1 of 12 DOCUMENTS 

WILLIAM C. WRIGHT vs. JAMES G. HAMNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 370; 1854 Md. LEXIS 11 

JUNE, 1854, Decided 

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

Issues were sent from the orphans court to the Superior court of Baltimore city during its September term, 1852, to try the validity of the will of Edward Wright, deceased. The cause was tried at May term, 1853, and the jury having failed to agree it was continued until May term, 1854, and the 12th day of June in that term fixed for its trial. On the 7th of June of that year, the appellee, under the act of 1854, ch. 325, filed his affidavit and suggestion for a removal, and the court thereupon ordered the cause to be removed to the circuit court of Baltimore county. From this order this appeal is taken.  

DISPOSITION:
Order affirmed with costs, and cause remanded.  

HEADNOTES:

The act of 1854, ch. 325, entitled, "An act relating to the trial of facts in the several circuit courts of this State," and providing for the removal of causes to any adjoining county, whether within the judicial circuit or not, and allowing suggestions for the removal to be made at any time after the term at which issue was joined, is constitutional, and embraces the courts of the city of Baltimore.

The clause of the 28th sec. of the 4th art. of the constitution, upon the subject of the removal of causes, was designed to secure beyond the control of the legislature the general right to parties to remove their causes, but not to prohibit the legislature from enlarging that right at any time.

Under the present constitution and laws, Baltimore county and Baltimore city are two separate and independent municipal corporations for all governmental purposes, and the former is an adjoining county to the latter.  

COUNSEL:
S. T. Wallis and Reverdy Johnson for the appellant.

The removal can only be sustained under the act of 1854, ch. 325, which modifies the 28th section of the 4th article of the constitution so as to permit the affidavit and suggestion of removal to be made after the term at which issue has been joined. The questions, therefore, are:--1st, is this act constitutional? 2nd, if constitutional, does it apply to the courts of the city of Baltimore? and 3rd, does it authorise a removal [**2]  to Baltimore county as an "adjoining county" to the city of Baltimore?

1st. The act is clearly unconstitutional unless the power to pass it be derived from the language in the section already referred to, that "such further remedy in the premises may be provided by law as the legislature shall from time to time direct and enact." The act clearly repeals the constitutional provision in the same section requiring the suggestion for removal to be made at the term at which issue is joined. Now if, under the power to provide "further remedy," the legislature can repeal one part of the constitution it can the whole. Taking the whole section together, the construction seems to be, that the legislature has the power to provide "further remedy" within the limits of the right which the constitution secures, but not beyond them; that its function is to apply the constitutional provisions by apt legislation, not to repeal them or create new ones. The cases of The State vs. Dashiell, 6 H. & J. 268, and Cromwell vs. The State, 12 G. & J. 257, interpreting similar words in the old constitution, have determined, that the words, "promote further remedy in the premises," were not meant [**3]  to authorise legislation "repugnant to the act of 1804," but only conveyed an authority to prescribe "the manner and terms" to be observed by parties availing themselves of the constitutional right. The case of Negro Jerry vs. Townshend, 2 Md. 274, by adopting the doctrines of the case of The State vs. Dashiell, justifies a reliance upon the latter case in this argument, and can hardly be held to interpret the meaning of the present constitution, in this particular, so absolutely as to preclude an argument upon it.

2nd. But the title of the act of 1854 expressly confines it to the "circuit courts," which is exclusively the designation of the county courts, by the 8th sec. of art. 4 of the constitution. The effect of the title, as an element of statutory construction, is rendered more stringent than heretofore by the constitutional provision, art. 3, sec. 17, that "every law shall embrace but one subject, and that shall be described in the title." This provision is not merely directory, but was intended to carry out an important branch of public policy, that of making all legislation honest and fair--with a palpable object and none concealed. But at all events, the effect of [**4]  the title is to show the legislative intention, and coupled with the terms of the first section, it seems to exclude the city of Baltimore from the operation of the statute altogether.

3rd. The case of The State vs. Dashiell determines expressly that Baltimore county is not an adjoining county to Baltimore city. The removal there was from the city court, a tribunal, peculiar to the city, of limited jurisdiction, having a judicial circuit of its own for criminal business, and in every point of view as separate from the rest of the county for judicial purposes, as is the Superior court now. Except that its juries were summoned by the county sheriff, it was in all particulars distinct, judicially, from the county, and even the venue of the juries was different, though the sheriff was the same. It is not perceived, therefore, why or how the same principle ruled as to the city court does not apply to the Superior court. Cases of criminal offences, often involving life, are constantly sent to Anne Arundel, Howard and Harford counties, which have been heard and tried as rightfully removed, which it is impossible they can be, if the construction on the other side, be correct. If Baltimore [**5]  county is adjoining the city, it is the only one which adjoins it, and removals to any other must be illegal and trials in any other mistrials. Geographically, the city is in contact with no county but Baltimore county. The constitution obviously meant to disregard this geographical contact, and adopt the view of the case of The State vs. Dashiell, treating counties adjoining Baltimore county as adjoining the city, for speaking of removals from Baltimore city it says, "the removal may be to an adjoining county." Had Baltimore county been contemplated, "the adjoining county," or "Baltimore county," in terms, would have been the phrase, as there would have been but one. The indication that there are several, puts Baltimore county out of the question.

William Schley and John Nelson for the appellee.

If the act of 1854, ch. 325, extends to the courts of Baltimore city; and if Baltimore county is an adjoining county to Baltimore city, and the act is constitutional, the removal was properly made.

1st. The act does extend to the courts of Baltimore city. By sec. 8, art. 4, of the constitution, the State is divided into eight judicial circuits, and Baltimore is the fifth judicial [**6]  circuit, and its courts are the courts of the fifth judicial circuit. The title of the act, in terms, applies to the courts of the fifth judicial circuit, for although not called circuit courts, the courts of Baltimore city are in fact the circuit courts of the fifth judicial circuit. The title means all the same as if it had been written, "in the courts of the several circuits of the State," instead of, the "several circuit courts of the State." Again, the direction in the constitution, that the subject of the law shall be described in the title, is merely directory to the legislature, like the similar provision in the 9th section of the 4th art., "that the judges shall be taken from among those who, having the other qualifications herein prescribed, are most distinguished for integrity, wisdom, and legal sound knowledge."

2nd. The act is constitutional. By the concluding words of the 28th section of the 4th article, if the question was res integra, power is given to the legislature, as far as the remedy is concerned, over the whole matter of removal of causes. They could not abridge the right of removal. They may enlarge the remedy already given. They may provide a further remedy [**7]  to secure a fair and impartial trial. But the very point has been decided. The language of this section is the same word for word as that in the act of 1804, ch. 55, and on this act the decisions are clear and unambiguous. Besides the cases referred to on the other side, see particularly the case of Townshend vs. Townshend, 9 Gill 506, which involves the very point in this case. Also the case of Price vs. The State, 8 Gill 295. The case of Negro Jerry vs. Townshend, 2 Md. 247, is an express decision by the present Court of Appeals, and the point is directly decided and sustained by clear and unanswerable reasons.

3rd. Baltimore county is clearly an adjoining county to the city of Baltimore. The proposition on the other side is, that the only county which adjoins the fifth judicial circuit is not an adjoining county to that circuit. Now, though for some purposes the city had separate rights anterior to the new constitution, yet, in fact, and in truth, it was a component part of Baltimore county. It was in the county under the old constitution, but under the new one it is as separate and distinct from the county, as from any other county in the State. Baltimore county [**8]  adjoins the city, it does not include it.  

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

OPINIONBY:
MASON 

OPINION:

 [*374]  MASON, J., delivered the opinion of this court.
The present appeal involves the question of the legality of the removal of this cause from the Superior court of Baltimore city, to the circuit court of Baltimore county.
The removal was ordered under the act of 1854, chap. 325.
In the consideration of this appeal, three questions arise: First, is the act of 1854 constitutional? Secondly, if constitutional, does it embrace within its operation the courts of the city of Baltimore? And, Thirdly, if the first two propositions be correct, is Baltimore county an adjoining county to Baltimore city?
We think the first point has been settled by the case of Negro Jerry vs. Townshend 2 Md. 274. The clause of the new constitution upon this subject, is substantially, if not literally the same with the old, which we have construed in 

 [*375]  that case. We are of the opinion that the clause in the constitution upon the subject of the removal of causes was designed to secure to parties, beyond the control of the legislature,  [**9]  the general right to remove their causes under certain specified circumstances, but it was not the design of the constitution to prohibit the legislature from enlarging the right at any time. We regard the act of 1854, chap. 325, as but the legitimate exercise of that power.  Townshend vs. Townshend, 9 Gill 506.
In the second place we must inquire whether this act embraces the courts of the city of Baltimore. We think it does. It has been urged, that by the new constitution the subject of a law must be indicated by its title, and as this act provides for the trial of facts in the several circuit courts of the State, the Superior court of Baltimore cannot be embraced within its operation. The Superior court is certainly one of the courts of one of the judicial circuits of the State: Baltimore city being by the 8th section of the 4th article of the constitution made the fifth judicial circuit: Therefore, the Superior court being a court of one of the judicial circuits of the State, may be regarded in the ordinary interpretation of language, as one of the circuit courts, within the meaning of the title of the law. The Superior court would be clearly embraced [**10]  by the general language employed in the body of the law, and there being no direct repugnancy with the terms of the title, we must regard this court as within the operation of the act. This view seems to accord with good sense and reason.
Is Baltimore county, an adjoining county to Baltimore city? is the remaining question to be settled.
The whole theory of the present constitution and laws of this State, appear to be based upon the idea, that Baltimore county and city are two separate and independent municipal corporations for all government purposes. By the 28th sec. of the 4th article, the constitution expressly confers the power to remove a cause from the city to an adjoining county. And by the 8th sec. of the same article, the separate and independent existence of the county is as clearly recognized. In fact, throughout the whole instrument, these two municipalities 

 [*376]  are treated as separate, independent and distinct integral parts of the whole State. Though one is a city and the other a county, yet their relative position to the State seems to be the same, and the geographical lines that separate them from each other are clearly defined. At one time [**11]  the city was, for many purposes of its government, a part of the county. Such was its condition when the decision in the case of The State vs. Dashiell, 6 H. & J. 268, was made. This state of things has now been totally changed, and the reasons assigned by the court in the case of Dashiell vs. The State, why a removal from the city to the county, would not gratify the constitution, can have no application whatever to a removal at the present time, because the government of the two are now in all respects different and independent.
In order that the order of the Superior court removing this cause may be consummated, we affirm the same and remand the cause.
Order affirmed with costs, and cause remanded. 

2 of 12 DOCUMENTS 

WILLIAM A. MOALE vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 314; 1854 Md. LEXIS 2 

JUNE, 1854, Decided 

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

By an ordinance of the 22nd of May 1851, the mayor and city council of Baltimore directed the opening of East Biddle street, in said city, from Cathedral to Charles streets. The commissioners for opening streets proceeded to discharge the duties imposed upon them by this ordinance, and duly made return of their proceedings to the register of the city, and from their assessment of damages and benefits to him, William A. Moale, who was the owner of property on the line of the street proposed to be opened, appealed to the criminal court of Baltimore city, under the act of 1817, ch. 148, sec. 16, and revised ordinances of Baltimore city, No. 17, sec. 9. The following plat sufficiently explains the location of the streets and the adjoining lots.

[SEE DRAWING IN ORIGINAL]

East Biddle street is one of the streets located on Poppleton's plat. The lots Nos. 1, 2, 3, 4, 5, 9 and 10, with others, were sold by a trustee under a decree of the court of chancery. In the advertisement of sale they were described as follows:

Lot No. 2 was described to be on the south-east corner of Biddle and Cathedral streets, fronting one hundred [**2]  and fourteen feet on Cathedral and one hundred and ninety feet on Biddle street.

Lot No. 3 was described as the bed of East Biddle street, between Cathedral and Decker streets, about sixty-six by one hundred and eighty feet.

Lot No. 4 as a small triangular lot, fronting about one hundred and fifty-one feet on the north side of Biddle street, at the corner of Cathedral street.

Lot No. 5 as the south-east corner of Biddle and Decker streets, fronting thirty feet on Biddle street.

Lot No. 9 as sixty-one feet on the west side of Charles street, one hundred and twenty feet deep, over which East Biddle street will pass when opened.

Lot No. 10 as the north-west corner of Charles and Biddle streets, fronting thirty feet on Biddle street.

Lots Nos. 1, 5 and 4, were sold by the trustee at public sale on the 14th of October 1848, the two former to Moale and the latter to William Frick. All the others were subsequently sold to Moale at private sale. These sales were reported and duly confirmed by the chancellor, and the trustee executed but one deed to Moale for his entire purchase. This deed includes the bed of Biddle street so far as it had been sold, viz., lots [**3]  Nos. 3 and 9, but calls for the lines of Biddle street wherever necessary to the description. Moale had purchased the lot on the south-west corner of Charles and Biddle streets in March 1846.

Exception. At the trial in the criminal court, Moale proved the value per front foot of the lots on Cathedral and Charles streets on each side of Biddle street. But the same witnesses who proved this value stated that they did not regard the bed of Biddle street, as owned by Mr. Moale, as worth anything, it being the bed of a street laid down on Poppleton's plat, and therefore liable to be taken at any time by the city as a street, and hence worthless for any other purpose. There was also evidence that in the negotiation for the sale of this property between the trustee and Moale, the lots on the bed of the street were estimated at a nominal value. Upon this evidence Moale asked three instructions to the jury, in substance as follows:

1st. That the deed from the trustee invested Moale with a title in fee to that portion of the bed of Biddle street embraced in it, and that it is not competent for the appellees to appropriate the same to the uses of a public street without making him a [**4]  just compensation therefor, and that in estimating such compensation the jury are not at liberty to consider the fact of the indication on Poppleton's plat of said street; nor are the circumstances offered in evidence sufficient in anywise to impair his right to an allowance in damages of the full value of said property, subject however to the right of the jury to assess upon his contiguous or other property, such proportion of benefits resulting from the opening of said street as may be equitably chargeable to him.

2nd. That by the interpretation of the act of 1817, ch. 148, sec. 16, he is entitled to recover such damages as may be the value of his property proposed to be condemned, without regard to the terms of the first proviso in said section, subject as in the first prayer.

3rd. That the true measure of his damages is the value at which his property would be estimated by the jury if Biddle street, as proposed to be opened, was not located upon Poppleton's plat, and was not designed to be so opened, subject as in first prayer.

The court, (STUMP, J.,) rejected all these prayers and instructed the jury, that in making their estimate of the damages sustained by Moale [**5]  by the opening of said street, they were bound to value the lots sought to be condemned, (being the bed of said street,) as unimprovable lots under the provisions of the act of 1817, ch. 148. To this ruling Moale excepted, and the jury having, by their inquisition, confirmed the report of the commissioners, he appealed to this court under the act of 1852, ch. 77.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

It is a portion of the inherent sovereignty of the State to appropriate private property to public use, when public necessity or utility requires it, upon securing just compensation to the owner for any injury he may sustain, this is an exercise of the right of eminent domain, as contradistinguished from that of the taxing power.

There is a distinction between the taxing power and the right of eminent domain, the former exacts money or services from individuals as and for their respective shares of contribution to any public burthen, the latter takes private property, not as the owner's share of contribution to a public burthen, but as so much beyond his share.

In the latter case special compensation is to be made because the government is a debtor for the property so taken, but not in the former, because the payment of taxes is a duty and creates no obligation to repay otherwise than in the proper application of the tax.

A law providing for the opening of a street or road, and imposing all the costs on those who are the more immediately benefited instead of the community at large, is constitutional.

Where a party sells property lying within the limits of a city, and in the conveyance bounds such property by streets designated as such in the conveyance or on a map made by the city or by the owner of the property, such sale implies a covenant that the purchaser shall have the use of such streets.

The first proviso to the 16th section of the act of 1817, ch. 148, "that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street," is unconstitutional and void, because it denies to the owner the use of his land without compensation, and is in fact an act of confiscation

The owner of a lot lying on the bed of a street which is taken for public use, is entitled to a compensation for it precisely as if no such street was opened over it.

In an advertisement of sale the vendor described the lot as binding upon a certain street. HELD, that the purchaser acquired the right to the use of this street in front of the lot, as a street, and a subsequent purchaser, from the same vendor of the lot upon the bed of the street, can claim only nominal damages for its condemnation upon the opening of the street, because he only acquired the naked fee, subject to an casement or right of way, not only in the prior purchaser but in the public.

Where there has been no dedication the true rule of assessing damages is to value the lot precisely as though no street was to be opened, and to get at this the value of neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard by which to measure the value of the lot condemned. 

COUNSEL:
John Nelson for the appellant.

1st. The first question in this case is, whether, under the act of 1817, ch. 148, sec. 16, the ground upon the beds of streets in the city of Baltimore is to be regarded as unimprovable? Has the legislature any power to interdict improvements upon the beds of streets without giving compensation to the owners? We say the first proviso to the sixteenth section of the act referred to, "that no person shall be entitled to damages for any improvement unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof, respectively," is not a constitutional exercise of legislative power, because it takes private property for public uses without compensation. The taking from a party the [**6]  use of his property is, in fact, taking from him his property itself. It is true that the act of 1832, ch. 207, gives the discretion to the city authorities to limit the time within which particular streets shall be opened, and to provide that if, by such time, they are not opened the owners may improve them, yet no such discretion has been exercised; and the act of 1838, ch. 226, does not compel the city to adhere to the streets laid down on the plat in its future proceedings in opening streets. The result is, that owners may be kept out of the use of their property forever. If the legislature can say no use of property shall ever be made, without giving any compensation for such restriction, it can take private property for public use without compensation, for the principle is the same. The proposition is a startling one and cannot be sustained. See the Old Bill of Rights, secs. 3, 21. 2 Kent's Com., 339. 1 Baldwin's C. C. Rep., 220, Bonaparte vs. Camden and Amboy Rail Road Co. 5 Gill 383, Alexander, et al., vs. The Mayor and City Council of Baltimore.

2nd. As to dedication: the principle is, that whenever a party by a conveyance calls for a street, he is under an implied [**7]  covenant to his grantee that the latter shall enjoy that street. But in this case there is no such dedication--there is not one of the features of a dedication in the whole of it. See 2 Gill 444, Mayor and City Council of Baltimore, vs. White. 1 Md. 540, White vs. Flannigain. But suppose there is a dedication in reference to lot No. 4, that can only operate a dedication of Biddle street, between Cathedral and Decker streets, and can have no effect upon lots Nos. 9 and 10, or that portion of the street opposite to them.

Wm. F. Frick for the appellees.

1st. What is the measure of damage for the appropriation of Moale's property for public use? If it was unimprovable under all the circumstances of the case, the rulings of the court below were correct and the judgment must be affirmed. Now we insist, that by the acts of 1817, ch. 148, sec. 16, 1832, ch. 207, and 1838, ch. 226, the bed of East Biddle street was, to a certain extent, an unimprovable lot, and so far as the rights of the appellant in that lot were affected by these acts, they were valid and constitutional. It is conceded that private property may be taken for public use if just compensation be made. The mode [**8]  in which this compensation is made is not material. These acts are to be construed together, and their effect is to enhance the value of the property adjoining the streets authorised to be opened by them, and in this way compensation is made for the lots over which the streets pass; the very act which takes away the owner's property gives him compensation. See 17 Wend., 655, In the Matter of Furman Street. 2 Watts & Seargt., 323, District of the City of Pittsburgh. 14 Ohio, 147, Symonds vs. City of Cincinnati.

2nd. But whatever may be the validity of the acts in question in respect to their prohibitions upon the improvements of the street, upon the evidence in the case, Moale had no title in the bed of the street except the nominal fee, subject to the right of way, as an easement in the public under the circumstances in this case, for he bought after a dedication by his grantor of the bed of the street and with notice of such dedication. He is therefore bound by it, and in this view the lot must be considered to be an unimprovable lot. 3 Kent's Com., 433, 434. 2 Wend., 474, Case of Lewis Street. 8 Wend., 98, Livingston vs. Mayor of New York. 11 Wend., 487, Wyman vs. Mayor of New [**9]  York. 4 Paige, 512, Trustees of Watertown vs. Cowen. 1 Hill, 191, Case of Thirty-Ninth Street. 10 Pick., 315, Emerson vs. Wiley. 17 Mass., 415, Parker vs. Smith. 1 Md. 540, White vs. Flannigain.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*320]  LE GRAND, C. J., delivered the opinion of this court.
We deem it but necessary to briefly state the principles which we think should govern the decision of this and all similar cases.
In the case of Alexander and other, vs.  The Mayor and City Council of Baltimore, 5 Gill 383, the principle was distinctly enunciated, that it is a portion of the inherent sovereignty of the State, to appropriate to a public use the property of individuals when public necessity or utility requires it, upon securing to the party a just compensation for any injury he may sustain.
This is not an exercise of the taxing power, but an exercise of the right of eminent domain as contradistinguished from it.
These two powers although somewhat alike are not the same. The distinction between them is clearly pointed out in a very able opinion of Justice Ruggles, in the case of The People, vs.  [**10]   Mayor &c. of Brooklyn, 4 Comstock 423, 425. He says: "Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burthen. Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax."
The case of Alexander vs. The Mayor and City Council of Baltimore, also establishes the constitutionality of a law providing for the opening of a street or road, which imposes all the costs on those who are the more immediately benefited instead of the community at large.

