section 355, and the other authorities on this subject.
The record states the appeal to have been taken by both defendants, and the appeal bond is to the same effect, but by agreement the record is so corrected as to make William the only appellant. Viewing the case as presented by this agreement, the appellees contend that the appeal must be dismissed, because there has been no summons and severance. But there is no joint judgment so as to render a severance necessary. On the contrary, there are two separate judgments, one by confession and the other upon verdict. They are dated on different days, and the interest does not commence on 

 [*211]  each at the same time, nor could [**15]  there be a joint execution upon these judgments.
The decision in the first bill of exceptions will be affirmed, but that in the second must be reversed.
Judgment reversed and procedendo awarded. 

40 of 48 DOCUMENTS 

WILLIAM T. KELLER vs. MARY ANN DONNELLY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 211; 1853 Md. LEXIS 88 

DECEMBER, 1853, Decided 

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

This was an action of trespass on the case, instituted by the appellee against the appellant, on the 22nd of December 1848, to recover damages for the seduction of the plaintiff's daughter, per quod servitium amisit. Plea, non cul.

1st Exception. After the evidence, (which is sufficiently stated in the opinion of this court,) was offered, the plaintiff asked two instructions:

1st. If the jury believe the defendant debauched and carnally knew plaintiff's daughter while she was under the age of twenty-one years, the plaintiff is entitled to recover; provided they find said daughter was residing at the plaintiff's house as her home, and was enticed and persuaded by defendant to leave her said home with the view to her seduction and debauching as aforesaid, and provided said seduction and debauching took place before the institution of this suit.

2nd. If the jury believe that defendant craftily induced plaintiff's minor daughter to leave her mother's house, it being her home, thereby depriving plaintiff of her daughter's services, comfort and society; and that said daughter having so left her said home, was supported [**2]  by, or went to live with, defendant, who, while she was yet a minor, debauched and carnally knew her, and by his control and influence prevented her return to her mother's house, service and society, then plaintiff is entitled to recover.

The defendant asked four instructions:

1st. If the jury believe that defendant did not induce plaintiff's daughter to leave the plaintiff's house, and while she resided with or was working for plaintiff defendant neither seduced nor carnally knew her, nor induced nor persuaded her to submit to any improper connection, then plaintiff is not entitled to recover.

2nd. If the jury believe plaintiff's daughter, without any seduction on the part of defendant, left her mother's house with the determination not to return, and never did return, thereto, and that after she reached eighteen years of age she refused to return to her mother's house, and acted for herself and as her own mistress, then plaintiff is not entitled to recover, though the jury should believe defendant, after such daughter had reached eighteen years of age, had illicit intercourse with her.

3rd. That there is no evidence to show that defendant debauched the plaintiff's [**3]  daughter at any time.

4th. If the jury find that plaintiff's daughter had attained eighteen years of age, and left her mother's house, and did not live with, and was not employed by, and did not render any service to, her mother, and never returned or intended to return to her, and that defendant seduced said daughter after she arrived to the age of eighteen years, and whilst she was so living away from, and not rendering any services to, her mother, the plaintiff is not entitled to recover.

The court, (FRICK, J.,) rejected the defendant's and granted the plaintiff's instructions, to which ruling the defendant excepted.

2nd Exception. The plaintiff, for the purpose of showing the mother's loss and deprivation of her daughter's society, offered to prove by Dr. Metcalf, that since August 1851, he went at defendant's request to visit said daughter, and found her residing at defendant's house; that in January 1852, defendant called witness at four o'clock in the morning to visit her; that he found her in bed, and defendant accompanied him into the bedroom and remained there while witness prescribed for her, and paid witness' bill; that this was in a house in Frederick street,  [**4]  occupied by said daughter and a female servant; that he has visited the house since and never saw any man there but defendant. To the admissibility of this evidence the defendant objected, but the court overruled the objection and allowed it to be given, to which ruling the defendant excepted.

Verdict for plaintiff for $ 2500 damages. The defendant moved for a new trial because the damages were excessive, which motion the court overruled and gave judgment upon the verdict. The defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A father is entitled to command the services of his daughter during her minority, and he may maintain an action for her seduction whether she be above twenty-one or not, provided, if over twenty-one at the time of her seduction, she be in his service.

During the minority of a female child, any one standing in loco parentis, and she being in their service, may maintain an action for her seduction.

A mother, when left natural guardian, is entitled to her daughter's services until she arrives at eighteen, unless the girl be apprenticed to some trade; and if she be debauched before that age and be in the service of the mother, the latter may maintain an action against her seducer.

A mother is not entitled to command the services of her daughter after she is eighteen, and if she be seduced after that age and be not in her mother's service, the latter cannot maintain the action, the gist of which is, loss of service consequent upon the seduction.

If the daughter be induced to leave her mother before she is eighteen and be afterwards seduced, the mother may recover, because of the loss of service to which she was entitled.

Testimony of what occurred between the daughter and her seducer after the former was twenty-three years of age, is not admissible to show loss and deprivation of society, but may be admitted to explain and illustrate what took place between the parties five years previously.  

COUNSEL:
Charles H. Pitts for the appellant.

1st. The right to maintain an action for seduction per quod servitium amisit, arises from the relation of master and servant, and not from the relation of parent and child. A parent, as parent merely, cannot maintain such an action. 5 H. & J. 34, Mercer vs. Walmsley. 4 Comstock, 38, Bartley vs. Richtmyer. 6 Seargt. & Rawle, 175, Logan vs. Murray. 10 Adol. & Ellis, N. S., 725, Davies vs. Williams. 2 Mees. Wels., 539, Harris vs. Butler. 6 Do., 55, Blaymire vs. Haley. 7 Man. & Granger, 1033, Grinnell vs. Wells. 1 Wels., Hur. & Gor., 61, Eager vs. Grimwood. The relation of master and servant must [**5]  exist either actually; that is, where the party seduced is rendering service to the plaintiff at the time of the seduction, or constructively; that is, where the plaintiff has a legal right to demand and have the services of the party seduced at the time of the seduction. This relation did not actually exist in this case, nor constructively, because the plaintiff had no legal right to the services of the daughter at the time of the alleged seduction, the daughter being over eighteen years of age. Blackstone says, the mother has no legal power over the child, and is only entitled to respect and reverence. 1 Bl. Com., 453. By the common law, upon the death of the father the mother becomes guardian for nurture, and for nurture only, (McPherson on Infants, 53,) and this in case of a female infant ceases at eighteen. The question now under consideration has been expressly decided, in Pennsylvania, by Chief Justice Gibson, and also in New York; see 4 Comstock, 38, Bartley vs. Richtmyer. 2 Watts, 474, South vs. Denniston. Could a widow mother in this State be sued for necessaries furnished the daughter after she was eighteen? or could she sue for her services after that age, on the ground [**6]  that they were due the mother at common law? or could she obtain a habeas corpus to compel the daughter to return to her house? If she could not, then she had no legal title to her services, and if such be the law it must prevail; this court cannot legislate, but only declare what the law is.

2nd. The plaintiff's first prayer was erroneously granted, because it wholly withdraws the question of loss of service from the jury. The authorities say you need not offer proof of such loss, but it is a fact to be found by the jury under the instruction of the court. In this case the girl was never pregnant, and in this particular it differs from all the cases cited in the books.

3rd. The testimony of Dr. Metcalf was improperly admitted, because the daughter, at the time to which his testimony refers, was over twenty-one, and the plaintiff then had clearly no right to her service or society. Facts occurring after the institution of the suit are never admissible to prove the cause of action. Nor was the testimony admissible to prove damages, because it was an act of which the mother had no right to complain, for the daughter was then of age and the mother had no right to her services--she [**7]  sustained no damage. There can be a continuing injury only where there is a continuing right.

Robert J. Brent for the appellee.

1st. The first point presented is the liability of the defendant for the seduction of the plaintiff's daughter, whilst she was under twenty-one and over eighteen years of age. The daughter was an infant until twenty-one. 2 Bland, 502, Corrie's Case. 5 H. & J. 109, Davis vs. Jacquin. 3 G. & J. 103, Fridge vs. State. Act of 1834, ch. 228. 4 Md. 357, Mayor and City Council of Balto., vs. Norman. That the mother was entitled to the services of her daughter until twenty-one, and can maintain the action, is expressly decided in Coon vs. Moffitt, Pennington, 436. An aunt may maintain an action for the seduction of a niece, a mother for an adopted daughter, and the only case where actual loss of service need be proved is in that of an adult child. 5 East., 49, note (a.) 11 East., 23, Irwin vs. Dearman. 1 Atk., 408, Fawkner vs. Watts. 3 Atk., 624, Mendes vs. Mendes. McPherson on Infants, 53, 58, 64, shows that the mother is entitled, as guardian by nature, to the custody of the infant's person. See also 8 Car. & Pay., 7, Andrews vs. Askey. 1 Thos.  [**8]  Coke, 155. 2 Kent's Com., 213. The law presumes services, the daughter being a minor, and it was not, therefore, necessary to prove them. Neither the volition of the daughter whilst under twenty-one deprives the mother of her right to services, nor does the fact that the daughter did not reside with her prevent the mother from maintaining the action, if the daughter was under twenty-one at the time of the seduction, (5 H. & J. 31, Mercer vs. Walmsley;) but she may maintain it at any time before the daughter is twenty-one, if she be entitled to the services of the daughter at the date of the seduction, though the daughter left her house voluntarily. 3 Eng. C. L. Rep., 445, Speight vs. Oliviera. 2 Kent's Com., 213. 2 Wend., 459, Clark vs. Fitch. 21 Do., 81, Hewitt vs. Prime. 9 Johns., 388, Martin vs. Payne. 2 Greenl. on Ev., sec. 572.

2nd. The evidence of Dr. Metcalf is admissible to show the character of the intercourse between the parties, and reflects light back upon their previous conduct. We cannot bring a second suit for damages, but have the right to bring them down to the day of trial. 21 Wend., 81, Hewett vs. Prime. 4 Pet., 182, Wilcox vs. Plummer. Sedgwick on Damages,  [**9]  104 to 106.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*216]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted by the appellee against the appellant, to recover damages for the seduction of her daughter, per quod servitium amisit.
It appears from the evidence that the daughter was born on the 2nd day of August 1829. The evidence showing an acquaintance between the defendant and the daughter is first found in a letter from him to her, dated the 14th day of July 1847. This letter alludes to previous interviews between the parties, but does not state when they took place. It also alludes to a conversation had in which she expressed a desire to leave her mother's house, and expresses a willingness, if such should be her determination, to provide for her. There is nothing however in the letter intimating there had been any sexual intercourse between them. There was evidence from which it appeared that the daughter had left the house of her mother sometime in the month of July 1847, and gone to the house of a Mrs. McGee, where the defendant visited her.
These facts are sufficient to present the question [**10]  which lies at the foundation of the suit, which is, whether the mother can maintain the action for the seduction of her daughter?
In the case of Mercer vs. Walmsley, 5 Harr. & Johns. 27, the right of the father to maintain the action was fully recognised, 

 [*217]  whether the daughter be above twenty-one years of age or not, provided, if she be over twenty-one years of age at the time of her seduction, she be in the service of the father. During her minority the father is entitled to command her services, and the law therefore establishes between father and child constructively the relation of master and servant. This doctrine runs through nearly all the cases; but in regard to the mother there has been a great difference of opinion, some of the courts, on the fullest argument and investigation, utterly denying the right of the mother as such to sustain this action. It would be unprofitable in the view we have of the case now before us to review the various decisions on this point. The cases will be found very fully collected and commented on in the case of Bartley vs. Richtmyer, 4 Comstock 43.
But whatever may be the true character of the guardianship [**11]  which the common law casts upon the mother, one thing is certain, that during the minority of the child any one standing in loco parentis, and she being in their service, may maintain the action.  2 Carr. & Payne 303. 2 Term Rep 4. 11 East, 23. 3 Watts & Seargt. 416.
The policy of the legislation of this State in regard to females is, that until they are eighteen years of age they are to be considered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at that age. The act of 1834, ch. 228, expressly recognises the mother as the natural guardian of her children, making no distinction between males and females. This act, when taken in connection with the other acts of Assembly fixing the period of eighteen years when a female shall be entitled to her estate, and to which she may be apprenticed, in our judgment, point to the period up to which the mother is entitled to the services of her female children, and we are clearly of the opinion, whatever may be the law elsewhere, that if the daughter be debauched [**12]  before she is eighteen years of age and she be in the service of the mother, that the latter may maintain an action against the seducer.

 [*218]  In the case before us the girl was under eighteen when she left the house of the plaintiff. The slightest evidence will suffice to prove the relation of servant. There is testimony in the case from which the jury had the right to infer it. The witness, Mrs. McGee, proves distinctly and positively that she had seen the girl working about the house of the mother one year before she left it, and this is all sufficient to raise the presumption.
We think the court improperly granted the first prayer of the plaintiff. It puts it to the jury to find whether the girl was debauched at any time before she was twenty-one years of age. We have already said that we do not consider the mother as entitled to command the services of the daughter after she is eighteen years of age, and clearly if the seduction took place after she was over eighteen years of age the plaintiff cannot maintain the action. The gist of the action is, that the parent being entitled to the services of the child, is permitted to maintain an action for the loss of those [**13]  services consequent upon her being debauched. If the girl was not in the service of the mother, and was over eighteen years of age when she was debauched, the mother could not maintain the action, for the very essence of it would be wanting. It would scarcely be contended that if the girl had been bound an apprentice and the time of her indenture had expired, that the mother would be entitled to recover her subsequent earnings; and yet, if this prayer of the plaintiff be correct, such is its effect. We think the second prayer of the plaintiff is erroneous also. It speaks of the minority of the girl without defining what period of time is covered by that term, and therefore was calculated to mislead the jury, the more particularly so as it was granted in connection with the other prayer, in which the term twenty-one years is mentioned as the period up to which the mother was entitled to the services of the girl.
We concur with the court below in the rejection of the prayers of the defendant. The defect in the first prayer is, that it confines the right of recovery of the plaintiff to what 

 [*219]  was done by the defendant while the girl was under the roof of the mother. The objection [**14]  to the second prayer is, that it does not negative the fact that she was induced to leave the house of her mother before she was eighteen years of age. If the girl was induced to leave before she was eighteen years old and her seduction took place afterwards, the mother could recover, because being entitled to her services, and the loss of them being the gist of the action, it was a wrong on the part of the defendant to entice her servant from her duty. The same objection applies to the fourth prayer. In regard to the third, it is only necessary to say there is evidence from which the jury might infer an improper intercourse between the defendant and the daughter of the plaintiff.
We think the testimony of Dr. Metcalf was improperly admitted for the purpose for which it was offered, but think it was admissible in support of the testimony which had previously been given. Whilst what occurred when the girl was twenty-three years of age could not give a cause of action, it might serve to illustrate and explain what took place five years previously. Had the testimony been offered generally it would have been admissible. 6 Gill & Johns. 488.
Judgment reversed and procedendo  [**15]   awarded. 

41 of 48 DOCUMENTS 

SALATHIEL COLE, Exc'r of ARTRIDGE COLE, vs. ABRAHAM ENSOR and wife, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 446; 1853 Md. LEXIS 3 

JUNE, 1853, Decided 

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

Salathiel Cole, by his will, executed on the 22nd of August 1822, devised all the rest and residue of his estate, both real and personal, to his mother, Mrs. Artridge Cole, during her single life, and after her death or marriage, then over to his sisters. Part of this residue consisted of two negro women, Mary and Harriet, who, while in possession of Mrs. Cole, the tenant for life, had issue, ten children. Mrs. Artridge Cole, by her will, executed on the 14th of December 1847, after several specific bequests, gave to her daughter, Maranda, negro Abraham, and to her grand-daughter, Mary E. Cole, negro girl Lucy; and then, by the sixth clause of her will, devised to her grand-son, Salathiel Cole, in the words quoted in the opinion of this court. Her property, including the ten negroes, above mentioned, as shown by the inventory, amounted to $ 4104.41, of which said negroes constituted $ 2105.

The appellees filed their petition in the orphans court, alleging, that Mrs. Cole died intestate as to these ten negroes, and claiming distribution thereof among the petitioners, as distributees. The appellant, who was the residuary legatee [**2]  and executor of the will, answered, claiming said negroes under the residuary clause.

The appellees took the deposition of two witnesses, one of whom testified, that Mrs. Cole repeatedly declared that she had no interest in the increase of Mary and Harriet, but that such increase belonged to her daughters, who were the devisees in remainder under the will of Salathiel Cole. The other witness, who drew the will of the testatrix, stated that she gave the items of her property to him, but failed to enumerate any of said increase in the list. The admissibility of these depositions was excepted to by the appellant.

The orphans court decided, that there was "intrinsic evidence enough in the cause, and sufficient clearness in the sixth clause of the will, to direct a proper interpretation of the subject in controversy without the aid of other testimony;" that the testatrix died intestate as to said negroes, and decreed distribution among the petitioners, as prayed. From this decree this appeal was taken by the appellant.  

DISPOSITION:
Decree affirmed, with costs in both courts.  

HEADNOTES:

A testatrix devised to her grandson her negro Beck, "together with all the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular, of whatever kind named or intended to be named, likewise all the produce of the farm, and all the produce that shall be growing on the same at the time of my death." At her death she owned ten slaves, not particularly referred to in the will. Her whole estate was valued at $ 4104, of which said ten slaves constituted $ 2105. HELD: that by the proper construction of this clause, said ten slaves did not pass.

The words "rest and residue of my estate," are qualified and restricted by the words "consisting of," the effect of which are to indicate that the testatrix intended to enumerate what she considered to be the rest and residue of her estate, and what she designed should pass under that general designation.

The fact that she mentions by name "her negro girl Beck" as a part of the property intended to pass under this clause, excludes the idea that her other negroes were also to pass under the same clause.

The expression, "all and singular, of whatever kind named or intended to be named," should be confined to the property previously designated, namely, "household furniture, cattle," &c.

The addition, "likewise all the produce on the farm, and all the produce that shall be growing on the farm at my death," was added with a view more minutely to designate the property designed to be embraced in this clause, and to exclude all other not named.

The fact that the testatrix descends to a minute enumeration of the articles of property which she designed to pass by this clause, but omits all mention of these ten slaves, which were equal in value to all her other property, shows that she did not intend to pass them under the will.  

COUNSEL:
David Stewart for the appellant.

The effect of a residuary clause, in point of law, is to carry all the [**3]  property not disposed of, whether the testator knew he possessed it or not, upon the ground that the residuary legatee stands in court with the presumption in his favor, that all the property not legally and effectually given out of the residue belongs to him. 8 Ves., 14, 25, Cambridge vs. Roves. 1 Roberts on Wills, 503. 3 Howard Miss. Rep., 337, Vick vs. McDaniel. The residuary clause here is the last item in the will except the appointment of the executor. The words are "rest and residue of my estate," "all and singular of whatever kind, named or intended to be named." The antecedent of "all and singular," &c., is the "rest and residue of my estate." The words "all and singular," &c., cannot refer to farming utensils, for none of them are named. The devise is of all she had named or intended to be named. There is no designation of ploughs, harrows, &c. Where the intent is manifest, the words of the will will be transposed, altered or supplied to effectuate it. The doctrine of ejusdem generis is not, according to the later decisions, to be taken in a restrictive sense. 1 Jarman on Wills, 698 to 700, and cases there cited. 15 Ves., 500, Campbell vs. Prescott. 11 Eng. Law and Eq. Rep.  [**4]  , 336, Fisher vs. Hepburn. In the case in 1 Wharton, 362, 365, relied on by the other side, the words, "all and singular, named or intended to be named," are not to be found, and in 3 Rand, 191, the bequest was not given in terms as a residuary clause.

Geo. M. Gill for the appellee.

The object, in all cases of construction of wills, is to get at the intent of the testator. The testatrix here was, at her death, entitled to three negroes, which she gives to her near relatives, specifically, and these are the only slaves mentioned in her will. But she was entitled to ten others which, by the laws of this State, were vested in her absolutely, being the issue of negroes in which she had a life estate, but of this fact she was ignorant, supposing that they passed under her son's will to her daughters, as to whom she makes no provision by her will. So far as the intent then is concerned, there cannot be a doubt. The value of these ten negroes is more than half her whole estate, and she did not suppose, when she made her will, that she was doing injustice to her daughters. That the evidence was properly in to show the circumstances that existed at the time of making will, see 1 Peere [**5]  Wms., 302, Cook vs. Oakley. 2 Atk., 102, Timewell vs. Perkins. But again, the true construction of the clause itself will not pass them. She speaks of the rest and residue as consisting of household furniture, cattle, horses and farming utensils; no mention is made of slaves, and it is only articles ejusdem generis that she intended to dispose of. 1 Wharton, 362, Delamater's Estate. 3 Rand., 191, Minor's Exc'x, vs. Dabney.

John Nelson on the same side.

1st. The first inquiry is, whether the depositions offered below are admissible. We do not offer them for the purpose of varying the terms of the will, but for the purpose of showing the circumstances and condition of the estate in order to ascertain whether it was the intent of the testator to act upon the property in dispute by her will. We can show that she was ignorant that she owned this property, and therefore, did not design to dispose of it. 1 Peere Wms., 302. If this evidence is admissible, the case is clear of all doubt. But the terms of the will, independent of this extrinsic evidence, very clearly show that she did not intend to dispose of this property. She specifically bequeaths, by name, every slave she had except [**6]  these. She gives one negro, by name, to the very legatee to whom she gave this residue.

2nd. But the case is clear upon the construction of the clause itself. I give and bequeath "all the rest and residue of my estate, consisting of" particular things. Now what does not consist of such particular, enumerated things, does not pass. The words "all and singular, named and intended to be named," apply and refer to their immediate antecedents, "household furniture," &c. Applied to these they have a meaning, for the articles are not enumerated; applied to the "rest and residue," they have none, but are surplussage. This construction is strengthened by the following proviso, "likewise all the produce of the farm," &c., covering other articles not embraced by the preceding clause. There is no authority in conflict with this interpretation, but on the contrary the authorities are clear in our favor. 2 Atk., 103. 2 Ves., Sen., 277, Boon vs. Cornforth. 1 Cox., 77. 1 Whart., 362, is identical with this case. 3 Rand., 191. The same principle has been decided by this court in 1 Md. Rep., 344, McChesney vs. Bruce. The terms "consisting of," necessarily limit the meaning to the things enumerated.  [**7]  20 Pick., 252. 11 Eng. Law and Eq. Rep., 336.

Charles F. Mayer for the appellant, in reply.

If this parol evidence be admitted for the purpose of showing what were the circumstances of the testator, it would make the court the testator and arbiter of estates in every case. Such evidence may all be very well before a jury where the will is attacked and its validity is disputed, but cannot be allowed where the court are called upon to construe a will assumed to be valid. If there be error apparent upon the face of the will it may be corrected, but you cannot go outside of it to show that there was error, or that the testatrix did not mean what she said. No matter what property the testatrix had, or what she knew she had or not, it passes by the residuary clause. This is an elementary principle in the construction of wills, and would be controverted by the introduction of this evidence. You must look to the will to see what the intentions of the testator are. 10 G. & J., 191. 1 Johns. Ch. Rep., 234. 21 Eng. C. L. Rep., 288, Miller vs. Travers. 8 Ves., 14. 15 Ves., 503. Do., 589, Bird vs. Lefevre. 4 Russell, 360.

As to the construction of the clause itself: The terms, "all [**8]  and singular, named or intended to be named," refer to the "rest and residue" of her estate. The enumeration does not affect the previous general bequest. The term "consisting" has no such restraining effect as contended for. That which is purely descriptive has no effect upon the prior terms of the grant. 8 Ves., 14. Here, if the testator had said all the rest of my estate, to wit, &c., it would be only a defective enumeration. The case in Whart., does not rely upon the word consisting. It simply decides that the term "claims and demands," did not, ex vi termini, include stock. The case in 2 Atk., was simply as to the meaning of the word "estate," and Lord Hardwicke did not advert to the term "consisting." So also in McChesney vs. Bruce, 1 Md. Rep., 344. The case in Peere Wms., is overruled by the more modern decisions which have repudiated the old rule of restrictive construction--the doctrine of ejusdem generis. 1 Russell, 276, Fleming vs. Burrows.  

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

OPINIONBY:
MASON 

OPINION:

 [*452]  MASON, J., delivered the opinion of this court.
The present controversy grows out of the construction of the following clause in the [**9]  will of Mrs. Artridge Cole, to wit: "I give and devise unto my grandson, Salathiel Cole, my negro girl Beck, together with the rest and residue of my estate, consisting of household furniture, cattle, horses, farming utensils, all and singular, of whatever kind, named or intended to be named; likewise all the produce of the farm, and all the produce that shall be growing on the farm at the time of my death."
At the time of the death of the testatrix she was owner of ten negro slaves, which were not particularly mentioned or referred to in the will. The whole estate of Artridge Cole was valued at $ 4104, and the ten slaves, above referred to, constitute $ 2105 of the said whole estate. It is contended on the part of the appellant, the residuary legatee, that the negroes in question passed to him under the residuary clause in the will, already set out. Oral testimony was then introduced by the appellee, to show that the testatrix did not intend to embrace this particular property, (the ten slaves,) in the residuary clause.
In this aspect of the case two questions arise: the first is, can the intention of the testatrix, to exclude these negroes from the operation of her will, be gathered [**10]  from the terms of the will itself, and from the surrounding circumstances of the case? and secondly, if not, will it be competent to offer oral testimony to show that the real intention of the testatrix was to make no testamentary disposition of said slaves?
An affirmative answer to the first proposition, will render a consideration of the second unnecessary.
We have no hesitation in saying that the proper construction of the clause of the will now before us, would exclude from its operation the negroes in controversy.
If the clause in question had terminated with the expression, "the rest and residue of my estate," it might doubtless have passed all the property owned by the testatrix at the time of her death, and which had not been specifically devised. 