 [*321]  These principles, together with those recognized in the case of White vs. Flannigain, 1 Md. 525, furnish us with all that is necessary for the decision of this. In that case it was laid down, that where a party sells property [**11]  lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets.
We proceed to apply these principles to the case before us.
The appellant claims damages for the bed of Biddle street, according to its value, having reference to contiguous lots. On the other hand, it is said, he is entitled to but nominal damages, on the ground that the first proviso of the 16th sec. of the act of 1817, ch. 148, provides, "that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof respectively." And it was in conformity to this view, that the court below instructed the jury that the appellant was only to be allowed for his lots in the bed of the street as unimprovable lots. This ruling of the court brings before us directly the constitutionality of the proviso to which we have adverted. While it is clear that the sovereign power has the [**12]  right to impose a tax in such amount as to it may seem meet, and also to appropriate private property to public uses, yet it cannot do the latter without making just compensation for it. The sacredness of the rights of property, is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Rights. Under our present Constitution, there could be no question, for it distinctly provides in its 3rd article, section 46, that compensation shall be made before the property is taken. Although the language of the Bill of Rights of 1776, is not so distinct, its spirit is equally as comprehensive so far as the right to indemnification is involved. We hold, therefore, that it was not competent to the legislature to confiscate the property of the citizen, and we regard the provision 

 [*322]  of the act of 1817, which denies to the proprietor the use of his land, as nothing short of an act of confiscation. It has been said in reply to this view, that the owner of the bed of a street liable to be opened, would be more benefited by the enhanced value of his adjoining property, than he would be damaged by the appropriation of his property in the bed of the street. This view [**13]  assumes as a fact that which in many cases is not so. A person may not own any adjoining lots, and if his property lying in the street can be taken without compensation, then it is confiscation and nothing else. It has now been thirty-seven years since the passage of the act of 1817, and many of the streets designated on the plot of the city, have not as yet been opened. How many years may elapse before they are all opened, it is impossible to say; for aught we can see fifty or a hundred years may roll by before it is done. Besides, since the act of 1838, ch. 226, it is not incumbent on the city authorities to adhere to the line of the streets as laid down on the city plot. The power to widen, open or close up any street in the city, rests entirely in the discretion of the corporation. Under these two acts, those of 1817 and 1838, a person for an indefinite space of time may be deprived of the use of his property, because it lies on the bed of a street designated on the plot of the city, and eventually find that whilst he has paid taxes, and been denied the advantages to which he was entitled from the proper use of his land, that the street laid down on the plot has been abandoned.  [**14]  Such a state of things is repugnant to every notion of justice and cannot obtain our consent. We hold that a person owning a lot lying on the bed of the street which is taken for the public use, is entitled to be compensated for it precisely as if no street was opened over it. Of course this view is wholly independent of all question of dedication. In such a case there could be no claim interposed for damages, for the party having given the ground to the community can set up no just claim to be compensated for it.
The evidence in the cause shows, that the lots designated on the plot filed in it as Nos. 1, 5 and 4, were sold at public 

 [*323]  auction on the 14th day of October 1848, the first two to the appellant and the other to Judge Frick. In the advertisement, Biddle street is distinctly referred to in the description of all three of these lots; and lot No. 4, the one purchased by Judge Frick, is described as "a small triangular lot commencing at the north-east corner of Cathedral and East Biddle streets, running on the latter about one hundred and fifty-one feet northerly twenty-five and-a-half feet, and thence to the beginning." This sale was reported to the chancellor [**15]  and by him confirmed, in conformity to the descriptions of the advertisement, which were embraced in the report of the trustee. Lot No. 2, was not purchased by the appellant until after the sale to Judge Frick of lot No. 4, and therefore, subject to any rights which Judge Frick acquired by his previous purchase, among which, according to the principles we have indicated, was the right to the use of Biddle street, as a street, between Cathedral and Decker streets. So far therefore as lot No. 3, which is the bed of Biddle street, is concerned, we think the appellant only acquired by his purchase the naked fee in it, subject to an easement or right of way, not only in Judge Frick, but in the public, and this being so he is entitled to but nominal damages for its condemnation.
In regard to lot No. 9, we think the case different. Prior to his purchase of lot No. 10, the appellant was the owner of the lot on the south-west corner of Charles and Biddle streets, and when, therefore, he purchased lots Nos. 9 and 10, he acquired a complete title to the three lots, and is just as much entitled to be compensated for lot No. 9, as would have been the original proprietor of it in the absence [**16]  of all dedication. In regard to it there is no supervening or conflicting rights as there is in regard to lot No. 3. The appellant owns the entire line of the three lots bounding on Charles street, whilst in relation to lot No. 3, before it became the property of the appellant, Judge Frick had acquired a title to lot No. 4, from the same grantor as appellant obtained his to lot No. 2, which gave him a right to lot No. 3, as a public street. No 

 [*324]  subsequent act of the common grantor of both, could affect the rights which had been previously conferred on Judge Frick.
The prayers offered on behalf of the appellee, and the instruction granted by the court are erroneous, inasmuch as they are equally applicable to lots Nos. 3 and 9.
The true rule, where there has been no dedication, of assessing damages, is to value the lot precisely as though no street was to be opened. With a view to get at this, the neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard to measure the value of the lot condemned. The one condemned may be more or less valuable than the adjoining lots. It or they may be in ravines or covered with, or free from rocks, making [**17]  them more or less valuable according to the characteristics of the peculiar locality. Nor in estimating the value of the lot to be condemned, ought the circumstance of a street to be opened to be considered, for it is the street which enhances the adjacent property; the estimate should be made as if no street was to be opened.
With these views we remand the case to the court below.
Judgment reversed and procedendo awarded. 

3 of 12 DOCUMENTS 

AMOS A. WILLIAMS vs. NATHANIEL WILLIAMS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 467; 1854 Md. LEXIS 19 

JUNE, 1854, Decided 

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

This appeal is taken from an order of the court below dismissing the petition of the appellant. The facts of the case, as disclosed by the record, are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Where there are two administrations upon an estate, that which is foreign to the state of the domicil is usually ancillary, and as a general rule the assets within such jurisdiction will be transferred to the place of domicil.

But this rule is not absolute or inflexible; the transfer will or will not be made as the court may deem proper in the exercise of a sound judicial discretion according to the circumstances of the case.

The general rule should prevail, unless to obey it would work injustice or injury to parties having such an interest in the estate as will entitle them to object to its observance.

Where one of two executors applies for a transfer of such portion of the assets as will be sufficient to pay the legatees residing in the State of the domicil, and the necessary costs attendant upon the administration in that State, and there is nothing to show that any of the legatees assent or object, the general rule will prevail.

What may be the necessary expenses attendant upon the administration of the State of the domicil is a proper subject of adjudication by the courts of that State, and will be left to their decision.  

COUNSEL:
Thomas S. Alexander for the appellant, made the following points:

1st. That upon general principles the administration in Massachusetts is principal, and the administration in this State ancillary thereto. An account is to be passed of the assets realized here, but the residuum of the estate must be distributed by a final account to be passed before the Massachusetts' court.

2nd. That no circumstance is shown to induce the court to depart from the general rule of remitting the assets to the place of the principal administration. But if it is deemed fit to make distribution so far as to provide for the security of the representatives living here, there ought to be retained out of the assets a sum sufficient to defray the expenses already incurred by the appellant, and those which must be incurred by the executors in closing their accounts in Massachusetts. In support of his views the [**2]  appellant deems it sufficient to refer to 4 Md. 1, Cassilly vs. Meyer.

George H. Williams for the appellee.

It is submitted in this case, that the record of Martha Weld's estate, which should have been fully sent up to the appellate tribunal, will show that her entire estate, except a small fraction not worth estimating for the purposes of this argument, was in Maryland. That she devised her estate to twenty-four nephews and nieces, twenty of whom were citizens of Maryland, and the remaining four were represented before the orphans court of Baltimore city, and who were adverse to the course indicated by the appellant as to the settlement of the estate. The assets being in Maryland then, and the devisees citizens of that State, the courts of this State, to avoid a circuity and to protect our citizens, ought and will have a final distribution here of all the funds received and collected here under the authority of letters granted in this State, (Story's Conflict of Laws, sec. 513;) and that they will not detain assets here for remission elsewhere to pay expenses expressly disallowed by our testamentary system. Act 1798, ch. 101, sub-ch. 10, sec. 2.

The exhibits with [**3]  appellee's answer show, that the final settlement, in Baltimore, would be perfectly satisfactory to the court in Massachusetts, and that a copy of the final account here, under seal, showing distribution to the legatees would have discharged appellant's official bond there, and therefore no future expenses could be incurred by him.

The conduct of appellant then is unreasonable and vexatious. No evidence is given in support of any of the allegations of the petition, and the case being set down for hearing on petition and answer, the answer and its exhibits must be taken as true, and as if fully proved.

Assuming the necessity for a settlement in Boston to be as appellant states, yet no nation is under any obligation to enforce foreign laws prejudicial to the rights of its own citizens. Story's Conflict of Laws, sec. 512. An ancillary administration is not invariably and under all circumstances subordinate, but only generally subordinate. Vide same Book, sec. 518, (a.) 

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*469]  ECCLESTON, J., delivered the opinion of this court.
The parties in this case are the surviving executors [**4]  of Martha Weld, who died leaving personal estate in Maryland and in Massachusetts, her domicil at that time being in the latter State, and letters testamentary having since been granted in both States. The residuum of the estate is given to twenty-four legatees, twenty of whom reside in Maryland and the other four in Massachusetts. The appellee, as one of the executors, being about to pass a final account in the orphans court of the city of Baltimore, the appellant filed a petition, suggesting that in relation to the Massachusetts' administration he had incurred expenses amounting to about $ 50, for which he can obtain allowance in the Massachusetts' court, but which, according to the law and practice here, are not proper to be allowed in the account about to be passed. That it will be necessary to pass a final account before the Massachusetts' court, which will be attended with costs and charges proper to be defrayed out of the assets about to be accounted for. And he prays that, out of these assets, the executors may be directed to retain the sum of $ 250, to pay the costs of administration incurred, and to be incurred, in Massachusetts, and of passing a final account there; and [**5]  also to retain, out of the residue, a sum sufficient to satisfy the claims of the four residuary legatees residing in Massachusetts, and to be accounted for before the probate court of that State.
The appellee having filed an answer objecting to this application, the orphans court passed an order dismissing the petition. From this order the appeal is taken.

 [*470]  When there are two administrations upon one estate, that which is foreign to the state of the domicil is usually called ancillary or auxiliary, and as a general rule the assets within such jurisdiction will be transferred to the place of the domicil: but this rule is not absolute or inflexible; on the contrary, the transfer will or will not be made as the court may deem proper, in the exercise of a sound judicial discretion, according to the circumstances of the case. The general rule however should prevail, unless to obey it would work injustice or injury to parties having such an interest in the estate as will entitle them to object to its observance.
The present application is not to transfer the whole residuum of the assets, but such portion as will be sufficient to pay the shares belonging to the Massachusetts'  [**6]  legatees, and what are alleged to be necessary costs and expenses in relation to the Massachusetts' administration.
There is nothing in the record--to which alone we can look--showing whether the legatees, or any of them, either object or assent to the prayer of the petition. Nor does it appear whether both or either of the executors are legatees. The executor who makes the objection can no more be said to represent the legatees than the other, who filed the petition. In such a case we do not perceive any special circumstances which should prevent the application of the general rule, for remitting or transferring assets from the auxiliary administration to that of the domicil. And consequently we think the prayer of the petition should have been granted.
The copy of an administration account, passed in Massachusetts, which is filed as an exhibit with the answer of the appellee, shows that he, in conjunction with the executor, now deceased, on a former occasion, even in opposition to the objection of the appellant at that time, accounted for Maryland assets before the Massachusetts' court.
We do not wish to be considered as expressing an opinion in regard to the correctness of [**7]  the petitioner's claim for expenses, deeming that a proper subject for adjudication by the court in Massachusetts. And as due respect for a court 

 [*471]  of our sister State requires us to believe the rights of all parties will be properly guarded by that tribunal, there can be no just reason for refusing to remit to their jurisdiction such a portion of the assets as will be sufficient to meet any contingency which may result from the decision of that court.
The record is defective in several particulars, and partly on this account we decline expressing an opinion in regard to the claim for expenses, leaving it to be settled in Massachusetts, where it would seem to be proper to have it adjudicated, as the expenses relate to that administration.
Order reversed and cause remanded. 

4 of 12 DOCUMENTS 

JOHN M. FUNK'S Lessee, vs. CATHARINE KINCAID and HANNAH MURDOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 404; 1854 Md. LEXIS 14 

JUNE, 1854, Decided 

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

Ejectment by the appellant against the appellees, for a certain lot of ground in the city of Baltimore. Plea, non cul.

Exception. The plaintiff in support of his title offered:--1st, a deed of the lot, dated 5th of February 1800, from John Miller to Rebecca Mordecai, daughter of Isaac Mordecai. 2nd, a deed of the same lot, dated the 14th of February 1846, from John E. Hinchman, and Rebecca Hinchman, his wife, to Funk, the lessor of the plaintiff. He also proved, that the said Rebecca, named in the first deed, and the said Hinchman, lived together as man and wife in 1834, 1835 and 1836; that in 1835 or 1836, Mrs. Hinchman said, in presence of Mrs. Kincaid, one of the defendants, she had rented the property at $ 3 per month to Mrs. Kincaid, to which the latter said, "Yes, she was going to try it," and the next day witness saw Mrs. Kincaid in possession of the property, where she has remained ever since; that in 1844 or 1845, Mrs. Murdock, the other defendant, said she had been on the premises, in the back part of the house, for nine years, and that the property belonged to Mrs. Hinchman, and that she, Mrs. Murdock, was willing to go out.

The [**2]  defendants then gave in evidence a deed for the property, dated 20th of October 1820, from John Scott, trustee in insolvency of Rebecca Mordecai, and said Rebecca, to one West. They then offered to prove by Solomon Harris, that he had been married to said Rebecca, in Philadelphia, in the year 1834. To the admissibility of this evidence, and to the competency of said Harris, the plaintiff excepted, but the court overruled the objection and permitted the evidence to go to the jury. They also proved further by another witness the marriage of said Harris with the said Rebecca, and also by a third witness, that she had lived with Harris, as his wife, in Philadelphia, before she bore the name of Hinchman.

The plaintiff then offered two prayers, which are fully stated in the opinion of this court, which the court below, (LE GRAND, A. J.,) rejected. To this rejection, as well as to the ruling of the court in admitting the testimony of Harris, as aforesaid, the plaintiff excepted, and the verdict and judgment being in favor of the defendants he appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where a defendant in ejectment came into possession of the premises as tenant of a party who subsequently conveyed the reversion to the plaintiff, he can make no defence which denies that his lessor had a right to make the lease under which he entered into possession.

But if the deed conveying the reversion be defectively executed, or the original lessor, subsequent to the lease, make two conveyances of the reversion to different parties, the title under the second conveyance, or that under the defectively executed deed, may be disputed by the tenant.

A defendant in ejectment, the tenant of a married woman, who, with her reputed husband, subsequently conveyed the reversion to the plaintiff, cannot show that prior to the lease the landlady was legally married to another husband, who is still living, because the effect of this would be to establish that at the date of the lease the landlady had no authority to make it.

By the conveyance of the reversion the relation of landlord and tenant is created between the grantee and the lessee of the grantor, and since the statute of 4 Anne, ch. 16, sec. 4, no attornment by the tenant is necessary, and the doctrine of estoppel operates in favor of the grantee, to the same extent it would in favor of the original landlord.

Where two are defendants in ejectment and but one has admitted the tenancy, a prayer which assumes that both were estopped from denying the plaintiff's title, without leaving to the jury to find that the other came into possession of part of the premises under the former, is erroneous, for the court cannot assume this fact, no matter how full and ample the proof may be.

Prayers which assert that the doctrine of estoppel prevents the defendant, who was the tenant of the grantor of the reversion, from denying the title of the plaintiff, the grantee of the reversion, without leaving to the jury to find in what manner the plaintiff derived his title, are erroneous.

In collateral matters where neither the husband nor wife is directly interested in the event of a civil action, or directly chargeable in a criminal proceeding, the testimony of either is admissible, though it may tend to criminate the other, or to render him or her responsible for a legal claim.

In an action of ejectment, where the plaintiff claimed under a conveyance of the reversion from husband and wife, the former husband is not incompetent to prove for the defendant, the tenant of the wife, an alleged former marriage of the wife simply because he was her husband, nor does his testimony so directly and materially promote his own interest as to render him incompetent on the ground of interest.

A witness is incompetent on the ground of interest only where he has a legal, certain and immediate interest in the event of the suit itself, or in the record, as an instrument of evidence in support of his own claims in a subsequent action.

In an ejectment the plaintiff claimed under a conveyance from husband and wife, and insisted that the defendants were the tenants of the wife, and therefore estopped from disputing his title, but the tenancy was denied, and the defendants offered to prove by the former husband of the wife her alleged former marriage, and the court admitted this evidence. HELD:

1st. That this evidence was admissible if there was no tenancy, and by admitting it without qualification the court decided there was none, which they had no right to do, it being a question of fact for the jury, there being testimony to show there was a tenancy.

2nd. If the proof rendered the question of tenancy or no tenancy a doubtful one in the opinion of the court, they might have admitted it, instructing the jury that if they believed there was a tenancy, then the testimony was not properly before them.

When the preliminary proof is clear and uncontradicted, the court will decide the question of admissibility, but if doubtful, it is proper to submit the matter to the jury and let them decide the doubt, when such doubt depends upon a question of fact.  

COUNSEL:
T. Yates Walsh and Grafton L. Dulany for the appellant.

1st. The evidence of Harris [**3]  was inadmissible:--1st, because, if in point of fact he was the husband of Rebecca, that relation rendered him incompetent as a witness to prove the alleged guilt of his wife under any circumstances. 3 Cowen's Philips on Ev., 147, note 142. 2nd, because he was proving his own case; he had a direct interest on the side on which he was summoned, for the attempt is to set up a title in him to defeat the plaintiff. Suppose there had been a verdict for the defendants upon this defence, and Harris had afterwards brought ejectment against them, would not their solemn admissions of record estop them from denying his title? 3rd, because of the principle of estoppel between landlord and tenant. The title of the landlord rests upon no deed, but simply upon the fact of giving and taking possession, and the tenant cannot dispute this title directly, nor can he by any allegations of fact do it indirectly. Mr. and Mrs. Hinchman were living in Baltimore as man and wife in 1835 or 1836, and they then leased this property to the defendants. Now it is immaterial whether she was Mrs. Hinchman or Mrs. Harris, for Mrs. Kincaid received the property, and thereby admitted every fact necessary to establish [**4]  the title of the person from whom she received it. In receiving the property from Mrs. Hinchman, Mrs. Kincaid admitted she was the wife of Hinchman, and she is estopped from showing that she was Mrs. Harris, for to do so would be in effect an attempt to impeach the title of her landlady.

2nd. Our prayers assert the doctrine of estoppel between landlord and tenant, and should have been granted. It is admitted that where a party takes possession of property as tenant, that fact by implication admits the title of the landlord, and the tenant is not permitted to deny it. The doctrine of estoppel in such cases is founded upon the highest considerations of good faith. If, therefore, Hinchman and wife had brought the suit, Mrs. Kincaid could not have denied their title. Neither can she as against Funk, because the latter's deed is subsequent to the lease to her. She cannot deny the title of the parties from whom she received the property. The doctrine of estoppel extends to the prevention of the party from asserting any fact, however true it may be, which tends to deny the title of the landlord. 5 Cowen, 129, Jackson vs. Davis. 4 Johns., 230, Jackson vs. Bard. 3 Johns., 504, Jackson [**5]  vs. Scissam. 2 Caine's Rep., 216, Jackson vs. Whitford.

William Schley for the appellees.

1st. The prayers assert that both defendants are estopped from denying the title of the landlord, whereas but one of them has admitted the tenancy. But again they assert that the estoppel extends to the lessor of the plaintiff, who is the alienee of the landlady. This cannot be done. We can show the lessor of the plaintiff has no title as derived from the landlady. Again, the prayers go too far, for they tell the jury there was no evidence of an outstanding title in a third party, whereas there was such evidence by the deed to West.

2nd. The evidence of Harris was admissible. He had no interest in the suit. The rule which excludes the evidence of the husband where the wife is interested has no application to such a case as this. A husband and wife are distinct persons, and are competent witnesses in all cases where the one or the other is not a party, or has no direct interest in the result of, the suit. 1 Cowen's Philips on Ev., 79. 3 Do., 148, note 144. 22 Eng. C. L. Rep., 152, King vs. Inhabitants of Bathwick. 1 Greenlf. on Ev., sec. 342. Moreover the evidence of Harris was merely [**6]  cumulative and the fact of his marriage was proved by other witnesses.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*408]  ECCLESTON, J., delivered the opinion of this court.
The bill of exceptions presents questions arising upon two prayers asked by the plaintiff, and upon objections made by him to the admissibility of the testimony of Harris and Heighe, two witnesses on the part of the defendants. But the objection to the testimony of Heighe has been waived; and we will proceed, first, to consider the questions presented by the prayers.
They both assert the principle, that in an ejectment suit the defendant is estopped from denying the title of the lessor of the plaintiff, where the defendant came into possession of the premises as tenant of a party who has conveyed the reversion to the lessor of the plaintiff. The counsel for the appellees concedes, that as between lessor and lessee the latter cannot deny the title of the former, but he insists that the doctrine of estoppel does not prevent a tenant from disputing the validity of a title which the lessor has attempted to convey, or transfer, to another party, who has instituted an action [**7]  to recover possession of the premises from the tenant. To a certain extent the appellees' counsel is correct. For if the deed or instrument intended to convey the reversion should be defectively executed, or in case the original lessor, subsequent to the lease, should convey all his right in the estate, and then execute a second conveyance for the same, in favor of another person; the title claimed under the second conveyance, or that under 

 [*409]  the supposed defectively executed instrument, might be disputed by the tenant. But he can make no defence in ejectment which denies that his lessor had a right to make the lease, under which he entered into possession. The title of the lessor, as of the date of the lease, is in fact the title of the lessee. The former cannot be impugned without disparaging the latter. And if the tenant attempts to set up any other title as existing at the date of the lease, he will be violating the contract by which he obtained possession. This subject is discussed very fully in Willison vs. Watkins, 3 Peters' Rep., 43, and on page 47 the court say: "It is an undoubted principle of law, fully recognized by this court, that a tenant cannot dispute [**8]  the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession." See also 5 Cowen 129. 2 Caine's Rep. 216. 7 Wheat. 548, 549. 5 Eng. C. L. Rep., 4. 29 Ibid. 16, and 25 Ibid. 239.
In Doe on Dem., Higginbotham vs. Barton, 11 Adol. & Ellis 307, in 39 Eng. C. L. Rep. 99, the rule is said to be fully established, "that the tenant cannot deny that the person by whom he was let into possession had title at that time, but he may show that such title is determined."
Here the effort is not made to prove the termination of Mrs. Hinchman's estate or title subsequent to the lease, but to show that prior to it she had been legally married to Harris, who was still living. The effect of which proof, if admissible, would be to establish, that at the date of the lease she had no authority to make it. Now as it is manifest from the authorities [**9]  a tenant cannot resort to such proof for such a purpose, it would seem, necessarily, to follow, that the same proof could not be used in defence to show a want of authority in Mrs. Hinchman to convey her title to the lessor of the plaintiff. The doctrine of estoppel, as between lessor and lessee, would avail nothing in ejectment if the inability of the latter to impeach the title does not apply between her and the party 

 [*410]  claiming under the former, for if it does not, then, even the lease to the fictitious plaintiff might be assailed. It is certainly true, as a general rule, that a party cannot maintain an ejectment who cannot make a valid lease. The proof in regard to the marriage between Harris and Mrs. Hinchman is, that it took place before she rented the property to Mrs. Kincaid. To say that the conveyance to Funk by Mrs. Hinchman and J. E. Hinchman, as husband and wife, made since the lease from her, is a nullity, because she is not the wife of Hinchman but of Harris, is a direct denial of the title received by Mrs. Kincaid under the lease. For if she had no right to make the one she had none to make the other conveyance, and for the same reason.
There is evidence tending [**10]  to prove that Mrs. Kincaid was the tenant of Mrs. Hinchman prior to the deed from Mr. and Mrs. Hinchman, and it does not appear that the tenancy of Mrs. Kincaid had ceased to exist when this deed was made. If, therefore, she held under the lease when the deed was made, she could not deny the right of Mrs. Hinchman to make the conveyance, and by that instrument the relation of landlord and tenant was established between the grantee in the deed and Mrs. Kincaid. That this is the necessary consequence of the conveyance may be seen by reference to Archb. Law of Landlord and Tenant, 69, 70, in 53 Law Lib. 86. And since the statute of 4 Anne, ch. 16, sec. 9, no attornment by the tenant is necessary. See 20 Eng. Law & Eq. Rep. 94.
In Willison vs. Watkins, the father of the defendant below was the tenant of Bordeaux in 1792. Under a sheriff's sale in 1803, the plaintiff below purchased the title of Bordeaux, and in the suit, claimed to stand in the relation of landlord to the defendant, who was the son of the original tenant. Limitations was the defence relied upon. And although the proof clearly established an adverse holding for a much longer time than the statute [**11]  of South Carolina required, yet the plaintiff succeeded below; the judge having instructed the jury, that when the proof showed a tenancy had once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession could be alleged. This decision 

 [*411]  was reversed by the Supreme Court, upon the ground, that although a party may be a tenant, the landlord's title may be defeated by limitation, if, after having knowledge of an adverse claim, he permits the adverse holding to continue for the period required by the statute without suit; notwithstanding possession had not been given up before the commencement of the adverse claim. But there is no expression or even an intimation of a doubt, that the doctrine of estoppel would operate in favor of an assignee or grantee of the reversion to the same extent it would in favor of the original landlord.
By the first prayer the court were asked to instruct the jury, that "if from the evidence they should find the property in dispute was rented to Mrs. Kincaid, in the manner stated in the proof, and under that renting she entered and took possession of the whole property, for which this action was instituted,  [**12]  then the said defendants are estopped from setting up any outstanding title in said defendants, or any other person adverse to that of the plaintiff." It is here assumed that both defendants were prevented from denying the plaintiff's title; provided, the jury should believe the property was rented to Mrs. Kincaid, and that she took possession under the lease; without submitting to the jury any inquiry as to how or in what manner Mrs. Murdock became possessed of part of the premises. Supposing that in regard to Mrs. Kincaid the prayer may be correct, still the court could not say that the facts stated, if believed by the jury, would estop Mrs. Murdoch from disputing the title of the plaintiff, because it would be assuming that she did not come into possession in any other way than under Mrs. Kincaid, without leaving the jury to find whether such was the case. And this the court could not do, no matter how full and ample the proof to justify such an inference or conclusion.
The second prayer is, that "if the jury believed Mrs. Hinchman was in peaceable and quiet possession of the property in dispute, and so continued from the year 1820 until it was rented by her to the defendant,  [**13]  Mrs. Kincaid, who accepted the same, and entered and took possession of it as the tenant of Mrs. Hinchman, and that Mrs. Kincaid remained in 

 [*412]  possession under her original entry, then it is not competent for said defendant to set up a title in herself, or in any third party, to defeat, nor is there any evidence in this case, in point of fact, to show any such title in said defendant or any third party, as can bar the right of recovery of the lessor of the plaintiff."
There are two propositions presented in this prayer. The first is, that if the jury ascertain the facts submitted for their consideration to be true, then Mrs. Kincaid could not set up title in herself or any one else, to defeat the claim of the plaintiff. The second is, that if those facts are believed by the jury, then, in point of fact, there is no evidence of title in Mrs. Kincaid, or any other person, which can legally bar the right of the plaintiff. In other words, the meaning of the instruction, as we understand it, is, that if the relation of landlady and tenant existed, between Mrs. Hinchman and Mrs. Kincaid, the latter could not impeach the title of the lessor of the plaintiff, by proving title [**14]  adverse to his. And that in fact there is no proof of any adverse title, which the law will permit to be used as a bar to this action; provided the jury believed the facts stated in the beginning of the prayer.
The doctrine of estoppel as relied upon in the first part of this prayer is clearly confined to Mrs. Kincaid alone; but the same cannot be said of the latter clause. When it says, "nor is there any evidence in this case, in point of fact, to show any such title in said defendant, or any third party, as can bar the right of recovery;" &c., it denies not only to Mrs. Kincaid, but to Mrs. Murdoch also, the authority to set up the title of a third party in opposition to the plaintiff's claim. And, therefore, the reasons assigned for affirming the rejection of the first prayer apply with equal force in bringing us to the conclusion that the court below were right in refusing the second also.
But admitting the reasons already assigned may not be sufficient to justify or sustain the rejection of the prayers, still they ought not to have been granted, because they ask the court to instruct the jury that if they believe Mrs. Kincaid was the tenant of Mrs. Hinchman, then the doctrine [**15]  of estoppel prevents a denial of the title of the lessor of the plaintiff; 

 [*413]  without requiring that the jury shall find any conveyance or transfer of title to him by Mrs. Hinchman, or in what manner he acquired any title. It is true the deed to him is in evidence, but the prayers make no allusion to it. And the court could not assume the existence of the deed, no matter how clear the proof on that subject. Although the jury may have believed there was a lease from Mrs. Hinchman to Mrs. Kincaid, and that she took and held possession under it, yet she was not estopped from disputing Funk's title or setting up another in opposition to it, unless he had obtained the title of Mrs. Hinchman. And if he had, it was necessary for the jury to find it to be so, before he was entitled to an application of the law of estoppel in his favor, on account of the relation of landlord and tenant. Both prayers are evidently based upon this kind of estoppel, and neither of them having submitted to the jury any question as to how the lessor of the plaintiff claimed or acquired title, they were defective in that respect, and consequently the court committed no error in refusing to grant them.  [**16]  
The decision below under which Harris was permitted to testify in regard to the marriage between himself and Mrs. Hinchman has been objected to on several grounds. In the first place it is said the relation of husband and wife rendered him incompetent; and that whether a wife is or is not a party to the suit, if there is evidence in regard to her being a married woman, and an effort is made to prove a former marriage, the alleged former husband is not a competent witness to sustain the allegation; because he would be proving the guilty conduct of his own wife, if permitted to testify. This view is sustained by the case of Rex vs. Cliviger, 2 Term Rep. 263, where it was held that a wife could not in any case give evidence, even tending to criminate her husband. But the authority of that decision was very much shaken by Rex vs. All Saints, 6 Maule & Selw. 194, where Lord Ellenborough thought the rule in Rex vs. Cliviger had been laid down "somewhat too largely." Both those cases are referred to in Rex vs. Bathwick, 2 B. & Ald. 639, in 22 Eng., C. L. Rep. 152. There, upon a question of settlement, the husband [**17]  was called, 

 [*414]  who proved his marriage with the pauper. Subsequently it was proposed to prove by another woman that she had been previously married to the male witness, and although objected to, her testimony was received. The rule in Rex vs. Cliviger, was admitted to be true, "in the case of a direct charge and proceeding" against a husband for any offence, but its application to collateral matters was denied. The court admit that if the testimony given by both witnesses should be considered as true, then the husband had been guilty of bigamy; but as nothing the wife said, or any decision of the court founded upon her testimony could be received in evidence to support an indictment against him for that offence, the wife was decided to be a competent witness.
In Griffin vs. Brown, 2 Pick. 308, C. J. Parker considers the cases to which he refers as establishing the principle, that a wife may be admitted as a witness, to excuse a party from a supposed liability, for which he is sued, although her testimony may be calculated to charge her husband upon the same claim, in a subsequent action against him. And the reason assigned is, that the verdict in [**18]  the first action cannot be used as evidence in the second; so that notwithstanding her testimony might show her husband's liability, yet he could not be prejudiced by it. On this subject Mr. Greenleaf in his Treatise on Evidence, vol. 1, sec. 342, says, "but though the husband and wife are not admissible as witnesses against each other, where either is directly interested in the event of the proceeding, whether civil or criminal; yet, in collateral proceedings, not immediately affecting their mutual interests, their evidence is receivable, notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal demand." If therefore the concurring opinions of Lord Ellenborough, Lord Tenterden, C. J. Parker and Mr. Greenleaf, may be taken as establishing the correctness of a legal proposition, it must be considered as a well settled general rule, that in collateral matters, where the husband is not directly interested in the event of a civil action, or directly charged in a criminal proceeding, the testimony of the wife may be admitted, although it may tend to criminate him, or to render 

 [*415]  him responsible for a legal claim.  [**19]  And, of course, under similar circumstances, the husband will be allowed to testify in regard to collateral matters affecting the wife. Consequently, Harris was not incompetent to prove the alleged former marriage of Mrs. Hinchman simply because he was her husband.
The testimony of Harris is also objected to because it must necessarily tend to advance his own interest; the object being to prove the former marriage of Mrs. Hinchman, and consequently to establish her incapacity to execute the deed purporting to convey title to the lessor of the plaintiff. If it can be shown that he has no title, the defendants must have a verdict in their favor. Should that be the result, and Harris, as the legitimate husband of Mrs. Hinchman, should institute a suit to recover possession of the premises, it is supposed the testimony given by him in this suit, at the instance of the defendants, would be admissible evidence for him in support of his own claim to a verdict. And although in the subsequent action the verdict in this could not be given in evidence by him, yet the testimony proposed to be given by him, and which was admitted, is calculated to produce a result in which he has a direct [**20]  interest. But if his right to recover is based upon the first marriage, we do not perceive how he would have a better chance of success against the present defendants than against the lessor of the plaintiff. The latter claims under a deed from Mr. and Mrs. Hinchman, as husband and wife, and if the former marriage is once established his title is gone. Whilst it will be seen that the defendants do not profess to claim under Mrs. Hinchman, but make every effort to deny the title which the plaintiff claims under her. They resist the attempt on the part of the plaintiff to establish the relation of landlord and tenant, for the purpose of introducing the doctrine of estoppel in his favor. And even conceding that proof offered in this suit by the defendants could be used against them in a subsequent one by Harris, yet if the lease from Mrs. Hinchman to Mrs. Kincaid should there be proved by the witness here relied upon for that purpose, so soon as Harris introduces his present testimony to establish the former 

 [*416]  marriage that must put an end to the lease, because it will show there was no authority or right in Mrs. Hinchman to make it. And if Harris, as plaintiff, should show [**21]  that the relation of landlord and tenant did not exist, the defendants would not be prevented by estoppel from denying his title, or setting up one in themselves or any third party.
Again, if the present testimony of Harris could be used by him in a future suit against the defendants, it could not possibly have any more beneficial effect in his favor than would the simple offer of the defendants to prove the marriage by him. That offer as clearly established their admission of, and reliance upon, the marriage, as his statement of the matter under oath could, because the testimony, if admissible at all, could only be so as their admission. We therefore do not see how his testimony can so directly and so materially promote his own interest as to render Harris an incompetent witness on the ground of interest. In Crawford v. Brooke, 4 Gill 213, whilst considering the question whether a witness alleged to be interested was properly permitted to testify, the court say: "It is now established, that the only cases in which, for this cause, a witness is incompetent, are, where he has a legal, certain and immediate interest in the event of the suit itself, or in the record,  [**22]  as an instrument of evidence in support of his own claims in a subsequent action." It cannot be said that the present record could be used as an instrument of evidence for Harris in a future suit; and we do not think he comes within the other branch of the rule just stated.
A third objection to the propriety of receiving the testimony of Harris has been urged in argument. This is the principle of estoppel as between landlord and tenant. It is contended that proof of the former marriage cannot be given, because the very object of it is to show Mrs. Hinchman had no right to make the conveyance to Funk, and consequently none to make the lease to Mrs. Kincaid.
In ejectment the title of the plaintiff, as a general rule, is always in issue, and any testimony impeaching that title is relevant and proper, if not inconsistent with some other principle of evidence. An exception to this rule is, that a tenant 

 [*417]  cannot deny the landlord's title. But, of course, before the exception can avail any thing, the relation of landlord and tenant, if not admitted, must be established by legitimate proof. Here proof of the former marriage was proper if no lease had been made. Whether there was [**23]  one or not was a disputed matter, and constituted a very important and material issue in the cause, the plaintiff asserting the affirmative and the defendants the negative. Admitting the testimony virtually decided there was no lease; and thus, in settling a preliminary question in regard to the admissibility of evidence, by receiving the testimony without any qualification or hypothetical instruction to the jury, the court decided an important question of fact, depending entirely upon parol proof proper for the consideration of the jury in the formation of their verdict. The record shows there was testimony tending to prove the existence of a lease, but whether it was sufficient to satisfy a jury of that fact it is not necessary for us to say, whatever may be our opinion on that subject. The circumstances, however, justify us in saying, and the position of the case requires us to decide, that the proof is not such as could authorize the court below to assume there was no lease, and on that assumption to admit the testimony of Harris without any restriction or qualification. In our opinion an unqualified rejection of the evidence, rather than an unqualified admission of it, would have [**24]  been more consistent with the state of the proof in the cause. It certainly cannot be said with propriety, that the testimony proves clearly and satisfactorily the non-existence of the alleged lease. We have said Harris' testimony was inadmissible except upon the hypothesis that no lease had been made. If the proof, in the estimation of the court, rendered the question of lease or no lease a doubtful one, they might have permitted the offered testimony to have been given, instructing the jury that if they believed Mrs. Kincaid rented and received possession of the premises from Mrs. Hinchman, who afterwards conveyed her title to the lessor of the plaintiff, and that Mrs. Murdock received part of the property under Mrs. Kincaid, then the testimony of Harris in regard to the former marriage was not properly before them, otherwise it was.

 [*418]  In Trasher vs. Everhart, 3 G. & J. 234, it was decided, that proof necessary to establish the admissibility of evidence which the party wishes to give should first be addressed to the court, and when clear and uncontradicted, they will decide and admit the evidence. In that case it was supposed necessary to prove [**25]  what the laws of Virginia were, for the purpose of showing by those laws that the instrument of writing offered in evidence was a promissory note, and as such should be allowed to go to the jury. The court held, that when it is doubtful as to what the foreign law is, "the court may decline deciding it, and may inform the jury that if they believe the foreign law attempted to be proved exists, as alleged, then they ought to receive the instrument in evidence; on the contrary, if they should believe that such is not the foreign law, they should reject the instrument as evidence." And the same case treats of the proper mode of proceeding when a deed is offered in evidence. In the first instance, proof of its execution is to be addressed to the court, and upon such proof they determine whether the deed is admissible or not, unless the evidence of its execution is doubtful, in which case it is said: "The court will let the deed go to the jury with the evidence offered of its execution, informing them that they are to receive it in evidence if they shall believe it to have been executed, but if they should believe it was not executed they must reject it; or in other words, not consider [**26]  it as evidence in the cause." See also Dement's Adm'rs vs. Stonestreet's Adm'r, 1 Md. 116.
According to the case of Trasher vs. Everhart, when the preliminary proof "is clear and uncontradicted," the court will decide the question of admissibility, but if doubtful, it is proper to submit the matter to the jury and let them decide the doubt, when such doubt depends upon a question of fact. We do not mean to say that every slight degree of doubt created by preliminary proof, or other proof in the cause upon which the question of admissibility may depend, will require the court to decline deciding that question and leave the doubt to be settled by the jury. But in a case like the one before us, it would be intruding too far upon the rights of the jury 

 [*419]  were we to sustain the decision below. By admitting the testimony without any instruction on the subject, in effect, the court decided there was no lease; and this was calculated to mislead the jury, by inducing them to believe either that the court thought the alleged lease had no existence, or that it could not legally have any influence in favor of the plaintiff.
Other testimony than that of [**27]  Harris was given for the purpose of proving the former marriage, but not having been excepted to, it is not before us.
We think the court were right in refusing both prayers for the reasons stated, but in our opinion they committed an error by admitting the testimony of Harris without giving the jury any instruction on the subject, and consequently the judgment must be reversed.
Judgment reversed and procedendo awarded. 

5 of 12 DOCUMENTS 

THOMAS S. ALEXANDER vs. SARAH M. WORTHINGTON and WILLIAM WORTHINGTON, an infant, by his next friend.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 471; 1854 Md. LEXIS 20 

JUNE, 1854, Decided 

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

This appeal was taken from an order of the court below granting an injunction upon a bill filed by the appellees against the appellant and others, represented to be the heirs at law of Michael B. Carroll, deceased. The allegations of the bill and all the facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

Under the act of 1835, ch. 380, any one defendant may, after filing his answer, appeal from an order granting an injunction without waiting for the answers of his co-defendants; and on such appeal this court is confined to the case made by the bill, and does not examine the answer.

The act of 1849, ch. 229, leaves the case of a will made by a testator who had died prior to its passage to be governed by the ancient law.

It subjects to the operation of the new rule a will made by a testator dying after its passage and before the 1st of June 1850, only when he has expressed the intent that the will shall pass all the estate which he might have at the time of his death.

It applies the new rule to every case of a will made perfect by the dying of the testator after the 1st of June 1850, unless a contrary intent shall appear; and the class of wills made after its passage by testators dying before the 1st of June 1850 are embraced within the equity of its second section.

The case of Magruder and Tuck, vs. Carroll, et al., 4 Md. 335, only decides that the first section of the act of 1849, ch. 229, governs the case of a will of a testator dying after the 1st of June 1850, although it may have been made prior to that day, and that case is affirmed and approved.

The language of a statute is its most natural expositor, and where the language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations.

The construction is to be on the entire statute, and where one part is susceptible of two constructions and the language of another part is clear and definite, and is consistent with one of such constructions and opposed to the other, that construction which will render all clauses of the statute harmonious must be adopted.

Where the letter of a statute is inconsistent with itself, an intent may be gathered by considering the mischief and the remedy proposed to be introduced, but what the mischief and remedy are must be collected from the statute itself.

The courts cannot imagine an intent and bind the letter of the act to it, nor indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its original form does not evidence.

Every construction is vicious which requires great changes in the letter of the statute, and of several constructions that is to be preferred which introduces the most general and uniform remedy.

All that is necessary in this State to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged.

But general views expressed by the court as illustrative of, but not necessarily leading to, the opinion on the point intended to be decided, are not to be treated as conclusive when similar topics come up directly for judgment.

Lands descended are first applicable in payment of debts in relief of personal estate specifically bequeathed.

The specific legatee of a chattel of peculiar value, as a household slave, has an equity to restrain the executor, who is also the heir at law, from applying that chattel to the payment of debts for the purpose of protecting his inheritance, the creditors being passive and content to take payment out of either fund.  

COUNSEL:
Thos. S. Alexander for the appellant.

The act of 1835, ch. 380, enables any one defendant, on filing his answer, to appeal from an order granting an injunction. 7 Gill 109, Barnes vs. Dodge. The appellant has filed his answer, which is unexceptionable. His appeal is therefore rightly taken.

If we refer to the answer it will appear, that a due regard for his own safety has compelled the appellant to exercise his right of appeal. The heirs at law of Carroll have filed their bill against him in the circuit court of the United States, to compel him to convey the land in question to them. And since the filing of the answer, an injunction has been issued at their instance, to restrain him from making a conveyance to the appellees, who claim under the devise to Mrs. Carroll. Now the appellant [**2]  is a mere trustee of the legal title for the true representatives of Carroll's interest in the land. And the utmost that ought to be asked of him, is, that he shall preserve the legal title for the rightful owners, when they shall have been ascertained. Yet he is made the material defendant to two suits instituted by the rival claimants in different courts: and those suits are so prosecuted that he cannot execute any decree which may be passed by either court, without exposing himself to the censure of the other. He has not been instrumental in producing this state of things. Nor is there any principle on which he could be expected to waive his privilege of having an early hearing.