 [*453]  But these words are qualified and restricted by the words immediately succeeding, namely, "consisting of." The effect of these last named words is to indicate, that the testatrix intended to enumerate what she considered to be the rest and residue of her estate, and what she designed should pass under that general designation. She accordingly then proceeds to specify, "household furniture, cattle, horses," &c.  [**11]  
She mentions by name "her negro girl Beck," as a part of the property intended to pass under this clause of her will. Does not this circumstance of itself, exclude the idea that her other negroes were also to pass under the same clause? If it were her purpose to devise all her negroes, why name one, and make no reference to the rest, either by the use of particular or general terms?
Much stress has been laid upon the succeeding comprehensive expression, "all and singular, of whatever kind, named or intended to be named." This language, under the peculiar features of this case, manifestly should be confined to the property previously designated, namely, "household furniture, cattle," &c.
With a view still further and more minutely to designate the property designed to be embraced in this clause, and to exclude all other not named, the testatrix proceeds to add: "likewise all the produce of the farm, and all the produce that shall be growing on the farm at the time of my death." 1 Peere Williams 302, Cook vs. Oakley. Timewell vs. Perkins, 2 Atk. 102. Boon vs. Cornforth, 2 Ves., Sr. 277.  Delamater's Estate, 1 Wharton 362. [**12]  McChesney vs. Bruce, 1 Md. 344.
Another controling feature in this case is to be found in the circumstance, that while the testatrix descends to the most minute enumeration of the articles of property which she designed to pass in this clause, she omits all mention of, or allusion to, the slaves, which are equal in value to all her other property together. We must infer from this fact, that as she did not mention the slaves with her other property, she did not intend to pass them under the will.
Decree affirmed, with costs in both courts. 

42 of 48 DOCUMENTS 

MARY TORRANCE and LOUISA TORRANCE, vs. CHARLES TORRANCE and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

4 Md. 11; 1853 Md. LEXIS 11 

JUNE, 1853, Decided 

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

Charles Torrance died in 1822, leaving a will duly executed to pass real estate, by which he devised to his wife, Elizabeth Torrance, during her natural life, the whole of his estate, real and personal, and then directed as follows: "And as to what shall become of it after her decease, I do hereby authorise and empower my said wife, Elizabeth, by deed, will, or otherwise, to give, grant, convey, devise or dispose of my said estate unto and among all or such of my children, or their issue, in such manner and proportion, and for such term and estate as she shall think fit. Nevertheless it is my will, and I do order and direct, that the respective shares or portions designed for my daughters shall be secured to them for life, free and clear of any control of their respective husbands, or without being liable to the payment of their debts, and after their decease for the benefit of their children and their legal representatives, in equal proportions, forever; and in making the said disposition of my estate it is my wish, that my wife shall consult with my sons, Charles and George Torrance, or the survivor of them," and appointed [**2]  his wife the sole executrix of his said will.

The testator left surviving him three sons, viz: Charles, George and John Torrance, and five daughters, viz: Elizabeth, wife of Alexander Mitchell, Ann, wife of Andrew Clopper, Dorcas, Mary and Louisa Torrance.

On the 3rd of March 1823, the widow, Elizabeth Torrance, executed her will, in which, after reciting her husband's will, as above set forth, she proceeds as follows: "Now I do hereby authorise and direct, that as soon as may be after my decease, the said estate, both real and personal, of my said late husband, Charles Torrance, as well as my own estate, of every description, shall be divided into eight equal parts, ----- taking into view any sum or sums of money, or any other property in my books, that may be charged against my children, and charging them with the amount. As to the said several parts or shares I dispose thereof as follows:" She then gives one share to her sons, Charles and George, in trust for her daughter, Elizabeth Mitchell, wife of Alexander Mitchell; another share to her said sons, in trust for her daughter, Ann Clopper, wife of Andrew Clopper. Then follows this clause: "One other part or share thereof,  [**3]  I give and devise to my said sons, Charles Torrance and George Torrance, and the survivor of them, and the heirs, executors and administrators of such survivor, in trust, nevertheless, that they, or the survivor of them, or the heirs, executors or administrators of such survivor, do, and shall permit and suffer my daughter, Dorcas Torrance, during her natural life, to have, hold, use, occupy, possess and enjoy the same, and the rents, issues, interest, dividends and income thereof, to take, receive and enjoy, without being subject to the control, power or disposal of any future husband she may have, or liable for his debts, contracts or engagements. And from and immediately after the decease of the said Dorcas, then, in trust, that the said share shall become the estate of all, and every the child or children she may have, and be equally divided between them, their heirs, executors, administrators and assigns, forever, as tenants in common, share and share alike. And in case any of her children shall die under age and without lawful issue, the part or portion of him, her or them, so dying, shall descend to, and become the estate of, the survivors or survivor of them, the said children.  [**4]  " A share was given in trust for her daughter Mary, and a share for her daughter Louisa, precisely in the same way as the share of Dorcas. A share was given absolutely to Charles, one to George, and one to John Torrance. Then follows this clause: "Item.--In the event of the decease of any of my aforesaid daughters, without leaving any child or children, or descendants of such child or children, the part or share of the estate hereinbefore devised to her or them, so dying, shall descend to, and be equally divided between, all my surviving children and their respective representatives, as tenants in common, share and share alike. Nevertheless, I do hereby expressly order and direct, that the portions or parts that may thus descend to my surviving daughters, shall be held in trust for them respectively by my said sons, Charles Torrance and George Torrance, and the survivor of them, and the heirs, executors and administrators of such survivor, for the like uses and purposes, and subject to the same limitations and restrictions, and to descend to their respective children, in the like manner as the shares of estate hereinbefore devised for my daughters."

The widow died in 1829, and [**5]  a division of the estate was made in pursuance of the directions of her will, and the share allotted to Dorcas consisted, amongst other things, of one-third of what is called in the division lot No. 1, one-half of lot No. 5, and of lot No. 6. John Torrance died in 1832, leaving one son. Charles Torrance died the same year intestate and without issue. George Torrance died in November 1848, leaving a widow and four children. Mrs. Mitchell also died in the same month, leaving her husband and numerous children surviving her. Dorcas died on the 2nd of December 1848, intestate, without issue, and without having been married, leaving her three sisters, Mrs. Clopper Mary and Louisa Torrance, surviving her.

On the 24th of January 1849, Charles Torrance, of John, the son of John Torrance, deceased, filed the bill in this case for a sale of the real estate, which composed a part of the share of Dorcas Torrance, alleging, that it was incapable of partition, and as Mary Torrance holds the other moiety of lot No. 5, and Mary and Louisa Torrance each hold a third of lot No. 1, he prayed that the entirety of these lots might be sold. He claimed one-sixth of the share of Dorcas, and founds his [**6]  title on the wills of said Charles Torrance and Elizabeth Torrance, (his grandfather and grandmother,) or as heir of said Dorcas, his aunt.

All parties in interest were made defendants, and admitted the facts and consented to a decree, except Mary and Louisa Torrance, who, in their answer, insist, that Dorcas had a fee-simple in said property, and that the same descended to her heirs at law, and that as two of the six heirs they are entitled, each, to one-sixth, being one-third of the whole; and whilst they admit that the several parcels are not capable separately of partition, they insist that her real estate, as a whole, is capable of partition, so as to give them their two parts in one or the other of the pieces of property, and they pray that this may be done. They ask that, at all events, the undivided interest of Dorcas may alone be sold, without subjecting their respective parts of lot No. 1, and the moiety of the defendant Mary in lot No. 5, to sale.

Testimony was then taken showing that the several parcels of property above mentioned belonged to said Charles Torrance at the date of his will, and were owned by him in fee; that it could not be advantageously divided [**7]  amongst the parties interested, and that it would be for their interest to sell.

The court below passed a decree for the sale of the property, accompanying which, LE GRAND, A. J., delivered the following opinion:

"The bill in this case is filed to procure a partition by sale of certain property mentioned in the proceedings. It is proved, and by the solicitor of the respondents admitted, that the property is incapable of partition except by sale. The principal facts in the case are as follows: Charles Torrance being seized of a large estate, made his last will and testament in 1822, and by it his estate was disposed of as follows:" (The will of Charles Torrance is here recited as above.) "In 1823, Elizabeth Torrance made her last will, which was admitted to probate in 1829. After reciting the will of her husband, Charles Torrance, she proceeds to dispose of the entire estate among her eight children, giving to her sons an absolute estate in fee-simple to such portions as she devises to them. The particular part of the estate now sought to be operated upon by the decree of this court, is that which was devised for her daughter Dorcas, recently deceased, without ever having [**8]  been married. The parts of her will having reference to the share of Dorcas are as follows:" (The portions of her will, above set forth, are here recited.) "The complainant is the son of a deceased son of Charles and Elizabeth Torrance, and the defendants are two maiden daughters of the testators, and the children of their other children.

"The first question that presents itself is, what estate was created by the will of Charles Torrance? The language used by the testator is explicit and unambiguous. It confers on his wife a life estate in his entire estate and gives her a power of appointment, with authority to dispose of the estate among all "or such" of his children, or their issue, "in such manner and proportion, and for such term and estate," as she might think fit, subject, nevertheless, to the limitation that any portion given to his daughters should be for life, "and after their decease for the benefit of their children and their legal representative, in equal proportions, forever." The proof shows, that Mrs. Torrance divided the estate into eight parts, giving one part to each of her children, the shares given to the sons absolutely and those to the daughters for life,  [**9]  with remainder over, as stated in the clause already copied from her will.

"It is manifest, that it was the intent of Charles Torrance that in no event should his daughters take more than a life estate, and, under the terms of his will, it was not within the power of his wife to give them a larger estate. This being so, it appears to the court that his wife Elizabeth did not exceed her power in limiting the estate of the daughters to their natural life. The only difficulty in the case arises out of the language used in the will of Mrs. Torrance, in regard to the shares of such of her daughters as shall die without children, or the descendants of children, the language being, "the part or share of the estate hereinbefore devised to her or them," (daughter or daughters,) "shall descend to and be equally divided between all my surviving children and their representatives, as tenants in common." The will then goes on to provide, that the portion of any share which may so descend to any of her "surviving" daughters, shall be held in trust for the like uses and purposes, and subject to the same limitations and restrictions, and to descend to their respective children in like manner [**10]  as the share before devised to her daughters.

"In regard to the interpretation of the word "survivor," there has been and still is great contrariety of opinion. To use the language of a learned writer, "the state of the authorities seems hardly to justify the hope that litigation has reached its limits on this often occurring point." It is not deemed necessary to recur to the cases in which the questions has occurred. The principal decisions will be found collected in 2 Jarman on Wills, 735. An examination of them will justify, I think, the opinion that the liberal construction which had obtained, has been shaken, if not overruled, by subsequent cases, that is, in all cases where there is no explanatory context. A liberal construction of the words "surviving children" in the will of Elizabeth Torrance, would give to them an estate in fee, and demand of the court a dismissal of the bill, as in such case the complainant would be without such interest as is necessary to give him a standing in court. When this case was argued, I inclined to the opinion that such would necessarily be the decision of the court, but subsequent reflection and examination have induced the conviction that [**11]  such construction would be erroneous. It would render the words "and representatives" wholly ineffective, and violate the manifest intention of the testator Charles, for it must be obvious it was his purpose that his daughters, in no event, should receive more than a life estate. Besides, if the estate of each daughter dying without issue devolves her estate on the survivor, when all shall have died there would be none to take, and this would be the case when the two daughters now living shall have died. Looking, therefore, to the purpose of both testators as manifested throughout their wills, the clause must be interpreted so as to read as if written, "all my surviving children, and the representatives of my deceased children." Where the purpose of the testator is clear and not in conflict with any principle of law, courts will give it effect so that equity may be done.  2 H. & G., 130. 4 G. & J., 328. 5 G. & J., 459. Ibid., 159. That courts will insert words necessary to effectuate the intention of a testator, is established by the cases.  7 H. & J., 221, and 2 H. & G., 42. If these views be correct, a decree must be given in conformity with the prayer of the bill. On the whole the [**12]  court is of opinion, that the surviving daughters take but a life estate in the share of their sister Dorcas, and that the complainant, as representative of his father, takes his share as tenant in fee."

From this decree the defendants, Mary and Louisa Torrance, appealed.  

DISPOSITION:
Decree affirmed and cause remanded, costs in both courts to be paid out of the proceeds of sale.  

HEADNOTES:

A testator devised all his estate to his wife for life, with power to dispose of the same among all or such of his "children, or their issue, in such manner and proportion, and for such term and estate as she shall think fit," the shares designed for his "daughters to be secured to them for life," free from the control of their husbands, and after their decease, "for the benefit of their children and their legal representatives, in equal proportions, forever." In pursuance of this power the wife, by will, disposed of the whole estate, dividing it into eight parts, giving one share in fee to each of the three sons, an equitable life estate in another to each of two married daughters, with remainder in fee to their children, and then devised one share to trustees, in trust, to permit each of the three unmarried daughters, during her natural life, to have, hold, &c., the same, and receive the rents, &c., thereof, free from the control of her husband, and without being liable for his debts, and "from and immediately after the decease of" each, "then in trust that the said share shall become the estate" of all her children, "to be equally divided amongst them;" and then provides, that "in the event of the decease of any of my aforesaid daughters without leaving any child or children, or descendants of such child or children," her or their share to be equally divided between all "my surviving children" and their respective representatives, as tenants in common. HELD:

1st. That the wife did not transcend her powers by this will, there being no limit upon the power as to the quantity and quality of the estate devised, except that the estate was to be disposed of among the testator's children, and their issue, and the shares of the daughters to be secured to them for life, free from the control of their husbands.

2nd. That the three unmarried daughters each took but a life estate in the share devised to them respectively by the will of their mother.

3rd. The expression "dying without leaving any child or children, or descendants of such child or children," amounts to an indefinite failure of issue, and the limitation over on that event is too remote, and therefore void; descendants and issue in this instance mean the same.

4th. One of said daughters dying unmarried and without issue, the remainder over in her share being void, falls back to the estate of her father, the original testator, and descends as undisposed of property to his heirs at law.

5th. The nephew of the daughter so dying, takes his proportion of her share as heir directly of his grandfather, and not as heir of his father, the latter having died before the daughter, and never having been seized of any interest in her share.  

COUNSEL:
Wm. Schley for the appellants.

1st. The disposition by Elizabeth Torrance of the estate of Charles Torrance, took effect only as an appointment of his estate amongst his children. 2 Crabb on Real Property, secs. 2028, 2029, (55 Law Lib., 478.) 16 Law Lib., 16, 17. 2 Sugden on Powers, 26. 2 Ves., Jr., 70. Hence it follows, that if she exceeded her power, the appointment is only good as far as within the power, and is void for the excess. 2 Sugden on Powers, 90. 16 Law Lib., 51. 5 Simmons, 632. (7 Eng. Ch. Rep., 562, Sadler vs. Pratt.) 2 Ves., Jr., 336, Bristow vs. Warde, note (a.) 1 Ves., Jr., 310, note. 2 Ves., Jr., 640.

2nd. When, therefore, Mrs. Torrance appointed one-eighth of the estate to Dorcas, and imposed on that share the limitations and restrictions directed by her husband, and in the very [**13]  words of her husband's will, she had fully exercised the power. If there had been no appointment, the property would have descended to the heirs of Charles Torrance. He never said what should become of his estate in case his daughters should die without issue, and gave no power of appointment in such case to his wife. All that portion of her will, therefore, commencing at the word "item," is ultra the power and merely void.

3rd. Hence Dorcas, by appointment of her mother, took one-eighth of her father's estate under her father's will, that is to say the quantity and quality of her estate in her said share, is to be decided by the intention in that respect of her father's will.

4th. Under the will of her father, Dorcas took by construction a fee-simple. He designed the children of the daughters should take through their mothers. He does not say that his daughters shall take only a life estate, but he says that the part designed for his daughters shall be so secured to them for life, as to prevent the control of their husbands over it, and after their decease for the benefit of their children. The word children may be as well a word of limitation as of purchase. 12 G. & J.  [**14]  , 83, 86, 107. He meant the children to take through the mother as the representative of the mother--the words are, "shall be secured to them;" that is, the whole estate, and so secured as to pass for the benefit of the children--pass by descent as the mother's property. Why secure the share to the children if the daughter was to have but a life estate? The corpus or substance of the estate, and not its mere quality, was to be secured to the mother.

But the mother also meant by her will that the daughters should take an estate in fee, for she provides for the estate to descend. When lands are devised to one and his children, and he has no children at the time the devise was made, the devisee takes an estate tail. 2 Powell on Devises, 494, (22 Law Lib., 264.) Here Dorcas was unmarried when the mother made her will. She gives the estate to the daughter for and during her natural life, and after her death to her children. The meaning is that the estate should vest in the mother, and the children should take from her. The rule in Shelley's case stands on the same ground. The word "issue" is sometimes doubtful--it may be a word of limitation or of purchase--so with "children." If they [**15]  are to take an estate descendible or through the first taker, it is a word of limitation, and the first taker takes an estate sufficiently large to enable the children to take an estate by descent. A devise for life may, by subsequent words, be enlarged to an estate tail. 2 Crabb on Real Property, secs. 983, 985, 55 Law Lib., 23, 25. The whole will shows that the daughters were to take descendible estates.

The limitation over after the death of the daughter, "without leaving any child or children," is too remote, being after an indefinite failure of issue. 7 H. & J., 236, 247, Dallam vs. Dallam. 1 H. & G., 123, 125, 126, Newton vs. Griffith. 3 G. & J., 207, 209, 212. 6 G. & J., 235, 236, Biscoe vs. Biscoe.

5th. But if, upon the true construction of her father's will, the estate of Dorcas is properly to be considered as an estate in her for life, with a contingent remainder in fee to her children, then, in the event that has happened of her dying without issue, and the consequent failure of the limitation in remainder to take effect, the reversion has descended upon the heirs at law of Charles Torrance; and the appellants are respectively entitled, each, to one-sixth part [**16]  thereof; and the complainant below, upon amending his bill and claiming, through his father, as one of the heirs at law of said Charles Torrance, his grandfather, and claiming also as one of the heirs at law of Charles Torrance, his uncle, will be entitled, as owner of one-sixth thereof, to maintain his bill for a partition or sale of said property.

The preceding points are based on the notion that so much of the will of Elizabeth Torrance, as is specified in the second point, is an excess of power, and inoperative and void. But if the court should hold otherwise, and deem the same a valid and effectual exercise of the power conferred upon her by her husband's will, then--

6th. The effect in law of said item, is to convert the estate, antecedently given to Dorcas by her mother's will, (whether that antecedent estate was an estate in fee or an estate for life,) into an estate in fee-tail general; and which in Maryland is an estate in fee-simple.

7th. But if this be wrong, and the quantity of estate given to Dorcas was but an estate for her life, and the limitation over, after a limitation in fee to her children, be good by way of executory devise, then the limitation [**17]  over being to "all my surviving children and their respective representatives as tenants in common," is exclusive of the complainant, who is not a child (but a grand-child,) of Elizabeth Torrance, and whose father, John Torrance, died long before Dorcas. The share of Dorcas, upon this construction, would be divisible between the three surviving daughters, Mrs. Clopper, Mary Torrance and Louisa Torrance, subject to the trusts imposed on the shares of the daughters by the mother's will. The words "their representatives," refers to the surviving children. The word "children" here does not mean grand-children. 16 Law Lib., 148. 2 Sugden on Powers, 272. 13 Eng. Ch. Rep., 48. 2 Russel and Mylne, 301, Carver vs. Bowles. 1 Edward's Ch. Rep., 174. 8 Paige, 378. The complainant, therefore, upon this construction, has no title to maintain his bill.

T. P. Scott for the appellee.

1st. The power given by Charles Torrance, in and by his will, to Elizabeth Torrance, his wife, is unlimited except in two particulars, viz., the estate shall not be given away from his own blood; and his daughters shall be limited to a life estate for their separate use. 4 Kent's Com., 346.

2nd. Dorcas Torrance [**18]  did not take an estate of inheritance, but only a life estate. 9 Gill, 432, 436, Chelton vs. Henderson and Wife.

3rd. In the will of Mrs. Torrance, the limitation over, upon the death of Dorcas without leaving descendants, unto "all my surviving children and their respective representatives," lets in the complainant below, Charles Torrance of John, as the representative of his father, to a participation of Dorcas' share of the estate:--1st. Because an intention to disinherit the heirs is not to be presumed. 2nd. Because the intention to admit him is clear from an examination of the whole will. 5 Gill, 226, 227, Swope's Will. 1 Md. Rep., 169. 2 Md. Rep., 88. 3rd. Because by any other construction, the word "representatives" could have no force or effect: but effect must be given to every word, if practicable, and in conformity with the general intent. 4th. Because by any other construction the share might be left undisposed of. 5th. Because to effectuate the intention, the court will strike out and insert words in a will; and in this case the court will read the clause in question as if it ran thus, viz., "all of my other children or their representatives," or, "all of my surviving [**19]  children and the representatives of my deceased children." 18 Eng. Ch. Rep., 240. 7 H. & J., 221, Dallam vs. Dallam. 2 H. & G., 42, Raborg vs. Hammond. 7 G. & J., 227, 248, 251, Cresswell vs. Lawson. 17 Ves., 482, Barlow vs. Salter. 2 Ves., Jr., 336. 7 Gill, 202, Janney vs. Sprigg.

4th. When such appears to have been the intention of the testator, grand-children are embraced under the term children. 4 Ves., 437, Royle vs. Hamilton. 4 Kent's Com., 345. 1 Desaussure, 499, Deveaux vs. Barnwell. 5 Term Rep., 427, 431, Doe vs. Wainewright.  

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

OPINIONBY:
MASON 

OPINION:

 [*23]  MASON, J., delivered the opinion of this court.
Charles Torrance devised to his wife, Elizabeth Torrance, for her natural life, the whole of his estate, both real and personal. He then confers upon her the power to dispose of the estate, with two restrictions attached. In the first place, she is required to dispose of the estate "among all or such of my children or their issue, in such manner and proportion, and for such time and estate, as she shall think fit." The second restriction or condition requires, "that the respective shares or portions, designed for [**20]  my daughters, shall be secured to them for life, free and clear of any control of their respective husbands, or without being liable to the payment of their debts, and after their decease for the benefit of their children, and their legal representatives, in equal proportions forever."
Subsequently, Mrs. Elizabeth Torrance, in supposed pursuance of the power delegated to her by her husband, made her will disposing of the whole estate. The first question which arises is, were the bequests under Mrs. Torrance's will made in accordance with the power conferred upon her, by her husband; and secondly, if they were, what are the nature and effect of those bequests?
This court is of opinion that the testatrix did not transcend her powers, in the will which is now before us. As directed by her husband, she disposed of the estate among his children and their issue, and also directs that the several interests designed for his daughters should be held as separate estates free from the control or dominion of their husbands. We cannot discover that any limit was placed upon the power, as relates to the quantity and quality of the estate to be devised, further than those already enumerated.  [**21]  
We are next to consider what interest did the several devisees take under Mrs. Torrance's will?
Her three sons, Charles, George and John Torrance, each took one-eighth part of the estate in fee-simple. There is no dispute upon this point. Nor is there any question in regard to the interest taken by Mrs. Clopper and Mrs. Mitchell. 

 [*24]  Each took an equitable life estate, with remainder in fee to their children.
The present controversy grows out of the proper construction to be given to the clauses of the will which relate to the devises to the three daughters, Mary, Louisa and Dorcas Torrance, and especially that clause which relates to their dying without children, &c.
Those three, we are of opinion, took each but a life estate under the will. Whether this life estate was created by the mother by virtue of the general power conferred upon her, in her husband's will, that she might dispose of the estate in such manner and proportion, and for such term and estate, as she shall think fit; or whether it was taken in pursuance of the direction or condition imposed by the husband, that the respective shares or portions designed for my daughters shall be secured to  [**22]   them for life, it is immaterial for us to inquire at present. The result would be the same. The case of Chelton vs. Henderson's Lessee, 9 Gill 432, we think conclusively determines the construction which we have placed upon Mrs. Torrance's will to be the proper one. See, also, the case of Ware, and Others, vs. Richardson, decided at the present term.  (3 Md. 505.)
Dorcas, one of the daughters, has since died, without having left issue, or been married; and the next question to be determined is, what is the legal effect of the following clause of the will of her mother upon her interest? That clause is in these words, viz: "Item.--In the event of the decease of any of my aforesaid daughters, without leaving any child or children, or descendants of such child or children, the part or share of the estate hereinbefore devised to her or them, so dying, shall descend to, and be equally divided between all my surviving children, and their respective representatives, as tenants in common, share and share alike." The above clause is to be construed in connection with the previous clause, wherein the life estate is created in Dorcas, and where, after [**23]  her death, the fee is conferred upon her children, in the following words, to wit: "and from and after the decease 

 [*25]  of the said Dorcas, then, in trust that the said share shall become the estate of all and every the child and children she may have, their heirs," &c.
Under the authority of Griffith vs. Newton, 1 Harr. and Gill, 111, and indeed of all the leading and well adjudicated cases upon the subject, both in England and in this country, we think, that the expression, dying without leaving any child or children, or descendants of such child or children, amounts to an indefinite failure of issue, and that the limitation over, being too remote, is consequently void. Descendants and issue, in this instance, mean the same. The devise in the present will, it will be seen, can only take effect over, at the period when the issue or descendants of the first taker, shall become extinct, and when there are no longer any descendants of the issue, or children of the grantee, without any reference to any particular time, or any particular event. An executory devise upon such an indefinite failure of issue, upon principle, is clearly void, because it might tie [**24]  up property for endless generations.
In the case of Tenny vs. Agar, 12 East., 253, the devise was to the son and daughter in fee, but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Upon this clause of the will Lord Ellenborough held, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over, was consequently held void and inoperative. Issue in that case was a term clearly not more comprehensive than descendants is, in this. There are numerous authorities sustaining these general propositions, and to those already cited we would add, King vs. Rumball, Cro. Jac., 448. Holmes vs. Meynel, T. Raym., 452.  Denn vs. Slater, 5 Term Rep. 335. Doe vs. Ellis, 9 East., 382.  Barlow vs. Salter, 17 Ves. 479. Dallam vs. Dallam, 7 Har. and John., 220. Bells vs. Gillespie, 5 Rand. 273.  Ide vs. Ide, 5 Mass. 500. Irwin vs. Dunwoody, 17 Serg. and Rawle, 61.
The estate, therefore, in [**25]  which Dorcas had an interest, the 

 [*26]  remainder over being void, falls back to the estate of the original testator, Charles Torrance, and descends as undisposed of property, to his heirs at law.
The father of the complainant being dead at the time Dorcas died, the complainant takes one-sixth of the property in which Dorcas had a life estate, as heir directly of his grandfather, and not as heir of his father, who never was seized of any interest in her share of the estate. Neither was his uncle, Charles, ever seized of any interest in Dorcas' share, which could descend to the complainant, the uncle having also died intestate and without children, before Dorcas.
We are also of opinion, that the averments in the bill, and the proof, are sufficient to warrant the sale and the relief prayed for, and that therefore the decree below must be affirmed
We remand the cause with instructions to distribute the fund arising from the sale when brought into court, in accord-with the principles announced in this opinion.
Decree affirmed and cause remanded, costs in both courts to be paid out of the proceeds of sale. 