The act of 1835 requires the court at the first term to which the case is transmitted, to determine the appeal. He has a perfect right, therefore, to demand a hearing at this moment.

There is nothing in the act, or the practice of this court requiring him to give notice of his appeal to any other party to the suit. As a measure of precaution however, he has given notice to the counsel for the heirs at law of his purpose to urge a hearing of this appeal at the earliest moment; and he accompanied [**3]  his notice with an offer to authorise them to appear and argue the appeal on his behalf. Indeed, those heirs at law ought to have filed their answers and united with the appellant in this appeal, and as they are the parties materially interested in the event they might fairly ask leave to participate in the discussion. It was to avoid any technical difficulty that the tender was made to them.

The merits of the injunction depend exclusively on the true construction of the act of 1849, ch. 229: and the question is presented as fully and fairly by the present record, as it can be in any future stage of the cause. Did the will of Michael B. Carroll, deceased, operate to pass the land in controversy to his widow and devisee, Mrs. Carroll? The appellees here, who are complainants below, maintain the affirmative, and rely upon the decision of this court, in Magruder vs. Carroll, 4 Md. 335. If they can show that the land was validly devised to Mrs. Carroll, they have succeeded to her title, and it must be admitted, are entitled to their injunction to prevent the appellant from conveying the title to other parties. On the other hand the heirs at law of Carroll deny the title of Mrs.  [**4]  Carroll, as devisee of her husband, and they rely on the decision of the Supreme Court, recently made in Carroll vs. Carroll's Lessee. On this hypothesis the injunction was improperly granted. The appellant is not bound to decide between such authorities. But finding the case ripe for an appeal, and instructed that the Supreme Court acknowledges the authority of this court as the ultimate expositor of all statutes concerning the title to lands within this State, he asks that his duty may be expressed in terms which cannot be mistaken; and with an authority which will require and justify his implicit obedience. He submits the appeal upon the decision of the Supreme Court, and, relying on its correctness, asks for a reversal of the order from which he has appealed.

Wm. Schley for the appellee.

The sole question in this case is, whether the will of the late Michael B. Carroll, dated the 10th of September 1837, is to be construed and have effect, pursuant to the act of 1849, ch. 229, as if executed immediately before his death, which occurred on the 30th of August 1851?

It is admitted that the opinion and decision of the Supreme Court of the United States, in the case of [**5]  Carroll vs. Carroll's Lessee, recently decided, that the act does not apply to this will, but with all becoming respect for that exalted tribunal it is insisted that their construction of the act of 1849 is not correct, and is contrary to many decisions of high authority; and that if the question was res integra in this court, the opinion of the Supreme Court ought not to be adopted.

But the point is res adjudicata in this court. It has been decided in the case of Magruder, et al., vs. Carroll, et al., 4 Md. 335. The question was elaborately argued and deliberately decided in that case. That decision is final, and in case of conflict this court should adhere to its own decision. 23 Miss. Rep., 496, Shelton vs. Hamilton. Besides this, the Supreme Court erroneously supposed that the construction of the act of 1849 was not necessarily involved in the case of Magruder and Tuck, vs. Carroll, et al: otherwise that court, in accordance with its settled practice, would have followed the decision of this court in the construction of a Maryland statute of a local character.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*475]  ECCLESTON,  [**6]  J., delivered the following opinion:
In the case of Magruder and Tuck, vs. Carroll, et al., 4 Md. 335, the question, whether, under the act of 1849, ch. 229, the will of Michael B. Carroll passed his real estate acquired subsequently to the date of his will, was elaborately argued by counsel for the respective parties as a question legitimately presented by the record. The court likewise so considered it. And having been informed that the circuit court of the United States for the Maryland district had so construed the statute as to decide that its provisions did not affect this will, the Court of Appeals examined the subject with great care and deliberation. After much reflection, since the decision then made, I still think this court then gave a proper construction to the statute. Fully impressed with this belief, I concur with my brethren in the propriety of adhering to our construction, and therefore unite with them in affirming the order passed in this cause by the circuit court for Baltimore city. But I do not deem it necessary to express any opinion as to what should have been the decision of this court, in the former case, if we had given a different construction [**7]  to the statute.

 [*476]  LE GRAND, C. J., delivered the opinion of this court.
This appeal is taken from an order of the circuit court for Baltimore city, granted on a bill filed by the appellees against the appellant, and certain other persons represented to be the heirs at law of Michael B. Carroll, deceased, whereby an injunction was directed to be issued against the appellant, to restrain him from making a conveyance of a tract of land, described in the bill, to the said heirs at law.
The bill states in substance, that Michael B. Carroll, lately deceased, in his lifetime, purchased a tract or parcel of land in Prince Georges county, of the appellant, Alexander, as trustee, &c., for the sum of $ 20,000, or thereabouts; and that the said purchase money had been paid in part by Carroll in his lifetime, and the residue by his administrators, since his death. That on the 10th of September 1837, Carroll made his last will, whereby he devised the residue of his real and personal estate to his wife, Jane M. Carroll. That he died on or about the 30th of August 1851, leaving Mrs. Carroll surviving him; who thereupon entered into possession of said land, claiming the same as devised [**8]  to her by the will of her deceased husband. That she died in September 1853, leaving a last will by which she devised said land to the complainants, that is, to Sarah M. Worthington for life, with remainder over to said William Worthington in fee. And that they have entered upon said land. They pray that the appellant may be required to convey the same unto them according to their several and respective interests therein, as devisees of Mrs. Carroll. They state further, that the heirs at law of Michael B. Carroll deny the right of the complainants to said land, and claim that the conveyance thereof ought to be made to them; and therefore pray an injunction may be granted to restrain the said Alexander from conveying said land to the said heirs at law, or to any other person or persons, to the prejudice of the complainants.
On this bill an injunction was granted. The appellant filed his answer, in which he admitted most of the facts in the bill; but states that in a cause properly before this court, and involving the question involved in this cause, it was adjudged 

 [*477]  that the last will of Michael B. Carroll, had validly devised all the real estate of the testator to his widow;  [**9]  but on the other hand the Supreme Court of the United States, have recently decided that the said last will had no operation or effect on the land purchased by the testator after the date of his will. He says, also, that the heirs at law, or some of them, have filed their bill in the circuit court of the United States, against him and the present complainants, praying that he, the said Alexander, may be required to convey to them the land in controversy in this suit. He submits the question of right to the court; but denies the equity of the present complainants to an injunction, which would restrain him from making a conveyance, in obedience to a decree of the circuit court of the United States, in case such decree should pass, unless the State court can protect him from the consequences.
Although but one of the defendants has appealed from the order granting the injunction, the appeal is properly before us. The 3rd section of the act of 1835, chapter 380, provides, "That where any injunction shall issue from the court of chancery, or any county court as a court of equity, the defendant or defendants in the case, or any of them, may appeal, the answer or answers of such appellants [**10]  being first filed, from the order of the chancellor granting the injunction, or refusing to dissolve it, to the Court of Appeals of the Shore where such injunction shall have issued, and the said court at the first term to which the case shall be transmitted, shall determine the said appeal, and shall pass such an order in the premises as to it may seem right." The Court of Appeals in the case of Barnes and Lynch, vs. Dodge, 7 Gill 109, held that under this section of the act of 1835, a defendant who has answered the bill for an injunction, may appeal from the granting or refusal to dissolve it upon motion, without waiting for the answers of his co-defendants; and in the case of Wagner and Marshall, vs. Cohen, 6 Gill 97, it was declared, that upon an appeal under the act of 1835, chapter 380, from the granting of an injunction only, this court is 

 [*478]  confined to the case made by the bill or petition and does not examine the answer. We refer to these authorities for the purpose of showing, that the question presented by the bill of the appellees is directly presented for our adjudication.
The case involves the construction of the act [**11]  of 1849, chapter 229, relating to devises, which, it was supposed had been settled by the decision pronounced in Magruder and Tuck, vs. Carroll, 4 Md. 335. The Supreme Court of the United States, in the case of Carroll vs. Carroll, have decided that the decision by the Court of Appeals of Maryland, is not to be treated as a judicial exposition of the act, and has given to the act a construction the reverse of that which was expressed by this court. It now remains for this court to determine, whether the ultimate jurisdiction to settle the construction of the statutes of Maryland, relating to the conveyance of land situate within this State, resides in this court, or in the Supreme Court of the United States; and also, whether the decision in 4 Md. will be adhered to.
The decision of the Supreme Court affirms two propositions:
1st. That the act of 1849, chapter 229, sec. 1, extends only to wills made after the first day of June 1850.
2nd. That the Supreme Court are at liberty to disregard the decision of the Court of Appeals of Maryland, by which a different construction is given to that act.
Whatever diversity of opinion may be entertained as to the [**12]  true construction of the first section, all must concede that the letter thereof is susceptible of the construction placed thereon by the Court of Appeals. Punctuated as it stands on the statute book, it reads thus: "Every last will and testament, executed in due form of law, after the first day of June next, shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will."
In the next place from a general view of the act, we must infer that the legislative intent was:
1st. To leave the case of a will made by a testator, who 

 [*479]  had died prior to the passage of this act, to be governed by the ancient law:
2nd. To subject to the operation of the new rule, a will made by a testator dying after the passage of the act, and before the 1st day of June 1850, only when the testator has expressed the intent, that the will shall pass all the estate which he might have at the time of his death.
3rd. To prescribe a new rule which should apply to every case of a will made perfect by the dying of the testator [**13]  after 1st of June 1850, unless a contrary intent should appear.
Now the intent thus collected from the general considerations of the mischief to be remedied, and the remedy proposed to be applied, can be fully gratified by giving to the first section the construction which has been placed on it by the Court of Appeals, and by embracing within the equity of the second section the limited class of wills made after the passage of the act, by a testator dying before the 1st of June 1850. On the other hand, the construction given to the act by the Supreme Court, excludes that limited class, as well from the letter, as the equity of the section; and all wills made before the 1st of June 1850, except the particular class of cases provided for by the letter of the second section, are left utterly without remedy. The intent of the legislature is, therefore, in a great degree, defeated, and the remedy which was designed to be general, is limited to special cases, which are selected on principles which disregard equally the intent and letter of the statute.
Thus, if the testator devised all his estate which he may leave at the time of his death, and the will was made before the passage of the [**14]  act, and the testator died before the 1st of June 1850, his intent will be gratified. But, if the will had been made the day after the passage of the act, and the testator had died the day before, or the day after the 1st of June 1850, or if the will being made before the passage of the act, the testator had died after the 1st of June 1850, in any and every such case his intent, thus plainly expressed, would be disregarded. And what is the course of reasoning by which the Supreme Court have been led to prefer a construction of the act which thwarts the intent of the legislature, and introduces literal and 

 [*480]  anomalous distinctions, to a construction which is equally consistent with the act, and, which would gratify the intent, and render the law uniform and consistent?
It said, that upon the construction adopted by the Court of Appeals, the act "would change the legal operation, not only of existing wills, but of those which had already taken effect by the death of the testators."
Now the Court of Appeals have decided only that the first section of the act governs the case of a will of a testator dying after the 1st day of June 1850, although it may have been made prior [**15]  to that day. Is it a necessary conclusion, that it must equally embrace the case of a will made by a testator who died a century ago? Is there not, on the contrary, a sensible and clearly defined difference between the two cases? The distinction is stated in the cases reported in 12 Metcalf 169 & 262, with a perspicuity and cogency of reasoning, which will not suffer by comparison with the decision in 9 Iredell 288. A will is ambulatory during the testator's life. It is made perfect and operative by his death. After that event, the title of the devisee becomes vested, and a subsequent statute which would retroact on that vested right, may be deemed inconsistent with natural equity. But no such objection lies against a statute which affects to change the construction or operation of a will made at the time by a testator then in being, and who has the capacity of changing his will; and especially where the object of the statute is to gratify the intention by subordinating a rule of law "hitherto inflexible," to the intent, and where the operation of the statute is postponed, to a day future, within which the testator may accommodate his will to the existing state of the law.  [**16]  
But, in the judgment of the Supreme Court, "the interpretation put by the Supreme Court of Massachusetts on the statute of that State, was attended with none of the difficulties which beset the construction of the statute of Maryland, contended for by the counsel for the devisees." The decisions made by the court of Massachusetts are considered to be "a departure from an important principle," the vindication of which was attended with "some effort." The import of this 

 [*481]  last expression, in its personal application, and its entire propriety as parcel of the judgment of the most dignified judicial tribunal in this land, must be left to be settled between the court by which the imputation is uttered and the court against which the imputation is cast. We accept it as an intimation, that if the construction of the statute of Massachusetts should ever come in judgment before the Supreme Court, the decisions in question will be overruled. It would have been more satisfactory to the profession, if the Supreme Court had made an "effort" to explain the grounds of their dissatisfaction with the decisions of the court of Massachusetts. Would the Supreme Court ignore the distinction [**17]  between the title vested in the devisee by the death of the testator, and the inchoate and impalpable possibility of title of one named as an object of bounty in a will, the maker of which is still in being? Do they mean to deny the right of the legislature to provide by law, passed after the making of the will, that a testator may dispose of after acquired lands by a will plainly and manifestly declaring an intention to do so? Or, that a court of justice should feel any doubt in giving effect to a law having such object in view, and expressing its purpose in language which "could only operate in furtherance of the intention of the testator, and could never defeat that intent? "The verbal differences between the Massachusetts statute and that of Maryland, are very apparent. The court of Appeals has only adopted the principles of construction enunciated by the court of Massachusetts, as applicable equally to both cases, and a great "effort" would be necessary to discriminate clearly and satisfactorily between them.
In Massachusetts, as in Maryland, the English rule prevailed, viz., that a will would not pass title to after acquired lands, and the object of the two statutes was to change [**18]  this rule. In Massachusetts the object was to be effected by providing "that the lands acquired by a testator, after the making of his will, shall pass thereby, if such shall clearly and manifestly appear by the will to have been his intention." In Maryland the provision is, "that a last will shall be construed with reference to the real estate comprised in it, to speak as if it had been executed on the day of the death of the testator, unless a contrary 

 [*482]  intention shall appear by the will." Each law confers on the testator a new power or capacity, and clothes the will with a new operative quality. Thus far the statutes are coincident in their object and effect. In the application of either law to a particular case, a question of construction arises. To bring a case within the purview of the Massachusetts law, it must appear affirmatively that the testator intended to dispose of his after acquired land. Under the Maryland law, it is to be presumed he so intended, unless the contrary intention shall be expressed. One law casts the onus on the devisee; the other on the heirs at law. If the concluding words of the Maryland act, "unless a contrary intent shall appear," were [**19]  replaced by the words from the Massachusetts statute, "if such clearly and manifestly appear to have been his intention," no "effort" whatever could have drawn a sensible distinction between the two cases. But the analogy between the statutes, which induced the Court of Appeals to suppose that the principles of construction which had been applied in Massachusetts to the one, were just as applicable in Maryland to the other, seems to have been overlooked. In Massachusetts the statute conferred on a will, antecedently executed, an operative and effective quality, which the will did not possess at the time of its execution. And this construction is vindicated by the "broad and general" language of the act, and the absence of anything "in the words or subject matter of the act, to lead the court to a more restricted construction." Now, it may be submitted that the language of the Maryland act is just as "broad and general," unless indeed it be assumed, that the time mentioned in the act, is to be taken as parcel of the instrument described. Upon this hypothesis, which assumes, however, the very matter to be demonstrated, all discussion would have been unnecessary. The question debated [**20]  would be resolved by its very statement.
The next objection urged to the construction given to the act by the Court of Appeals is, "that it would make the same will, if offered on the 2nd day of June, operative to pass after acquired land to a devisee, though, if offered in evidence on the next preceding day, it would be inoperative for that purpose." And it is said that "so to interpret an act concerning 

 [*483]  wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to day and another to-morrow, would not only be arbitrary and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator." Now it is to be observed, that the Court of Appeals does not make the construction to be given to the will to depend in any manner on the time of offering it in evidence. Its construction, operation and effect, are to be determined by the law existing at the time of the death of the testator. The construction which would be given to it on the day of the death of the testator, if [**21]  it could then come under judgment, is ever after to be given it. In the next place it is to be noted that the objection, whatever may be its value, is just as applicable to the Massachusetts law as to the Maryland law. In Massachusetts the statute was to go into effect on the 1st day of April next succeeding its adoption. A will made before the adoption of the statute could not at the moment of the execution have operated on the title to after acquired land. Nor would it have operated on such title in case the testator had died at any time before the adoption of the act, or after that event, and before the day on which it was to go into operation. If, however, the testator survived that day, it is adjudged that the will would pass the after acquired land. The objection was therefore disregarded by the Supreme Court of Massachusetts; and, again, the legislature of Maryland must have considered and wittingly passed by the objection. According to the second section, as construed by the Supreme Court, a will made before the passing of the act by a testator dying after the passing of the act, and before the 1st day of June 1850, would pass after acquired land. But, if he died before the [**22]  passage of the act, or after the 1st day of June, then such after acquired land would not be affected thereby. Upon the whole, then, the letter of the first section is susceptible of the construction given it by the Court of Appeals; and that construction is 

 [*484]  sustained by the decisions in Massachusetts, and best advances the intention of the legislature. The second section removes all doubt as to the proper construction of the preceding section. It must be apparent from the letter of the second section:--
1st. That the legislature was aware that the language of the first section would embrace wills made before the passage of the act.
2nd. That the legislature intended that all antecedently executed wills should remain subject to the provisions of the first section, excepting a particular class, which were conditionally excepted.
3rd. That the special class enumerated in the second section, (if the testator's intent was sufficiently manifested,) were to remain subject to the operation of the first section; and
4th. Were to remain so subject, because they were "last wills and testaments, executed in due form of law," within the letter of the first member of the first [**23]  section.
The Supreme Court admits that the "negative language" of the section "leaves the law open to the suggestion that the provisions of the act would have applied to such wills if the negative words had not been used." But then that "negative language" will not stand together with the construction which the court would place on the letter of the first section. What has been written is therefore to be stricken out, and what was not imagined by the legislature is to be substituted. In the place of a section negative and restrictive, we are to write one affirmative and remedial. And what is the pretext for this plain exercise of judicial legislation? It is that upon the letter of the section as it now stands, "the cases excepted can on no just principle be distinguished from those left unexcepted." But will the section when recast, as it is proposed, embrace all the cases which are within the principle of the case expressly provided for? The section when reformed would provide for the case of a will made before the passage of the act by a testator dying before the 1st of June 1850; but such will would be out of the act if the testator lived to the 2nd 

 [*485]  day of June. "Can [**24]  any reason be imagined" for this difference? "If there is any distinction between the two cases, it would seem the first case had a stronger claim to exemption from the effect of the new rule."
The language of a statute is its most natural expositor, and where the language is susceptible of a sensible interpretation, it is not to be controlled by any extraneous considerations. The construction is to be on the entire statute, and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is opposed to the other construction, then we are to adopt that construction which will render all clauses of the statute harmonious, rather than that other construction, which will make one part contradictory to another. Where the letter of the statute is inconsistent with itself, we may eviscerate an intent by considering the mischief existing and the remedy proposed to be introduced. But what is the mischief to be remedied, and what the remedy, are to be collected from the statute itself. We are not at liberty to imagine an [**25]  intent, and bind the letter of the act to that intent; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of making the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute; and of several constructions that is to be preferred, which introduces the most general and uniform remedy. Judged by these principles, we can have no doubt of the superiority of the construction given by the Court of Appeals to the act, over that construction which is proposed to be given to it by the Supreme Court.
The second proposition affirmed by the Supreme Court is, that the decision of the Court of Appeals giving a construction to the Maryland act may be disregarded.
In Nesmith vs. Sheldon, 7 Howard 817, it had been declared to be "the established doctrine of this court, that it will adopt 

 [*486]  and follow the decisions of the State courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal."
This declaration was made [**26]  in a cause involving a question doubtful and important; and a single adjudication of the court of Michigan was accepted as a settlement of the construction of the statute. In Rowan vs. Runnels, 5 Howard 134, the court reversed its own opinion expressed in Groves vs. Slaughter, 15 Peters 451, in deference to an intervening judgment which had been rendered by the Court of Appeals of Mississippi; and this surrender of its own opinion by the Supreme Court is made the more remarkable from the circumstance, that during the term just closed the court has reasserted the principles of the decision in Groves vs. Slaughter, to be well founded in law. Another illustration of the deference with which in past times the decisions of the State courts have been received in the Supreme Court, is given by the case of Green vs. Neal's Lessee, 6 Peters 291, where the court reversed its own judgment directly upon the point in construction of a statute of Tennessee, and vindicate this reversal as a sacrifice necessary for the maintenance of its principle. But the case which more fully resembles the present is that of the United States vs. Morrison, 4 Peters 124. [**27]  The late chief justice of the Supreme Court had pronounced judgment in the circuit court for the district of Virginia, on the construction of a statute of Virginia in conformity with the opinions he had frequently expressed in other causes which had come before him in judgment--in fact in conformity with the settled law of the circuit court. Pending the appeal taken from this judgment a case had arisen in the State courts of Virginia, and had been concluded by a judgment of the Court of Appeals of Virginia, giving to the statute a construction directly opposite to that which had been placed on it by the chief justice. This last judgment was deemed conclusive of the subject, and the chief justice, with the grace and propriety which distinguished him through life, and without one word 