43 of 48 DOCUMENTS 

WILLIAM H. GATCHELL, use of EDWARD WORTHINGTON, vs. GEORGE PRESSTMAN and ROBERT PURVIANCE, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 161; 1853 Md. LEXIS 81 

DECEMBER, 1853, Decided 

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

A mortgage under the act of 1833, ch. 181, was executed on the 13th of September 1849, by Robert A. McAllister and Mary Conrad to the appellant, Gatchell, and on the 18th of April 1851, a decree was passed at the instance of the mortgagee for a sale, which was made by the trustee on the 28th of the same month, and affirmed nisi on the 2nd of June following, the appellees being the purchasers. This decree on the day of its passage was entered for the use of Worthington.

Mary Conrad, one of the mortgagors, died on the 23rd of June, and shortly afterwards the purchasers filed objections to the ratification of the sale, because:--1st. The person who held the legal estate in the property was not made a party to the decree. 2nd. No affidavit of the amount of indebtedness to Gatchell or Worthington had been filed. A question was also raised as to the title of the mortgagors, upon the construction of a deed of trust under which they held the property, but as this court declined to decide the point, the provisions of the deed and the argument as to the title are omitted.

After the sale, affidavits as to the amount [**2]  due upon the mortgage were filed, both by Gatchell and Worthington, accompanied by the written consent of McAllister, the surviving mortgagor, to its final ratification.

The court below, (FRICK, J.,) sustained the second objection and set the sale aside, from which decision this appeal is taken.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

An objection to a sale under the act of 1833, ch. 181, that the affidavit as to the amount due upon the mortgage was not filed by the mortgagee or his assignee before the sale was made, may be taken by the purchaser before final ratification, and is fatal, even though the affidavit may be filed before the final action of the court upon the sale and the mortgagor may consent to its ratification, but such an objection is too late after the final ratification has been duly made.  

COUNSEL:
Wm. H. G. Dorsey and Charles H. Pitts for the appellant, argued the following points:

1st. That under the act of 1833, ch. 181, the mortgagor is the only party who has the right to object to the ratification of the sale, on the ground that no affidavit was filed before the sale, as that provision of the act was intended solely for his benefit, and he having waived this right the sale is good. The case of Williams vs. Williams, 7 Gill 305, shows that courts of equity in passing decrees under this act exercise general equitable jurisdiction, and if this is so there is no difficulty in ratifying the sale.

2nd. If the sale had been finally ratified a good title would have passed to the purchaser.

3rd. The court ought to have ratified the sale, as the only party interested had consented to its ratification before the court acted on [**3]  the objection, and the purchasers were in no worse condition than if the affidavit had been filed before the sale. Act of 1785, ch. 72, sec. 3. 2 H. & G., 94, David vs. Grahame.

4th. No other parties could have been made in a proceeding under this act of 1833, for it provides for a proceeding against the mortgagor alone, and no other persons could be made parties.

T. P. Scott and Benjamin C. Presstman for the appellees, insisted, that the court below was right in setting aside the sale, because no affidavit of the amount of indebtedness to Gatchell or Worthington was filed before the sale was made. The third section of the act of 1833, ch. 181, provides, that before a sale shall be made an affidavit of the amount due on the mortgage shall be filed by the mortgagee or his assignee; that is, no sale shall be made until such affidavit shall be filed. The filing of the affidavit is a prerequisite to the sale. Purchasers would be put to serious inconvenience and sustain serious damage if the theory on the other side be correct.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*163]  ECCLESTON, J., delivered the opinion of this court.  [**4]  
The act of 1833, ch. 181, requires that before a sale shall be made under its provisions, "the mortgagees, their executors or administrators, (or their assigns, if the mortgage claim shall have been assigned,)" shall file a statement of the amount remaining due upon the mortgage, verified by affidavit. At the time of this sale no such affidavit had been filed. For this defect in the proceedings the court below set aside the sale, and we think they were right in doing so.
It has been said that the affidavit is made necessary for the protection of the mortgagor, and being designed for his benefit only he may dispense with it, and the purchaser will not be permitted to take any advantage of an omission to comply with this requirement of the law. It is true the mortgagee and his assignee did file affidavits before the final action of the court upon the sale, and the surviving mortgagor, McAllister, gave his consent to the ratification of the sale.
When due notice, in the usual manner, has been given, affording an opportunity for objections to be made, and none are presented, from any quarter, if the sale is finally ratified, being then a judicial sale consummated by a court of competent [**5]  jurisdiction in the premises, it might well be considered too late, then, to make such an objection as the one now relied upon. But to deny to a purchaser the right of objecting under the present circumstances, would subject him to the whim and caprice of a mortgagor. We suppose it cannot be successfully contended that a mortgagor may not object to a final ratification because no affidavit had been filed before the sale. If so, the purchaser would be held bound by his bid, and to keep himself in readiness to comply, without any corresponding obligation on the other side, remaining all the 

 [*164]  while in a perfect state of uncertainty up to the time of final ratification, whether the mortgagor would or would not agree to dispense with the affidavit and consent to the sale. This, in a commercial community, might very well subject a purchaser to much inconvenience and loss, by being obliged, in this state of uncertainty, to keep his funds unemployed, perhaps for many months, for the purpose of being prepared to meet a considerable cash payment at, or shortly after, the confirmation, if that should be the final result. If, by holding such an objection a good one on the part of a [**6]  purchaser, some delay and inconvenience might be imposed upon the mortgagee, it would fall where it should, because his neglect would be the cause of it.
Between the sale and a ratification of it, the offer of an increased price, or any sudden and unexpected rise in the value of the property, resulting from some new plan for a railroad or any other scheme, would afford a strong temptation for the mortgagor to withhold his assent; whilst a diminution in value would operate as an inducement for his agreeing to the ratification. Thus holding the purchaser to a bad bargain and denying him the advantage of a good one.
The law gives a very summary remedy for the benefit of mortgagees, and it is imposing no hardship on them to require their compliance with the perfectly plain and obvious intention of the legislature, that before a sale the affidavit shall be filed.
This view dispenses with the necessity of deciding the other questions which have been presented.
Perceiving no error in the order setting aside and annulling the sale, it must be affirmed, with costs, to the appellees, and the cause will be remanded for further proceedings. For which purpose a decree will be signed.
Order  [**7]   affirmed and cause remanded. 

44 of 48 DOCUMENTS 

JOHN JOHNS vs. OTHO SCOTT, JAMES REARDON and wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 81; 1853 Md. LEXIS 69 

DECEMBER, 1853, Decided 

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

This appeal was taken from the decision of the chancellor, (JOHNSON,) reported in 3rd Md. Chancery Decisions, 57. The only question in the case was, whether a prior mortgage to the appellant, duly recorded, but defectively acknowledged in that the acknowledgment was made before two justices of the city of Baltimore, instead of Harford county, where the land was situated, was entitled to a preference over a subsequent mortgage of the same land to the appellee, Scott, duly executed, acknowledged, and recorded, there being no proof that Scott, at the time of taking his mortgage, had actual knowledge of the existence of the prior mortgage to the appellant? 

DISPOSITION:
Decree affirmed, and cause sent to Harford county court for further proceedings, under act of 1854, ch. 183.  

HEADNOTES:

The registration of a deed defectively acknowledged cannot affect a bona fide purchaser without notice.  

COUNSEL:
Charles H. Pitts for the appellant, who was stopped by the court upon the authority of the case of Price and Bevans vs. McDonald, et al., 2 Md. 403. Cornelius McLean and John V. L. McMahon, appeared for the appellee.  

JUDGES:
The argument of the cause was commenced before LE GRAND, C. J., ECCLESTON, MASON and TUCK, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*81]  LE GRAND, C. J., delivered the opinion [**2]  of this court.
We concur with the opinion of the chancellor in this case. Besides which, the point involved in it has been expressly decided by this court in the case of Price and Bevans vs. McDonald, et al., 1 Md. 403. In that case, as in this, the deed was recorded, but had been defectively acknowledged. The court held, that such registration could not affect a bona fide purchaser without notice. In the case before us the appellee Scott, swears, in his answer, that he had no knowledge of the previous deed of Reardon and wife to the appellant, and there is no proof to the contrary.
Decree affirmed, and cause sent to Harford county court for further proceedings, under act of 1854, ch. 183.  

45 of 48 DOCUMENTS 

JEREMIAH TOWNSHEND and others, vs. SAMUEL TOWNSHEND and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 287; 1853 Md. LEXIS 93 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity Side of the Circuit Court for Prince Georges County.

This is an appeal from an order of the court below, granting an injunction to restrain the appellants, who are, (except Jeremiah Townshend,) negroes, from the further prosecution of their petitions for freedom.

The bill was filed by the appellees, who, with the said Jeremiah Townshend, are the heirs at law and personal representatives of John Townshend, deceased, and states that said John having been, from the year 1794 to his death, non compos mentis, on the 24th of December 1831, and the 6th of February 1846, executed two pretended deeds of manumission of about seventy negroes; that shortly before his death, still being non compos mentis, he executed a writing purporting to be his last will and testament, by which he gave to his said slaves their freedom and all his real estate, consisting of about fifteen hundred acres of land, which writing was, after various proceedings, declared by the verdict of a jury, on issues sent from the orphans court of Prince Georges county to the county court thereof, and removed to the circuit court of Anne Arundel county, utterly null and void, and that therefore [**2]  the said John died intestate, his death occurring in May 1846. That administration pendente lite on his personal estate has been granted to said Jeremiah, who has said negroes in his possession. That he owed at his death but very few debts, all which have since been paid, and that complainants and said Jeremiah are entitled to the whole of his real and personal estates. That certain of said negroes have filed petitions for freedom against the said administrator, in the circuit court for Prince Georges county, which petitions have been since removed to the circuit court for Anne Arundel county, where they are now pending.

The bill charges, that by reason of the insane delusions of said John Townshend, especially in reference to his negroes, he was wholly incapable of executing these pretended deeds of manumission, and that they are wholly inoperative and void; but by reason of their having the forms of valid instruments, the complainants apprehend they cannot have against them, at law, a legal defence or an adequate remedy until they shall be adjudged to be void and inoperative by a decree of a court of equity, nor can the complainants enforce or demand their rights in the premises,  [**3]  or be able to resist these and other petitions for freedom, which they believe will, from time to time, be filed by said negroes, many of whom are minors, founded on these deeds. That by reason of the great number of negroes mentioned in these deeds and claiming their freedom thereunder, the complainants are apprehensive they will be put to enormous and ruinous costs from the multiplicity of suits, and be unjustly and greatly harrassed, and put to great charges in defending the same, which will be a direct charge upon the common property of complainants; that it is the peculiar province of a court of equity to prevent such immediate injury to parties litigant, by compelling those claiming under one and the same title to unite in one suit in equity, where the rights of all may be fairly and equitably adjudged.

The bill then prays for an injunction restraining the further prosecution of said petitions for freedom until the further order of this court, that the real estate of the said John Townshend may be divided among the parties interested, that a distribution of his personal estate, including the negroes, may be made, that Jeremiah Townshend may account for the rent of the land [**4]  and the hire of the negroes, and that an issue or issues touching the sanity of the said John Townshend at the several dates of the pretended deeds of manumission may be sent to some court of law to be tried by a jury; and in the event of such issues being found against his sanity, to order and direct said deeds to be cancelled and annulled, and for general relief.

The court, (CRAIN, J.,) granted the injunction, and from this order the defendants, the manumitted negroes, some having answered and others demurred, appealed.  

DISPOSITION:
Decree reversed and bill dismissed with costs to the appellants in both courts.  

HEADNOTES:

By the laws of this State, a negro's title to freedom can only be tried by petition, filed in the circuit court, and the restrictions and privileges secured, in such cases, by the act of 1796, ch. 67, one of which is the right of peremptory challenge, neither party, nor no tribunal, has the power to disregard.

It matters not upon what circumstances the question of freedom depends, whether upon the sanity or insanity of the grantor in the deed of manumission, it must still be referred to the same tribunal for determination and submitted to the same course of proceeding.

A proceeding in equity to restrain the prosecution of petitions for freedom by certain negroes under certain deeds of manumission, upon the ground of the insanity of the manumittor at the time of their execution, and for issues to try the question of sanity, is irregular and void, because by it the negroes would be deprived of the right of peremptory challenge, which is their absolute right, and all of them, individually and separately, are entitled to it.  

COUNSEL:
Thos. S. Alexander for the appellants, insisted, that the appellees were not entitled to the relief prayed, nor to the injunction as auxiliary thereto, and argued the following points:

1st. The complainants admit by their bill that the appellants, the negroes, are capable of being sued and impleaded, and are therefore precluded from denying the right of these appellants to their freedom. They cannot require these appellants to litigate with them any question which may directly or indirectly involve their right to their liberty. The law of villeinage, though not like the [**5]  law of slavery in all respects, is yet like it in this, that when the master sues his slave, whether he recovers or not, he thereby constitutes him a freeman. 7 Gill 211, Patterson vs. Crookshanks. Littleton, secs. 204 to 208. 5 H. & J. 190, Hall vs. Mullin. 6 G. & J. 136, Burke vs. Negro Joe. 9 G. & J. 19, Bland vs. Dowling. 1 G. & J. 390, Miller vs. Negro Charles.

2nd. The law of the land has prescribed one only form of proceeding by which the right of an alleged slave to his freedom can be determined, to wit, by petition, to be filed in the circuit court, on the law side thereof, by the alleged slave against the person holding him in servitude, and a court of equity has no jurisdiction to compel him to litigate his rights as a party defendant to a suit in equity, which must necessarily be complicated in its details and expensive and dilatory in its progress, upon the pretext suggested, that several claim their freedom under one instrument or under one state of facts. Each person has a right to try his own cause, independently of all others, and the law secures to him expressly the right of suing the second time in case the first proceeding shall be determined [**6]  against him, and the right of peremptory challenge. Act of 1796, ch. 67, sec. 24. 6 Gill 302, Cornish vs. Willson. 2 Md. Ch. Decisions, 78, Methodist Church vs. Mayor and City Council of Baltimore. Ibid., 119, Powles vs. Dilley. 8 Gill 322, Negro Franklin vs. Waters.

3rd. As between freemen, competent to sue and be sued, a court of equity entertains a jurisdiction to try or provide for the trial of legal rights, on the ground of preventing a multiplicity of suits, only where the general right claimed concerns a corporeal or incorporeal hereditament, and is claimed against many persons, amongst whom there is privity, by reason of tenure or residence, and the right is derived from usage, custom or prescription, nor until the right has been established at law in one action at least, or very strong prima facie evidence is exhibited in support of such right. Equity never interferes in a case like the present where the right or claim concerns personalty, where its determination involves the validity of a modern deed, where there is no privity as between the several defendants, where there has been no trial of the question at law, and where the title is prima facie with the defendants.  [**7]  For the general rule on this subject, see Mitford's Pl., 169, 209, and the cases there cited, especially Hardress, 337, Berke vs. Harris. The only case which gives color to the present is 3 Price, 164, Kensington vs. White, which is disapproved of by Mr. Justice Story as utterly inconsistent with principle, (Story's Eq. Pl., sec. 537, note 1,) and is clearly inconsistent with the opinion of Lord Kenyon, 1 East, 220, Birkley vs. Presgrave, and with the rule stated by the Vice Chancellor in 2 Simons, 369, Long vs. Yonge. See also 2 Ves., Jr., 486, Dilly vs. Doig, and 1 Jacob & Walker, 369, Weale vs. West Middlesex Waterworks Co.

4th. The right of the negroes to their freedom, under the original deed of manumission, is distinct from the right of the executors, devisees and legatees under the will. They must first establish their freedom before they can call the executors to account for the personal estate, or sue the heirs at law for the real estate, and in no event can they be involved in litigation with the next of kin, qua next of kin. The bill is therefore multifarious in this, that the next of kin and the heirs at law unite as complainants; and in this, that they seek in such [**8]  bill, to compel the negroes to litigate their rights to freedom, under the deed of manumission against the person unlawfully holding them in servitude, and their right to the realty derived under the will against the heirs at law, and to become a party to a litigation between the next of kin as caveators, and the executors of the deceased: and in this, that the bill seeks not only a determination against the right of the negroes, but also an account and distribution of the real and personal assets of the deceased. For these reasons the bill must on the hearing of the demurrer be dismissed, and as it is apparent the complainants cannot be relieved at the hearing, they are not entitled to an injunction as auxiliary to the relief which they may pretend to at such hearing. That the bill if multifarious must be dismissed in toto. See 2 G. & J. 27, Gibbs vs. Clagett. 5 Gill 376, White vs. White. That this bill is multifarious see the same cases, and Mitford's Pl., 208. That an injunction is not to be granted on a bill which is void on demurrer, see 11 Paige, 166, Rose vs. Rose; 10 Do., 193, Bowers vs. Smith, and 4 Gill 472, Geiger vs. Green.

5th. Many of the negroes are [**9]  infants under the age of twenty-one, against whom a court of equity cannot assume and never has attempted to assume jurisdiction, for the purposes claimed by the bill.

6th. The petitions depending in the circuit court for Anne Arundel county, at the time of the filing of this bill, the application, if it can be made at all, ought to have been made to the same court as a court of equity. One circuit court as a court of equity, cannot restrain proceedings at law before another circuit court. 4 G. & J. 480, Brown vs. Wallace. 7 Gill 446, Albert and Wife, vs. Winn and Ross.

Alexander Randall for the appellees, argued at length the following points.

1st. The injunction was properly granted, because the proper mode of resisting the suits of the defendants, the negroes, in their petitions for freedom, founded on these pretended deeds of manumission, executed by a non compos mentis, is such an application as that to a court of chancery, for a decree declaring such deeds null and void. 1 Md. 32, Key's Lessee vs. Davis. As to the effect of making the negroes under such circumstances parties to the suit, we have a law of our own in reference to African slavery, and [**10]  we need not go back to the doctrine of villeinage which has no relation to it. The case of Allein vs. Sharp, 7 G. & J. 96, is an authority upon the very point, where the court say, "the manumitted slaves may be made parties to a suit, and if it be shown the testator was insolvent, they may be sold for a term of years or for life." This is utterly inconsistent with the idea, that the making of them parties makes them free. And in the subsequent proceedings in chancery in that case, the negroes, some of whom were infants, were made parties defendants, and were sold under a decree of the chancery court as slaves for life. See the case reported in 4 Md. Ch. Decisions, 537, also 6 Gill 328, Cornish vs. Willson, and 4 Gill 249, Peters, et al., vs. Van Lear, to the same effect.

2nd. Because the multiplicity of suits, the ruinous amount of costs, and the other vexatious and harrassing consequences imposed upon the complainants, arising out of the various trials at law of these petitions for freedom already filed, and others interminably that may be filed, require that a court of equity should interpose, especially as all the negroes claim their freedom under the same instruments [**11]  of writing, and the same state of facts, and can have their rights in no way impaired thereby, and try the validity of said deeds, or else direct issues to a court of law to try their validity. 6 Johns. Ch. Rep., 150, Brinkerhoof vs. Brown. 4 Cow., 699, Fellows vs. Fellows. 2 Mason, 198, West vs. Randall. 1 Daniels Ch. Pr., 76. 24 Pick., 67, Witherlee vs. Ocean Ins. Co. 5 Cowen, 282, Jackson vs. Stiles. In note 1 to the last edition of Story's Eq. Pl., sec. 537, it is said, the case of Kensington vs. White, 3 Price, 164, is sustained by the case of Mills vs. Campbell, 2 Younge & Collyer, 389. There is no clear well defined rule upon the subject applicable to all cases, but each must depend upon its own peculiar circumstances. The negroes will not be deprived of the right of peremptory challenge, for in the issues sent to try the validity of the deeds, the order may direct this right to be secured to them. But every other citizen of the State is liable to have his rights adjudicated in equity, and by so doing he may be deprived of some of the privileges secured to him in a common law trial. What reason is there why these negroes should be placed upon a different or better footing? A [**12]  court of law may direct the causes to be consolidated. (2 Md. 270, Mitchell vs. Smith.) And then the right of challenge could be exercised but once.

3rd. Because the various matters for adjudication set forth in this bill constitute but one subject, the settlement of the estate of John Townshend deceased, and although the rights of different parties, and different rights of the same parties are involved, yet are they all properly introduced into this bill, and can be fully and fairly determined by a court of equity, with less delay and expense to the parties than in any other proceeding, and therefore the bill is not multifarious. 1 My. & Cr., 603, Campbell vs. Mackay. 2 Mason, 194, West vs. Randall. 2 Sch. & Lef., 371, Whaley vs. Dawson. Story's Eq. Pl., sec. 271, note 2, 287 note 1, 284 to 286, and 532 to 539. 1 Daniel's Ch. Pr., 396. 3 How., 333, 411, Oliver vs. Piatt. 1 Simons & Stuart, 313, Turner vs. Robinson. 5 Madd. Rep., 138, 145, Salvidge, et al., vs. Hyde. Mitford's Pl., 148, citing 1 Vern., 29, Purefoy vs. Purefoy 4 Madd. Rep., 171, Wheeler vs. Malins. 2 G. & J. 14, Gibbs vs. Clagett.

4th. As to the objection that the bill should have been filed in the [**13]  court where the petitions for freedom were depending, it is only necessary to say, that these petitions were originally filed in Prince Georges county court; the defendants reside there, and by the act of 1836, ch. 269, the issues that may be framed there for trying the validity of these deeds may be removed to Anne Arundel county. But there is no interference of jurisdiction, for the court in Prince Georges county only decides what evidence shall be used in the court in Anne Arundel county, in the trials for freedom there. The heirs at law are necessary parties to the suit, because the negroes may claim their freedom, upon the ground that the will gives them real estate, and hence by implication gives them their freedom.  

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

OPINIONBY:
MASON 

OPINION:

 [*295]  MASON, J., delivered the opinion of this court.
If any one of the several objections which have been urged by the appellants' counsel, to the regularity and validity of this proceeding, be tenable, it will constitute a sufficient ground for a dismissal of the bill.
The proper mode under our laws, by which to try the title of a negro to his freedom, is by petition [**14]  filed in the circuit court. This right is to be asserted subject to certain restrictions and privileges, which neither party, nor no tribunal has the power to disregard. By the act of 1796, ch. 67, one of those privileges secured to both parties, consists in the right of peremptory challenge. It is clear therefore, that any tribunal that would attempt to adjudicate upon the rights of an alleged slave, (except under some other specific proceeding pointed out by statute,) in a manner which would deprive him of this right of challenge, would act in violation of law, and its proceedings be therefore irregular and invalid. Such we regard the proceeding in this instance. The title of the negroes to their freedom is the question to be determined in this controversy, and yet this is proposed to be decided, in a manner which precludes the exercise of the right of challenge secured to the negro.
The suggestion, that issues might be framed and sent from the court of chancery to a court of law, for trial before a jury, where the right of challenge might be exercised, will not avail, because it makes an absolute right of the party, depend, in a measure, upon the discretion or grace of the [**15]  court of chancery. Nor is the case varied by the application, contained 

 [*296]  in the bill for issues to try the question of the sanity of the grantor, in the several deeds of manumission in question. If this application were granted, it would only secure the right of challenge but once, while there are a number of negroes, whose freedom depends upon the result, all of whom, individually and separately, are entitled to this right of challenge.
This question seems to be put to rest by principles announced in the case of Negro Franklin vs. Waters, 8 Gill 322. Judge Chambers, in delivering the opinion of the court, on page 330, says, in regard to the question of freedom vel non, that "in our State, the mode in which this question is to be tried, is not only prescribed by statute, but there are peculiarities in regard to it, which cannot be gratified but by an observance of the mode indicated. It must be by petition in a court particularly designated, and the right of peremptory challenge is expressly secured to both master and slave. To deny to either party the privilege secured by the statute, if the trial be by petition, would be an admitted violation [**16]  of the plain meaning and express words of the law. Is it less so to permit one of the parties to deprive the other of this privilege, by using a different form of action?" See also the case of Negro Peters and others, vs.  Van Lear, 4 Gill 249.
We cannot perceive that the views we have herein expressed, conflict with the principles announced in the case of Key vs. Davis, 1 Md. 32. The question of freedom involved in this controversy, our statute requires, shall be determined in a particular tribunal and in a particular mode of proceeding, and it matters not upon what circumstance that question depends, whether upon the sanity or insanity of the grantor in the deed of manumission, it must nevertheless be referred to the same tribunal for determination and submitted to the same course of proceeding. If any statute had pointed out how the matters in controversy in the case of Key vs. Davis, were to be determined, we should have had as little difficulty in disposing of that case as we have had in settling this.

 [*297]  We do not deem it necessary to touch the other grounds of objection urged against the validity of this proceeding.
 [**17]  Decree reversed and bill dismissed with costs to the appellants in both courts. 

46 of 48 DOCUMENTS 

DARBY MANAHAN and PATRICK GORMAN, vs. THOMAS SAMMON and GEO. A. THURSTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 463; 1853 Md. LEXIS 5 

JUNE, 1853, Decided 

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

This appeal was taken from an order of the court below, (MARTIN, C. J.,) dissolving an injunction which had been previously granted upon the bill of the appellants, restraining the appellee, George A. Thurston, as trustee in insolvency of one George S. Greene, from selling certain real estate which had been purchased for $ 351, by Thomas Sammon, the other appellee, at sheriff's sale, under executions against said Greene, and with other property mortgaged by said Sammon to the appellants, to secure a debt of $ 1200. The facts of the case are fully stated in the opinion of this court and the argument of counsel.  

DISPOSITION:
Order affirmed, and bill dismissed.  

HEADNOTES:

Judgments were recovered against G. in 1843, upon which fi. fas. were issued in 1844, and returned levied, and the land on hand for want of buyers. In January 1847, G. applied for the benefit of the insolvent laws, and his trustee duly appointed and qualified. In February 1847, writs of vendi. exponas upon these fi. fas. were issued, under which the property was sold in May following by the sheriff at public sale. HELD:

That the insolvent application transferred to the trustee the sole and exclusive right of selling the property, notwithstanding the outstanding fi. fas. previously levied, and the sheriff having no right to sell, his proceedings were null and void, and the sale by him passed no title to the purchaser.

Judicial sales are always favored by the courts: a purchaser under a fi. fa. upon a judgment subsequently reversed, will hold a valid title, and the title of a purchaser under a fi. fa., issued more than three years after date of judgment without being revived by a sci. fa., cannot be attacked in any collateral proceedings.

Titles in such cases are sustained upon the ground, that the proceedings under which they were obtained were not void, but only voidable, in consequence of irregularity merely.

But in this case the sheriff had, under the vendi. in his hands, no more power to sell the property than an execution against it would have given him to sell the property of B. No matter how perfect the judgment and fi. fa. against A. might be, a sale of B's estate under it would be nugatory and void.

The insolvent papers being filed before the sale, the purchaser is to be considered as having knowledge of the application and of the effect in law thereof, and the fact that the sale was made and the trustee made no objections thereto, from May 1847 to the year 1851, could give him no title.

The fact that writs of vendi. exponas were issued after the application, did not give the sheriff power to sell, or the purchaser any rights under the sale. The right to sell under the fi. fas. was taken away by the application and appointment of the trustee, and the vendi., whether issued before or after the application, could not restore it.

A vendi. confers no power on the sheriff which he did not possess under the fi. fa.; it only commands and requires him to do what he could have done under the latter writ; the fi. fa. is the effective writ, and the sheriff may sell under it after a levy without a vendi., and the return to the latter relates to and in legal effect becomes part of the return to the former.

Under the 7th sec. of the act of 1805, ch. 110, and the decision of Alexander vs. Ghiselin, 5 Gill, 138, a fi. fa. actually levied before application, only protects the lien of the plaintiff in the writ, so as to give him the right to claim payment out of the proceeds of the property when sold by the trustee, but gives no authority to the sheriff to sell.

The property of an insolvent is transferred by law to his trustee, even though the deed of the insolvent to the trustee should be considered as defective for want of record.

Even though the property be not mentioned in the conveyance by the insolvent to the trustee, still the act of 1827, ch. 70, sec. 8, gives the sheriff no power to sell. This act only protects the lien of a creditor who proceeds against property not included in the insolvent's deed or schedule, to the same extent as that of an execution creditor, whose fi. fa. has been levied before the application is protected by the act of 1805, ch. 110.

The county courts have exclusive jurisdiction over cases of insolvency, and the insolvent's assets cannot be distributed in a court of equity.  

COUNSEL:
Thomas Devecman for the appellants.

The only question presented by this appeal is as to the validity of the sheriff's sale, made under the writs of vendi. exponas, and the right of Thurston as the insolvent's trustee, after a lapse of five years, to proceed to resell the same property, notwithstanding he was cognizant of the sheriff's sale and of the issuing of the writs of vendi. exponas, and did not interpose to prevent or in any manner object to it. The appellee, of course,  [**2]  relies upon the case of Alexander vs. Ghiselin, 5 Gill, 138. That case differs from the present in the following particulars:--1st. In that case the trustee arrested the sale whilst in fieri, and before it was made, in this case the trustee was cognizant of the sale, and for five years acquiesced in it. 2nd. In that case executions were issued prior to the application of the insolvent and levied on personal property, whereas in this case the writs of vendi. were issued after the insolvent's application, and were directed against real estate. 3rd. In that case the rights of purchasers had not intervened, no sale having been made. We therefore insist:

1st. That the writs of vendi. exponas were not void, but at most only voidable; that the trustee having never interposed in any manner to set them aside, either by motion to quash or by injunction, cannot now impeach the sale made under them. And even if irregularly issued, their irregularity cannot be collaterally inquired into. Miles vs. Knott, 12 G. & J., 452. Ranoul vs. Griffie, ante, 54. Jackson vs. Robins, 16 Johns. Rep., 575. 3 Howard, 111.

In the case of Alexander and Ghiselin, the application of the party for the benefit [**3]  of the insolvent laws is said to supersede all executions. But in this case it could not operate as a supersedeas of the vendi., which was not then issued, and which, when afterwards issued, commanded the sheriff to sell the property specifically which he had previously seized. Being issued after the application, the writ could not be superseded by it, and commanding the sheriff to sell specific property, he was bound to execute it, and his acts are not void. 1 G. & J., 448. Sales under judicial process are regarded with favor. 8 G. & J., 358. Sales made under a judgment shall stand, although the judgment itself is afterwards reversed. 11 G. & J., 217. 6 H. & J., 182. This is a rule in favor of purchasers.

If an erroneous execution is set aside after sale, the party shall be restored to the money for which the property was sold, but not to the property itself. 2 Bacon's Ab., 740, tit. Execution.

Where two writs are delivered to a sheriff, he must first execute the one first delivered; but if he first execute the one last delivered, the sale is good, and the first party has a remedy against the sheriff only. Bingham on Judgments, 247.

2nd. The deed from the insolvent [**4]  to his trustee is inoperative and void, because it was never recorded.

The deed of the insolvent is expressly required to be recorded by the act of 1805, ch. 110, sec. 5.

The act of 1812, ch. 77, sec. 6, seems to have dispensed with a deed altogether; but the act of 1827, ch. 70, sec. 1, restored the law to what it was prior to the act of 1812, and declared that the deed should be executed, and that no discharge should be granted until it was executed; and the eighth section made all property not mentioned in the schedule liable to execution. This act, pro tanto, repealed the act of 1812, (which was a general law,) and as an evidence of it, we find that the act of 1829, ch. 208, sec. 3, was passed, restoring the act of 1812, so far as Baltimore was concerned. The law then, as it now stands under the act of 1805 and 1827, is exactly the same that it was under the act of 1798, ch. 64, sec. 5, with reference to the insolvent's deed to his trustee. The case of Greenleaf vs. Birth, 6 Peters, 312, is then conclusive upon the question, that the deed must be recorded, and that although there is nothing in the act expressly requiring its enrolment, still the legislature never intended [**5]  to dispense with the general registry laws.

3rd. The sheriff's sale will be supported upon the ground, that a court of equity will always ratify and confirm that when done, which, if previously applied to, it would have ordered to be done. Harris vs. Alcock, 10 G. & J., 252. In the case of Magruder vs. Peter's Ex'crs, 11 G. & J., 217, a decree was passed enforcing a vendor's lien against a purchaser from the trustee of an insolvent debtor. The insolvent's trustee in this case having failed to make a sale, a court of equity, if applied to, would have ordered a sale in favor of the judgment creditor. The trustee stood by and saw the sheriff sell without objection, and saw the purchase money applied and paid over, (and paid too just as he would have been compelled to pay it had he made the sale,) and the case is therefore directly within the principle in Harris vs. Alcock. To permit him now to impeach the sale, would enable him to commit a fraud on the purchaser. The judgments have been satisfied by the sale, and the purchase money properly applied.

4th. This was a good sale under the act of 1827, ch. 70, sec. 8, as this property was not included in the insolvent's schedule.  [**6]  

The description in the schedule is: "All my interest in lands purchased at public sale of Chisholm, executor of O'Neale, All the real estate is held by mortgage or otherwise," and is void for uncertainty. 2 H. & J., 146. 3 G. & J., 290. Md. Digest, 512, sec. 12.

Geo. A. Pearre for the appellees, contended for an affirmance of the order:

1st. Because the property in controversy passed under the deed to the trustee, whose duty it became to sell it and to pay off the creditors according to their priorities. Alexander vs. Ghiselin, 5 Gill, 138. This decision establishes the position, "that the act of 1805, and the supplementary acts relating to insolvent debtors, requires the trustee to take into his possession all the estate and effects to which the insolvent had the right of possession at the time of his application, and to sell and dispose of all his property, whether in possession, reversion or remainder, and to pay off the liens and incumbrances thereon," (179.) If the trustee is required to sell he alone is authorised to sell, and the effect of this is as though the law had in totidem verbis declared, that all sales of any property made by sheriffs under any executions,  [**7]  after the insolvent's application, shall be null and void, ipso facto. Two different officers of the law cannot both have a right to sell the property. The law is a unit, and never permits the clashing of duties in its executive or judicial officers. If, under the vendi. in this case, the sheriff has a right to sell then he is bound to sell, because his obligation is co-extensive with his right or duty. Can the laws of the State be so construed, that two different purchasers, under two different officers of the law, shall be put in collision? The law then would be not the harmonious working of a uniform system, but she herself would cast the apple of discord among her citizens. It can make no difference whether the execution is issued before or after the application for the insolvent laws. If issued before and the sale made afterwards, the sale is void--if issued after and sale made after it is equally void. In whatever condition an execution or lien of any kind stands at the time of the application, it is there arrested. The principle, that a sale made under an execution that was irregular and liable to be set aside on motion shall be good to the purchaser, is not applicable to such [**8]  a case as this; so a sale under a judgment which is afterwards reversed. In these cases the sale is good, because, as the books say, "the sheriff who made the sale had lawful authority to sell." 11 G. & J., 242, Magruder vs. Peter. Not so in this case, the sheriff here had no lawful authority to sell. This court, in Waters vs. Dashiel, say, "so exclusive is the possession and control of the trustee, that he takes the estate free from the interference of the sheriff, mortgagees or others having prior liens," &c. 1 Md. Rep., 471. The application of Greene for the benefit of the insolvent laws, had taken away all power to sell any property conveyed to the trustee.

2nd. The deed of the insolvent to the trustee was, in fact, recorded. Transcribing is not necessary to recording. The deed, together with all the other papers in the insolvent case, were deposited with the officers and in the office for recording all deeds of land. The deed was there among the public records. The law made it the duty of the officers to record it. Act of 1805, sec. 14. If an ordinary deed is, by a party, taken to the record office and there left with the clerk for record, it may not be transcribed for ten [**9]  years and yet it is recorded in legal contemplation.

3rd. It is contended on the part of the appellant, that the sale by the sheriff is good, on the ground that a court of equity will ratify, when done, that which, if previously applied to, it would have ordered to be done. Has a court of equity power to interfere with the positive enactments of statute law and to exercise the powers of judicial legislation? When the law has declared a trustee shall sell and the sheriff shall not, can a court of equity, in the very face of the statute, ratify and make a valid a prohibited sale? The maxim is equitas sequitur legem. "Where a rule, either of the common or the statute law, is direct and governs the case with all its circumstances, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it." 1 Story's Eq., sec. 64. The case of Alcock vs. Harris, 10 G. & J., 252, states the principle in this wise: "A court of equity will always ratify and confirm that when done, which, as a matter of course, if previously applied to, it would have ordered to be done." Now would a court of equity, as a matter of course, if applied to for that purpose, have [**10]  decreed that the sheriff should have proceeded and sold the property levied on, notwithstanding the appointment and qualification of a trustee? In the one case, the court of equity interferes because there is no remedy at law, or by her equitable jurisdiction helps the remedy at law, and exercises its jurisdiction as ancillary thereto. But in the other case the law has provided the fullest remedy, and specially pointed out the mode of its execution.

4th. Again, it is said on the part of the appellant that the sale by the sheriff is good under the act of 1827, ch. 70. But even if it were not included in the schedule and although an execution might be levied upon it, still the trustee must sell the property. Waters vs. Dashiell, 1 Md. Rep., 472. But it is included in the schedule as "all my lands purchased at public sale of Chisholm, executor of O'Neill." This could be made certain by showing the land purchased of O'Neill's executor. The case of Blessing vs. House, 3 G. & J., 290, clearly shows that a reference in a deed to any other papers is good to identify the land. In that case, if the will had shown a proper description of the land, the deed would not have been declared void [**11]  for uncertainty.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*470]  ECCLESTON, J., delivered the opinion of this court.
The appellants filed their bill in this case on the 19th of June 1851, praying a decree for the sale of certain real estate for the payment of a debt due them by T. Sammon, under a mortgage executed by him, on the 17th of September 1850; and likewise praying an injunction to restrain G. A. Thurston, as trustee of G. S. Greene, an insolvent petitioner, from selling the property, or intermeddling therewith in any manner.
The property was originally purchased by G. S. Greene, of Wm. Chisholm, executor of Mary Ann O'Neill, and he gave his notes to secure a portion of the purchase money. On these notes Chisholm obtained judgments against Greene in 1843, and issued writs of fieri facias upon them in 1844, which were levied on the real estate in controversy. The sheriff returned the writs as levied and on hand for want of buyers. On these fi. fas. writs of venditioni exponas were issued, on the 25th of February 1847, and on the 5th of May following the property was sold under these writs to Thomas Sammon,  [**12]  by N. Bruce, as sheriff.
On the 14th of January 1847, George S. Greene became a petitioner for the benefit of the insolvent laws, and G. A. Thurston was appointed and qualified as his trustee. The insolvent papers were returned in the usual manner and filed by the clerk, on the 24th of January 1847.
The injunction was granted in the first instance; and afterwards dissolved. From the last order this appeal is taken.
The important question necessary to be decided is, whether the sale by the sheriff passed any title to Sammon?
It has been very correctly said, that judicial sales are always 

 [*471]  favored by courts. That a purchaser under an execution upon a judgment subsequently reversed will, nevertheless, hold a valid title to the property; and that the result will be the same where a sale is made under a fi. fa., issued more than three years after the date of the judgment, without being revived by a sci. fa., unless the sale is set aside by some proceeding on the part of the defendant in that particular case. Such a title cannot be rendered nugatory in any collateral proceeding. These titles, however, have been sustained, upon the ground that the proceedings under [**13]  which they were obtained were not void but only voidable, in consequence of irregularity merely.  Miles vs. Knott, 12 G. & J. 442, 453. Jackson vs. Robins, 16 Johns. 575, 576. In such cases the matter of irregularity in the process has been the important question, not whether the title of the defendant in the execution, at the time of sale, was such as could be sold under the writ. But in the present instance there is no dispute as to the regularity of the judgment, nor any allegation of irregularity in regard to the time or manner of issuing, levying or returning the fi. fas., or that the writs of vendi. were at all defective in any matter of form. The objection here is, that before the sale took place, the insolvent application of Greene had transferred to his trustee the sole and exclusive right of selling the property, notwithstanding the outstanding fi. fas. previously levied. And this doctrine is fully sustained by the decision in Alexander, et al., vs. Ghiselin, et al., 5 Gill 138. There the right of a sheriff to sell under a fi. fa., actually levied before the insolvent's petition, was expressly [**14]  denied; and the authority of the trustee to make the sale as clearly asserted. This being so, the sheriff, Bruce, under the writs of vendi. in his hands, had no more power to sell the property than an execution against A would have given him to sell the property of B. No matter how perfect the judgment and fi. fa. against A might be, a sale of B's estate under it would be nugatory and void.
But this case is said not to be affected by that of Alexander vs. Ghiselin, because there no sale was made, whilst here 

 [*472]  there was; and the trustee stood by without making any objection, from 5th of May 1847 until the year 1851. Now, according to the doctrine of that case, no one but the trustee of an insolvent has a right to sell the insolvent's property. And every one is presumed to know such to be the law. Here, too, the insolvent papers being filed before the sale, and therefore being matters of record, Sammon is to be considered as having knowledge of Greene's application. Under these circumstances Sammon took no title by the sale, and the silence of the trustee, (a mere representative of the creditors,) could give him no title.
It has also been insisted that there [**15]  is an essential difference between this case and the one reported in 5 Gill 179, inasmuch as there the fi. fa. was issued and levied before the petition, and the sale prevented by injunction; and here the fi. fas. being levied prior to the application, writs of vendi. were subsequently issued. Those writs having been issued by a court of general jurisdiction, commanding the sheriff, after the insolvent's petition, to make sale of the property specifically named in the writs, it is contended, gave the officer such power to sell, that the purchaser acquired rights under his sale which cannot now be resisted successfully by the trustee. This, as a legal proposition, we cannot assent to.
We have seen that the right to sell under the fi. fas. was taken away by the petition of the insolvent, and the appointment of his trustee. If so, the writs of vendi., whether issued before or after the application, could not restore the right. A vendi. confers no power on a sheriff which he did not possess under the fi. fa. The former only commands and requires him to do what he could have done under the latter. The fi fa. is the effective writ. He could [**16]  sell under it after a levy, without a vendi. Clerk vs. Withers, Ld. Raym., 1072. 2 Tidd's Pr., 1013, (new ed.) 1 B. & A. 230. In Clarke vs. Belmear, 1 G. & J. 443, the Court of Appeals say: "The fieri facias is the effective writ in these cases, it not only authorises the sheriff to seize, but to sell; very different is the office of a venditioni exponas. That confers no new power to the sheriff; it 

 [*473]  does not authorise him to do any act that he might not have done under the fieri facias. It is only a mandatory writ, and directs him to carry the fieri facias into effect, by selling the lands taken in execution under it, and when the lands are sold, the return to the venditioni relates to, and in legal effect becomes part of, the return to the fieri facias." The 7th section of the act of 1805, chapter 110, provides, that no judgment to be entered after the insolvent's application shall be a lien on his real property, nor shall any process against his real or personal property have any effect thereon, except writs of fieri facias, actually and bona fide levied before such application. And the decision [**17]  in Alexander vs. Ghiselin being, that even such a levy under a fi. fa. confers no authority on the sheriff to sell, but that the trustee is the officer having the exclusive power to make a sale, it would be a strange construction to say, a vendi. could divest the authority of the trustee, and transfer it to the sheriff; especially when the act declares: "Nor shall any process against his real or personal property have any effect thereon, except writs of fieri facias actually and bona fide levied before such application." And the construction, as to the exception in regard to a fi. fa. so levied, is, that the plaintiff in such writ will have his lien so far protected, as to have the right to claim payment thereof out of the proceeds of the property, when sold by the trustee. Of course, a fi. fa. issued before, and levied after, the application, and one issued after, can have no effect upon the property. As the only exception made in favor of any species of process, even to the extent of creating a lien, without giving authority to sell, is that of a fi. fa. levied before the petition; with what sort of propriety can it be supposed that a vendi., which [**18]  is dependent upon it for all its power and efficacy, can give the right to sell, simply because it issued after the application?
The appellants' counsel objected to the validity of the deed from the insolvent to his trustee, because it was not acknowledged before the proper officer; and also because it has not been recorded. The first objection he eventually abandoned, and properly so. The last need not be noticed, for the reason that 

 [*474]  we think the property of an insolvent is transferred, by law, to his trustee, if the deed is defective. This principle has been recognised in the case of Waters vs. Dashiell, 1 Md. 455, and we feel no disposition to change our views on the subject.
But it is contended, that if the objection to the deed for not being properly recorded cannot be sustained, still, under the act of 1827, ch. 70, sec. 8, Sammon took a good title, by virtue of the sheriff's sale to him. It is said the property in controversy if included at all in the deed, is so defectively described that it cannot pass by the conveyance.
Assuming, then, this property is to be considered as if not mentioned in the deed, the appellants claim that, by the act [**19]  of 1827, the sale made to Sammon was valid. But here, likewise, we have the authority of Waters vs. Dashiell for saying, if the property was not included in the conveyance, the sheriff had no authority to sell. The construction there given to that act was designed to make it harmonize with the principles established in Alexander vs. Ghiselin, so as to render the different portions of the insolvent system uniform, and not to have one part inconsistent with another. The interpretation put upon the act of 1805, ch. 110, in the last mentioned case, fully justifies that given in Waters vs. Dashiell, in regard to the act of 1827, ch. 70. By this last decision the lien of the creditor, who finds out property which the insolvent has failed to include in his deed or schedule, and has not delivered over to the trustee, but may have intentionally concealed, is protected in his lien, precisely to the same extent which an execution creditor is, whose fi. fa. has been levied before the application. And this lien right is a fair compensation for the vigilance and activity displayed in searching out the concealed property.
In regard to the effective operation of the transfer of property [**20]  to the trustee by the insolvent's application, in addition to what has already been said, see the strong language used in 5 Gill 178 to 180; and also in the case of Somerville vs. Brown, 5 Gill 399.
From what has been said, it follows as a necessary consequence, that Sammon took no title under the sheriff's sale; of 

 [*475]  course he could convey none by the mortgage which he gave. The complainants are, therefore, not entitled to the relief prayed for, and we are compelled, reluctantly, to affirm the order dissolving the injunction, and to dismiss the bill.
The case is a hard one, and if we had the authority to grant relief, we should do so with great cheerfulness. But the assets in insolvency are not to be distributed in a court of equity. That duty is to be performed by the court having exclusive jurisdiction over cases of insolvency. However, nothing is here said which denies to that tribunal the right, when disposing of the proceeds of this property, after a sale by the trustee, to substitute the purchaser at the sheriff's sale, or those claiming under him, in the place of the creditor whose lien may have been paid by the proceeds of [**21]  sale under the executions.
Order affirmed, and bill dismissed. 

47 of 48 DOCUMENTS 

NATHAN H. WARE, ELIZA E. WARE, JULIA H. BARRON, and JACOB ALBERT, vs. CHARLES R. RICHARDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

3 Md. 505; 1853 Md. LEXIS 9 

JUNE, 1853, Decided 

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

This appeal was taken by the appellants, (the defendants below,) from an order of the county court, passed on the 16th of November 1849, finally ratifying and confirming the auditor's account of the 9th of March 1848, which distributed the proceeds of sale, and overruling their exceptions thereto. The proceedings in the case commencing with the bill filed by the appellee, on the 28th of December 1846, are so fully stated in the opinion of this court as to render any additional statement unnecessary. Upon the passage of the order appealed from, the following opinion was delivered by LE GRAND, A. J.:

"The fund for distribution in this case has been derived from the sale of property directed to be sold by a decree of this court. The property was, by deed of A. Kennedy, conveyed in trust to Samuel N. Ridgely, on the 20th of March 1802.

All the exceptions filed in this case, save that in which the statute of limitations is relied upon, are founded on the idea that under this deed Elizabeth Richardson had but a life estate, and that on her death the estate passed to her children, Charles and Robert, in fee-simple.

In [**2]  the argument of the case there was no difference of opinion as to the principles of law relied on by counsel, the only contest between them being in relation to the true construction of the deed itself, those for the complainant contending that by the deed the heirs of Elizabeth Richardson were to have an equitable estate, whilst on the opposite side it was insisted upon that the trust ceased on the death of Elizabeth and that the heirs took a legal estate, and that therefore the rule in Shelley's case did not apply so as to give to Elizabeth Richardson such an estate in the property as to make it responsible for her debts.

The construction which I place on this deed is, that the grantee had by it granted to him and his heirs "forever" the legal estate, and that it should be read as though the words "in trust" had been inserted immediately after the word "then," which follows those of "after the death of the said Elizabeth;" or in other words, that the language, "further trust," occurring in the deed, is just as applicable to that part of the deed which refers to the heirs and representatives of Elizabeth Richardson, as it is to that portion which refers directly to Elizabeth [**3]  Richardson herself. In this view I have the concurrence of the chief justice, (FRICK,) whose opinion I have obtained. This being so, there is no doubt that Elizabeth Richardson, under this deed, took an estate in fee, the rule being, and so admitted, that an equitable estate of freehold will so unite with an equitable remainder to the heirs of the ancestor to make such ancestor tenant in fee. The exceptions founded on the construction of the deed must, therefore, be overruled.

The statute of limitations has been pleaded to an item in the claim of the estate of Robert R. Richardson for the proceeds of sale of two negroes, the property of the said Robert R. Richardson. These negroes were sold by Elizabeth Richardson and her sons, Charles and Robert, under the belief that they were the property of Elizabeth for her life, and then that of Charles and Robert Richardson, her sons. The proof shows that they belonged to the estate of Robert Richardson, senior; Mrs. Richardson, as executrix, is not charged in the inventory of her husband's personal property with these negroes, and although the proceeds of this sale were applied to the payment of the debts of the estate, as is shown by [**4]  the affidavit of Mr. Latrobe, her estate is, of course, debtor to that of her husband for their value, it not being charged to her in the inventory. There is no dispute about the amount or the facts, the only question being, whether an administrator of an executrix, in settling her account under the act of 1820, ch. 174, can, by so doing, take a claim against her out of the statute of limitations? Under our act of 1798, ch. 101, no administrator or executor is bound to plead the statute of limitations, the matter is left entirely to his honest discretion. This being so, it was competent for Charles Richardson, as administrator on the estate of his mother, to admit the claim precisely as she could have done. In fact the act of 1820 makes the administrator of the executor, the administrator on the estate of the testator of the executor. This view is fully sustained by the opinion of this court in the case of Donnell vs. Howard, filed in 1841. There is no cause shown in support of the exceptions." 

DISPOSITION:
Decree reversed and cause remanded. The costs in both courts to be paid out of the proceeds of sale.  

HEADNOTES:

Whatever may have been the origin or philosophy of the rule in Shelley's case, it has been fully recognised and adopted as the settled law of Maryland, and must, with its qualifications, prevail as a part of our system of real law.

Where the words "heirs" or "heirs of the body" are used, this rule requires them to be treated as words of limitation and not of purchase, and it imputes to the grantor or testator, in legal contemplation, an intention to use them in their legal sense, and to give them their legal effect, though a real intention to the contrary would thereby be defeated.

But where the testator or grantor annexes words of explanation to the word "heirs," indicating that he meant to use them in a qualified sense as a mere descriptio personarum, or particular designation of certain individuals, and that they, and not the ancestor, were to be the termini from which the succession to the estate was to emanate, the rule does not apply.

The expressions, "heirs now living," "children," "issue," &c., are words of limitation or purchase, as will best accord with the manifest intention of him who employs them; in such case the intention prevails against the strict construction.

Where the estate limited to the ancestor is an equitable or trust estate and that to the heirs an executed use or a legal estate, the two will not coalesce in the ancestor, and so if the estate for life be a legal and that to the heirs an equitable estate; in such cases the rule does not apply.

If the case be one where the intention of the grantor is to prevail against the strict construction, the court will construe the deed as a feoffment or a bargain and sale, as will most effectually accomplish that intention.

A use, before the statute of uses, was a mere confidence in a friend, that the feoffees of the land would permit the feoffer and his heirs, or such other person as he might designate to receive the profits of the land.

By the statute of uses, the use was transferred into possession by converting the estate or interest of the cestui que use into a legal estate, and by destroying the intermediate estate of the feoffee.

A trust is a use not executed under the statute of uses in the cestui que use, but the legal estate is vested in the grantee or trustee.

The mere interposition of a trustee to protect a trust estate in a third person, even though a married woman, will not prevent the use being executed, unless there is attached to the trustee the performance of some active functions or duties to support the trust.