 [*487]  in defence of his own opinion, pronounced the reversal of his own judgment.
The rule thus enunciated by the Supreme Court was founded partly on the consideration of the inconvenience which would flow from the effort on the part of the courts of the United States to enforce a construction of the statute law of a State different from the construction given to the statute law by the State tribunals,  [**28]  and partly on the provisions of the judiciary act of 1789. The destiny of the courts of the Union it was supposed would be fully accomplished, by securing to the citizen of another State, and to the alien, the same administration of the statute law of a State which is accorded to the citizen of the same State.
According to the former cases, the adoption or rejection of a particular decision of a State court does not depend in any manner on the doctrine of estoppel.
It is not necessary that there should be identity of parties or subject matter, and hence it would seem that if the decision is made with a deliberation and solemnity which evidences a purpose on the part of the court to declare the law, such declaration ought to be accepted by the Supreme Court as an adjudication settling the question so decided. It ought to be presumed that the question was properly presented by the record, or if not necessarily involved in the issue, that it was in the exercise of a proper judicial discretion that the court deemed fit to pass upon it. But the Supreme Court, in the case of Carroll vs. Carroll, appear to have unsettled their often enunciated rule. They now declare that they are bound [**29]  to decide "a question of local law," as they find "it ought to be decided." Hence the correctness of the decision of a local court is a proper subject for inquiry. In making the examination preparatory to this finding, the court follow two rules. The first is the maxim of the common law, stare decisis. The second is that rule of deference to the decisions of the local court which we have been so often informed was "the established doctrine" of the Supreme Court. It is now declared that this last rule "has grown up and been held with constant 

 [*488]  reference to the other rule, and it is only so far and in such cases as this latter rule can operate that the other has any effect." Stare decisis is, therefore, in effect, the only rule which the Supreme Court will hereafter acknowledge, and even this only rule is to be applicable under conditions which will serve to render the law more uncertain than if we were informed that the authority of the State courts was to be utterly disregarded. "If the construction put by the court of a State upon one of its own statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought [**30]  into question, then, according to the principles of the common law, an opinion on such a question is not a decision." "And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion in any case which was not needful to the ascertainment of the right or title in question between the parties." The Supreme Court, therefore, claim the right to inquire, whether the question adjudged was necessarily involved in the issue? and whether, if so involved, the case might not have been determined on some other point? If a case presents a question broadly on its merits and another on the pleadings or form of procedure, and the court decides on the merits, the decision is not to be regarded, if a decision on the point of form would have concluded to a like judgment. The rule prescribed by the Supreme Court is, therefore, more strict than prevails in cases of estoppel. For on the principle of estoppel it is conceded, that a judgment is conclusive on any point fairly in issue, and on which the judgment might have been rendered. As the Supreme Court have not at all times respected their opinions pronounced on the very point in judgment,  [**31]  (vide 3 Howard 292, Ex-parte Christy; 7 Howard 612, Peck vs. Jenness, referred to in the opinion in the case of Carroll vs. Carroll,) we are not surprised to learn that dicta falling obiter from the judges, or even founded in the judgment of the court, do not conclude. In Maryland it is usual to limit the judgment to the question of right involved in the issue. But where a question of general interest is supposed to be involved and is fully discussed and submitted by 

 [*489]  counsel, the court frequently decides the question with a view to settle the law, and it has never been supposed that a decision made under such circumstances could be deprived of its authority by showing that it was not called for by the record. The cases of Richardson vs. Jones, 3 Gill & Johns. 163; Carter vs. Dennison, 7 Gill 157, amongst others will establish this practice. All that is necessary in Maryland to render the decision of the Court of Appeals authoritative on any point decided, is to show that there was an application of the judicial mind to the precise question adjudged; and this we apprehend is the rule elsewhere. In [**32]  the case of Cohens vs. The State of Virginia, referred to, the position taken by the late chief justice is, "that general expressions in every opinion are to be taken in connection with the case in which these expressions are used." The same remark is equally true of general expressions found in any other writing; their precise import is to be determined by the context. "If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and is considered in its full extent." All that is required, therefore, to establish the authority of any decision is, that the "very point" decided was "actually before" the mind of the court, and was "investigated with care and considered in its fullest extent." Nothing is intimated, much less declared, in regard to the supposed necessity for shewing that the very point so adjudged was inseperably involved in the issue. Dicta attributed to the court by a short-hand reporter, especially of ancient date; opinions expressed by a judge speaking for himself and [**33]  not as the organ of the court; general views expressed by the court as illustrative of, but not necessarily leading to, the opinion on the point intended to be decided, are not to be treated as conclusive, when similar topics come up directly for judgment. But we are not aware of the authority which will sustain the position assumed by the Supreme Court, that the unanimous opinion of a State court of the highest appellate jurisdiction, directly on a point which is supposed by the court to be presented by the 

 [*490]  record, and which is elaborately discussed by counsel, and is investigated with care and solemnly delivered by the court, can be disregarded as obiter dictum, merely because it is since discovered that some other point existed on which the judgment rendered might have been rested. If any such authority exists it has not been referred to.
The canon of judicature which we are informed is hereafter to prevail in the supreme court would seem to have been taken from Ram on Legal Judgments, by whom it was borrowed from Vaughan, 382. In the course of a long and elaborate argument by the chief justice, it is given as the fifth in a series of seven objections taken [**34]  by him to the authority of a case reported in Moore; the second in the series being, that the case itself bore internal evidence that the opinion, as reported, was no judicial opinion, nor given in any court. We are not informed of the response made by the other judges to those rules propounded by the chief justice. But it does appear, that in consequence of an equal division of the court, the judgment was rendered for the defendant, in conformity with the case in Moore, the authority of which the chief justice had labored to destroy. Perhaps then we may be allowed to suggest, upon the authority of the chief justice himself, that his entire opinion is no more than a prolatum, concluding in no degree to the judgment rendered in the case in which it was expressed. The seventh canon of the chief justice is, that "if a court give judgment judicially, another court is not bound to give like judgment, unless it think that judgment first given was according to law;" and in vindication of the right of individual and independent judgment, he does not hesitate to impeach the accuracy of Lord Coke and to deny the learning of Littleton. But it deserves remark, that the learned [**35]  chief justice, although ready to contemn the authority of precedents standing in conflict with his own opinions, conceded as his sixth rule, that "an opinion, though erroneous, concluding to the judgment is a judicial opinion, because delivered under the sanction of the judge's oath upon deliberation, which assumes it was, when delivered, the opinion of the deliverer."
But it happens, most unfortunately, that the decision of the 

 [*491]  Court of Appeals on the question in controversy was not only called for by the record, but that if the court's opinion on that point had been in favor of the heirs at law, the judgment of the court must have been directly opposite to the judgment which was rendered. In their statement of the case, the Supreme Court overlook the important fact, that the devisees of Mrs. Carroll, representing her interest as the devisee of M. B. Carroll, were made defendants to the bill. It is also overlooked, that the bill prays for an account of the personal and real assets of Michael B. Carroll, and for a declaration that his real estate is liable to the payment of his debts before, and in exoneration of, his negroes, who had been given by his will to his widow [**36]  as a specific legacy, and had been manumitted by her will to be free after brief terms of service, and it is claimed that the suit is for their protection. It is further averred, that the creditors of Michael B. Carroll are not pressing for a sale of the negroes; that no creditor is in a condition to enforce a sale thereof, and that a decree may be obtained settling all questions of right, and, if proper, for a sale of the real estate before any creditor could obtain execution or other process to enforce a sale of the negroes; and lastly, it is averred that the administrators de bonis non of Carroll were about to make a sale of the negroes in furtherance of the interests of the heirs at law; or in other words, to preclude all question in future as between the heirs and the negroes.
All these circumstances form material parts of the case. In the printed statement of the appellants, prepared for the argument in the Court of Appeals, it is insisted, that the equity set up is equally available against the real estate, whether the same be considered as land descended in the hands of the heirs at law of Carroll, or as property devised by his will to his widow. No question was raised [**37]  by the appellants in regard to the construction or operation of the will. In the statements filed on behalf of the heirs at law and of the devisees of Mrs. Carroll, the question is fully presented. It was elaborately argued by the counsel for those parties, and submitted by them as a question presented by the record and calling for determination. It will also appear by those statements, that whilst 

 [*492]  the heirs at law and devisees were united in resisting the claim of the appellants, their opposition was rested on grounds different from, if not indeed inconsistent with and contradictory to, each other. On the part of the heirs at law it was insisted, that the personal estate was the primary fund for the payment of debts, and it was denied that the specific legatee had any equity as against the heirs at law. On the part of the devisees, the chief argument was rested on the original union of the characters of specific legatee and of devisee in the person of Mrs. Carroll; and it was conceded that if the real estate had descended to the heirs at law or had been devised to some other person than Mrs. Carroll, she or her representatives would have been entitled to call for the application [**38]  of the real assets to the payment of debts for the exoneration of the negroes which had been specifically bequeathed to her. The course of the arguments, therefore, as well as the points raised by the statements, rendered it necessary that the court should first ascertain who were the proper representatives of the real estate? This question being resolved in favor of Mrs. Carroll, as devisee, the next subject for inquiry was, whether the representatives of her interest, as specific legatee of the negroes, had any available equity against the representatives of her interest, as devisee of the real estate? They decline the discussion of the general question as between a specific legatee, and an heir at law or devisee, "because the question was not before them in the case." They say that the executors of Mrs. Carroll must occupy the same position as she would have done if the bill had been filed by her instead of them, and that the case is not one "of contribution and marshaling of assets between different devisees and legatees, because Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she, in fact, with but trifling exception, took under the will the [**39]  whole estate."
If the court had determined that the real estate had descended to the heirs at law, the two grounds on which they declined a discussion of the general question would have been removed and these two questions would have been directly presented.

 [*493]  1st. Whether a specific legacy or land descended is first applicable in payment of debts?
2nd. Whether the specific legatee of a chattel of peculiar value, as a household slave, has an equity to restrain the executor, who is also the heir at law, from applying that chattel to the payments of debts for the purpose of protecting his inheritance, the creditors being passive and content to take payment out of either fund?
The first is too well settled in England and this country to justify argument thereon. In Maryland, in Chase vs. Lockerman, 11 Gill & Johns. 185, it was adjudged that the specific legatee and the specific devisee was bound to contribute ratably to the payment of debts; and it was assumed as a point clear in all the authorities, that land descended was first applicable in payment of debts in relief of personal estate specifically bequeathed. It will not be necessary to remark on [**40]  the distinction supposed between the specialty and the simple contract creditor. It is averred that Carroll died in debt for the land purchased by him after the date of his will, and, independent of this averment, if the equity could have turned on the supposed distinction, the cause would have been remanded, with liberty to the party to amend.
2nd. It is held by Lord Eldon in Clarke vs. Ormonde, Jacob, 108, that it was the duty of executors, as far as possible, to preserve articles specifically bequeathed, according to their testator's wish; and unless compelled, they ought not to apply them to the payment of debts. As a corollary, it results, that at the suit of the specific legatee, equity will restrain the executor from voluntarily applying the chattel bequeathed in payment of debts, in a case where the executors are also heirs, and have assets descended, which are first applicable in payment of debts, otherwise the injury to the specific legatee would be incapable of compensation. Hence the importance of the averments in the bill, that the creditors were not pressing and were not in a condition to press, for a sale of the negroes.
Equity is in general reluctant to interfere [**41]  with creditors in the enforcement of their legal rights. But under certain circumstances it will interpose, as if on a creditor's bill a decree 

 [*494]  has been passed for an account of the personal assets, and for a sale of the personal estate, equity may not only restrain the creditor from proceeding at law, but compel him to take satisfaction out of the proceeds of the realty. And in the case of Cornish vs. Willson, 6 Gill 299, it was held, that a salve manumitted by will, might sue in equity for an account, and for a sale of the real estate, descended or devised, subject to payment of debts, and in the meantime, might restrain the executor in the capricious exercise of his power, or even the execution of the creditor, who would propose to sell the slave for payment of the debts of the testator. We apprehend that, in principle, this decision would extend to every case of a specific legacy, the subject of which is of peculiar value to the legatee, and the sale whereof would be productive of irreparable loss. It would seem impossible to deny its application to a case like the one to which we are adverting, where the legacy consists of slaves specifically bequeathed [**42]  to the widow, with an earnest desire expressed, that they should not be sold for payment of the testator's debts, cherished by the widow during her lifetime, and manumitted by her last will. To permit the heirs at law who have availed themselves of their proximity in blood to obtain administration on the personal estate of the testator, to sell the negroes into ceaseless bondage in foreign climes, for the purpose of providing for payment of debts which are justly chargeable on the lands descended to the heirs at law, and to do this under the pretence that equity ought not to restrain the remedy of creditors, and where the creditors themselves are passive, would seem to be an act of injustice of which a court composed of slave-holders, residing in a slave-holding State, could not possibly be guilty. Nor are we willing to believe that the Supreme Court could maintain such a proposition in the fact of their own decision, in Fenwick vs. Chapman, 9 Peters 461, where it was held in advance of Maryland adjudications, that a slave manumitted might assert his right to freedom, on a petition filed against the executor, by proving that the real estate charged by will with [**43]  payment of debts, was sufficient for that purpose. All these cases were earnestly pressed by the counsel for the appellants, and it is not to be presumed 

 [*495]  that the court intended, by its silence, to ignore their existence or deny their authority.
We have thus fully examined the decision in 4th Maryland Reports, 335, for the purpose of showing that the point decided by it was directly presented by the record and by the counsel in argument, and that the judgment pronounced was rendered after the fullest consideration, and, also, to vindicate the correctness of that decision, which, in our opinion, has not been in the slightest degree shaken by anything that has fallen from the Supreme Court.
In conclusion we will observe, that it is manifest to us that the construction which we have heretofore given to the act of 1849 is correct. It was taken from the statute of 7 William IV., and 1 Victoria, chapter 26. The 24th section of that act is as follows: "And be it further enacted, that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death [**44]  of the testator, unless a contrary intention shall appear by the will."
The act was passed on the 3rd of July 1837. That the Parliament which passed it did not understand it as the Supreme Court has interpreted it, is clear from the 35th section, which provides, "that this act shall not extend to any will made before the first day of January, one thousand, eight hundred and thirty-eight." Its framers, it appears from this section, understood it to mean what it said, and therefore the necessity to expressly declare to what class of wills it should apply.
Reaffirming the decision in Magruder and Tuck, vs. Carroll, we necessarily affirm the order of the circuit court in this cause.
Order affirmed.
NOTE BY THE REPORTER.--The importance of the decision in the above case has suggested to the Reporter the propriety of inserting in his reports the decision of the Supreme Court of the United States, in the case of Carroll vs. Carroll's Lessee. That decision, together with the one above reported, and the one in 4 Md. 335, will exhibit to the profession all that has been decided by the Supreme Court, and the Court of Appeals, in regard to act of 1849,  [**45]  ch. 229. The opinion of the Supreme Court, in the case of Carroll vs. Carroll's Lessee, as delivered by Justice Curtis, is as follows:

 [*496]  "This action of ejectment was brought in the Circuit Court of the United States for the District of Maryland to recover three undivided fourth parts of three tracts of land lying in Prince George's county, in that State. Both parties claimed under Michael B. Carroll, the plaintiffs as heirs at law, the defendant as devisee. It appeared at the trial in the court below, which was had at the November term 1852, that on the 10th day of September 1837, Michael B. Carroll duly executed his last will, the material parts of which are as follows:
"'To my dear wife Jane I give and bequeath all my slaves, and do request that none of them may be sold or disposed of for the payment of my debts, but that provision shall be made for discharging the same one of the other personal property and effects which I shall leave at the time of my death.'
"'All the rest and residue of my property, both real, personal and mixed, I give, devise and bequeath to my said wife Jane, who I do hereby constitute and appoint sole executrix of this my last will and testament,  [**46]  enjoining it upon her, nevertheless, to consult and advise with the said John B. Brooke, as occasion may require, respecting the settlement of estate, and make him a reasonable compensation for the same out of the funds hereinbefore bequeathed to her; and I do hereby revoke and annul all former wills by me heretofore made, declaring this and none other to be my last will and testament.'
"It further appeared that after the execution of this will, Michael B. Carroll acquired other lands, and the plaintiffs, as heirs at law claimed to recover three undivided fourth parts thereof as undevised land. The defendant insisted that these, together with all the other lands of the testator, passed to her under the residuary clause of the will. She admitted that by the common law of Maryland, lands of which the testator was not seized at the time of making his will could not be devised thereby, but insisted that an act passed by the legislature of Maryland, on the 22d day of February 1850, so operated as to cause this will to devise the lands to her. That act is as follows:
"'Section 1. Be it enacted by the General Assembly of Maryland, That every last will and testament, executed in due [**47]  form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary intention shall appear by the will.
"'Sec. 2. And be it enacted, That the provisions of this act shall not apply to any will executed before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass.
"'Sec. 3. And be it enacted, That this law shall take effect on the first day of June next.'

 [*497]  "It is argued by the counsel for the devisee, that the first section of this act was intended to prescribe a new rule of construction of wills, and to fix the time when the courts should begin to apply that rule; that new rule being, that wills of the realty should be deemed to speak at the time of the death of the testator; and the time when the courts should begin so to construe them, being the second day of June 1850;  [**48]  and that the law should be so read as to mean that after the first day of June 1850, wills should be deemed to speak, as if executed on the day of the testators death, unless a contrary intention should appear.
"To this construction there are insuperable objections. It would change the legal operation, not only of existing wills, but of those which had already taken effect by the death of testators. It would make the same will, if offered in evidence on the second day of June, operative to pass after acquired lands to a devisee, though if offered in evidence on the next preceding day it would be inoperative for that purpose. The object of the whole law concerning wills, is to enable the owners of property reasonably to control its disposition at their decease. To cause their real intentions and wishes to be so expressed, and their expression to be so preserved and manifested that they can be ascertained and carried into effect, are the chief purposes of legislation on this subject. So to interpret an act concerning wills as to cause those instruments to operate without regard to the intent of the testator, having one effect to-day and another to-morrow, would not only be arbitrary [**49]  and a violation of the principles of natural justice, but in conflict with what must be presumed to have been the leading purpose of the legislature in passing the law, the better to give effect to the intent of the testator. To induce the court to believe the legislature intended to make this law retroactive upon a will then in existence, and cause it to pass after acquired lands without any evidence that the testator desired or believed that it would do so, and to fix a particular day, before which the will should not so operate, and on and after which it should so operate, such intention of the legislature must be expressed with irresistable clearness.  Battle vs. Speight, 9 Ired. 288. It is very far from being so expressed in the first section of this act. On the contrary its natural and obvious meaning is, that wills executed after the first day of June 1850, are the only subjects of its provisions.
"The words "after the first day of June next" refer to and qualify the words "executed in due form of law" which they follow, just as in the same section the words "on the day of the death of the testator" refer to and qualify the word "executed." In the former [**50]  case they indicate the time when the will shall be deemed to have been executed; in the latter the period of time when it was actually executed.

 [*498]  "In our opinion the first section of this law is free from ambiguity, and applies only to wills executed after the first day of June 1850; and as this will was executed before that day it is not within this section.
"Nor is it within the second section of the act, because that applies only to cases in which the testator, having executed his will before the passage of the act, might die before the first day of June then next, and this testator survived till after that day.
"It has been supposed however, that although the first section of this act is free from ambiguity standing by itself, and ought to be so construed as to apply only to wills executed after the first day of June 1850, yet that the second section shows that wills executed before that day, were intended to be included in the first section. The argument is that the second section excepts out of the operation of the first section, certain wills executed before the first day of June 1850, and thus proves that the first section embraces wills executed before that day.  [**51]  This argument requires a careful examination. To appreciate it, we must see clearly what are the nature and objects, as well as the form of the two enactments. The first prescribes a new rule of construction of wills. They are to be deemed to speak as of the time of the death of the testator; but power is reserved to him to set aside this rule by manifesting in his will an intention not to have it applied. The real substance and effect of the second section is to enable certain testators to pass their after acquired lands by expressing an intention to pass them.
"By force of the first section, the law prescribes a rule of construction which a testator may set aside. By force of the second section a testator may manifest an intention to have his will speak as of the time of his decease, and so adopt that rule of construction. It thus appears that the office of the second section is not to take certain cases out of the operation of the first section, but to prescribe another and substantially different rule of law for those cases. It is true, negative language is used, which leaves the law open to the suggestion that the provision of the act would have applied to such wills if the negative [**52]  words had not been used.
"But it must be remembered that this is only an inference, the strength of which must depend upon the subject matter of the provisions and the language employed in making them.
"If every part of the law can have its natural meaning and appropriate effect by construing this second section as an additional enactment, and if to construe it as an exception would affix to the first section a meaning which would be inconsistent with the great and leading purpose of the legislature, and at the same time be arbitrary and unjust; and if when viewed as an exception the cases excepted can, on no just principle, be distinguished from those left unexcepted, then manifestly it 

 [*499]  should not be construed as an exception, but as a substantive enactment, prescribing for the particular cases a new rule of law, not provided for in the first section. We have already pointed out the consequence of holding the first section applicable to all wills. In addition to this it is worth while to enquire, if the second section was designed to except certain cases out of the first section, what those cases were, and how they are so distinguished from the cases left unexcepted [**53]  as to be proper subjects of exception? The proposition is, that the first section includes all wills whenever executed, and the second excepts only wills executed before the passage of the act by persons dying after the passage of the act, and before the first day of June 1850. Can any reason be imagined why a will executed before the passage of the act should be within the first section, if the testator died the day before the passage of the act, and out of it, he died the day after its passage? If there is any distinction between the two cases it would seem the first case had the stronger claim to exemption from the effect of the new rule.
"Nor do we perceive any difficulty in so construing the two sections as to allow to each its appropriate effect, while neither of them violates any principle of natural right; the effect of the first section being to prescribe a new rule of interpretation for wills executed after the first of June, and the effect of the second being to enable testators who had executed their wills before the passage of the act and who might die before the first day of June, to pass after acquired lands if they manifested an intention so to do. Cases of testators [**54]  who should execute wills after the passage of the act and before the first day of June, or who should die after that day, having previous to that day executed their wills, are left unprovided for, either because it was thought that they would have sufficient time to conform their wills to this change of the law, or because their cases escaped the attention of the legislature as happened in Barnitz's Lessee vs. Casey, 7 Cranch 456, and Brewer's Lessee vs. Blougher, 14 Pet. 199.
"We have been referred to two decisions in the Supreme Court of Massachusetts in which a retroactive effect was allowed to a statute of that State upon existing wills. They are Cushing vs. Aylwin, 12 Met. 169. Pray vs. Waterston, 12 Met. 262. But an examination of those cases will show that the interpretation put by that court on that statute, was attended with none of the difficulties which beset the construction of the statute of Maryland contended for by the counsel for the devisee. The law of Massachusetts did not enact a new rule of construction. It simply enabled testators to devise after acquired lands by plainly and manifestly declaring an intention [**55]  to do so. The law could only operate in furtherance of the intention of the testator, and could never defeat that intent by applying to wills an arbitrary rule of construction.