Where a devise or deed is to a person in trust to collect and pay over the rents and profits to another, the use is executed in the trustee, but where the devise is in trust to permit another to enjoy the rents and profits, the use is executed in the cestui que use.

Most of the elementary writers broadly assert, that where the trustee is to hold in trust for the sole and separate use of a feme covert, it is a trust and not an executed use, but most of the cases cited by them are where some active duties are imposed upon the trustee, and do not sustain the proposition as broadly announced.

In such cases of trusts for the separate use of married women, the intention of the grantor is to prevail, but with the qualification that it must not controvert or defeat the established rules of interpretation.

Unless the deed assigns to the trustee the performance of some duty necessary for the enjoyment of the estate by the feme covert, the legal estate will not vest in the trustee.

The rights and powers of married women are ordinarily merged in those of the husband, and the medium of a trustee is necessary to vest her with sole and independent powers.

Where bequests or conveyances are made to married women for their separate use, without the nomination of a trustee, the husband will, in equity, be considered as the trustee, and will be required to comply with the intentions of the donor.

A separate estate in real property cannot be enjoyed by a married woman except through the interposition of a trustee, and this circumstance of itself implies the performance of some active duties on his part.

By the executing of the use in the wife, the marital rights of the husband are established over the property, and this result is a reason why a different construction should be given to the instrument, in order to effectuate the intention of the grantor.

The modern decisions favor a more liberal construction of deeds and wills, in order to reach the real intent of the makers, and in all cases of devises or conveyances to trustees for the separate use of married women, this court will, if possible, so construe them as to vest the legal estate in the trustees, because this will best effectuate the intention of the donor.

In questions like the present, the same mode of construction is adopted in cases of deeds as in cases of wills, and the same rule is recognized.

Wherever a conveyance may take effect either at common law or under the statute of uses it shall operate at common law, unless the intention of the parties appear to the contrary.

A deed conveyed real estate to a trustee "in trust," that a married woman "shall and may, during her life, have, hold, use, occupy and enjoy" the same, "and the rents, issues and profits thereof," "to her own proper use and benefit notwithstanding her coverture, and that without the let, trouble or control of her present or any future husband," or being liable for his debts, "as fully in every respect as if she was sole and unmarried, and from and immediately after her death, then to and for the use and benefit of her legal heirs and representatives." HELD:

That this deed created but a mere equitable life estate in the married woman, and that it executed the legal estate in her heirs.

The right of an immediate appeal from any decree or order, except a final decree, or order in the nature of a final decree, was taken away by the act of 1830, ch. 185, and though restored by the act of 1841, ch 11, yet the party may waive it, and on appeal from the final decree allege error in all previous interlocutory decrees or orders passed in the cause.

Though the act of 1830, ch. 185, expressly enumerates, among the decrees which are not to be regarded as final, those for the sale of real estate, yet it was not intended to embrace a case where the liability of the property to be sold was the very question to be determined by the court.

An order or decree finally settling any disputed right or interest of the parties is a final decree, and as such will warrant an appeal.

If a creditor's bill has been converted into a proceeding for a sale, for the purpose of distribution, by the consent and agreement of the parties in the court below, the irregularity, if it be such, cannot be taken advantage of in this court upon appeal.

Where a case is submitted on bill and answer without a replication, the answer is to be taken as true.

A bill was upon its face a creditor's bill for the sale of a deceased's real estate. The answer denied the liability of the estate to be sold for the debts, and did not admit the insufficiency of the personalty, but stated that the real estate was not susceptible of division, and assents to its being sold by a decree, and that the proceeds should be brought into court to be distributed according to the respective titles of the parties. No replication was put in and no proof offered. It was then agreed that the cause should be submitted on bill and answer, without argument, for a decree, and a decree accordingly passed directing a sale and that the proceeds be brought into court, and the sale was then made, and by agreement of parties ratified by the court. HELD:

That though this decree passed a good title to the purchaser as against the parties to the proceedings, yet it does not conclude the rights of the parties to the fund arising from the proceeds of sale, and such rights are open for adjudication upon appeal from the decree ratifying the auditor's account distributing the proceeds.

In assenting to the decree the complainants took it upon the condition annexed by defendants, that it should be a decree for a sale, reserving, for adjustment and decision, the distribution of the proceeds until they should be brought into court, and then to abide the decision of the court as to distribution as if the property remained unsold, upon the respective titles of the parties claiming an interest therein.

The agreement consenting to the decree upon these terms dispensed with the proof necessary to support the bill of the creditor, and authorised a sale under that bill, but expressly reserving the equities of the parties.

It is not a case of consent giving jurisdiction, because the bill states facts which give jurisdiction, and the agreement but dispenses with proof and matter of form, and submits to such a decree as the court had the clear power to pass without an agreement upon proper averments and proof.

There can be no doubt but that the agreement can have the effect to suspend or take away that conclusive character which, in ordinary cases, would attach to the decree. It is simply a decree upon terms proposed by the defendants and accepted by the complainants.

It is a common practice for courts of equity to pass decrees reserving the equities of the parties for some future decree of the court, and though this was not done in express terms in this case, yet such was the design of both the court and the parties when the decree was passed.

Under certain circumstances, this court will modify the rigid rules of practice and temper the harsh consequences of decrees to promote the ends of justice and effectuate the intention of parties.  

COUNSEL:
The cause was first argued orally at the bar, but upon application of the appellee [**5]  a re-argument was ordered, when very lengthy and elaborate written arguments were filed, which the Reporter is necessarily compelled to abridge, but in so doing he has endeavored to give concisely the views of counsel and all the authorities upon the several points discussed by them.

Thos. S. Alexander for the appellants.

This appeal presents two general questions:--1st. Whether the claims of complainant are sufficiently established as against the real estate of the deceased? 2nd. Whether Mrs. Richardson had an estate of inheritance in the lands described in the bill?

The appellee insists, that his claims were established by the decree directing the sale, and that such decree cannot be reviewed on this appeal. The act of 1830, ch. 185, deprived the party aggrieved of his right to appeal from a decree directing a sale of real or personal property. 10 G. & J., 377, Hatton vs. Weems. 11 G. & J., 362, Lee vs. Pindle. 12 G. & J., 83, Hatton vs. Weems. And though this right to an immediate appeal is restored by the act of 1841, ch. 11, he may waive it, and on an appeal from the final decree, or order in the nature of a final decree, allege error in the decree directing a sale,  [**6]  or any other decree or order theretofore passed in the cause. 3 Gill, 138, Dugan vs. Gittings. Hence, on this appeal from the order distributing the proceeds, the appellant may show error in the original decree.

Was there then error in that decree? The answer admits, that Mrs. Richardson died indebted to the estate of her testator, but denies the existence of the second claim charged in the bill, and does not admit the insufficiency of the personal estate. The cause was heard on bill and answer. In such circumstances, the complainant can rely on such parts of his bill only as are distinctly admitted by the answer. Hence the court, treating the bill as a creditor's bill simply, ought to have decided that the second claim and the insufficiency of the personalty were not established, and for these reasons dismissed the bill.

It doubtless would have been so dismissed, but for the passages in the conclusion of the answer, which admit that the property belonged to the complainant and his brother, in equal moieties, and was not susceptible of equal partition, and that a sale would be advantageous to all parties; and submit that a decree may be passed for a sale, and the proceeds [**7]  be brought into court for distribution under the court's direction. We shall not inquire, whether this consent justified the court in passing the decree. In either alternative the conclusion must be the same. If consent did not give jurisdiction, the decree was and is erroneous. If the submission in the answer warranted the decree, then the rights of the complainant, to have satisfaction of his alleged claims out of the real assets, were reserved for future discussion. And the question now is, by what standard are those rights to be determined? Evidently by the standard prescribed by the agreement of the parties. By the case made on bill and answer. Hence the complainant is not entitled to satisfaction out of the proceeds of the real estate, because:--1st. He has shown no title in himself as administrator d. b. n., to recover the balance due by the executrix to the estate of her testator. 2nd. His individual claim is not proved to exist in fact. 3rd. The insufficiency of the personal estate is not established. Upon this brief argument the case may be rested.

But if we suppose, for the sake of further argument, that complainant was at liberty to disregard his submission of the [**8]  cause on bill and answer, and to sustain his case by proof, we then insist, that sufficient proof has not been produced.

First, there is literally no proof of the insufficiency of the personal estate. This question is presented by the pleadings. The objection is not to the averments in the bill. They state a case of clear jurisdiction, and hence no exception is needed to entitle us to rely on the objection under the act of 1841, ch. 163.

Secondly, has complainant shown himself a creditor of Mrs. Richardson? and if so, to what amount? His individual claim is denied by the answer, is not proved, and is virtually abandoned. Is he entitled as administrator d. b. n., to recover from the estate of the executrix the balance due from her to the estate of her testator? Prior to the act of 1798, ch. 101, the authority of the administrator d. b. n. was limited to assets unadministered by the original executor. Hagthorp vs. Hook, 1 G. & J., 274. And by that act, sub-ch. 14, his authority is expressly limited to "assets not converted into money, and not distributed or delivered, or retained by the former executor." The act of 1820, ch. 174, empowers the orphans court to order the administrator [**9]  of a deceased executor, to deliver over to the administrator d. b. n. of the original testator, all the bonds, &c., which such executor may have taken, received or had, as executor, at the time of his death, and to pay over all the money in the hands of said executor, as such, at the time of his death. Now on this act we remark, first, that the order of the orphans court is necessary to vest title in the administrator d. b. n. to the securities, and moneys which he would recover from the representative of the deceased executrix. West vs. Chappell, 5 Gill, 228. Secondly, the securities to be delivered, are those which were originally assets, or securities into which assets may be specifically traced. And by parity of reason, the money which may be delivered, is money having an ear-mark, whereby it may be identified as assets, or as the representative of assets. In a more general sense, money wasted, or assets misapplied, is money in the hands of the executor. But it is settled by Sibley vs. Williams, 3 G. & J., 52, that for assets wasted the party aggrieved, whether creditor, legatee or next of kin, must pursue his remedy against the executor of the executor. For the value of such assets,  [**10]  therefore, the executor of the executor cannot be required to answer to the administrator d. b. n. of the first testator.

To this it is answered, that the administrator d. b. n. of the first testator, is the administrator of the deceased executor, and this union of the representative capacity of creditor and debtor, dispenses with the necessity for the action of the orphans court. This principle requires for its application in any given case, the union in one person, in different capacities, of a clear title to demand, and of a clear duty to pay. But if an order of the orphans court is necessary to perfect the title of the administrator d. b. n., to demand possession of bonds, &c., belonging to the first testator, in the hands of a third person, acquiring them as executor of the executor of such testator; or if such order is required to justify their delivery by such executor, to another person claiming as such administrator d. b. n., the union of these two capacities in one person, would not dispense with the necessity for a like order to warrant the transfer, or presumption of a transfer, of the securities acquired by him in one capacity, into his possession under his other [**11]  and better title. The order is essential to the perfection of the title, and, in its absence, no title can be affirmed to exist in the administrator d. b. n.

We then inquire, what was the extent of the indebtedness of the executrix deceased, to the estate of her testator? The claim was submitted for hearing on bill and answer, and no subsequent agreement was made to warrant a change of the issue framed by the pleadings, or the introduction of testimony for the purpose of enlarging the claim. The claim thus admitted is for $ 496.92. The auditor states it as for $ 1543.73, on the authority of an administration account of Mrs. Richardson, as executrix of Robert, passed by the complainant, as administrator of Mrs. Richardson, after her death. This evidence was irregularly introduced, and for this reason ought to be disregarded. Stockett vs. Jones, 10 G. & J., 276. It is relied on as evidence of a claim, entirely at variance with the claim set out in the bill. The claim, as stated in the bill, is admitted by the answer, and the defendants could not controvert it by the introduction of evidence. It would seem to be equally reasonable and clear, that the complainant ought not to be permitted [**12]  to introduce evidence for the purpose of enlarging it. But the evidence offered is insufficient for the purpose. The account passed by the administrator of the executrix, would be evidence against him in favor of third persons. But it would violate justice and the rules of evidence, to permit him to avail himself of his character of administrator of the executrix, deceased, for the purpose of establishing in himself a title as administrator d. b. n. of the first testator. A judgment confessed by an executor, or other admission or act of the executor, is not evidence for the creditor against the heir at law. Harwood vs. Rawlings, 4 H. & J., 126. And the executor cannot rely on his account passed before the orphans court as evidence of an over-payment of the personal estate. Collinson vs. Owens, 6 G. & J., 4. These cases settle the question. The evidence, in effect, is the confession of the administrator. It is produced to charge the real assets in favor of the party by whom the evidence has been fabricated.

But it is insisted, that these objections are inadmissible, because of our failure to file exceptions to the auditor's report in the form prescribed by the act of 1825, ch.  [**13]  117. The case of Davis vs. Leab, 2 G. & J., 303, decides, that an appeal will not lie from the refusal of the county court to instruct the jury, that the plaintiff on all the evidence is not entitled to recover. But it is just as clearly settled, that where the testimony offered is all on the part of the plaintiff, and is not sufficient in law to entitle him to a verdict, the court may and ought to instruct the jury, "that the evidence offered is not sufficient to entitle the plaintiff to recover." Cole vs. Hebb, 7 G. & J., 28. In this case all the evidence is on the part of the claimant. And the fifth exception is, that the proof upon which the auditor has allowed the claim, is insufficient in point of law. Conceding then the applicability of the cases at law adjudged upon the second, to cases in equity arising upon the first section of this act of 1825, we insist that our exception is sufficiently explicit for all the purposes of our argument. But in truth the rule in equity has been always more liberal. The necessity for any exception is created by the act of 1825. Maccubbin vs. Cromwell, 2 H. & G., 450. Ringgold vs. Ringgold, 1 H. & G., 67. Where the question is fully presented [**14]  by the pleadings, it need not also be raised by exceptions. Beall vs. Wells, 2 G. & J., 458. In equity the court looks only to the true nature of the exception, disregarding imperfection in form. Post vs. Mackall, 3 Bland, 498. And in practice we know that exceptions even more general than this are tolerated. Strike vs. McDonald, 2 H. & G., 213, which was prior to the act of 1825; and Taney vs. Diggs, Robert W. Bowie's estate, Notley Young's estate, and others, in which general exceptions have been filed and allowed.

Upon these authorities we insist, that the objection to the title of complainant, as administrator d. b. n., to sue for the balance in hand of the executor at the time of her death, being apparent in the pleadings, is now open for discussion, and that our fifth exception is sufficiently broad to enable us to take advantage of the failure of complainant to prove the insufficiency of personal estate, and of all other defects in evidence essential to his case.

We propose, in conclusion, briefly to discuss the question, whether Mrs. Richardson died seized in fee of the lands sold under the decree? The case of Matthews vs. Ward, 10 G. & J., 444, fully sustains the [**15]  position, that a deed which contains words operative for the purpose, will be treated as a feoffment, or a bargain and sale, as will best advance the intention of the parties. In the opinion delivered in that case it is observed, that the words "bargain and sell," in conveyances by lease and release, were inserted among the operative words of that conveyance, that the lease might be treated as a bargain and sale, and not a lease at common law. But it would be inconsistent with the entire scope of the opinion to suppose, that the expression "bargain and sell," was to be conclusive of the question. The language imports nothing more, than that the conveyances in England incorporate in the lease the operative words of a conveyance at common law, and the operative words of a conveyance under the statute of uses, to the end that if it should fail to operate in one way, it may have effect in another. And when it is considered that the lease and release is the most usual assurance in England, and that delivery of possession is essential to the lease at common law, we shall readily appreciate the tendency of English conveyancers to use terms, which may make the conveyance operative by force [**16]  of its language, without the aid of extrinsic evidence. In this country, however, enrollment answers the purpose of livery of seisin at common law, and is equally indispensable to the validity of a conveyance at common law, and of a conveyance under the statute. With us, therefore, if the deed contains words operative at common law, and other words operative under the statute, we should respect only the intention of the parties, in determining whether the deed shall operate in one way or in another.

The construction given to the statute of uses is too firmly rooted at this time to be disturbed. But it has defeated in a great degree the object of its framers, and the tendency of modern times is to treat the use as executed, wherever it can be without defeating the intent of the parties, or disturbing some adjudged rule. In the construction of wills particularly, the intent of the testator is mainly respected. And the use is executed or otherwise, and wholly or partially, as may best advance the objects of the will. If the limitations in this deed were in a will, we should experience little difficulty in affirming, that the use was executed in the trustee during the lifetime of [**17]  the feme covert, and became executed in her heirs immediately on her death.

We rely on the case of Matthews vs. Ward, as showing the strong inclination of courts in modern times to consult the intention of the grantor, even in the construction of deeds. The intent of the parties to that deed clearly was, that it should have effect under the statute of uses. All the limitations were expressed in the same language. There was no purpose to be answered by giving to the deed an operation at common law, or by giving to any one clause a construction different from the construction given to the others. In the present there is not only diversity of expression, but diversity of purpose to be considered. The purpose of the grantor evidently was to give to Mrs. Richardson, then a feme covert, an estate for her life for her separate use, and to secure the inheritance after her death for her children. This purpose is to be effected, and only can be effected by executing the use in the trustee during the life of Mrs. Richardson, and after her death in her children. If the estate limited to the children is held to be an equitable estate, it would coalesce with the equitable estate for life in [**18]  the wife, she would have a perfect control over the inheritance, and the husband would be entitled to a tenancy by the curtesy in the premises. Thus the intent of the grantor would be completely defeated.

William H. Norris for the appellee.

The first question is, whether the property is liable under any creditor's bill or proof of claim to the debts of Mrs. Richardson? The appellee insists on this liability:--1st, because the legal effect of the deed vested in Mrs. Richardson a fee-simple under the rule in Shelley's case; and 2ndly, because, whether that be so or not on any independent construction of the deed, such effect has been conclusively admitted by the defendants in the agreement, by consent to the final ratification of the sale made under the decree of the 26th of May 1847.

There is no dispute about the principle, that the limitation of the life estate and the remainder must be uniform in quality before the two can coalesce and vest a fee in the ancestor. They must both be legal or both be equitable, before the rule can apply. Hayes, 7 Law Lib., 26, Notes and Illus., note c. The uniform quality of the limitations in this deed are established, either on the theory [**19]  that it is a bargain and sale or a feoffment. If it be a bargain and sale, all the beneficial estates are equitable; for in the language of Mr. Preston, "a use cannot, in the same conveyance, be declared of a seisin which is executed by force of the statute of uses, for the statute executes only the use in the first degree. Thus no use can be declared on the seisin of a bargainee or of an appointee of a use, because the appointee or the bargainee has merely a use; and the ulterior use declared of his estate is merely a use on a use, and therefore a trust, not executed by the statute of uses. Thus, when a bargain and sale is made to A in fee, to the use of B in fee, A, the bargainee, has merely a use, and the use declared in favor of B is a use in the second degree, or merely a use on a use, and for that reason a trust." 2 Preston on Conveyancing, 482, 483. To explain this more fully, we are to remember, that by force of a pecuniary consideration the vendor of land, prior to the statute of uses, became seized to the use of the vendee, and it was that use, so created, which the statute executed into a legal estate in the vendee. And as the statute never acted but once in the same conveyance,  [**20]  it unavoidably followed, that all the limitations ulterior to that of the bargainee were unexecuted, and "for that reason, trusts." Cornish on Uses, 3 Law Lib., 28, 71, 72, 73. 2 Black. Com., 335. Jackson vs. Seelye, 16 Johns. Rep., 199. 2 Crabb Real Property, sec. 1656. Jackson vs. Cary, 16 Johns. Rep., 304. 1 Saund. Rep., 251, note 2. McWhorter vs. Agnew, 6 Paige, 111. And Matthews vs. Ward, 10 G. & J., 444, where the Court of Appeals affirm the reasoning of these authorities.

An effort is therefore made to have this deed treated as a feoffment, by assuming that it was the clear intent of the grantor not to give Mrs. Richardson a fee-simple, which intention the operation of the rule in Shelley's case would defeat, and a feoffment subserve. Now it is insisted:--1st, that this intention is entirely suppositious; and 2nd, that there was no design to make a feoffment.

That the purpose was to give Mrs. Richardson a mere life estate can only be inferred from the limitation of the remainder to her heirs, "from and immediately after her death." To seek to evade the rule by such an argument, is a direct attack on the rule itself. "The object of the rule is to frustrate this intention [**21]  as often as the word heirs embraces all the persons necessarily answering that description, as the class of persons described by that term," and "the grantor then means that which the law will not suffer him to give, or the heir to take as a purchaser." 1 Preston on Estates, 326. The authorities all recognise this, whether applied to deeds or wills. As to this form of expressing limitations, we are bound to assume, that the grantor in a deed intended this constructive effect as the especial design of the conveyance. The decided import and result of such phraseology, enunciated in a long train of decisions, becomes a part of the signification, and to follow the ordinary signification of the words ought to be assumed as violating the intention, rather than subserving it. It is idle to talk about rules of property, if the rules of interpretation are not a part of them, and if they are not supposed to be known to the authors of deliberate and formal instruments for the limitation of property. But there is another reason why these terms were employed, not to bound the duration of her estate, but to negative another's right of enjoyment. The deed describes her as "the wife of Robert R. Richardson.  [**22]  " Her conjugal condition was a fact present to the mind of the grantor and was to be provided for. The author of the instrument well knew the unvarying course of modern authorities which had established, that a limitation to the sole and separate use of a married woman did not arrest the operation of the rule in Shelley's case, but that nevertheless the remainder was annexed to and consolidated with the freehold of the ancestor; but in such manner, under this form of expression, that the estate would not be subject to the marital claims or liabilities of the husband. 2 Jarman on Wills, 245. 1 Preston on Estates, 383. 2 Powell on Devises, 22 Law Lib., 231. Douglas vs. Congreve, 1 Beavan Ch. Rep., 59. Roberts vs. Dixwell, in Fearne on Cont. Rem., 56. But having negatived the conjugal claims of the husband during her life, these claims were to be further negatived, which might otherwise arise at her death. Accordingly, with the purpose of exscinding from the entire fee every claim of curtesy, it was provided, that "from and immediately after the death of said Elizabeth," the property should devolve upon her heirs. 2 Spence's Eq. Jur., 511. Bisset on Life Estates, 42 Law Lib., 55, 56. Bennet [**23]  vs. Davis, 2 Peere Wms., 316. Cochran vs. O'Hern, 4 Watts & Sergt., 95. 1 Roper on Husb. and Wife, 31 Law Lib., 22, 23. Such a mode of conveying to a married woman a fee-simple to her separate use is not a partial, but an entire exclusion of the marital rights in the inheritance. Our own Court of Appeals has decided, that such phraseology is ample to exclude curtesy. Ward vs. Thompson, 6 G. & J., 357. In this deed the separate use is fastened on the property to the instant of the wife's death, and then the estate is "immediately" devolved on "her heirs and legal representatives." A mere direction to pay over the profits to her sole and separate use during her life, would not have been enough to exclude the marital claims on the inheritance. Dugan vs. Gittings, 3 Gill, 138. 6 G. & J., 357. There is then quite another motive for the form of the limitation, than an intention only to give Mrs. Richardson a life estate.

But there are other keys of interpretation to be found in the language, which the grantor did not use, and which would readily have accomplished the intention imputed to her by the appellants. Had the remainder been limited to the children or issue of Mrs. Richardson,  [**24]  the rule would have been effectually excluded, and the imputed intention scientifically accomplished. 1 Preston on Estates, 322, 379.

2ndly. There was no design to make a feoffment. In ascertaining the intention of the grantor, it is important to fix what form of conveyance was designed, whether a feoffment or a deed of bargain and sale. In Matthews vs. Ward, 10 G. & J., 449, our highest court has met the very question in this very phase--as to the intent of the grantor to adopt the one form of conveyance or the other--and has authoritatively designated the mode in which the grantor's primary selection is to be ascertained. It is by referring to the leading order of the operative terms of transfer, and in criticising the deed then under review, it passed on the identical words of our deed. "Nothing could more unequivocally impress a distinctive character on the instrument, than the words which have been used; the terms 'bargained and sold' follow the words 'given and granted,' and qualified the mode of the gift and grant, and show that it was by bargain and sale." 10 G. & J., 449. Another argument as to the form of conveyance designed, is the fact that a pecuniary consideration [**25]  is mentioned, which is essential to a bargain and sale, and not necessary to a common law conveyance, which took effect from livery. Cornish on Uses, 3 Law Lib., 27. A further argument as to whether a feoffment was intended, is to be found in the common sense fact that "feoffments are disused." Cornish on Uses, 3 Law Lib., 15. And that "bargains and sales" have long been the customary assurances of this State. 10 G. & J., 449. It is then submitted that no feoffment was intended.

But what becomes of the imputed intention, when it is found that a feoffment terminates in the same result, by making all the beneficial limitations uniform in quality, and only differs from a bargain and sale in transferring all legal, instead of all equitable estates? A feoffment, it is argued, would execute a legal estate in the heirs of Mrs. Richardson. So it would; but why not also a legal estate in Mrs. Richardson herself? Because it is said that there is in this deed "diversity of expression" in connection with the two estates; that is, the estate is conveyed "in trust" for Mrs. Richardson, and "to and for the use and benefit of her heirs." The argument assumes that there is not a mere "diversity [**26]  of expression," but a diversity in legal effect of the expressions. What is there in the words "use and benefit," to imply that the grantor intended that the legal estate should be executed in the heirs? Nothing but their effect under the law of the statute of uses. But that law does not say that the estate shall be executed only in the feoffee of the "use or benefit." It executes the estate in the feoffee "of the use, confidence or trust." And it has always been held, that "the statute makes no difference between a use and a trust, but mentions both promiscuously." 2 Crabb on Real Property, 55 Law Lib., 295, sec. 1629. Even in the interpretation of wills, "the fact that the testator, in a series of limitations, employs sometimes the word use and sometimes the word trust, is not considered to indicate that he had a different intention in the respective cases." 2 Jarman on Wills, 199.