 [*500]  "This distinction was pointed out by this court in Smith, et al., vs. Edrington, 8 Cranch 66, in reference to a similar statute in Virginia, respecting which Mr. Justice Washington said: "The law created no new or different rule of construction, but merely gave a power to the testator to devise lands which he might possess or be entitled to at the time of his death, if it should be his pleasure to do so." Moreover the language of the act of Massachusetts was broad and general enough to include in its terms all wills which should take effect after the law went into operation. There was therefore nothing in the words, or the subject matter of the act, to lead the court to a more restricted construction. Still that court thought the retroactive effect, of even such a law, required some notice, and they vindicate the departure from an important principle in that case with some effort; and the reluctance with which it should be departed from is well expressed by the Supreme Court [**56]  of North Carolina, in Battle vs. Speight, 9 Iredell 288, in construing a similar statute of that State.
"We have also been referred to a manuscript opinion of the Court of Appeals of the State of Maryland upon the effect of this will. It appears that in November last the executors of Mrs. Carroll, the devisee, who is deceased, filed their bill in the circuit court of Prince George's county, praying that the administrators de bonis non of Michael B. Carroll might be enjoined from making sale of his negro slaves. The heirs at law and the administrators de bonis non of Michael B. Carroll were made parties. The circuit court refused the injunction, the complainants appealed: the Court of Appeals affirmed the decree of the circuit court and dismissed the bill. The grounds upon which the court rested its decree will best appear from the following extracts from the opinion:
"'The bill is filed by the executors of Mrs. Carroll against the administrators de bonis non of Mr. Carroll and his heirs at law. The gravamen of it is, that he specifically bequeathed his negroes to his wife, and desired they should not be sold, and that his debts should be paid out of his other [**57]  estate; that she manumitted them, and that there is other personal and real estate enough to pay the debts due by his estate. Injunction is asked to prevent the sale of the negroes under an order of the orphans court of Prince Georges county, which, it is alleged, is about to be done. It is also claimed in the bill, that at the time of the will of Mrs. Carroll she must be considered as holding the negroes as legatee, and not as executrix, the time specified by law for winding up the estate of her husband having elapsed.
"'This last ground cannot avail. There is no allegation in the bill that a final account had been settled by her, and the bill shows that a large amount of debts remained unpaid, and that the creditors of the estate of her husband had commenced proceedings to secure their payment, which proceedings are still pending. In this claim of the bill we suppose but little 

 [*501]  confidence was, or is, reposed by those who framed it; at all events, there is nothing in it. There is nothing in the facts of the case to justify the presumption that there had been a final settlement of the estate of Michael B. Carroll and all his debts paid off; the truth is, the bill directly [**58]  contradicts the facts out of which such a presumption could arise.
"'It is contended, on the part of the complainants, that the real estate and personal property, other than the negroes of Michael B. Carroll, ought to be applied to the payment of his debts before the negroes are resorted to. This may or not be so; and in regard to it we pass no opinion, because the question is not before us in this case. This is not a bill filed on behalf of the negroes, but by the executors of Mrs. Carroll, and they must occupy the same position in regard to the creditors of Michael B. Carroll, who are represented by the administrators de bonis non, as she would have done had the bill been filed by her instead of by them. And if she were the party complainant, how would the case stand? Why thus: Michael B. Carroll died in debt, leaving a will by which his real and personal estate is specifically devised and bequeathed to his wife. His creditors would have the right to proceed against his entire estate for payment; first, however, against the personal as the primary fund. Their rights could not be affected by anything he might request in his will; their claims would attach to his entire [**59]  estate. He did not manumit his slaves; and, moreover, this is not the case of contribution and marshaling of assets between different devisees and legatees, because here Mrs. Carroll was specific devisee and legatee, and residuary devisee and legatee; she, in fact, with but trifling exception, took under the will the whole estate. Had she, immediately on obtaining letters of administration, manumitted the negroes, it could not be pretended such manumission could have affected the rights of the creditors of her testator; and it must be obvious, if she could not do it by her act as executrix, that she could not accomplish it by her will.
"'For these reasons we affirm the order of the circuit court refusing the injunction.'"
"It is apparent that the question whether some of the lands of the testator were undevised could not enter into or affect the decision of this case. The negroes not being parties, no question could arise whether they were entitled to have the debts paid out of the land of the testator, and the court declares the question is not before them. As between Mrs. Carroll, the executrix of her husband's will, or her representatives and the creditors of her husband,  [**60]  the right of the latter was complete to resort to the personal property, including the negroes, and it was therefore wholly immaterial who owned the land. The only prayer in the bill was, that the creditors, through the administrators, might be restrained from making their debts out of the negroes. The only question in the case was whether 

 [*502]  they could be so restrained. And when it was decided that their legal right was to have all the personalty, including the negroes, applied to their debts, it was immaterial what other rights they or others might have.
"We do not consider, therefore, that a comparison of the titles of the heirs at law and the devisee of Michael B. Carroll to his lands was brought into judgment by this injunction bill.
"If the Court of Appeals had found it necessary to construe a statute of that State in order to decide upon the rights of parties subject to its judicial control, such a decision, deliberately made, might have been taken by this court as a basis on which to rest our judgment. But it must be remembered that we are bound to decide a question of local law, upon which the rights of parties depend, as well as every other question, as we find [**61]  it ought to be decided. In making the examination preparatory to this finding, this court has followed two rules, one of which belongs to the common law, and the other is a part of our peculiar judicial system. The first is the maxim of the common law, stare decisis. The second grows out of the 34th section of the judiciary act, (1 Stat, at Large, 92,) which makes the laws of the several States the rules of decision in trials at the common law; and inasmuch as the States have committed to their respective judiciaries the power to construe and fix the meaning of the statutes passed by their legislatures, this court has taken such constructions as part of the law of the State, and has administered the law as thus construed. But this rule has grown up and been held with constant reference to the other rule, stare decisis; and it is only so far and in such cases as this latter rule can operate that the other has any effect.
"If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion [**62]  on such a question is not a decision. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs.
"And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties. In Cohens vs. The State of Virginia, 6 Wheat. 264, this court was much pressed with some portion of its opinion in the case of Marbury vs. Madison. And Mr. Chief Justice Marshall said: "It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment 

 [*503]  in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full extent. Other principles which may serve [**63]  to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." The cases of Ex-parte Christy, 3 How. 292, and Peck, et al., vs. Jenness, et al., 7 How. 612, are an illustration of the rule, that any opinion given here or elsewhere, cannot be relied on as a binding authority, unless the case called for its expression. Its weight of reason must depend on what it contains.
"With these views we cannot regard the opinion of the Court of Appeals as an authority on which we have a right to rest our judgment. We have already stated the reasons which have brought us to a different construction of the statute; reasons which do not seem to us to be shaken by the opinion of the Court of Appeals.
"Our conclusion is that the will of Michael B. Carroll was not within the statute, and the lands in question were consequently undevised.
"One other exception was taken at the trial, respecting which it is only necessary to say that we think the identity of name of the two tracts of land in the same county, taken in connection with the long possession of those under whom [**64]  the plaintiffs claimed, and the absence of all evidence of any adverse claim or outstanding title was sufficient to warrant the jury in finding that the land was embraced in the patents from the State.
"We are also of opinion that the judgment is correct in form, being for the term which the declaration alleges was created by the plaintiffs as owners of three undivided fourth parts of the land.
"The judgment of the circuit court is affirmed, with costs." 

6 of 12 DOCUMENTS 

THE STATE OF MARYLAND vs. OSCAR MACE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 337; 1854 Md. LEXIS 6 

JUNE, 1854, Decided 

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

The appellee was arrested upon a warrant issued by a justice of the peace for a violation of the act of 1854, ch. 138. Judgment was rendered against him for $ 5 and costs, for the non-payment of which he was committed to jail. He then made application to the Court of Common Pleas for a writ of habeas corpus cum causa, which was granted, and, upon hearing, the petitioner was discharged. Upon the passage of the order discharging the party, from which this appeal was taken by the State, the court below, (MARSHALL, J.,) delivered the following opinion:

"This case involves several questions of constitutional law upon which, as upon all subjects of human thought, men entertain different opinions. As I have arrived at different conclusions upon them from many members of the legal profession and the bench, for whom I entertain great respect, I particularly desire the Court of Appeals to decide them finally. Knowing that the parties against whom my decision will operate can appeal, and fearing that the party to the petition could not, without great inconvenience, if at all, do so, I have given to the opinions expressed by other [**2]  judicial tribunals of the city a less influence over my judgment upon these questions than I should, perhaps, otherwise have done. The facts of the case are very simple: The petitioner has been adjudged guilty of insuring lottery policies, and has been subjected, in an action of debt, to the payment to the State, for the use, jointly, of the State and the informer, of several fines. I must assume, therefore, for the purposes of this case, that he is an offender against the law and is liable to a pecuniary punishment. The justice, upon rendering the judgments, as a mode of collecting the money due upon them, has committed the party to jail. The validity of the judgments is not questioned here. The legality of the imprisonment as a means of enforcing payment is alone in question. The act of 1777, ch. 6, seems to me to authorize the summary commitment to jail resorted to here, unless the provision of the present Constitution of the State, forbidding "imprisonment for debt," shall be taken to have abolished that remedy. The Convention, in framing the Constitution, indulged in much legislative detail; where they have been brief and used general terms, they must be understood to have done [**3]  so with a purpose. I take the word "debt," in the article of the Constitution referred to, to mean pecuniary obligation. That in the legislation of this State, the word "debt," when unexplained, has this import, and comprehends fines even for misdemeanors, is evident from the proviso of the 5th sec. of the insolvent law of 1805, ch. 110, where fines for any breach of law are excepted out of an enumeration of liabilities, among which the word debt is the only one which could possibly embrace "fines." It is always in the power of the legislature to make imprisonment a part of the punishment of offences which they may create anew by enactment, as it is of the criminal courts in adjudicating upon misdemeanors at common law or of statutory creation. The legislature could have punished the offence of vending lottery insurances by imprisonment if they had deemed it proper. They have not done so. I do not feel at liberty, under these circumstances, from any abstract apprehension of my own, as to the "convenient" or "politic," to limit the meaning of the language of the Constitution so as to accomplish an end which the legislature have purposely avoided. So enlarged has become the policy of [**4]  the State on the subject of incarceration of the person, that where offences are made punishable by fine and imprisonment, the fine is made subject to discharge, under the insolvent laws, upon the suffering of a very limited imprisonment. I am of opinion that the imprisonment of this party is illegal.

"Serious doubts exist as to the right of this court to use the writ of habeas corpus at all, notwithstanding the express authority of the legislature, conferred by the act of 1853. I entertain these doubts myself, but suppose that where the writ is used as auxiliary to the exercise of the express powers of the court, as contained in the 10th section of the 4th article of the Constitution, it may be legally resorted to. As for example, this court may bring persons before it, I think, to testify, to respond, to prosecute, &c., &c., as incidental to its express jurisdiction. One branch of its express jurisdiction is a general appellate power over the proceedings of justices of the peace. I incline to the opinion, that independently of the act of 1853, above referred to, this writ of habeas corpus might be exercised by this court, by implication, in any case where it might be deemed [**5]  an exercise of this appellate jurisdiction. Surely that act, however unconstitutional it may be otherwise esteemed, must be judged constitutional so far forth as it may be applicable to this appellate power. The Supreme Court of the United States is a court of a jurisdiction expressly defined by statute, as is this court. The Supreme Court is invested by law with power to use this writ. They construe that power to mean, that where its exercise involves an original act of the court, they can only use the writ in cases where they have original jurisdiction. Where the writ is invoked that the court may review the action of a tribunal over which it may exert an appellate power, they use it; where it may be appropriately done in this appellate character. (See the cases of Bollman and Swartwout, in 4 Cranch, 75, and of Watkins, in 3 and also in 7 Peters' Reports.) I suppose this Court of Common Pleas may, under the 10th sec. of the Constitution, in the judiciary article, review the action of justices of the peace, on appeal in every form under which the appellate power of a court may properly be exercised. It may examine the correctness of a justice's judgment upon an ordinary appeal. It [**6]  may, I think, entertain an appeal from the action of a justice upon a motion to quash an execution or other process. And it appears to me that this writ of habeas corpus is an appropriate mode of exercising the appellate power of this court, where a justice has summarily ordered a defendant to jail, without the intermediate process of a capias ad satisfaciendum, upon which distinct and appropriate action might be had without resort to this writ. Thinking that I have jurisdiction in the case, and that the imprisonment is illegal, I shall order the discharge of the petitioner." 

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The act of 1853, ch. 238, in so far as it confers upon the Court of Common Pleas for the city of Baltimore the power to issue the writ of habeas corpus cum causa, is unconstitutional, the powers specially enumerated in the 10th sec. of the 4th art. of the Constitution being all that are conferred upon that court, and it is not competent for the legislature to add to or subtract from them.

The appellate power given to the Court of Common Pleas to revise the judgments of justices of the peace does not authorise that court to do so on habeas corpus, for where a judgment is liable to be reviewed by an appeal from it, the writ of habeas corpus cannot be applied.

Proceedings against parties, under the act of 1854, ch. 138, for the violation of the same, are civil actions; and that part of the act which prohibits an appeal from the judgments of the justices, in such cases, to the Court of Common Pleas is unconstitutional, being in violation of the 19th sec. of the 4th art. of the Constitution, which gives such appeal "in all civil cases."

The Court of Common Pleas having no power to review the judgment of a justice of the peace on habeas corpus, but having done so, this court has the right to review, on appeal, its action in such case.

The term debt, in that clause of the Constitution which provides, that "No person shall be imprisoned for debt," is to be understood as an obligation arising otherwise than from the sentence of a court for the breach of the public peace or commission of a crime.

When legal terms are used in a statute they are to receive their technical meaning, unless the contrary intention plainly appears; but this rule does not apply to the interpretation of the organic law, which is to be construed according to the acceptation of those who adopted it.

All courts have the right to issue the writ of habeas corpus ad testificandum, it being a power indispensable to the trial of causes.  

COUNSEL:
J. M. Campbell and John Nelson for the appellant.

The third section of the original act of 1846, ch. 109, prohibited the insuring of lottery tickets, or numbers of lottery tickets, and inflicted a fine therefor of $ 50, recoverable before a justice of the peace by an action of debt. The act of 1854, ch. 138, amended and re-enacted as amended, this section, so as to make the fine $ 5 instead of $ 50 for each offence. Under this latter act warrants were issued against the appellee for a violation thereof, by a justice of the peace, and judgments recovered against him, and upon process [**7]  issued upon these judgments he was committed to jail. He then applied to the Court of Common Pleas to be discharged on habeas corpus. The court issued the writ, brought him before it and discharged him.

Upon these facts the first question which arises is, has this court the power to act upon this case by way of appeal from the action of the court below, in discharging the party under the writ of habeas corpus.

It is said no appeal will lie from a decision on a writ of habeas corpus. The authorities on this point are in conflict. 1 Penr & Watts, 82. 8 Alabama Rep., 424, Ex-parte Chaney. 9 Sme. & Mar., 386, Steele vs. Shirley. 9 Missouri, 691, Howe vs. The State. 1 La. Annual Rep., 414, Exparte Mitchell. 6 Johns. 337, Yates vs. The People. 14 Pet., 561, Holmes vs. Jennison. The discharge of the party here was but in fact quashing an execution, and in such cases an appeal will always lie. 6 G. & J. 76, Waters vs. Duvall. In the case of Bell vs. The State, 4 Gill 301, the party was refused a discharge, and the court place their decision upon the ground that it was not a final judgment; but here the party was discharged, and the execution is effectually quashed: the judgment [**8]  so far as the State is concerned is final.

But if the Court of Common Pleas had no authority to issue the writ, it is clear that this court may upon appeal review its decision unwarrantably pronounced on the subject. 9 Gill 92, Webster vs. Cockey, and State vs. Mister, Ante 11. The question then recurs, had that court the power to issue the writ? We say it had not, for the Constitution gives it no such power. It is not a court of general jurisdiction, but of special and enumerated powers. The 10th section of the 4th article of the Constitution confines and limits its jurisdiction:--1st. To civil suits where the debt or damage claimed shall be over $ 100, and shall not exceed $ 500. 2nd. To all cases of appeal from the judgments of justices of the peace; and 3rd. To insolvent applications. In the 11th section of the same article creating the Superior court there is a general grant of jurisdiction "in all other civil cases which have not been heretofore assigned to the Court of Common Pleas," which, of course negatives the exercise of any other jurisdiction by the latter court than that specially given. We say then, the legislature had no power to give a new subject of jurisdiction [**9]  to that court, and hence the act of 1853, ch. 238, so far as it attempts to confer upon the Court of Common Pleas the power to issue the writ of habeas corpus is unconstitutional and void.

But this power has been claimed for that court by virtue of the appellate jurisdiction given to it over the judgments of the justices of the peace. The case of Bollman and Swartwout, 4 Cranch, 75, only decides that the Superior court has authority to issue the writ where it would have jurisdiction over the subject matter by way of appeal if the case had been brought before it on appeal. In the present case the party had no right of appeal to the Court of Common Pleas. The 10th section of the 4th article of the constitution declares that the Court of Common Pleas "shall have jurisdiction in all cases of appeal from the judgment of a justice of the peace;" but the 4th section of the 10th article says, that the trial by jury shall be preserved in civil proceedings where the amount in controversy "exceeds the sum of five dollars." The former provision is qualified by the second, and the appeal is restricted to civil cases in which appeals were allowed by existing laws, and to such only where the [**10]  amount involved exceeds the sum of five dollars. This case is neither a civil case, nor does the amount involved exceed five dollars. But suppose the right of appeal to the Court of Common Pleas existed, still that court had no power to issue the writ of habeas corpus. The judgment of the magistrate was at most merely erroneous, and liable to be examined by an appeal from it, and in such cases the Court of Appeals have decided "the writ of habeas corpus cannot be applied." 4 Gill 305, Bell vs. State. But we insist further that the granting of this writ is not the exercise of appellate jurisdiction at all, but is an exercise of original jurisdiction.

Assuming that the Court of Common Pleas had jurisdiction to issue the writ, the next question is, did it commit error in discharging the party? This presents the question whether the Constitution has abolished imprisonment for fines and penalties? The Constitution says "There shall be no imprisonment for debt;" and the inquiry then is, does this term include penalties and forfeitures? The insolvent laws which discharge from imprisonment from debt expressly except penalties and forfeitures, and they show what was meant by the term [**11]  debt, when the new Constitution was adopted. The intention undoubtedly was to release the debtor from imprisonment at suit of his fellow, his creditor, but not to affect the State's jurisdiction over its citizens in the administration of justice for the purpose of punishment. The liberty of this freedom from imprisonment for debt was not designed to be a liberty to do wrong. If such a construction of the Constitution can be maintained, the State is stripped of all power to administer justice through the instrumentality of moneyed penalties.

Milton Whitney for the appellee, in support of his motion to dismiss the appeal, argued:

1st. That no appeal lies to this court from any judgment of the Court of Common Pleas. By the 2nd section of the 4th article of the Constitution, the present Court of Appeals is vested with appellate jurisdiction co-extensive with the limits of the State, but to be exercised only in such cases as were then allowed by law to be exercised by the then existing Court of Appeals, "and such other appellate jurisdiction as may hereafter be provided by law." The act of 1785, ch. 87, provided for appeals from the county courts to the General Court, and by the [**12]  act of 1804, ch. 55, this appellate jurisdiction was transferred to the Court of Appeals. This appellate jurisdiction is limited to the judgment of the county courts. Such is the jurisdiction vested in this court by the Constitution, and no appellate jurisdiction having been conferred by law, it remains to be seen whether it can entertain such jurisdiction from the judgments of the Court of Common Pleas by virtue of the jurisdiction exercised by the old court from judgments of any county court. This court is a special court created by the new Constitution, and limited in its jurisdiction. No right of appeal from its judgments has been conferred by the Constitution or act of Assembly. It is nowhere spoken of as the successor of any county court, or exercising any jurisdiction of the county court as such. The objects over which it is to exercise its jurisdiction are specially enumerated. If appellate jurisdiction is to be derived from the fact alone, that it exercises jurisdiction over certain matters heretofore within the jurisdiction of the county court, the same fact would give this court appellate jurisdiction from the decision of a magistrate, for he now exercises jurisdiction over [**13]  subject matters heretofore within the jurisdiction of the county courts.

2nd. But if such appellate jurisdiction can be exercised, then the judgment in this particular case is not such an one as authorises this court to entertain an appeal, because it is not a determination or judgment of the court in a civil suit or action within the act of 1785, ch. 87. Lord Coke says "the question is no longer an open one in England," that a writ of error will not lie upon a decision on a writ of habeas corpus. See 8 Rep. 127, b, Case of the City of London. 8 Mod. 27 Case of the Dean and Chapter of Trinity Chapel. 1 Lord Raymond, 454, Groenvelt vs. Burwell. 3 Brown's Cases in Par., 506, Pender vs. Herle. In this county the question has been discussed and decided in several cases, which are collected in 1 Amer. Law Rep., 513, where the result of them is stated to be that the American authorities are decidedly against the right to appeal. But if any doubt remains it must be removed by the case of Bell vs. The State, 4 Gill 301, where a full court held there was no appeal from an order of the county court upon a writ of habeas corpus, because it was not a judgment of the court in a civil suit [**14]  or action within the contemplation of the act of 1785, ch. 87. If this appeal is entertained what judgment is to be reversed? and what is to be done by the court below when the record is remitted? The party is not in the custody of that court, and how can this court cause a person to be retaken who should, in their opinion have been unduly set at large? The judges of our courts are authorised to issue writs of habeas corpus in vacation. How then would appeals lie, or on what could they be founded? In such case there is no court, no record, and, it is submitted, could be no judgment as contemplated by the act of Assembly.

But assuming that the appeal will lie, the appellee then insists:

1st. That the Court of Common Pleas had the power to issue the writ of habeas corpus, because 1st:--The act of 1853, ch. 238, gives it jurisdiction. 2nd. By virtue of the appellate jurisdiction given to it by the 10th section of article 4th of the Constitution from judgments of justices of the peace, the issuing of the writ of habeas corpus being the exercises of appellate and not original jurisdiction. 7 Pet., 568, Ex-parte Watkins. 1 Cranch, 137, Marbury vs. Madison. 3 Dallas, 17, Ex-parte [**15]  Hamilton. 4 Cranch, 75, Ex-parte Bollman and Swartwout. 7 Wheat. 38, Ex-parte Kearney. 3 Cranch, 448, Ex parte Burford. 8 Alabama Rep., 427, Ex-parte Chaney. 8 Paige, 47, The People vs. Mercein.

But the appellant cannot urge or rely upon the want of jurisdiction in the Court of Common Pleas to issue the writ, as this point does not appear by the record to have been raised in that court as required by the act of 1825, ch. 117.

2nd. The party was properly discharged. The remedy prescribed by the act of 1854, ch. 138, is in its form, nature and character, a civil proceeding, and being so, its effects and consequences are the same as those flowing from the institution and prosecution to judgment of any other civil cause according to the laws of Maryland. The remedy is a pecuniary one, made so by statute, and to be collected as other small debts. By the judgment of the justice it became a debt, due, one-half to the State, the other to the informer. "It is a debt inter partes, as much so as an action for money had and received." 7 Gill 321, Day vs. the State. If the party could have been committed at all, it should have been under a capias ad satisfaciendum. The injury done [**16]  to the State is one of a pecuniary character. The legislature had the right to inflict imprisonment, but did not see proper so to do. The liability to pay a penalty for an offence created by statute (not malum in se,) originates in contract. The party contracts if he violates the law to pay the penalty. 3 Bl. Com., 159. This is a debt made so by statute, decided to be so by the Court of Appeals in 7 Gill 321. The New Constitution abolishes imprisonment for debt; no exception is made, its language is "no person shall be imprisoned for debt." If the legislature saw fit to provide a penalty by way of a debt for any violation of the law and not provide for any imprisonment, how can it be said the State is left powerless. The legislature has not seen proper in this case to exercise that power which they have in many other penal laws, by adding imprisonment.

3rd. The act of 1854, ch. 138, is unconstitutional and the judgment of the justice was void and not voidable. If it is a criminal proceeding it is void, as it deprives the party of his right of trial by jury. This question was decided by the Circuit Court of the United States for the district of Rhode Island before Judges Curtis [**17]  and Pitman, to be found in the Monthly Law Reporter, N. S., Vol. 5, No. 11, page 625 to 627. The Constitution gives no right of appeal except in civil cases instituted before a magistrate, and the act gives no such right, but denies it. If it is a civil proceeding it must be attended with all the incidents of civil proceedings, and the imprisonment was illegal.

4th. The court have the right to decide upon the constitutionality of a law upon habeas corpus. 11 Am. Jurist, 257, 258, and the case of Henrick, Monthly Law Rep., N. S., Vol. 6, No. 11.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*346]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on an appeal from an order of the Court of Common Pleas of Baltimore city, discharging the appellee from the custody of the warden of the jail of Baltimore city, to which he had been committed by Edward J. Peters, a justice of the peace, by "reason of the non-payment of a fine of $ 5, and 56 1/4 cents, costs, inflicted on him for a violation of the act, entitled, 'An act to prevent frauds on the revenue in the cases hereinafter mentioned, and to punish the [**18]  perpetrators thereof.'"
The act of 1854, chapter 138,--the one under which the appellee was confined in jail,--after providing against "all insuring of lottery tickets, or parts of lottery tickets," &c., goes on to declare, that any person offending against the provisions of the act "shall be liable to pay, and shall pay, a fine of $ 5 for each offence, to be recovered before any justice of the peace, by action of debt, in the name of the State, instituted 

 [*347]  against the offending party, on the information, under oath, of any citizen of this State or of the commissioner of lotteries; and that all fines received shall be paid over to the said commissioner of lotteries, who shall, after paying the informer one-half of the amount of each and every fine so received, account to the treasurer of the State for the remainder in his hands, and no certiorari shall issue from any court to said justice either before or after judgment, and no appeal shall be taken from the judgment of said justice in any of the cases hereinbefore mentioned."
The first question arising on this appeal is the right of the Court of Common Pleas to issue the writ of habeas corpus cum causa. The act [**19]  of 1853, chapter 238, in language confers this power on the Common Pleas and all the other courts of the State. But it is said this act, in so far as it relates to the Court of Common Pleas, is unconstitutional, and in this opinion we concur. That court is one of limited and specified jurisdiction, and it is not competent to the legislature to add to or subtract from it. The 10th and 11th sections of the 4th article of the Constitution define the extent of the powers of the court. The first declares, "there shall be established for the city of Baltimore one court of law, to be styled the Court of Common Pleas, which shall have civil jurisdiction in all suits where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars; and shall also have jurisdiction in all cases of appeal from the judgment of justices of the peace in said city, and shall have jurisdiction in all applications for the benefit of the insolvent laws of this State, and the supervision and control of the trustees thereof." The other section is as follows: "There shall also be established for the city of Baltimore another court of law, to be styled the Superior Court of Baltimore [**20]  city, which shall have jurisdiction over all suits where the debt or damage claimed shall exceed the sum of five hundred dollars; and in case any plaintiff or plaintiffs shall recover less than the sum or value of five hundred dollars, he or they shall be allowed or adjudged to pay costs, in the discretion of the court. The said court shall also have jurisdiction as a court 

 [*348]  of equity within the limits of the said city, and in all other civil cases which have not been heretofore assigned to the Court of Common Pleas."
It is clear from these sections of the Constitution, that the Court of Common Pleas has no right, as an exercise of original jurisdiction, to issue the writ of habeas corpus, and the learned judge who decided this case claimed the right by virtue of his appellate power to revise the judgments of justices of the peace. Conceding that the Court of Common Pleas is authorized by the Constitution, on appeal, to review all judgments of justices of the peace in the city of Baltimore, it does not, therefore, follow, as held by that court, that this can be done in any case on habeas corpus. A great deal of learning on the right of appeal and the [**21]  right of the Supreme Court of the United States to issue the writ of habeas corpus has been expended in the case of Ex-parte Watkins, 3 Peters 193, and 7 Peters 568, and in the case of Holmes vs. Jennison, 14 Peters 541. We deem it altogether unnecessary to consider the principles recognized by those cases, inasmuch as the question involved in this was definitively settled in the case of Bell vs. The State, use of Miller, 4 Gill 301. In that case it was declared to be "established, and upon the most conclusive reasons, that where the judgment upon which the execution has been issued is merely erroneous and liable to be examined by an appeal from it, the writ of habeas corpus cannot be applied."
We think that the powers which are specially enumerated in the 10th section of the 4th article of the Constitution are all that are conferred on that court; and this opinion is fully confirmed by the language of the 11th section of the same article, which, after indicating some of the authority and jurisdiction conferred on the Superior Court, proceeds to declare, in addition thereto, "and in all other  [**22]   civil cases which have not been heretofore assigned to the Court of Common Pleas." The power to issue the writ of habeas corpus is not by the Constitution assigned to the Common Pleas, and therefore, under the 11th section of the 4th article is conferred on the Superior Court. And if the Court of Common Pleas has the right, on appeal, to review all judgments of justices of the peace in the 

 [*349]  city of Baltimore, this cannot be done on habeas corpus. Where an appeal will lie habeas corpus will not. This is the undeniable decision in 4 Gill 301, 305. This being so, the question is, is that clause in the act of 1854, chapter 138, which prohibits an appeal from the decision of the justice, constitutional? We are clearly of opinion it is not.
It was ably contended, that the provision in the 10th section of the 4th article, which declares the Common Pleas shall "have jurisdiction in all cases of appeal from the judgment of justices of the peace in the said city," should, standing alone, be construed so as to apply only to such cases as existing laws, or laws to be passed after its adoption, should allow of, and that the only limitation [**23]  on this power of the legislature to specify the cases in which appeals should be permitted is to be found in the 4th section of the 10th article, which provides, that "the trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of $ 5, shall be inviolably preserved."
It is doubtless to the interpretation put on this last quoted clause of the Constitution that the act of 1854, chapter 138, owes its existence; for its principal object seems to be to alter the act of 1846, chapter 109, which imposed a fine of $ 50, so as to deprive the party of the right of appeal. If the Constitution contained only the sections which we have given, we would be inclined to the opinion that the act of 1854 was but a constitutional exercise of legislative power in so far as it denies an appeal, but they are not the only parts of the Constitution bearing on the subject. The 19th section of the 4th article gives an appeal in all cases: the language is, "an appeal shall lie in all civil cases from the judgment of a justice of the peace to the Circuit Court, or to the Court of Common Pleas of Baltimore city.  [**24]  " The Constitution comprehending the judgment of the justice in all civil cases, it is not competent to the legislature to abridge it, as has been attempted by the act of 1854, chapter 138. That the case before the justice was a civil case, is established by the decision of the court, in the case of Day vs. The State of Maryland, 7 Gill 321. Speaking of the proceedings under the act of 1846, chapter 

 [*350]  109, the court say, they are "not criminal cases or prosecutions, but civil actions, actions of debt inter partes, and although the object of their institution is the recovery of fines and penalties, yet, in contemplation of law, they are as much regarded as civil actions, as if instead of actions in debt they had been actions for money had and received." In support of this doctrine the court rely upon the case of Atcheson vs. Everitt, Cowp. Rep., 382, which fully sustains it.
Having shown that the Constitution confers a right of appeal from all judgments of a justice of the peace, and, also, where the right of appeal exists the judgment cannot be reviewed in any manner on habeas corpus, it follows from these facts that the Court of [**25]  Common Pleas had no jurisdiction over this case in the manner in which it was sought to be exercised. And this being so, the case of Webster vs. Cockey, 9 Gill 92, and the case of Mister vs. The State, Ante, 11, establish the right of this court to review on appeal the action of the court below.
From these views it follows, necessarily, that the judgment of the Court of Common Pleas must be reversed. We might stop here; but inasmuch as the question which really gave rise to this controversy, is one which has a wide and great influence upon the administration of the police laws of the State, and has been determined differently by the Superior Court and the Court of Common Pleas, we deem it but proper to indicate the opinion we entertain on the subject.
The 44th section of the 3rd article of the Constitution declares: "No person shall be imprisoned for debt;" and the Court of Common Pleas have decided in this case, that a fine imposed by a justice of the peace for a violation of the act of 1854, chapter 138, is a debt within the constitutional meaning of the term. In this view we do not concur. We think the Constitution ought to have a common sense [**26]  interpretation, by which we mean the sense in which it was understood by those who adopted it, and, if it receive such a construction, in our judgment the term debt is to be understood as an obligation, arising otherwise than from the sentence of a court for the 

 [*351]  breach of the public peace or commission of a crime. Although it is a well recognized canon of construction, that where legal terms are used in a statute they are to receive their technical meaning, unless the contrary plainly appears to have been the intention of the legislature, the principle, however, does not apply to the interpretation of the organic law, which is to be construed, according to the acceptation of those who adopted it, as the supreme rule of conduct both for officials and individuals, and, in conformity with this view, it has been habitual for the supreme judiciary of the United States to derive light and instruction from the commentaries of the framers of the Federal Constitution. The writings of Hamilton and Madison in the Federalist have always been held as of the highest authority on all points of doubtful construction. We cannot be insensible to the fact that in all the struggles [**27]  for the abolition of the law for imprisonment for debt, the advocates of the measure contended it was unjust and cruel to place the unfortunate debtor on the same footing with the disturber of the public peace, or the perpetrator of crimes punishable by fines. The evident intention of the Constitution was to relieve those who could not pay their debts, and not to shield from punishment persons who had violated the public law. The first was an object which addressed itself to the benevolent and kind feelings of its friends, whilst the latter could never have found countenance from any considerable portion of the people of the State. It never could have been the intention of the Convention which framed the Constitution to destroy the whole police system of the State, or to impose upon the legislature the necessity to expressly provide, by new legislation, imprisonment in all cases in which fines and penalties had been denounced against the violators of the public law. They used the term debt in its popular sense, and the people evidently so understood it. They regarded it, as it was intended, a protection to the unfortunate, and not an immunity to the criminal. If a different [**28]  view were to obtain, a necessity would arise to substitute for nearly all the ordinances of the city of Baltimore, and the special acts in relation to the different 

 [*352]  counties, which impose fines and penalties, an entirely new system. We cannot be brought to the conclusion that such was the design either of the Convention, or of the people who adopted their work.
In denying to the Court of Common Pleas the right to issue a writ of habeas corpus, we of course are to be understood as referring to that writ cum causa, and not to the writ of habeas corpus ad testificandum. All courts have the right to issue this writ, it being a power indispensable to the trial of causes.
Judgment reversed. 

7 of 12 DOCUMENTS 

PETER KEES vs. MARTIN J, KERNEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 419; 1854 Md. LEXIS 15 

JUNE, 1854, Decided 

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

The appellant sued out a writ of scire facias under the mechanics' lien law of 1838, ch. 205, to enforce his claim for work and labor done and performed upon and about the building, described in the writ, of which the appellee was the owner or reputed owner. The claim filed before the writ issued is not in the record.

The sheriff made return to the writ, "made known," "copy served," and property "advertised." The appellee appeared and plead non assumpsit. To this plea the appellant filed a special demurrer that it was immaterial and inconclusive, and no final judgment could be rendered on any finding under it. The court below sustained the plea, overruled the demurrer and quashed the scire facias. From this judgment the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

If the claim filed before the scire facias issues, under the act of 1838, ch. 205, shows that the debt was contracted by the owner with the plaintiff, non assumpsit is a proper plea, because the claim would show a contract express or implied on the part of the defendant.

But if the claim be for work and labor, or materials furnished by some person employed by the builder and not the owner, the law does not raise an assumpsit as between the plaintiff and the owner, and in such case the latter cannot plead non assumpsit, but must notify the plaintiff of the defence on which the demand is resisted. 

COUNSEL:
T. P. Scott for the appellant argued the following points.

1st. The proceeding is in rem, no personal claim is asserted against the appellee, and no personal judgment could be rendered against him under such a scire facias. Act of 1838, ch. 205, secs. 1, 2, 3, 14, 19, 20, 26. 6 Gill 25, Carson vs. White.

2nd. It is immaterial whether he promised [**2]  to pay or not, for it is not alleged that he undertook or promised to pay.

3rd. The finding by a jury under such a plea would be inconclusive, and no final judgment could be rendered on such a verdict. 2 G. & J. 244, Iglehart vs. State use of Mackubin. 5 G. & J. 109, Sasscer vs. Walker's Excr. 6 G. & J. 460, Doogan vs. Tyson.

4th. An immaterial traverse is good cause for a special demurrer.

P. McLaughlin for the appellee.

1st. Although the proceeding is in rem, yet it is founded upon a contract express or implied, and in the absence of such a contract the writ of scire facias, under the act of 1838, ch. 205, can in no case be sustained. See secs. 5, 9 and 11, of that act.

2nd. If it is necessary in order to sustain the writ, that a contract should exist, then any plea that denies the existence of the contract, shows it satisfied, or that the defendant has a claim in bar, will be an answer to the writ, and raise an issue upon which judgment can properly be rendered, and will conclude the parties thereto. 5 Whart., 366, Sullivan vs. Johns. 1 Watts & Seargt., 240, Davis vs. Church. 4 Watts & Seargt., 467, Ewing vs. Barras. 13 Penn. State Rep., 181,  [**3]  Gable et al., vs. Parry, et al. 2 Miles, 45, McCall vs. Eastwick. Ibid., 215, Crean vs. McFee. 15 Penn. State Rep., 265, Chambers vs. Yarnall. 17 Do., 234, Harper vs. Keely. 2 Rawle, 316, Hopkins vs. Conrad, et al.

3rd. The act of 1838, ch. 205, gives to mechanics and others the property as security, and changes the mode of proceeding to recover for work and labor only so far as the writ and nar are concerned. The pleadings subsequent to the nar are in no way affected by that act. The act of 1845, ch. 287, requires these laws to be considered as remedial laws.

4th. The plea of non assumpsit raises the general issue. 2 Penn. State Rep., 363, Christine vs. Manderson. 12 Do., 339, Johns vs. Bolton. 1 Watts & Seargt., 240, Davis vs. Church. 6 Do., 483, Pentland vs. Kelly, and the authorities above cited.  

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

OPINIONBY:
TUCK 

OPINION:

 [*421]  TUCK, J., delivered the opinion of this court.
This is a proceeding under the mechanics' lien laws, in force in the city of Baltimore. The claim filed before the attachment was issued is not in the record. Consequently we cannot discover whether the alleged debt was contracted by the owner [**4]  with the plaintiff, or was for work and labor or materials furnished by some person employed, not by the owner of the property, but by the builder. In the first case the claim would show a contract or promise, express or implied, on the part of the defendant, to which non assumpsit would be a proper plea. In the latter case the law would not raise an assumpsit as between the parties, but the plaintiff might, nevertheless, enforce his lien against the property, under the 9th sec. of 1838, ch. 205, by showing that he had done work, or furnished materials for the building, at the instance of the contractor. Compliance with the provisions of the act would 

 [*422]  entitle him to recover, although the defendant had not promised, and thereby made himself answerable for the claim.
The claim filed performs the office of a declaration, when made as required by the act of Assembly. The sci. fa. notifies the party and gives him an opportunity of showing cause against enforcing the lien. In some cases, as we have said, the general issue in assumpsit may be relied on; but we do not perceive that this cause was such an one as authorised that form of defence. The defendant professes [**5]  to answer the sci. fa. by a denial that he had undertaken or promised, as alleged against him, when no promise is averred, and it does not appear that there was any express or implied.
The act of 1845, ch. 287, provides that these acts shall be considered as remedial, and as if conferring general jurisdiction, but they do not dispense with the forms of pleading recognized in such courts when administering remedial laws. In the only case in this State, under this act, which has come under our notice, ( Carson vs. White, 6 Gill 17,) the Court of Appeals have indicated with some particularity the manner of stating the plaintiff's claim. The defendant has a right to a specific account of the matters for which the claim may be filed, before he can be required to plead; and we think there should be mutuality in conducting the cause. In that case the pleas were special, and notified the opposite party of the defence on which the demand was resisted. Here the plea takes defence on a ground wholly immaterial to the plaintiff's right to enforce his lien. As far as this record discloses, any other plea in actions ex contractu, would have answered the demand as well [**6]  as the one employed.
Judgment reversed and procedendo awarded. 

8 of 12 DOCUMENTS 

WILLIAM H. COLLINS, Adm'r of ELIZA CARMAN, vs. JACOB CARMAN, Exc'r of WM. CARMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 503; 1854 Md. LEXIS 21 

JUNE, 1854, Decided 

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

This appeal was taken from an order of the court below, (LE GRAND, A. J.,) dismissing the bill of the appellant. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

A testator directed a certain "lot, house and furniture to be used by his wife during her life," and that the trustees named in his will should pay to the niece of his wife "$ 50 per month for the expenses of all the comforts and necessaries that may be necessary for the family of his wife." HELD:

That these provisions of the will in regard to the widow are such devises of realty and bequests of personalty, within the meaning of the act of 1798, ch. 101, sub-ch. 13, as to create a necessity for their renunciation before the widow can claim her dower or thirds.

A testator made provisions by will for his wife, who was insane at its date, and continued so until her own death, more than four years after that of her husband, and never renounced the will, but enjoyed the benefits thereby provided for her during her life. HELD:

That her administrator upon her death cannot make the renunciation for her, nor by reason of her insanity claim her legal share of the estate notwithstanding the provisions of the will.

Whether a court of equity can or cannot make an election or renunciation for an insane widow during her life and in proper time. Quere.

Considerations of evil and hardship may properly exert an influence in giving construction to a statute where its language is ambiguous or doubtful, but not when it is plain and explicit.

By the act of 1798, ch. 101, sub-ch. 13, every valid devise or bequest to the widow is made an effectual bar to her dower or thirds, unless removed by renunciation, and until that is made the bar remains.

The law admits of no excuse for a failure to renounce; if she makes no election within the time prescribed, the law makes it without stopping to inquire for what reason she made none.

The act of 1798 has changed the common law: under it when a man dies leaving a will making valid gifts of real and personal estate to his wife, she has not, as she had at common law, a vested right to dower and to her thirds of his personalty, but her vested rights are under the will by virtue of the statute law.

This act gives to the husband the power to extinguish the common law rights of his widow unless she thinks proper to renounce the will, and to effect the husband's object the wife need not declare her assent, but if she desires to defeat it she must do so by an express dissent.

This dissent by the widow is an act which must precede her becoming entitled to or vested with those rights which she might have claimed but for the will.

This election vests in the widow the right of dower and thirds in lieu of what the will had given, and the failure to renounce does not therefore work a forfeiture of any vested rights, but simply prevents her from acquiring the rights she would have had had her husband died intestate.