But it may be argued, that the life estate of Mrs. Richardson is clothed with a trust to her sole and separate use, and therefore is necessarily equitable, and the legal estate necessarily detained in the trustee. It is true, that in the vast mass of cases the legal estate is lodged in the feoffee,  [**27]  and the use or trust is not executed, because of some special duties to be performed by the trustee, and of the consequent necessity of an estate commensurate to those duties. As where the estate is limited to one "to receive the rents and profits for," or "to pay them over to, another," "or to make leases," "or to repair," or to do any other fiduciary services. But the distinction is equally well settled, that when the trustee has no duties to perform, as when an estate is given "to one person upon trust to permit and suffer another person to receive the rents, the beneficial devisee takes the legal estate and not the trustee." 2 Jarman on Wills, 201, 202. In this deed there is the strongest negation of any special trusts in the trustee. If a bargain and sale, he is the mere holder of the dry legal title. If a feoffment, he has nothing to do to retain the smallest iota of the legal title. What then is to prevent the transfer of the use or trust under the statute? It may be said that it is necessary to arrest the transfer in order to exclude the marital rights. But this is a mistake, justified, it is admitted, by the enunciation nearly of this doctrine by several able elementary writers [**28]  in their servile copyism from each other, or their inaccurate deductions from the authorities. All these authorities are on wills, and none of them in which the trustee was not either "to receive the rents and profits," or, "to pay them over to her," or in which the married woman's "receipt to the trustee was to be a good discharge," thus implying that he was to receive and pay them over. From inattention to these important circumstances connected with the limitation, some of these authors have carelessly stated that the legal estate is in the trustee, when the property is clothed with a trust for the separate use of a married woman. Lewin on Trusts, 24 Law Lib., 53. A trust for a feme covert was a mere creation of a court of equity, and by its power alone prevented from being a void condition, just like an absolute restraint on alienation. 1 Spence Eq. Jur., 596. Tullett vs. Armstrong, 1 Bevan, 22. But no one ever thought that a condition, good or void, prevented the translation of the estate under the statute. And what is this separate use, but a condition as to the enjoyment of the usufruct, and negativing merely the right of appropriation of the profits by a party not intended [**29]  to be benefited by the grantor or devisor.

The authorities affirm the proposition, that a trust for a married woman does not prevent the operation of the rule in Shelley's case, when the limitations carry the legal estate to the taker for life and the remainder-man. Why? Because "trust estates are not objects of the jurisdiction of courts of law." 2 Powell on Devises, 22 Law Lib., 231. 2 Jarman on Wills, 245. If when the devise or grant is direct to a married woman, a separate use will not prevent the operation of the Shelley rule, because of the reason given, how can it be that a separate use in itself can prevent the operation of the statute of uses? When the estate is directly given, it is not prevented from being a legal estate; but the marital right of the husband is denied and debarred by the court of equity. The husband is considered as her trustee; that is to say, he takes in trust for her. And he does the same, when the devise or grant is to another for the benefit of the wife, and there is nothing to prevent the action of the statute of uses but the separate use. Both these propositions are sustained in two modern cases, Douglass vs. Congreve, 1 Beavan, 59, 72, and Williams [**30]  vs. Waters, 14 Mees. and Wels., 166.

In the case of Harton vs. Harton, 7 Term Rep., 648, the receipt of the wife was to be a sufficient discharge to the trustees. And Doe vs. Barthrop, 5 Taunt., 382, was a devise in trust "to permit to enjoy the same, or to pay to, or to permit and suffer her to receive the rents during her life, for her separate use," clearly implying some active function in the trustee. But in the case at bar there is nothing of the kind, and besides, the instrument is a deed and not a will. 2 Bright on Husband and Wife, 219. It is submitted, therefore, that in a deed the mere trust for the separate use of a feme covert will not detain the legal estate in the feoffee; and there is no case to be found, even of a will, where the use was not executed, unless where there was some active function to be discharged by the trustee. Thus treating the conveyance as a feoffment, only brings about a uniformity of legal estates, and the rule in Shelley's case executes the fee-simple in Mrs. Richardson.

But independently of any construction of the deed, the liability of the property, as the estate of Mrs. Richardson, has been conclusively conceded by the unrestricted [**31]  ratification, by consent, of the sale of the property under the decree. This consent ratification was on the 12th of October 1847. But in a subsequent part of the argument, both the conclusiveness of the decree and the extent to which it is conclusive will be discussed. I come now to those questions which bear upon the creditorial claims and the mode in which they have been asserted. First, what questions are open on this appeal? The appellants contend that it opens for revision all the previous decrees and orders in the cause.

The points are:--1st. What was the nature of the decree, was it final or interlocutory? What points did it conclude and establish? 2nd. Would that decree be reviewable under the appeal in this cause from the order overruling the exceptions to, and finally ratifying the auditor's report? 3rd. What was the effect upon that decree of the ratification of the sale by consent? 1st, the administrator of the decedent was a complainant in his individual right, and as administrator d. b. n. of his father. It is true the law ordinarily requires the executor or administrator to be made a party in a proceeding to sell the decedent's real estate. Tyler vs. Bowie, 4 H.  [**32]  & J., 334. David vs. Grahame, 2 H. & G., 97. But here, in his capacity of administrator, he could not be made a party defendant, as he could not occupy both sides of the docket. Birely and Holtz, vs. Staley, 5 G. & J., 454. State, use of Stevenson, vs. Reigart, 1 Gill, 3. He was the proper representative of the personalty, and knowing its condition charged in the bill, its exhaustion, and outstanding debts unpaid. Here was the admission of the administrator by the charge made by him in another capacity. But this admission is to be construed in connection with the further allegation, that the complainant had called on the defendants to allow the real estate in question to be sold for the payment of Mrs. Richardson's debts, under the necessary implication that her personalty was exhausted, and in connection with the answer of the defendants as to these matters. The orphans court account is not the only admissible evidence that the personalty was exhausted. On the contrary, this fact may be admitted by the opposite party. Wyse vs. Smith and Buchanan, 4 G. & J., 302. Griffith vs. Frederick County Bank, 6 G. & J., 445. When, therefore, they admit the application of the administrator to [**33]  sell this property to pay the creditors of Mrs. Richardson, and allege their refusal only on the ground that they deny the liability of the property as her estate, is not the exhaustion of the personalty a fairly inferrible admission? Does it not amount to this, we agree to pay the debt which was admitted to be due, if the property was her estate? Assuming this view to be correct, what was the nature of the decree? Was it final or interlocutory?

This is a creditor's bill; a proceeding in rem. Tongue vs. Morton, 6 H. & J., 23. Griffith and Keys, vs. Reigart, 6 Gill, 453. The decree establishes, not only for the complainant, but all other creditors who may prefer claims against the property, the fact of the condition of the personalty. Hence it is a final decree, though there may be other decrees or orders afterwards passed in the cause in relation to the distribution of the proceeds. The decree "definitively adjusts" the right to go against the property. Gibson vs. McCormick, 10 G. & J., 105, 113. 6 Gill, 453. Graham vs. Hardin, 4 Dana, 559. Alexander's Ch. Pr., 144. But suppose the decree was given without sufficient proof of this fact, then the court did not comply with the requisitions [**34]  of the act of 1785 before it exercised jurisdiction, just as if it had passed a final decree for the sale of an infant's land, without evidence that the sale "would be for the benefit and advantage" of the infant, "without which being made to appear to the court, it possessed no power to decree a sale." Harris vs. Harris, 6 G. & J., 114. And yet when a decree thus made comes collaterally in question, it is just as conclusive and binding as if founded on the most competent and sufficient testimony, if the bill makes the proper allegations. Tomlinson vs. M'Kaig, 5 Gill, 274. House vs. Wiles, 12 G. & J., 338. Because "it is not the proof which gives jurisdiction, but the subject matter of the bill, and nature and character of the claim." Comegys vs. State, use of Dyckes, 10 G. & J., 183. If it conforms to the allegations of the bill, any unauthorised exercise of power in the decree for want of proper proof to sustain it, is merely matter for its reversal on appeal. Tomlinson vs. M'Kaig, 5 Gill, 276, 277. Accordingly it has always been held that a decree stands for what it purports to be, until it is regularly reversed or revised. Estep vs. Watkins, 1 Bland, 486. Such a final decree, if [**35]  not appealed from within the proper time, becomes the law of the case in the further progress of the cause. Strike vs. McDonald, 2 H. & G., 191, 260. Even decretal orders had this effect before the act of 1830, ch. 185, under the act of 1785, ch. 72, sec. 27. 2 H. & G., 260. The distinction between which and decrees is, that the latter are the "orders of the court made upon the hearing. A decretal order is an order in the nature of a decree, made upon motion or petition, either before or after the hearing." 1 Barbour's Ch. Pr., 337.

The point, that the insufficiency of the personalty was not established, assumes, that both the solicitors and the court did not know that proof of the exhaustion of the personalty was a necessary preliminary to a decree for a sale under a creditor's bill, and that if the facts stated in the bill are not sufficient to entitle complainant to the relief prayed, he cannot resort to the answer. West vs. Hall, 3 H. & J., 221. And that a bill for one purpose cannot be made to answer quite a different one, and that every decree must be on the allegations of the bill. Chalmers vs. Chambers, 6 H. & J., 29. Chambers vs. Chalmers, 4 G. & J., 420. Ringgold vs.  [**36]  Ringgold, 1 H. & G., 11. Certainly the court never intended to make a sale to a purchaser without authority and without any bill.

But it follows also that the construction of the deed was decided on by the decree, because that property was ordered to be sold under the prayer of the bill; to treat it as a sale for the purpose of partition, would be to sell property without any bill to give the court jurisdiction. Tomlinson vs. McKaig, 5 Gill, 274. Such a fraud on a purchaser will never be imputed to an inferior court; nor such folly. On a creditor's bill to sell the property of A, it is as necessary to the jurisdiction of the court that it should be satisfied before decree that A "did leave real estate," as that he did not leave personal estate sufficient to discharge the debts due. But that decree established also the title of the appellant to sue in the capacity in which he did sue. That was an element of the claim, and had to be decided anterior to the decree. No one can look at the court's opinion ratifying the auditor's report years afterwards, without seeing that this title to sue was meant to be affirmed.

Having shown that this is a final decree in rem, the second inquiry [**37]  is, whether, by force of the act of 1830, ch. 185, the appeal from the order ratifying the auditor's report, opens the decree? It is said this act deprived the party aggrieved of his right to an appeal from a decree directing a sale of real or personal property, and Hatton vs. Weems, 10 G. & J., 377; Lee vs. Pindle, 11 G. & J., 362, and Hatton vs. Weems, 12 G. & J., 83, are cited as authorities for this proposition. But they do not sustain it. They establish that a mere decree for the sale, or delivery of personal or real property, is not in all cases a final decree, and that such a decree was not a final one in those cases. They were not decrees on a creditor's bill, and it has never been contended that in all cases a decree for the sale of property is a final decree. In all cases the decree is not one in rem. By the very language of the act of 1830, it was only appeals on interlocutory decrees for the sale of real or personal property which were prohibited. It did not disturb the law as to appeals from "a final decree, or order in the nature of a final decree. These were expressly excepted, and left under the previous law requiring an appeal within nine months from their rendition.  [**38]  The act of 1841, ch. 11, has nothing to do with final decrees or orders in the nature of a final decree, but is restricted to "so much of the first section of the act" of 1830, as takes away the right of immediate appeal from decrees or orders not final, nor in the nature of a final decree. As to these, the right of immediate appeal is given, and the case of Dugan vs. Gittings, 3 Gill, 138, merely decided, that these were not by the grant of this right reinstated under the law of 1785, ch. 72, but that the party had left an election to be governed by the law of 1830, and wait till a final decree. Before the appellants can avail themselves of that act, they must show that this decree was one on which the act of 1830 suspended an appeal, that is, that it was not "a final decree or order in the nature" of one. When that is done, every decision on creditor's bills declaring them decrees in rem, will be reversed. 6 Gill, 448, 449, 453. But, additionally, such a construction would repeal the act of 1729, ch. 3, sec. 3, and the act of 1713, ch. 4, secs. 4 and 5; for by these it is required, that on an appeal there should be a motion for an appeal in equity causes. Thompson vs. M'Kim, 6 H.  [**39]  & J., 329, 330. Here there was only a prayer for an appeal from the order of the 16th of November 1849. The frightful consequences which any other construction of these acts would effect, will present themselves to any one who will think of an appeal from an auditor's report, after stating and restating accounts among litigant creditors for many years, as opening the original decree under which property has been sold, and after many of the parties have been paid off, and possibly upon some dispute between parties coming in subsequently to the filing of the bill.

The next question is the confirmatory effect of the final ratification of the sale. This was by the unqualified consent of the solicitors for the respective parties to the cause and for the purchasers. This confirmation of its proceeding implies the admission of every necessary fact to sustain the decree. The decree under which the sale was made, is as much ratified as the sale itself. It is on the principle that every thing is admitted to have been rightly done that the law precludes parties from appealing from any decree given by consent. Porter vs. Askew, 11 G. & J., 346. 1 Barbour's Ch. Pr., 373. Armstrong vs. Cooper,  [**40]  11 Illinois, 540. Kennedy vs. Georgia State Bank, 8 Howard, 612, 613. Will it be contended, that the act of 1841 opened what the parties had agreed not to appeal from? We have now done with the decree of the 26th of May 1847. It is an irreviewable finality.

We are now to consider the subsequent proceedings. As to these, whatever has been settled by the judgment in rem, is no longer open. This brings us to the proofs of the claims and the exceptions levelled against them.

It is evident that complainant's claim has been enlarged, and for the excess over the claim admitted by the answer it is conceded, that the decree has no bearing, except by virtue of its qualities in rem, as deciding the facts of the insufficiency of the personalty and the liability of the property to creditors. These facts are established as against the defendants in the bill for the benefit of all the world. As no other creditor has to prove these points anew, so neither has the complainant. It is further conceded, that prior to the act of 1832, ch. 302, sec. 5, such an enlargement of claim had been disallowed. Strike vs. McDonald, 2 H. & G., 191, per Bland, Ch. But why? Because, unlike other creditors [**41]  who come in afterwards, the complainant's claim was a part of the pleadings, and the principle was fixed, that a court of equity must always decree upon the allegations in the bill, and cannot go beyond them; the allegation and probation must agree. Ringgold vs. Ringgold, 1 H. & G., 11. Chalmers vs. Chambers, 6 H. & J., 29. The objection is to the sufficiency of the averments to cover the amount allowed by the auditor. There is no exception taken under the act of 1832 to sustain this point. It is needless to refer to but one of the numerous decisions on the act, Berrett vs. Oliver, 7 G. & J., 201. The claim then is not open to any objection from the state of the pleadings, by force of this act. It has to be established as to the excess in the same manner as any other claim, and can be objected to in no other way.

But assuming that the appellants have made fit exceptions to raise their points, let us consider the point as to the capacity of the complainant to sue as administrator d. b. n. of his father. Two objections are taken:--first, that the act of 1820 is not sufficiently comprehensive to devolve the proceeds of the negroes on the administrator d. b. n.; secondly, that if [**42]  it was the order of the orphans court directing their delivery to such administrator, was an indispensable preliminary to vest title in him and enable him to sue. The first insists, that the "money" referred to in the act of 1820, is "money having an ear-mark, whereby it may be identified as assets, or as the representative of assets." The power conferred on an administrator d. b. n. by the act of 1798, ch. 101, sub-ch. 14, sec. 2, was "to administer all things herein described as assets, not converted into money, and not distributed or delivered, or retained by the former executor or administrator under the court's direction." To extend both the power and responsibility of such administrator, the act of 1820 authorised the court to order the executor of the deceased executor to deliver over to the "administrator d. b. n. all the bonds, &c., which the deceased executor may have taken, received or had, as executor at the time of his death, and also to pay over to the said administrator d. b. n. all the money in the hands of such deceased executor, as such, at the time of his death." It is plain this act contemplated that the deceased executor might have sold some of the property, and [**43]  taken a note, account or evidence of debt, as its representative, and this was to be delivered over. So if the negroes had not been paid for in the lifetime of Mrs. Richardson, there could be no doubt that the administrator d. b. n. could, under this act, demand and receive the evidence of debt taken therefor. And it is admitted, that it would be the same if the money--the very dollars-- received by the executrix for this property were specifically on hand and "ear-marked." Now the authorities say that "money has no ear-mark;" could it therefore have been the purpose of the act of 1820, which was intended to enlarge the act of 1798, to intend merely such money as was "ear-marked" and traceable, as the identical money received by the deceased functionary? It is said that this construction has been given to the act by the case of Sibley vs. Williams, 3 G. & J., 52. But an examination of the case entirely refutes it. There the property had been consumed and wasted. The nar did not declare that the property had been sold and converted into money; and the court carefully discriminate it from the case at bar, by saying further, "where property which has not been converted into money, and [**44]  for which no evidence of debt has been taken, but has been wasted and destroyed, there is no remedy but by a resort to the estate of the delinquent executor or administrator." Whilst the act of 1798 debarred the administrator d. b. n. from administration of assets, "not converted into money," the act of 1820 was meant to embrace all cases in which the property had been converted into money. That this is the true construction, is seen by the sixth section of the latter act, where what is obtained or to be obtained by the administrator d. b. n., is spoken of as "the DAMAGES to be recovered as aforesaid by the administrator d. b. n." Now what damages are these? Sibley and Williams decides, that they are not for the property actually and not technically wasted. It is very evident, the term was intended to comprehend the value of all the personal property which had been converted into money, as well as the notes, accounts and evidences of debt, whether such money were "ear-marked or not." Specific assets merely could not be called "damages," but, on the other hand, as property actually wasted, could neither be called money, nor specifics, nor notes, accounts or evidences of debt, the court [**45]  was obliged to give the decision it did in Sibley and Williams, and say that as to such property the pre-existing law of 1798 had not been altered. But they never said that the money into which property had been converted must be ear-marked, to support an application under the act of 1820 for its delivery. At that time, the personalty of a decedent could be sold by his executor or administrator just as his own, in cases free of collusion. Allender vs. Riston, 2 G. & J., 86. Here it was not competent for the administrator d. b. n. to sue the administrator of Mrs. Richardson, as the same person filled both capacities, and as this condition left him remediless at law, he was compelled to proceed in equity against the realty of the decedent whom he represented. Birely and Holtz, vs. Staley, 5 G. & J., 454. Stevenson vs. Reigart, 1 Gill, 3. Brooks vs. Belt, 12 G. & J., 307, 318.

These authorities dispose of the second objection, that the administrator d. d. n. was not entitled to recover without a preliminary order of the orphans court. He could procure no such order in one capacity against himself in another; for though the capacities are distinct, the same person cannot proceed in [**46]  the one against himself in the other. Therefore, what is indispensable in another class of cases is not required in this, and is a useless ceremony.

It is an obvious error to say, that an account passed by the administrator of a deceased executrix from the books and papers left by her, in pursuance of the act of 1816, ch. 203, sec. 3, is to be treated as his account, and that it "violates justice and the rules of evidence, to permit him to avail himself of his character of administrator of the executrix, deceased, for the purpose of establishing in himself a title as administrator d. b. n. of the first testator." It is not his account but hers. It is her admission. And such accounts are prima facie evidence in every species of suit into which they enter. The account was not passed "by the administrator of the executrix" as his, but as hers from the books and papers left by her.

So far the argument has proceeded on the basis, that fit exceptions have been taken to the proof. But the final point is, that the objections raised are not grounded on legal and competent exceptions, without which they are waived. The object of the act of 1825, ch. 117, was to make the Court of Appeals [**47]  literally an appellate court, on the cases within its provisions; that as to these, the points presented below should be alone considered in the court of review. The first section is exclusively applicable to common law cases; the second to chancery causes, and only to certain decrees of them. But it has been decided, that the purpose of the act was the same in both sections. Boteler and Belt vs. Brookes, 7 G. & J., 156. Miller vs. Allison, 8 G. & J., 37. A proper insight into the intended operation of the second section of this act, will be best obtained by finding the state of the law as to decrees on auditors' accounts prior to its passage. This is stated in Ringgold vs. Ringgold, 1 H. & G., 67, by C. J. Buchanan: "Very soon after the constitution of the present court, it was decided that the auditor's report, to which there had been general exceptions, or where there had been special exceptions, or where there had been no exceptions taken to it in the court below, might be excepted to in this court, and the whole account gone into." It was the purpose of the act to reform this practice from the experience of its evils. It is very apparent then, that a general exception is not intended [**48]  by the act, for it would accomplish none of the proposed reforms. In all authorities, general exceptions have been treated as no exceptions at all. Alexander's Ch. Pr., 127. 1 H. & J., 747, '8. Dexter vs. Arnold, 2 Sumner, 125. Flower vs. Hartop, 6 Beavan, 476. Proper exceptions had always been deemed in the nature of special demurrers, and must point to some particular error. Wilkes vs. Rogers, 6 Johns. Rep., 566. Story vs. Livingston, 13 Peters, 366. 2 Danl. Ch. Pr., 1490, 1497. The case of Wells vs. Beall, 2 G. & J., 467, was similar to Miller and Allison, 8 G. & J., 37, in which the appeal was not from the auditor's report and account, and the decree on it, but from the decree on the case made in the bill, proof and pleadings, independently of the matters submitted to the auditor. The appeal had been prayed from this decree and taken in time. The decision was, that a seasonable appeal opened to appellant all the points presented by the pleadings; and that if his pleadings put in issue the title of the complainant, such point was not waived by the character of his exceptions to the auditor's report. It only affirmed, that the act of 1825 did not apply to all decrees, but was limited [**49]  to those on auditors' reports; nor did it preclude a party from appealing from the other decrees, because it chanced that an auditor's report had been made in them. This would have extended the act beyond its purpose. 8 G. & J., 37, 38.

A few authorities will suffice as illustrations from the first section of the act of 1825, of the manner in which the point is to be presented to the inferior court, and what prayers in courts of law are too general, and serve at the same time to explain the case of Cole vs. Hebb, 7 G. & J., 28, and show that it was not intended in that case to decide the point, that a prayer "that the evidence offered is not sufficient to entitle the plaintiff to recover," was good under the act. In Wheeler vs. The State, use of Bateman, 7 Gill, 343, the evidence was all on the part of the plaintiff, and it was held that a prayer "that the plaintiff was not entitled to recover," was too general since the act of 1825; and the same judge who delivered the opinion in Cole vs. Hebb says, "so uniform and consistent have been the adjudications of this court since the passage of the act of 1825, that for a county court's refusing to grant such a prayer, its judgment [**50]  cannot be reversed on appeal to this court, that we do not deem it necessary to give the names of the cases in which such adjudications have been made." See also Leopard vs. Ches. and Ohio Canal Co., 1 Gill, 228, 229. Duvall vs. Cook, 9 Gill, 460. Bayne vs. Suit, 1 Md. Rep., 81, 86. But we have additional guides as to the definiteness required in exceptions, in the decisions on the act of 1832, ch. 302, sec. 5. The act of 1825 had not required, as to other decrees than those on auditors' accounts, any exceptions to the competency or admissibility of testimony. But by the act of 1832, such objections in all cases were obliged to be made by "exceptions filed in the cause." Now what construction has been put on the term "exception" in this act? The Court of Appeals have said, "nor would a general exception in the court below to the competency of the appellant's witnesses, and the admissibility of his evidence, better their condition. To render such exception available, it must be sufficiently definite to apprise the opposite party of the particular witnesses or evidence designed to be excepted to." Berrett vs. Oliver, 7 G. & J., 202. Why is not the same definite kind of exception to be [**51]  required under the act of 1825? Both acts use the same term, and have the same object in view as respects their different subject matters. The court, in Berrett and Oliver, evidently meant to give the term its scientific description, as being "in the nature of a special demurrer," and not to adopt the loose ideas and practice which prevailed with some lawyers in some of the old cases. Ringgold vs. Ringgold, 1 H. & G., 76. A further illustration is seen in the case of Bullitt vs. Musgrave, 3 Gill, 47, 48, where a commission was not objected to generally, but to all such parts as went to establish a particular fact; its liability to that specific objection was regarded as the only point presented to the court, and reviewable on appeal.

The last exception is, "5th, for that the proof upon which the auditor has allowed the claims of Richardson and Latrobe is sufficient in point of law." There are several objections to this exception:--1st, it is too general, and is equivalent to a mere general prayer to "instruct the jury that plaintiffs are not entitled to recover." 7 Gill, 344. 9 Gill, 460. Under this exception every point in the cause--as to title to sue--state of the personalty--enlargement [**52]  of claim--and proof of claims--is raised. What can be more general? 2nd, it objects to the proof of the claim of Richardson. Now the claim of Richardson was more than admitted by the appellants themselves. If it is said, the exceptants meant the claim allowed to Richardson, as administrator d. b. n. of Robert R. Richardson, the answer is, they should have expressed what they meant. The auditor's account allowed Richardson two claims, in different capacities; the exception should have discriminated the one claim from the other. In the two capacities, the claims are as distinct as if allowed to different men. Tilly vs. Tilly, 2 Bland, 436. Binney's case, Ib., 99. 3rd, unquestionably the claim of Latrobe is proved sufficiently, provided the fact of the insufficiency of the personalty is concluded either by the facts in the bill and answer, or by the decree, in rem, endorsed by the ratification by consent of the sale under it. If so, then as this exception is entire, if any part of it is wrong, the court are entitled to overrule it. Budd vs. Brooke, 3 Gill, 220.

I have thus concluded the discussion of this case. The character of the points have an important practical bearing upon [**53]  the true interests of litigants, the security of titles and the explicitness which the law of 1825 intended to effect for the just, speedy and unvexatious administration of law. If I have successfully argued it so as at least to narrow it down to the construction of the deed, that has been done which the parties evidently designed. And certainly there can be no just complaint that the law has accomplished the wishes of these parties and of their respective solicitors.

T. Yates Walsh for the appellant, in reply.

Mr. Preston, in the language quoted by the appellee, does not mean to say that two different estates, one equitable and one legal, may not be created in the same instrument. Indeed the authorities fully show that estates of different characters may be transferred by the same deed. Preston merely declares, "that a use cannot be limited on a use." A particular estate may be originated with a special trust, and a remainder over in legal fee. Indeed when you attempt to limit a use upon a use in terms, you do make one estate legal and the other equitable. There is no difficulty in regarding the deed as a feoffment for one purpose, and a bargain and sale in reference to [**54]  another. The court is familiar with the cases in which papers have been regarded as sub-leases, and, at the same time, assignments. Chancery will protect trusts, and the courts of common law will regard that protection. Cornish on Uses, 3 Law Lib., 25. Even considering the deed as a feoffment, its influence would be stopped by the curtesy of the common law, for the benefit of a married woman, but not for any thing that is useless. Cornish on Uses, 3 Law Lib., 34. The whole current of modern decisions protects the estate of a feme covert, when, by the terms of the grant, it is free from all control of her husband. The learned counsel pressed by the force of the language in the grant, for the benefit of Mrs. Richardson, "shall and may during her life, **** and immediately after the death," &c., seeks to regard this phraseology, as establishing a protection of the ultimate estate from the claim of curtesy. It is respectfully suggested that this cannot be so. For if the language of the grant for the use of Mrs. Richardson, gave her the entire fee, no language in reference to the remainder over could possibly qualify the previous estate or any of its incidents. The doctrine in Maryland [**55]  is, that deeds are to be construed according to their obvious intent, if there is nothing in that intent contravening the positive policy of the law. That is the language of Matthews vs. Ward, as well as of many earlier cases. See Cheney's Lessee vs. Watkins, 1 H. & J., 527; Paca vs. Forwood, 2 H. & McH., 175. Why strain a point in order to decide, that the language of the deed in question was to exclude curtesy, when it is broad enough to create a legal fee-simple in remainder?

The case, upon this point, requires no aid from authorities. No construction of context, fairly given, can alter the obvious import of the terms of the conveyance. The grantor marked out three separate estates with perfect precision. The estate to Mrs. Kennedy, and from and immediately after her decease, then upon this further trust, that the said Elizabeth Richardson shall and may, &c., and from and immediately after the death of the said Elizabeth, then for the use and benefit of the legal heirs of the said Elizabeth. It is manifest there was but one trust coupled with the grant to Mrs. Richardson, and it is apparent, that what the grantor intended as another estate, comes afterwards, and is not coupled [**56]  with any trust. When the conveyancer describes the other and third estate, he drops the words, "in further trust;" when he meant them to apply to the particular estate, he applies them; when he comes to the estate in remainder, he drops them; will the court drag them from their context, and fix them, when he has not sought to do so. The reason given by the learned judge below, for the opinion, that an equitable estate in fee, vested, by the terms of the deed, in Mrs. Richardson, is, that the trustee by the habendum had taken the legal fee. Admitting that he took such an estate, it does not alter the question. His estate had to nourish two estates for life; and if he had taken merely a limited interest, it might have been exhausted before the purposes of the trust were gratified.

The decree of the 27th of May, was not in any respect based upon a creditor's bill. The sale is ordered by consent of parties, who agree in writing, that the interest of all concerned required a sale. The sale was because, in fact, the property was not susceptible of division. The whole proceedings, until the period of the auditor's account, were not of an adverse character. All questions relating to the [**57]  bill as a creditor's bill, and all creditors' claims were expressly postponed. The proceeding became, for the first time, one for the recovering of alleged creditors' claims, when the auditor stated his account. There has been no surrender of any right on the part of the appellants. They surrender nothing by submission to the decree mentioned. It would be alarming to hold, that an agreement for a sale works a forfeiture of every right. But conceding, argumenti gratia, that the proposition of the appellee is true, is it not certain that the submission held him to the averments of his bill? If it be a matter of agreement by consent, where, without consent, does he get the authority to extend both the margin and character of his claim?

Had the complainant a right to sue any where, at the period of the inception of these proceedings? It is urged, that all the requirements of the law are to be set aside, because he chooses to assume two different characters adverse to each other; which is nothing more than to say that the law is to bend to his desires and objects. Numerous decisions establish the necessity of making the executor or administrator, a party in all proceedings, to affect [**58]  the realestate of an intestate or testator. The complainant avoids all this, and says, that his conscience is not to be purged, because he is complainant. Now the rule of law is perfectly understood, that if an individual voluntarily puts it out of his power to comply with the requisitions of the public code, his failure to do so does not entitle him to exemption from its behests. As executor of his mother, he has charge of all her vouchers; and as administrator d. b. n. of his father, he brings her in debt. And it is earnestly argued, that all his statements are to be received as truth. The answer is very obvious, that having assumed voluntarily the double character of representative of the estate suing, and the representative of the estate sued, equity will hold him to the responsibility of making, upon his own word, no statement against either. But did his position as executor of his mother, prevent his asking of the orphans court the preliminary order required by the act of 1820? It is submitted it did not. It did not, and could not prevent the action of the orphans court, in ordering the transmission of assets from his hands, in one character, to his hands in the other. By the [**59]  provisions of that act, suit upon the bond of the delinquent executor is only to be instituted by order of the orphans court. By the third section, the order to sue can only be given in the event of an executor refusing to deliver bonds, &c., to the administrator d. b. n., so that it manifestly appears, that none of the preliminaries of the act of 1820 have been followed. And even if they had, and the executors had been recusant, the only remedy would have been a suit upon the bond, and that under the order of the court. It would hardly be pretended, that even under such circumstances, a proceeding in equity to sell the estate of a deceased executor, could be made to take the place of the course marked out by the statute. It is abundantly clear, that the individual creditors of Mrs. Richardson had a right to sue. An ample remedy is thus provided for the recovery of every debt. There is then no necessity for the law seeking to allow two inconsistent positions in one person. To allow complainant to make out a case on both sides, the learned counsel has argued the question of jurisdiction instead of that of title. Want of title need never be made the subject of an exception. A party must [**60]  maintain it at every step of his cause. He is bound to know that he has no standing in court. Upon the point of title, see 1 Md. Rep., 197, Beale vs. Hilliary, where the distinction between title and jurisdiction is clearly drawn.  

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

OPINIONBY:
MASON 

OPINION:

 [*541]  MASON, J., delivered the opinion of this court.
This case has been argued most elaborately and with distinguished ability. Every suggestion appears to have been made and every authority invoked calculated to elucidate the intricate questions involved in the present controversy. With the benefit of all this light, we are constrained nevertheless to recognize the difficulties which environ the case.
In order to a proper understanding of the case, we deem it important to state somewhat at length the allegations of the bill, and the subsequent proceedings thereon.
The appellee, Charles Richardson, filed his bill of complaint in Baltimore county court, as a court of equity, against the appellants, asking for a sale of the real estate of Eliza Richardson, deceased, for the payment of her debts. He claimed to be a creditor in his own right, and also as administrator de  [**61]   bonis non of Robert R. Richardson, deceased. The bill alleges that letters testamentary were granted on the estate of the said Robert to the said Eliza Richardson, who, by virtue thereof, possessed herself of the personal estate of her testator, and partially administered the same, but died before she had returned any account of her administration. The complainant thereupon administered upon her estate, and also upon the estate de bonis non of Robert Richardson. The bill charges that Mrs. Richardson died largely indebted; and that her personal estate was insufficient to pay her debts, and thereupon prays the sale of her real estate under the direction of the chancery court; and that the proceeds of sale may be appropriated to the payment of her debts.
The real estate which the complainant seeks to charge with the debts of Mrs. Richardson, was derived by the deed of Areanah Kennedy, executed in the year 1802, to Samuel N. Ridgely, which is set out at length in the record. That deed is, in part, in these words: "witnesseth, that the said Areanah Kennedy, in consideration of the natural love and affection 

 [*542]  which she hath and beareth towards Elizabeth Richardson, wife [**62]  of Robert Richardson, and in consideration of the sum of five shillings, current money, to her in hand paid by the said Samuel N. Ridgely, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents doth grant, bargain and sell, alien, enfeoff, release, convey and confirm unto the said Samuel N. Ridgely, his heirs and assigns," (here the property is described,) "to have and to hold the same and every part thereof unto the said Samuel N. Ridgely, his heirs and assigns forever, in trust, nevertheless that the said Areanah Kennedy shall and may, during the time of her natural life, have, hold, use and enjoy the said piece or parcel of ground and premises, and the rents, issues and profits thereof, and the same convert to her own use and benefit, and from and immediately after her decease, then upon this further trust that the said Elizabeth Richardson shall and may during her life, have, hold, use, occupy, possess and enjoy the said piece or parcel of ground and premises, and the rents, issues, and profits thereof, and the same to convert [**63]  to her own proper use and benefit, notwithstanding her coverture, and that without the let, trouble or control of her present or any future husband, or being in any manner liable or subject to the payment of his debts, as fully in every respect as if she was sole and unmarried, and from and immediately after the death of the said Elizabeth, then to and for the use and benefit of the legal heirs and representatives of the said Elizabeth, and to and for no other intent and purpose."
The defendants in their answer insist, that under the terms of the foregoing deed, the said Eliza had but a life estate in the premises thereby conveyed, and that on her death the fee devolved upon her children and heirs, namely: the complainant and his deceased brother. The first question, therefore, which is presented by the present record is, whether Elizabeth Richardson had a fee or a life estate in the realty embraced in the deed from Areanah Kennedy?

 [*543]  In determining this question we must first consider whether the rule established in Shelley's case, applies to the deed which we are now called on to construe.
No question connected with the law has elicited more learning and discussion [**64]  than that which relates to the nature and operation of this rule, as a principle of law for the interpretation of wills and deeds; and none occupies a more prominent place in the history of the law of real property.
The controversies on this subject from the earliest periods down to the present day, have been vehement, protracted and even bitter, eliciting the profoundest logic, severest criticism, and deepest and most laborious research. In one instance, even, this controversy resulted in the dismemberment of the court of King's Bench, and at another time this renowned discussion, says Chancellor Kent, became so vehement and protracted as to rouse the sceptre of the haughty Elizabeth. The great case for example of Perrin vs. Blake, 4 Burr 2579, which excited the most noble and illustrious talents of the age in its discussion through every department of Westminster Hall, originated in the island of Jamaica, as far back as the year 1746. After the case had travelled through the courts of that island, it passed the Atlantic on appeal to the king in council. The final termination (the result at last of compromise) of this protracted litigation was in 1777, after [**65]  an exhausting controversy of upwards of thirty years. When Lord Mansfield delivered his opinion in Perrin vs. Blake, he used certain sarcastic expressions which gave offence to his associate Mr. Justice Yates, who immediately thereupon resigned his seat as a judge of K. B., and was transferred to the C. B. Though volumes have been written upon the subject, and more than a century expended in its investigation, still it to this day remains a fruitful subject of strife and discussion, as the present case abundantly illustrates.
In Shelley's case, 1 Co. 104, the rule was laid down, on the authority of a number of cases from the year books, to be, "that when the ancestor, by any gift or conveyance taketh an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately, to his heirs, in fee 

 [*544]  or in tail, the heirs are words of limitation of the estate, and not words of purchase." Chancellor Kent however adopts the following definition of the rule by Mr. Preston, as being more full and accurate. "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in [**66]  the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." Preston on Estates, vol. 1, 263.
In cases, therefore, where the words "heirs" or "heirs of the body" are used they will be construed to limit or define the estate intended to be conveyed, and will not be treated as words of purchase, and no supposed intention on the part of the testator or grantor arising from the estate being conveyed, in the first instance, for life, will be permitted to control their operation as words of limitation. In all such cases the estate becomes immediately executed in the ancestor, who becomes seized of an estate of inheritance. By force of the unbending construction given to these terms, it imputed to the grantor or testator in legal contemplation, an intention to use the terms in their legal sense, and to give them their legal effect, though it should defeat even a real intention to the contrary.  [**67]  In other words, they are regarded as conclusive evidence of the intent of the testator.
There are however well recognised exceptions to this rule: two of which we will advert to at present, in general terms. In the first place, whenever the testator or grantor annexes words of explanation to the word "heirs," indicating that he meant to use the term in a qualified sense, as a mere descriptio personarum, or particular designation of certain individuals, and that they and not the ancestor were to be the points or termini from which the succession to the estate was to emanate or take its start, then in all such cases where the word heir is thus explained or restricted, it is to be treated as a term of purchase and not of limitation. For example, the expressions, 

 [*545]  heirs now living, children, issue, &c., are words of limitation or purchase, as will best accord with the manifest intention of him who employs them. Under this qualification of the rule the intention prevails against the strict construction.
The second exception to which we will advert is, that where the estate limited to the ancestor is an equitable or trust estate, the two estates under the [**68]  rule in Shelley's case will not coalesce in the ancestor; and the result would be the same if the estate for life was a legal estate, and that limited to the heirs an equitable estate. Horne vs. Lyeth, 4 Har. and Johns., 432.
Whatever may have been the origin or philosophy of this rule, whether it was introduced to secure to the lord of the fee the fruits and incidents of wardship and marriage which he had a right to claim from the heir; or whether the more reasonable idea of Mr. Justice Blackstone, be correct that the rule had its origin in the desire to facilitate the alienation of land, and to throw it into the track of commerce, one generation sooner by giving the power to the ancestor of immediate disposition of the estate to the exclusion of the heirs, the rule with its qualifications must nevertheless prevail as a part of our system of real law, because it has been fully recognised and adopted as the settled law of Maryland. The court in Horne vs. Lyeth say, "to disregard rules of interpretation sanctioned by a succession of ages, and by the decisions of the most enlightened judges, under pretence that the reason of the rule no longer exists, or that the rule [**69]  itself is unreasonable, would not only prostrate the great land marks of property, but would introduce a latitude of construction, boundless in its range and pernicious in its consequences."
The rule applies clearly to the deed we are now considering, unless it can be shown that it falls within one or the other of the enumerated exceptions. Did then Mrs. Kennedy use any apt words in the deed to indicate that the heirs of Mrs. Richardson, and not she herself, were to be the termini from which the succession was to commence, and thereby create in Mrs. Richardson a mere life estate? In other words, are there any expressions in the deed sufficient to convert the words "legal 

 [*546]  heirs," from words of limitation into words of purchase? There are none in our opinion capable of restricting the terms to particular individuals, instead of the entire legal representatives of Mrs. Richardson as a class. On the contrary the language employed is of the most general character, and is indeed as full and as comprehensive as that employed in Shelley's case itself, and we cannot suppose that it will be seriously contended that the present deed, if it were a conveyance directly to Mrs.  [**70]  Richardson herself, without the interposition of the trustee, and she was a feme sole, would not be embraced within the operation of the rule.
But in the second place, it is contended that under the peculiar provisions of the present deed an estate of a different nature has been created in Mrs. Richardson, from that conferred upon her heirs, and that therefore the two will not incorporate in Mrs. Richardson, thus bringing the case within the operation of the second exception to the rule.
To avoid such a conclusion it is argued by the appellee on the one hand, that the present instrument is a deed of bargain and sale, and that as such, the use was executed in Ridgely the trustee, and that the limitations to use, are mere trusts in equity, and that both Mrs. Richardson and her heirs are cestui que trusts seized only of an equitable estate, and that as such they will coalesce in Mrs. Richardson under the rule. On the other hand it is contended, that the intention of the grantor should prevail, and that the present deed should be treated as a feoffment to accomplish that purpose. If regarded as a feoffment it is said that the legal estate would be executed in the heirs [**71]  of Mrs. Richardson, but that she herself would take but a mere equitable life estate.
Whether the present deed, as an abstract question, be a feoffment or a bargain and sale, is one more difficult than important for us to decide. If it be a case where the intention of the grantor is to prevail against the strict rules of interpretation, then this court will construe the deed as a feoffment or a bargain and sale as will most effectually accomplish that intention.

 [*547]  In this connection it becomes necessary to inquire when the legal estate vests in the trustee, and thereby becomes a trust estate, or when it vests in the cestui que use, under the statute of uses.
A use is, where the legal estate of lands was in a certain person, and a trust was also reposed in him, that some other person should take and enjoy the rents and profits. In other words, a use was a mere confidence in a friend, (before the statute of uses,) that the feoffees to whom the lands were given, should permit the feoffor, and his heirs, and such other person as he might designate, to receive the profits of the land. Gilbert on Uses, 1.
The whole system of uses, however, was abolished [**72]  or remodeled by the statute of 27 Henry 8, chap. 10, commonly known as the statute of uses. By the provisions of that statute the use was transferred into possession by converting the estate or interest of the cestui que use into a legal estate, and by destroying the intermediate estate of the feoffee. The strict construction which was given to this statute by the judges of its time, and the inconvenience and injustice which thereby followed, led, after a lapse of time, through the interposition of a court of chancery, and the ingenuity and learning of lawyers, to the establishment of a regular and enlightened system of trusts. In this way uses were partially revived under the name of trusts. In regard to this revival of the equity jurisdiction in respect to trusts, Lord Mansfield has said in Burgess vs. Wheate, 1 Bl., 123, "that it has not only remedied the mischiefs of uses so much complained of, but has given occasion to raise up a system of equity, noble, rational and uniform, in place of a system at once unjust and inconvenient. Trusts are made to answer the exigencies of families, and all purposes, without producing one inconvenience, fraud or private mischief,  [**73]  which the statute of Henry 8, meant to avoid."
A trust therefore is a use not executed under the statute of Hen. 8, in the cestui que use, but the legal estate is vested in the grantee or trustee.
It becomes, however, frequently a matter of difficult solution 

 [*548]  to determine when the estate is vested under the statute in the cestui que use, or when as a trust it vests in the trustee; and the present case is one by no means free from difficulty on this point.
The inquiry here is, in whom did the legal estate vest under the present deed? It is to be observed that such a trust as is here contended for, might readily have been created by express terms: as for instance, if the property had been conveyed to Ridgely and his heirs, to the use, or unto the use of him and his heirs in trust for Mrs. Richardson, it would have been a complete disposition of the whole legal estate to the trustee. 2 Crabb's Law of Real Prop. 508. In such a case the use and possession which constitute the legal estate are both vested in the trustee, while the rents and profits would belong to the cestui que use. But the supposed case is not this case. If there is a trust in [**74]  Mrs. Richardson it is not created by express, technical terms, but it results from the intention of the grantor to do so, as manifested upon the face of the deed, an intention so clear as not to be defeated or controled by the strict rules of interpretation. It is clear that the mere interposition of a trustee to protect and secure a trust estate in a third person even though a married woman, will not prevent the use from being executed in the cestui que use, unless there is attached to the trustee the performance of some active functions or duties in order to support the trust. And a distinction has been taken between a devise or deed to a person in trust to collect and pay over the rents and profits to another, and a devise in trust to permit another to enjoy the rents and profits. In the first, the use is executed in the trustee, in the second, in the cestui que use. It would follow then, was Mrs. Richardson not a married woman, or was not the estate by the terms of the deed limited to her sole and separate use, independent of her husband, that this would be a conveyance under the statute, and would vest the legal estate in her, notwithstanding her coverture,  [**75]  or the provision that she was to have but a life estate. But in the present case the deed provides that the property shall be held in trust "for her own proper use and benefit, notwithstanding her coverture," &c., and 

 [*549]  "as if she was sole and unmarried." As has already been intimated, in all cases where a deed or will involves an object or purpose which cannot be carried into operation without the active agency of the trustee, such as the collecting and paying over of the rents and profits of land to a married woman for her sole and separate use, the execution of conveyances, &c., then it becomes a special trust, and not a use executed in her; and the question in this case is, does the deed impose such active duties upon the trustee as will render it necessary for him to have the legal estate to discharge those duties, or is he a mere nominal, inactive agent, who is embraced within the statute of uses?
Most of the elementary writers broadly assert, that where the trustee is to hold in trust for the sole and separate use of a married woman, it is a trust, and not a use executed under the statute. 1 Cruise Dig. 456. 2 Crabb's Law of Real Prop., 509. Clancy on  [**76]   Hus. and Wife, 256. It is however to be regretted, for the sake of the simplification of this question, that the adjudications cited by the books, do not with unanimity sustain the proposition to the length to which it is stated. Most of the cases cited by the text writers will be found to relate to deeds or wills which impose upon the trustee some active functions, such as collecting and paying over of rents, &c., and while therefore they do not contradict the proposition, they notwithstanding do not sustain it as it is broadly announced.  Nevil vs. Saunders, 1 Vern. Rep. 415. Say and Seal vs. Jones, 1 Ab. Equity Cases 383. 8 Viner's Alr., 262. Lord Ch. G. Holt, in South vs. Alleine, 1 Salk. 228. Griffith vs. Smith, Moore, 753.  Bush vs. Allen, 5 Mod. Rep. 63; and a number of other cases to the same purpose might be cited.
The intention of the grantor is to prevail in cases like the present, but with this qualification, that it must not contravene or defeat the established rules of construction, or in other words the intention is to be ascertained by the legal rules of interpretation. Unless therefore this deed, in [**77]  accordance with one of those rules assigns to the trustee the performance of some 

 [*550]  duty necessary for the enjoyment of the estate by the feme covert, the legal estate would not vest in the trustee. It would seem to follow as a necessary consequence, from the very nature of the present transaction, that a deed to a trustee for the sole and separate use of a married woman, would imply that the trustee's aid was invoked, and his active services required, to support the independent character of the wife. The rights and powers of married women are ordinarily merged in those of their husbands, and whenever it becomes important to invest her with sole and independent powers, it becomes necessary that that character should be exercised through the medium of a trustee. It is now settled that where bequests or conveyances are made to married women for their separate use, without the nomination of trustees, the husbands in equity will be considered as trustees for their wives, and will be required to comply with the intention of the donor. Clancy on Hus. and Wife, 257. A separate estate in real property could not be enjoyed by a married woman unless through the interposition [**78]  of a trustee, which circumstance of itself would imply the performance of some active duties on his part. Not so however with persons not laboring under the same disabilities with married women. In such cases no intervening agent is necessary to enable them to enjoy the property, and therefore the legal estate is vested in them when it would not be in a feme covert. Thus in the case of Broughton vs. Langley, 2 Ld. Rayd. 873, where lands were devised to trustees and their heirs, to the intent to permit A to receive the rents for his life, &c., it was determined that this would have been a plain trust at common law, and as such executed by the statute. And so it would have been even if the cestui que trust were a married woman; provided the estate was not limited to her sole and separate use.
It is true that there are some cases which have carried this doctrine so far as to embrace within its operation deeds and wills conveying property to married women for their separate use, and have declared the estate to be executed under the statute in the feme covert. The only cases brought to our notice favoring this doctrine are Williams vs. Waters, 14. Mees.  [**79]   and Wels., 166. 

 [*551]  Douglas vs. Congreve, 1 Beavans 59. And South vs. Alleine, 1 Salk. 228. In the first of those cases, Williams vs. Waters, it would seem that a different interpretation would have been given to the instrument by a court of chancery, from a remark made by Rolfe, Baron, in his opinion. He observed, "it is said we are to construe the deed otherwise, because so the intention of the parties will be effected; but so it may in other ways; it will now, by the interposition of a court of equity." And Baron Parke says, "we cannot collect clearly from the words of the deed, that they intended to give the trustees an active trust, to exclude the husband from control, by giving the estate to the trustees in order to pay over the rents and profits to the wife." Thus this case sanctions the principle, that where an active trust is imposed upon the trustee he takes the legal estate. The case of Douglas vs. Congreve is, in important particulars, dissimilar from the case now before us. There the devise was to the wife for her life, for her independent use and benefit, followed by a direct devise after her death, to her husband, for his natural [**80]  life, with remainder to the use of the heirs of her body, &c. The court decided, that the strict rules of construction were to prevail, because an intention to the contrary was not sufficiently manifest on the face of the will. The case of South vs. Alliene it must be admitted, directly supports the views of the appellee's counsel. But the authority of that case is greatly weakened, if not entirely overthrown by the fact that C. J. Holt, dissented from the opinion of Rokesby and Eyre, justices, and that the opinion of the chief justice has been repeatedly sustained by subsequent decisions of the highest authority.
The position assumed by the counsel for the appellee, that it does not necessarily follow by vesting the legal estate in the wife, that thereby you establish the marital rights of the husband in opposition to the contrary intention of the grantor, we think is not sustained by the authorities. In most of the cases it is conceded, that by executing the use in the wife the husband acquires control over the property, and that very result is assigned as a reason why a different construction should be given to the instrument, in order to effectuate the intention of 

 [*552]   [**81]  the grantor. In the case of Bush vs. Allen, 5 Mod. Rep. 63, Justice Rokesby in reply to the argument that the legal estate vested in the wife, remarked, "but then the husband shall intermeddle, when the divisor intended to exclude him." And in the great case upon this subject, Harton vs. Harton, 7 Term. Rep. 652, Lord Kenyon said, "that whether this were a use executed in the trustees or not must depend upon the intention of the devisor. This provision was made to secure to a feme covert a separate allowance, to effectuate which it was essentially necessary that the trustees should take the estate, with the use executed, for otherwise the husband would be entitled to receive the profits, and so defeat the object of the devisor." And also in the case of Williams vs. Waters, 14 Mees. and Wels., 166, Parke, Baron, concedes, that the husband could not be excluded if the legal estate vested in the wife.
In the consideration of this case it would be difficult for us to refer to the numerous cases which relate to the subject, much more to attempt to reconcile them with each other. That there is some conflict of opinion upon the subject,  [**82]  cannot be denied. The later, and more modern decisions, however, seem to favor a more liberal construction of deeds and wills in order to reach the real intention of their makers, and therefore in all cases where an estate is devised or conveyed to trustees for the separate use of a married woman and her heirs, this court will, if possible, so construe the instrument as to vest the legal estate in the trustees, because such a construction will best effectuate the intention of the donor. We think this conclusion would follow from the general principles which we have endeavored to maintain in this opinion, and is warranted by a current of decisions of the highest weight and authority. The case of Harton vs. Harton, 7 Term. Rep. 652, fully sustains our views, and no higher authority can be invoked on any subject than that of Lord Kenyon. Clancy on Husband and Wife, 256, broadly maintains the very proposition for which we are contending. He says, "where lands are devised in trust, as to the rents and profits, for the sole and separate use of a married woman, it is immaterial whether the trust be 

 [*553]  declared to be 'to pay the rents and profits to [**83]  her' or 'to permit her to receive the rents and profits,' as in either case, it would be held that the use was not executed." In addition to the cases we have already cited, we refer to Hawkins vs. Luscombe, 2 Swans. 391. Ayer vs. Ayer, 16 Pick. 327. Franciscus vs. Reigart, 4 Watts 98. The Escheator of St. Philip's and St. Michael's vs. Smith, 4 McCord 452. The cases in Pick. and McCord are in all respects like the case we are now considering, and fully sustain the conclusions to which we have come. In both those cases the question grew out of a deed, and very similar to the one now before us. In each, the only duty imposed upon the trustee was to hold the estate for the sole and separate use of the wife, and it was held in both cases that, because a separate provision was intended to be made for the wife, it was sufficient to prevent the execution of the estate in her. In the case of Ayer vs. Ayer the court has gone quite at length into the subject, and reviewed many of the leading cases relating to it.
It has been urged that more strictness is required in construing deeds than [**84]  wills, and that as this is a deed the technical rules of construction should apply, with unbending force. To this proposition we do not assent. Cruise, 1 vol., 459, says, that the same mode of construction is adopted in cases of deeds as in cases of devises, in questions like the present; and the same rule is recognised in Ayer vs. Ayer, 16 Pick. 327.
The case of Matthews' Lessee vs. Ward, 10 Gill and John., 443, has been pressed upon us, as a controlling authority in support of the proposition that the present deed should be treated as a deed of bargain and sale. In this respect we do not concur with the appellee's counsel. That case has no especial bearing upon the one we are now considering, except it be to establish the general proposition that deeds of bargain and sale have nearly superseded all other modes of conveyance for passing real estate in Maryland, and the other more important and pertinent principle to the present controversy that our courts in construing deeds will effectuate, as far as possible, the intention of the grantor. Archer, J., who delivered the opinion in Matthews vs. Ward, admits expressly 

 [*554]  that [**85]  the deed in that case might be construed to be a feoffment, if the intention of the grantor would warrant such a construction, and it is declared to be a deed of bargain and sale, because such a view comports with what was supposed to be the intention of the grantor. Whenever a conveyance may take effect either at common law or under the statute of uses, it shall operate at the common law, unless the intention of the parties appears to the contrary. 2 Saund. on Uses and Trusts, 50, (Marg.)
We are of opinion therefore that the present deed creates but a mere equitable life estate in Mrs. Richardson; and that it executes the legal estate in her heirs.
The next question which we are called upon to consider, no less important than the first, is the nature and effect of the decree passed on the 26th of May 1847, by Baltimore county court, upon the bill and answer.
A further statement of the facts of the case here becomes necessary. The answer of the defendants to the bill of complaint admits all the preliminary facts stated in the bill as to the death of the parties, the granting of letters testamentary and of administration, &c. The answer then proceeds to admit that the [**86]  complainant has filed two accounts as stated in the bill, and that it appears that the estate of Eliza is indebted to the estate of Robert, her husband, in the sum of $ 496.92, but that having no knowledge of the debt of $ 345, alleged to be due the complainant, the defendants neither admit nor deny the same. The answer denied the liability of the real estate to be sold for Mrs. Richardson's debts. The answer concludes by stating that the real estate is not susceptible of division, and assents to its being sold under a decree, and that the proceeds should be brought into court to be distributed according to the respective titles of the parties. Upon the filing of this answer it was agreed between the parties that the cause should be submitted upon bill and answer without argument. Thereupon on the 26th May 1847, a decree was regularly passed ordering a sale of the property by trustees, and that the money should be brought into court to be distributed under its direction. In due course the property was sold, and the sale reported 

 [*555]  for ratification, and by agreement of the parties was accordingly ratified on the 12th of October 1847. Subsequently the auditor stated an account [**87]  distributing the proceeds of the property among the creditors of Mrs. Richardson. To this account the defendant filed exceptions on the 30th March 1848, based mainly on the ground that the property was not liable for Mrs. Richardson's debts, and that the item in the account for the two negro women was improperly allowed the complainant. These exceptions were overruled and the auditor's account finally ratified. From the order overruling the exceptions and ratifying the account the present appeal was taken.
From what we have already said it will be seen, that unless the appellants are precluded by the decree of May 1847 from presenting the question of title upon the present appeal, the real estate in dispute is not liable to be sold for the payment of Mrs. Richardson's debts. We are then to consider whether that decree was in the nature of a final decree, or whether it was, under the circumstances of this case, in the nature of an interlocutory or conditional order. The act of 1830, ch. 185, deprived the party aggrieved of his right to an appeal from any decree or order, unless it be a final decree, or order in the nature of a final decree; and although the right to an immediate appeal [**88]  is restored by the act of 1841, ch. 11, it has been adjudged, that the party is at liberty to waive this right, and, on an appeal from the final decree or order, may allege error in all previous interlocutory orders passed in the progress of the cause.  3 Gill 138, Dugan vs. Gittings. If this decree be therefore not a final decree, it is subject to review on the present appeal, unless the right has been lost by some act of the party. In some cases it becomes a very difficult question to determine, what is or what is not a final decree. It would seem, that an order or decree finally settling any disputed right or interest of the parties would be a final decree, and as such, would warrant an appeal. 1 Gill and Johns., 309, Hagthorp vs. Hook. The act of 1830, it is true, expressly enumerates among the decrees which are not to be regarded as final, those for the sale of real estate, but it cannot be supposed that that 

 [*556]  act intended to embrace a case where the liability of the property to be sold was the very question to be determined by the court, and were it not for the peculiar circumstances of this case, it would hardly be seriously contended,  [**89]  that if the issue had been made upon the question of title and decided upon that question, the decree would not have been final upon that point as to all parties. The cases cited by the appellants' counsel do not determine a decree like the present to be a mere interlocutory order, and the language of Judge Martin, in Dugan vs. Gittings, is but a mere repetition of that of the act of 1830, and determines nothing in the present case.
If the present controversy related to the rights of the purchaser under the decree in question, there could be no doubt it would be regarded as a decree sufficient to pass to him a good title against the parties to the proceedings. But the present case does not seek to affect the title under this decree. It is a controversy among the parties claiming the proceeds of the sale, and not the property itself. It would seem that it was the intention of the parties to these proceedings to reserve or postpone the settlement of their respective claims to the property, until the proceeds of sale were brought into court to be distributed under its direction; and we think that it is equally clear, that the court was but carrying out that intention or quasi [**90]  agreement when it passed the decree for the sale in the first instance. The court pass the decree for the sale without comment or opinion, but when called upon to settle the rights of the parties to the fund arising from the sale, the same judge who passed the first decree files his opinion at length, thereby clearly showing that, for the first time, he regards the question of title as presented to his consideration.
We fully concur with the learned counsel for the appellee, that decrees and judgments should not be dealt lightly with, or easily disturbed when rights have been settled by them. But we do not regard this case as coming under this general rule. The parties to these proceedings cannot be prejudiced by the views we have expressed. If the appellants' view be correct, the final adjudication of the case is only postponed for the action of the court upon the auditor's account, where both 

 [*557]  parties have an opportunity fully to be heard. If on the other hand that final adjudication is to be taken as having been made, as is contended by the appellee, when the sale was ordered, it will be readily seen that one of the parties, at least, has had his rights passed upon without [**91]  an opportunity, through mistake, of being heard.
It is by no means an uncommon practice for courts of equity to pass decrees reserving the equities of the parties for some future decree of the court. And although this was not done in the present instance in express terms, yet we have no difficulty in coming to the conclusion that such was the design of both the court and the parties when the decree for the sale was passed. Under such circumstances this court could not treat that decree as so far final and conclusive upon the parties, as to preclude upon the present appeal the consideration of the question of title. We consider one of the very conditions upon which that decree was assented to, was that the question of title should be postponed, till the fund arising from the sale was to be distributed. Such an arrangement seems to have been the result of a family understanding, for the settlement of this estate, and if, in carrying out that arrangement, one or the other of the parties has gained a technical legal advantage which was not anticipated or provided for, this court will, if possible, defeat such result and effectuate the intention of the parties. This would have been a totally [**92]  different case, if this decree had been the result of a litigious, instead of an amicable proceeding, prosecuted according to the strict rules of pleading and evidence. The parties would then have been held strictly to all the legal consequences of such a decree, and so they will now, so far as the rights of third parties, not privy to the agreement, may be affected by the present decree.
These principles, we think, are sustained by the case of Glenn, Adm'r, vs. Hebb, 12 Gill and Johns., 271. In that instance, by the agreement of the parties, the case was to be submitted to the chancellor on bill, answer and general replication, to determine whether there should be a decree to account. In fact no replication was filed. Were the parties held strictly to the consequence of a submission on bill and answer alone, 

 [*558]  as under other circumstances they would have been? No! Judge Archer, who delivered the court's opinion, says: "We must, as we apprehend, however, consider the case as if a replication had been in fact filed, for the agreement indicates that the case was to be heard by the chancellor upon bill, answer and replication. Such was the clear understanding of [**93]  the parties, and we cannot, without injustice, consider the answer as not replied to."
We mention this case to show, that under certain circumstances this court will modify the rigid rules of practice, and temper the harsh consequences of decrees, to promote the ends of justice and effectuate the intention of parties.
It has been argued that the supposed agreement upon which the decree was based, has virtually converted a proceeding under a creditor's bill into one for a sale for distribution, and that a court of chancery has no such power to convert the one proceeding into the other, nor to blend the two together, that therefore the attempt to do so is irregular and void. We do not deem it necessary to say whether this has been done or not in this case. But if admitted, the question before us is not whether a creditor's bill, and a bill for distribution among heirs can be united in the same proceeding, or whether the one can be converted into the other; but the question is, whether, after either has been done in the court below by the assent and agreement of the parties, can advantage be taken of the irregularity, if such it be, in this court upon appeal? We think it cannot be.  [**94]  
The bill on its face is a creditor's bill. It sets forth such facts as, if admitted or proved, would have entitled the complainant to a decree. The answer denied several important allegations and fails to admit others. In conclusion the answer states that they, the respondents, believe that the property is not susceptible of equal division, and agree that it should be sold by decree, and the proceeds brought into court to be distributed according to the respective rights of the parties. No replication was put in and no proof offered. It was then agreed, that the cause should "be submitted on bill and answer without argument for decree." Thus the answer is to 

 [*559]  be taken as true, as it was not put in issue by a replication. It is therefore manifest that no decree could be passed except upon the agreement in the answer, consenting to a sale, and in assenting to the decree the complainant took it upon the conditions annexed to it by the defendants, namely, that it should be a decree for a sale, reserving for adjustment and decision the distribution of the proceeds, until they should be brought into court, and then "to abide the decision of the court as to a distribution [**95]  thereof, (in like manner as if said property remained unsold,) upon the respective titles of the parties claiming an interest therein." Thus it is perfectly manifest, as has already been observed, the parties intended the decree to conclude no rights, further than to effect a sale of the property and to pass the title out of themselves, and that afterwards the proceeds should be brought into court, to be distributed according to the rules of equity. The decree, accordingly, simply directs a sale, and the proceeds to be brought into court. It does not, in accordance with the usual form under a creditor's bill, direct the land, or so much thereof as may be necessary, to be sold for the payment of the debts of the deceased.
When the proceeds are brought into court, and the auditor states an account allowing the claims of the creditors, exceptions are filed and argued, and the court decide upon them precisely as if the rights of all parties to the fund were reserved for adjudication at that time, and not as though the decree had conclusively established the claim of the complainant and the liability of the property, as is now contended. We consider the agreement assenting to the [**96]  decree upon the terms mentioned, as dispensing with the proof necessary to support the bill of the creditor, and as authorising a sale under that bill, but expressly reserving the equities of the parties. It is not a case of consent giving jurisdiction. The bill states facts which give jurisdiction, and the agreement but dispenses with proof and matter of form, and submits to such a decree as was clearly within the power of the court to pass without an agreement upon proper averments and proof. There can be no doubt but that the agreement can have the effect to suspend or take 

 [*560]  away that conclusive character, which in ordinary cases would attach to the decree. It is simply taking a decree upon terms proposed by the defendants and accepted by the complainant; and can it be seriously contended, that a court of equity will not give efficacy to those terms?
The questions arising upon the present appeal are as anomalous as they are numerous and intricate. The conclusions to which we have arrived, render the consideration of many of those questions unnecessary. We have endeavored to promote as far as possible the justice of the case, and to carry into effect the manifest design [**97]  of the parties, without, at the same time, violating any of the established rules of equity practice. The case, it must be conceded, is sui generis, and we expect never to look upon its like again.
Under the circumstances enumerated and for the reasons assigned, we are of opinion, and so decide, that the rights of the several parties to the fund arising from the real estate are open for adjudication upon the present appeal.
The result of our deliberations upon the whole case is, that the creditors of Mrs. Richardson have no claim upon this real estate, and that the auditor has erroneously stated the account allowing those claims. We will sign a decree reversing the decree of Baltimore county court and remanding the cause, with instructions to the auditor to state an account, distributing the proceeds of sale among the children or heirs of Mrs. Richardson, and not among her creditors, subject however to any claims which may be established against either of said heirs.
Decree reversed and cause remanded. The costs in both courts to be paid out of the proceeds of sale. 

48 of 48 DOCUMENTS 

REBECCA RINGGOLD and others, Negroes, vs. DAVID BARLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 186; 1853 Md. LEXIS 84 

DECEMBER, 1853, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Circuit Court for Kent county.

This was a petition for freedom, filed on the 14th of June 1851, by Rebecca Ringgold and her two children, the one four and the other two years of age. The facts of the case are sufficiently stated in the opinion of this court.

1st Exception. The petitioners introduced a witness, to prove the declarations of Money as to his intention of settling in Missouri, but he gave evidence different from that which they expected, whereupon they called another witness, to prove that the first had during the trial made a statement to their counsel different from that deposed to. Their counsel disclaimed any intention of impeaching the first witness, but being surprised, the evidence was offered to show that the witness was mistaken and his memory defective. The court, (HOPPER, J.,) rejected the testimony, on the ground that it was an impeachment of the petitioners' own witness, and to this ruling they excepted. (As this court declined to decide the point raised by this exception, the argument upon it is not reported.)

2nd Exception. This was taken by the petitioners to the refusal of the court to grant their prayer, which is fully [**2]  stated in the opinion of this court, and to the instruction of the court, that if the jury believe that Money did, at any time after his arrival, positively determine to make Missouri his place of residence, if but for one moment, then he became a citizen of Missouri, although afterwards he might have determined to remove to Maryland.

3rd Exception. This exception was taken by the defendant to the refusal of the court to grant an instruction, that if the jury believe from the evidence that Money was never presented, indicted, or convicted, of any offence under the act of 1831, ch. 323, then the petitioners are not entitled to their freedom. (The point raised in this exception not having been decided by this court, the argument upon it is also omitted.)

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

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

If a person leaves this State and removes to another, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it becomes his place of domicil, notwithstanding he may entertain a floating intention to return at some future period.

A citizen of one State may break up his establishment, and, with the avowed purpose of becoming a resident of another, may actually leave his place of former abode, yet if before he reaches the point of his destination he changes his purpose and returns, he does not thereby forfeit his residence or his rights as a citizen at the place of his first abode.

A mere intention to acquire a new domicil without the fact of actual removal avails nothing, neither does the fact of a removal without the intention.

When once removed to his new domicil the party's purpose to remain need not be fixed and unalterable; if it becomes a place of fixed present domicil, it will be sufficient to fix a residence, though there may be a floating intention to return to his former place of abode at some future period.

Where the verdict and judgment in a petition for freedom were in favor of the defendant, he cannot sustain an appeal though he has taken an exception, because he is not aggrieved by the result of the trial below.  

COUNSEL:
George Vickers for the petitioners.

1st. If a citizen of one State thinks proper to change his domicil and to remove with his family to another, with a bona fide intention to reside, he becomes instantly on reaching that State a citizen of it. 3 Wash. C. C. Rep., 546. Cooper vs. Galbraith.  [**3]  1 Speers' Eq. Rep., 1, Bradley vs. Lowry. Story's Conflict of Laws, sec. 46. The prayer in its essentials is framed in the language of Judge Story, in the section referred to. If the party removed to Missouri with the intention of indefinite residence, as a place of fixed present domicil, and engaged in agricultural pursuits, having reference to his nineteen months' residence there, it was his place of domicil, notwithstanding a floating intention of returning to Maryland. The cases referred to by Judge Story sustains the position of the text. 16 Johns., 128, Elbers vs. The United Ins. Co. 8 Cranch, 253, 279, The Venus. 4 Harrington, 558, State vs. Frest. 1 Texas' Rep., 401, State vs. Casinova. The object of Money's removal to Missouri was to obtain a domicil. He ceased to be a citizen of Maryland; he left no place, no foot of land to which he could return as his home; he detached himself from this State and became instanter on his arrival in Missouri a citizen of that State. His pursuits during a residence of nineteen months afford the strongest presumptive proof of his intention to become, and of his having become, a citizen of Missouri. But after he commenced farming, after he ascertained [**4]  the price and quality of government lands, when he found his health less robust than he anticipated, and recuperating more slowly, he talked of returning to Maryland, expressed a wish, and may have had a vacillating and indefinite intention to do so. But such a floating intention, a quasi animus revertendi could not destroy the legal effect of his previously formed intention of becoming a citizen of Missouri, followed by acts of a fixed, tangible character of settlement and occupation. His affidavit, made in March 1854, to a list of slaves under the act of 1833, ch. 87, passed subsequent to his return, speaks of his intention to become a citizen of Maryland, which necessarily involved a previous loss of residence. The court erred therefore in rejecting the petitioners' prayer.

2nd. But the court erred also in its instruction. The impression the instruction would naturally make on the minds of the jury would be, that Money must have expressed a "positive determination" after his arrival in Missouri to make it his residence. There is no process by which a positive determination can be ascertained but the declaration of party. One might sell his property, discontinue all business [**5]  operations, remove with his family into another State, engage in his wonted avocation for ten or more years, yet if it were impossible to prove a declaration of intention to change domicil, he could not, under the court's instruction, be a citizen of the State in which he resided. It is submitted therefore that the strong language of the court is not sustained by the adjudged cases nor the analogies of the law. A declaration of intention is only one mode of giving character to acts, but the acts themselves raise equally a strong presumption of intention, and the law affixes to certain acts as definite motives as if they had been proclaimed.

3rd. As to the appeal by the defendant, the petitioners move to dismiss it with costs, because the act of 1785, ch. 87, sec. 6, does not give the right of appeal in such cases, but is designed to afford an appeal only in cases where the final judgment of the court is prejudicial to the party. The judgment is the grievance complained of and the matter appealed from. Unless the judgment be rendered against the party appealing, or unless it be for less than his claim, unless he be prejudiced by it, an appeal will not lie. 8 Gill 229, Neptune [**6]  Ins. Co., vs. Montell. 10 G. & J. 7, Neel vs. Hughes. 9 G. & J. 461, Union Bank vs. Planters Bank.

B. C. Wickes for the defendant.

1st. I do not propose to examine how far the law of the petitioners' prayer, as a general proposition, may be sustained by the text writers upon the subject of residence, for I hold:--first, that it is not sustained by the decision of our own courts upon this very question of residence, as involved in the act of 1831 and in this petition; and second, that the instruction as given is in exact conformity with these decisions. The proposition embraced in the prayer is simply this, that if Money left Maryland with his family and servants and removed to Missouri, with the intention of remaining there for an indefinite time, and as a place of fixed present domicil, and while there engaged in agriculture, &c., it became his place of domicil; that is, it became his home, and he lost his residence in Maryland, as intended by the act of 1831, ch. 323. In the case of Baptiste vs. Valunbrun, 5 H. & J. 86, the defendant was driven from St. Domingo by an insurrection of negroes; she fled to New York with her servants, remained there five years and [**7]  then removed to Baltimore, carrying her negroes with her, where she remained twelve or fifteen years. The court decided, "that the defendant had not become a resident of this State, as contemplated by the law of 1796, ch. 67," upon the ground:--first, of necessity, that she was compelled to fly, &c.; and secondly, because "she had constantly and uniformly declared her intention to return to her own country when circumstances should permit, and for this reason never became a citizen of the United States." Now it cannot be questioned, that in that case the party came to this State with an intention of remaining an indefinite time, and that she made it her place of fixed present domicil, yet she was not a resident under the act of 1796 for the reason above stated. Now why does this expression of intention to return to her own country prevent her becoming a resident of this State? Does its force rest in the positive intention to return or in the negation of an intention to remain permanently in Maryland? She had made Maryland her fixed present domicil, but "she was a stranger," "a sojourner," because she had no fixed permanent home here; because she had not the intention, positive and [**8]  distinct, to make it her permanent home; she had not "the animus" to reside here. Here then is the proposition distinctly announced, that there must be intention to make a fixed home. Money had not this intention, for the prayer concedes his intention was to remain only an indefinite time, and that he had a floating intention all the time to return to Maryland. Again, in the case of Cross vs. Black, 9 G. & J. 214, the court say, the "purpose to remove them out of the State permanently and place them elsewhere, and this being consumated, the master then assumes the attitude of owner of nonresident slaves;" again, "the case made by the petitioners does not consumate the purpose of a permanent abandonment of the State." Now the language of the court in its instruction embracing the single idea, that if Money, upon his arrival in Missouri, did positively determine, if but for a single moment, to make it his residence, he then became a citizen of that State, is in stricter conformity with the decisions above cited, a more distinct and explicit statement of the law, and far less liable to mislead the jury than the prayer of the petitioners.

Upon the motion to dismiss the defendant's [**9]  appeal, the learned counsel cited and commented upon 8 Gill 376, Winter vs. Donovan; 4 H. & McH., 295, Mahoney vs. Ashton; 1 Gill 32, O'Reilly vs. Murdock; 9 Gill 98, State vs. Milburn, and 4 G. & J. 407, Charlotte Hall School vs. Greenwell.  

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

OPINIONBY:
MASON 

OPINION:

 [*191]  MASON, J., delivered the opinion of this court.
The appellants filed their petition in Kent county circuit court, in which they claim their freedom under the act of Assembly of the year 1831, ch. 323, sec. 4. By that act it is 

 [*192]  provided, that it shall not be lawful to import or bring into this State any negro slave, for sale or to reside; and any person so offending shall forfeit for such offence the negro brought into the State contrary to this act; and such negro shall be entitled to freedom, &c.
The testimony presents substantially this case: In the year 1832, Money, under whom the appellee claims the negroes, having sold all his property in Maryland, left for the State of Missouri, carrying with him the petitioner and other of his slaves, together with his own family. Such of his slaves as were unwilling [**10]  to remove with him to Missouri had been previously sold to the south. He had repeatedly declared his intention of settling in Missouri and of purchasing public lands in that State. That said Money, immediately on his arrival in Missouri, rented land and commenced farming; that he continued to farm till November 1833, when, falling into bad health and changing his purposes, he sold out his property of every kind, except his slaves, and returned to Maryland, bringing with him the petitioner, Rebecca. On the 19th of March 1834, Money returned a list of the slaves so brought back with him to the clerk of Kent county court, accompanied with the declaration, verified by oath, of his intention to become a citizen of this State.
Out of this state of facts several questions arose in the trial below. We will proceed to consider, first, the questions presented by the second exception. The testimony having been closed, the petitioners prayed the court to instruct the jury, "that if they believed Money left the State of Maryland with his family and servants and removed to the State of Missouri, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, [**11]  and while there engaged in agriculture, it became his place of domicil, notwithstanding he might have entertained a floating intention of returning to Maryland at some future period." This prayer was rejected, whether properly or not we are now required to decide.
It is settled by many well adjudged cases, especially by the case of Cross vs. Black, 9 Gill & Johns. 198, that a citizen of one State may break up his establishment, and, with the 

 [*193]  avowed purpose of becoming a resident of another, may actually leave his place of former abode, yet if before he reaches the point of his intended destination changes his purpose and returns, he does not thereby forfeit his residence or his rights as a citizen at the place of his first abode. The mere intention to acquire a new domicil without the fact of an actual removal avails nothing, neither does the fact of a removal without the intention.  Somerville vs. Somerville, 5 Ves. 750, 787. Harvard College vs. Gore, 5 Pick. 370. When once removed to his new domicil, however, the party's purpose to remain need not be fixed and unalterable. If it becomes a place of fixed  [**12]   present domicil it will be sufficient to fix a residence, and although there may be a floating intention to return to his former place of abode at some future period, still these circumstances will not defeat the newly acquired residence or the rights and obligations which attach to it.
The question now before us is, was there evidence tending to satisfy the jury that Money did acquire such a residence or domicil in Missouri, as to forfeit his former residence in Maryland? In pursuance of the intention formed in Maryland, he did take up his abode in Missouri, and commenced pursuing the usual avocations of life. He identified himself and all his interests, for the time being at least, with his new place of abode. If his expectations had been realized and his hopes fulfilled, he doubtless would have made this new location his permanent abiding place. Under such circumstances we cannot but regard the residence of Money, at least, as a place of fixed present domicil, notwithstanding he may have had a floating intention to return to Maryland at some future period.
If Story's Conflict of Laws is to be regarded as authority upon such questions, it settles the very point [**13]  now under consideration. Indeed the appellants' prayer which was rejected, presents not only the principle announced by Story, (Conflict of Laws, sec. 46, page 58,) but even employs his identical language, and to sanction that rejection would be to repudiate 

 [*194]  the high authority of Judge Story, which we are not prepared to do.
The case of Baptiste vs. De Volunbrun, 5 Har. & Johns. 86, is entirely dissimilar from this. In that case the party was compelled by necessity, a vis major, which she could not resist, to leave her domicil and come to this State, and she "constantly and uniformly declared her intention to return to her own country whenever circumstances would permit her to do so with safety." In the present case the party left his first domicil voluntarily and with the avowed purpose of changing his place of abode, and in accordance with this purpose did actually take up his residence in another State, in the manner before detailed.
Admitting the instruction which the court gave, after refusing the prayer of the appellants, to be correct, as an abstract legal proposition, yet, upon the testimony in the cause, it did not present [**14]  the law to the jury in a light so favorable to the appellants as the prayer presented by them, and which we think they had a right to insist upon. The refusal of it was therefore erroneous, notwithstanding the substitute for it given by the court.
We have not deemed it necessary to consider or decide the question presented by the first exception, relating to the admissibility of certain testimony therein set out, because it is not probable, upon a future trial, that the appellants will find themselves in a predicament like the one which they now ask to be relieved from.
Nor do we feel at liberty upon this appeal to express any opinion in regard to the necessity of a conviction of the master before the slave can assert his freedom, so fully discussed upon the appellee's cross-appeal, because it is a point not presented by this record in such a way as would warrant us in deciding it.
Judgment reversed and procedendo awarded.
Upon the appeal by Barley, the same judge delivered the following opinion of this court:

 [*195]  This is a cross-appeal, and a motion is made by the appellees to dismiss it.
Upon the trial below instructions were asked by both the plaintiffs and [**15]  defendant, and each was denied by the court. The verdict and judgment were in favor of the defendant, and the plaintiffs appealed. The defendant thereupon also appealed.
Under such circumstances we think the defendant cannot sustain his appeal. He cannot be said to be aggrieved by the result of the trial below, because the verdict and judgment were in his favor. If the instructions which he asked for had been granted, the result of the trial could not have been more favorable to his case.
Appeal dismissed.