The language of the act is comprehensive enough to include every widow, whether sane or insane, and the act having made no exception in favor of the latter, the courts can make none, whether they be courts of law or equity.

There is but one rule of construction for statutes, and that must be applied as well in a court of equity as in a court of law.

Where the law directs an act to be done or a condition to be performed for the purpose of conferring a right, that right cannot be acquired if the act is left undone or the condition is not performed.

The right to renounce seems to be a personal privilege, and cannot be exercised by the administrator of the widow, especially after the lapse of four years from the death of the husband, and after she had enjoyed during all that time the benefits provided for her by the will.

The law is vigilant in endeavoring to avoid delay as far as practicable in the settlement of estates, and has therefore required the widow's renunciation to be made within six months, and having made no exception in favor of an insane widow in this particular, the court cannot say there is no limitation of time as to her short of her life.

The 5th section of the 13th sub-ch. of the act of 1798, ch. 101, making the widow accepting a devise a purchaser with a fair consideration, was not designed to provide for the free exercise of volition on the part of the widow, but the analogy to the case of a purchaser has reference to the validity of the devise. 

COUNSEL:
Thomas S. Alexander and William Schley for the appellant.

1st. The will of the deceased contains no such devise to, or provision for, the widow as required her to make a renunciation in order to entitle her to claim her reasonable part or thirds of the testator's personal estate. The act of 1798, ch. 101, sub-ch. 13, speaks of a devise or bequest "to the wife;" she is barred by any "such" devise or bequest. Now this testator gives nothing to his wife, and does not say that he intends the provisions made for her shall be in lieu of her legal rights. He directs that she shall be taken care of by others, and makes provision to enable them to fulfil his wishes. But he gives nothing to his wife. He provides even for her funeral expenses out of his estate. She had nothing by his will, not even enough to bury her. We do not rely upon any mere technicality in respect of any distinction between a bequest, per directum,  [**2]  to the wife herself, and a bequest, per indirectum, to another for the use of the wife. There is a direction to pay Susan H. Jones $ 50 per month for the expenses of the family of the wife, and this is to be disbursed by Susan H. Jones, who is to be allowed a commission therefor. Could the wife, if compos mentis, have renounced this bequest to Miss Jones without her consent and concurrence? The object of the testator was to have his wife, in her unhappy condition, properly cared for, and to accomplish this he gave to another person, not to his wife, the necessary means. If any bequest is made directly to the wife the case is plainly within the act. If a bequest is made to A for the use of the wife, it is still a bequest to the wife, not per directum, but beneficially to her; she has an interest constituting a right, legal or equitable, as the case may be, and it is within the act, and may be aptly said to be a bequest to the wife. But where any thing is given to A, and A is charged with the performance of something which the testator deems it his duty to provide for, even if that something to be done by A relates to the care and comfort of the wife, it cannot be truly said that what [**3]  is thus given to A is given to the wife, and therefore it is not a case within the act. Such is the case before the court, and it seems to us that this reasoning is natural and just, and more especially in a case where a forfeiture of acknowledged legal rights would otherwise result. The same views are equally to be taken in regard to the bequest of the furniture. The question is, does he give to his wife the use of the furniture, or does he give it in such way as to exclude all idea of property in her? It was to be put under the care of the housekeeper, and the trustees were so instructed to place it under her care. The wife had ownership of nothing, nor the right as mistress, or as one having authority, to the use of any thing. Every thing in and about the establishment were to be administered entirely independent of her volition. She was the object, not the donee, of these provisions of her husband's will.

2nd. The provisions of the act of 1798, ch. 101, sub-ch. 13, requiring the widow to file her renunciation of the bequests contained in the will of her husband, in her favor, on pain of being barred of her reasonable part or thirds of her husband's estate, imply choice and [**4]  election on the part of the widow, and cannot apply to the case of a widow, who was at the time of the testator's death, and ever after, non compos mentis.

What is the true construction and effect of this act? Upon reading over the entire sub-chapter, it will be found there is no distinction made between the widow's acknowledged legal right to dower, and her acknowledged legal right to a share of the personal estate of the husband. It will also be seen that the widow's rights referred to in the act are recognised as rights already existing, and are not introduced or created by it. It becomes material then to consider what were the legal rights of a widow in Maryland at the time of the passage of the act of 1798? So far as respects her right to dower in her husband's real estate no question was ever made. It was a right existing at common law, favored by the common law, not dependent upon the will of the husband, not resulting from his bounty nor subject to his control. But in relation to personal estate there have been at different periods differing opinions expressed by eminent jurists, in England and in this country, as to the husband's power to bequeath his personal estate,  [**5]  irrespective of any claim of his wife. But in Maryland there can be no question made that at the time of the passage of the act of 1798, a husband had not the power to give away his personal estate from his wife. In the case of Griffith vs. Griffith, 4 H. & McH., 101, the very point was decided, that "at common law the wife was entitled to a third part of the personal estate independent of the husband." See also 4 H. & J. 480, Coomes vs. Clements. The first of these cases was argued with eminent ability by the ablest counsel of that day, and in the report of the case will be found the written opinions of William Pinkney and William Cooke, both in favor of the wife's legal right. We think therefore that it is perfectly clear that the widow's right in relation both to real and personal estate at the time of the passage of the act of 1798, was a known and acknowledged legal right, not introduced for the first time into the law of Maryland, but an ancient, venerable, and sacred common law right.

Our next proposition is, that this legal right was left by that act precisely as it was before its passage. Let us examine each section separately.

The 1st section of the 13th sub-chapter [**6]  introduces a new rule of construction of a will where any thing is devised or bequeathed to a widow, and it is declared that it "shall be construed to be intended in bar," &c., "unless it be otherwise expressed in the will." By the previous acts of 1715, ch. 39, and 1729, ch. 24, the case of an election by a widow is made to depend on the question of the testator's intention, for she was to elect, "when it appears not" in the will that he "intended" the devise as a legacy only. As difficulties might, and no doubt did arise, as to whether his intention in given cases did or did not appear, the section in question excluded such difficulties, by making an election in every case where it was not otherwise expressed.

The 2nd section re-enacts the provisions of the act of 1729, ch. 24, secs. 10 and 11, in somewhat different language. By the latter the widow was barred in case she shall "neglect" to make her election in time. The former says, she is barred "unless she renounces" the will within the limited time. In the form of the renunciation the words are: "and I elect to take in lieu thereof my dower or legal share of the estate of my husband."

The 3rd section applies to a devise [**7]  of both real and personal estate, and requires a renunciation of both.

The 4th section applies to the case of a devise of real estate only, or of personal estate only, and provides that in case of a devise of real and none of personal estate, if she abide by the will, she loses "her legal right in the real, but retains her legal right in the personal."

The 5th section shows that a widow "accepting or abiding by a devise in lieu of her legal right shall be considered a purchaser with a fair consideration." The act of 1729 did not contain this just and equitable provision. The widow is in truth a purchaser, and she can only be a purchaser on the ground that in accepting the devise she parts with an existing legal right. We think then that this analysis of the act shows that it left the widow's legal rights precisely the same that they were at the moment of its passage.

If we are right in this, Mrs. Carman, by her marriage, acquired a potential right of dower in her husband's real estate, and a potential legal right to receive one-third of the clear personal estate he might leave at his death. Of these legal rights, thus secured to her by the law of the land, he could not [**8]  deprive her without her consent, express or implied, in case she should survive him. But he made certain provisions for her by his will, and this raised a case of election. She could not claim both. The act of 1798 gave her time to make an election between the provisions made for her by the law and those made for her by the will. If she elected to hold the former, she was required to file a formal renunciation as evidence of her choice. If to hold the latter, no renunciation was required; the omission to renounce was evidence of her acceptance of the devise. Silence was evidence of consent, "qui tacet consentire videtur." But in this case the widow was in a condition of insanity. She had no capacity to purchase, no mind to make an election, and no one to act for her. Can it be law that under such circumstances her omission to file a renunciation shall have the effect to bar her of her legal rights? If so then an insane wife is perfectly at the mercy of her husband, however merciless he may be, for if the wife in this case is barred of her legal rights, the result would have been the same, in case her husband had been worth a million and had given her a legacy of a hundred dollars.  [**9]  If she is concluded by the omission to renounce, then there is one law for a sane wife and another law for an insane wife, for the former may protect herself in her legal rights by making due renunciation, whereas, the latter from her inability to act at all, is deprived of her legal rights. But there is but one law for the wife, sane or insane, and if the transaction is, in one case, in the nature of a purchase, grounded on consent, choice, election, acceptance, in other words, on contract, so in the other, as there is no capacity there can be no contract, and she cannot be said to sell her legal rights. Of all persons whom the law guards with the greatest care and tenderness and zeal, the unhappy lunatic may be considered the first. It is not mere christian feeling, it is not the consequence of improved civilization, but it is found in our law from the earliest periods, as ancient as law itself, that a lunatic can do no prejudice to his person or estate, he can commit no crime, incur no forfeiture, make no contract. Limitations do not run against him. And even if our act had said per directum, that a widow should forfeit her legal rights if she did not renounce, the law would have [**10]  grafted an exception in favor of a lunatic widow, and would have held the act to be lex sub graviori lege. It would not have been presumed that the legislature intended to abrogate all the cherished and sacred principles of the law in relation to lunatics, much less in the actual provisions of the act, which clearly provides for an opportunity for election, which of course implies capacity to elect.

In the case of Earl Digby vs. Howard, 4 Sim., 588, and the same case on appeal to the House of Lords, 2 Clark & Finnelly, 636, the great principle was expressly decided by the vice-chancellor, and not only not overruled, but not even questioned by the House of Lords, that in case of a lunatic there can be no presumption of acquiescence. See also 1 Merivale, 296, Ashby vs. Palmer. 1 Peere. Wms., 389, Seeley vs. Jago. 4 Hill, 73, Breasted vs. Farmers Loan Co. Shelford on Lunacy, 242, in 2 Law Lib., 154, 157. In Demarest vs. Wynkoop, it was decided, that the general enabling words of a statute do not extend to infants and femes covert, and persons laboring under disabilities, but there is no case where a forfeiture has been enforced against a lunatic because of default. The same general [**11]  language is used in the acts of 1795, ch. 88, sec. 1, 1799, ch. 79, sec. 1, and 1820, ch. 161, secs. 1, 2, in reference to non-resident defendants in chancery suits, and no exceptions are made in favor of parties under disabilities, yet these acts have never been construed to extend to lunatics or feme coverts. There is a great distinction between statutes of limitations, and for repose, which bar remedies, and those which bar a party of his rights. The cases that may be cited from Kentucky and North Carolina, are not applicable, because in those States the widow had no legal right to the personal estate previous to the statute, and the latter expressly gave it to her.

The argument on the other side is, that where any bequest is made to the widow, renunciation is a condition precedent to the creation of her legal rights; that by renunciation she acquires a legal right. If this be the true construction of the act of 1798, if the law speaks the language, that where anything is given the widow has no legal rights whatever, unless and until she shall actually file a renunciation, and that the law then, for the first time, and on the basis of such renunciation as a condition precedent,  [**12]  clothes her with legal rights, then we are, of course, excluded from our present claim. The act is then a tyrant which regards nothing but its own will. But we have endeavored to show that such is not its true construction; that it recognises the existence of the legal rights of the widow; that where anything is given by the will a case of election arises, and that until election be made both rights subsist in posse, the one or the other to become a right in esse when election is made, and that the act makes the omission to renounce evidence of her election to accept the devise offered in lieu of her legal right.

But it is said that this right to renounce is personal to the wife and cannot be claimed by her personal representatives. If the wife were capable, we have no doubt that her representatives, after the lapse of six months, could not, even if she had died within that time, exercise this right. But in case of a lunatic time would not begin to run, and her actual incompetency would prevent the forfeiture of her legal rights. In the case of Boone vs. Boone, 3 H. & McH., 95, the widow was compos mentis at the time of the death of the husband, and there was, therefore, a time [**13]  within which she might have elected. Here the widow was insane at the time of the death of the husband, and continued so until her own death. But suppose an insane widow makes her election and afterwards recovers her reason, could she not avoid her election? Such an election would clearly not be binding upon her. See 7 Iredell, 72, Lewis vs. Lewis. 6 Do., 276, Hinton vs. Hinton.

If a renunciation in fact was necessary, it was made by the complainant on the very day of his appointment, and until his appointment there was no person in esse, (as the wife had no committee or trustee,) competent to act. If it be said the orphans court was not the forum, then, by his bill, as in the case of the Duchess of Norfolk, the administrator has come into chancery, which undoubtedly has jurisdiction.

T. P. Scott and John V. L. McMahon for the appellee.

The bill every where assumes or concedes, that the devises or bequests under consideration were such as would, under ordinary circumstances, have rendered a renunciation of them necessary, and claims for the complainant the right to renounce because of the continued insanity of Mrs. Carman until her death. But the argument goes beyond [**14]  this, and maintains that this was not a case in which any renunciation was necessary, or at least not as to the personal estate, and this it will be proper first to consider.

The provisions as to such renunciation, (contained in the 13th sub-ch. of the act of 1798, ch. 101,) are familiar to the court. Suffice it to say that they enact, that every devise of any estate in lands shall be construed to be intended to be in bar of her dower, and every bequest of personal estate to be in bar of her distributive share, so that if such devise or bequest is made, the law presumes it to have been intended as in bar of her dower or distributive share, and therefore renders renunciation necessary in such a case. And the argument, (whilst it seems to concede that any devise or bequest either directly to the wife, or indirectly to her by devise or bequest to another for her use, would be sufficient to require renunciation,) maintains, that the provision for the monthly allowance of $ 50, to be paid to and expended by the niece, Miss Jones, for the benefit of the wife, was not of such a character. In directing auontion to this part of the bequest, the argument has overlooked another part which [**15]  is free from all doubt, as we conceive, as to this question. There is by the will not only an express devise of the use for her life of the house and lot, but also of the furniture in the house, so that there is an express bequest for life, or of the use for life (which is the same thing) of all the furniture in the house. And it will not be denied, that a bequest for life gives a mere usufructuary interest, and that the bequest of the use for life gives a life estate, and would carry with it all the right to increase, &c.; and that where the use consists in the consumption, there it gives the absolute interest. Authorities are not wanted for such a proposition.

It is not, therefore, necessary to enquire, whether the $ 50 per month allowance is not also a bequest of personalty within the meaning of the act. Any bequest of personal property is sufficient to put the party to the renunciation, without regard to the amount or nature of the bequest. But if it were necessary to enter into this enquiry, it would not, we think, be difficult to show that the monthly bequest of $ 50 would alone be sufficient for that purpose. The argument on the other side concedes, that a direct bequest [**16]  to the widow is not absolutely necessary for that purpose, and that a bequest to another for the use of the widow might be sufficient, and distinguishes this case, because although here the widow was certainly the object of the bequest, still the funds and the expenditure of them was confided to another. Yet what is it but the creation of a trust for her benefit, under which the trustee is to receive the funds and regulate the expenditures? The expenditure being directed to be made for the support of the widow, is not the widow a legatee as cestui que trust, who could, by herself or next friend, require an account of this trust and compel its faithful fulfilment? Exactly such a trust as exists in many cases? Even a general direction to the executor to support a party, (without specifying the sum to be thus expended,) makes such a party a legatee, who may enforce the bequest by bill in chancery, (Farwell vs. Jacobs, 4 Mass. Rep., 635.) And where the sum and the object are both defined, it will be difficult, we think, to maintain, that such a bequest is not one for the use and benefit of the wife. This will be easily tested by enquiring, what would be the effect of the wife's coming [**17]  in and expressly renouncing that bequest if competent to do so? Would it not put an end to the bequest or the payments under it? and could the trustee, after such renunciation, assert any claim to it?

We therefore consider it clear, that there was such a bequest of personalty (as well as of realty,) as rendered renunciation necessary: and it remains to enquire whether, this renunciation not having been made, and the widow having received the full benefit of the bequest during all her life, the administrator can now renounce, or this court can permit him to renounce, and thereby claim and obtain her full distributive share.

In considering this question as to the validity of the administrator's renunciation, or the power of this court to grant him the right of renouncing, we may well enquire: what it is which the administrator seeks to renounce? And the answer is, a bequest which was fully and completely executed or paid during the life of Mrs. Carman. At her death this bequest became inoperative, she having received the full benefit of it during all her life, and there was therefore in fact, nothing to renounce at her death, the bequest being completely executed, and there [**18]  being nothing further due or payable under it. There was at the death therefore, nothing on which the statutory power to renounce the bequest could operate, and nothing to which this power was applicable.

But even waiving this, let us see what there is in the act of 1798, ch. 101, sub. 13, which would justify such a renunciation by the administrator, after the death of the widow, and long after the lapse of the time for renunciation, as prescribed by that act and its supplements. And in considering this question, it will be proper to observe, that this right of renunciation is to be governed exclusively by the act of 1798, ch. 101; and that the anterior acts on that subject can only serve to furnish aid in the construction of the former. It will not be questioned that, although the marriage in this case took place in 1791, still the rights of the widow, as to the property, and especially the personal property which Mr. Carman left at his death, are to be determined by the act of 1798, and as this bill is confined to the claim for the distributive share of the personal estate, we need not extend our remarks beyond the case. We do not dispute the proposition, that by the law of [**19]  Maryland, as settled in the cases referred to in the argument for the appellant, the widow is so entitled to her reasonable part or thirds of her husband's personal estate, and that he cannot defeat it by his will. Yet it will not surely be contended, that this gave her any vested interest in his personal property during his life, or any thing more than her share of what he may have at his death. During his life he may alien or dispose of it at pleasure. If then the personal property of which he died possessed, was even held by him at the period of the passage of the act of 1798, and had been ever since held by him, there was nothing to prevent the legislature at that period, from passing any law it might deem proper to regulate her right of succession to it, or sharing in it after his death; and as to personal property acquired after the act, (which was the predicament of all he held at death,) there could not be a possible doubt. The right of Mrs. Carman to her reasonable thirds, as against the will of her husband, was then a right given by the law, and which the legislature, by the act of 1798, could either have wholly taken away, or could modify and regulate at pleasure. The act [**20]  of 1798, might have enacted, that such a devise or bequest should be a flat bar to this peculiar right of the widow, under our law, to claim her distributive share against his will, and it remains only to see to what extent it has made the devise or bequest a bar, and how the bar is to be removed, or the right saved.

We maintain, in opposition to the views of the counsel on the other side, that by force of the act of 1798 itself, the bequest is a bar to the claim, until removed or defeated by the renunciation; that the claim to the share does not arise, until the bequest is repudiated by the renunciation; that the act and its supplements having enacted, that the bequest shall be a bar, until it is renounced, and unless it is renounced within a given time and by the widow, that no other or different renunciation than that authorized by the law will suffice to remove the bar; that the power to renounce is not only to be exercised within a limited time, but is also given personally to the widow, and to her alone, and that if she neglects or is even incapable of exerting it, the power under the act falls, and that to enlarge that power of renunciation beyond that given by the statute,  [**21]  so as to meet cases of incapacity to exercise it at all, or incapacity to exercise it within the given time, which the statute had not anticipated or provided for, would be to legislate, and not to construe and apply the act of 1798.

A very few remarks will suffice to place before the court our views, as to the true construction of these sections of the act of 1798.

The first object of the 13th sub-chapter was to put an end to the controversy continually arising, as to the intent of the husband in making devises and bequests to his wife; and as to whether he designed it to be in bar of her dower or distributive share, or intended to give her both. And this source of controversy is effectually removed by the express provisions, that it shall by law be assumed to have been intended as a bar by the husband.

Then follow the provisions as to the effect of such a devise or bequest, which expressly declare, "that the widow shall be barred of her dower by such devise or bequest, unless within ninety days (now six months) after probat, &c., she makes a written renunciation of the form of that given, or to that effect." So that by the express words the bequest is a flat bar to [**22]  the share, unless it is removed by the renunciation made as there prescribed; and it is not a provision that it shall be a bar if she accepts it; but it is a bar by force of the statute, unless she renounces it, and the bequest being intended to bar her claim to the share, her power is to defeat the effect of that bequest as a bar, by expressly rejecting the bequest in the time and manner limited. It is therefore a bar, and a bar by force of the statute alone, subject only to her power to defeat it as there prescribed; and therefore necessarily remaining a bar, unless thus defeated, and this saving or exception of the widow's power to defeat it cannot be extended beyond the statute. A single illustration borrowed from the decided cases, as to the statute of limitations will suffice. These statutes in general terms, bar rights of entry and action, if not prosecuted within a given time, allowed by them for that purpose, and it is settled with regard to these statutes, that if the statutes themselves had not made an exception in favor of infants and lunatics, the statutory bar would act on them as on all others; and that where an exception or saving is made on behalf of infants, lunatics,  [**23]  &c., the courts cannot add to or enlarge that exception. Hence in Demarest vs. Wynkoop, 3 Johns. Ch. Rep. 138 and 142, Chancellor Kent decides, that where a statute makes no saving or exception, the court cannot add one, and that where the parties would avail themselves of a saving or exception, they must take it as the legislature has given it, and under such restrictions as it has imposed and not otherwise. And in the same case, speaking of a supposed equity for extending the time, he remarks: "The doctrine of any inherent equity, creating an exception, as to any disability where the statute of limitation creates none, has been long, and I believe uniformly exploded. General words in a statute must receive a general construction, and if there be no express exception the court can create none. It was agreed without contradiction in Stowel vs. Zouch, (Plowden, 369, b. 371, b.) that the general provision in the statute of fines would have bared infants femes coverts, and the others named in the proviso, (i. e., lunatics,) equally with persons under no disability, if they had not been named in the exception or saving clause," and at page 143, he refers to several cases, expressly deciding [**24]  "that though the courts of justice were shut by civil war, so that no original could be sued out, still the statute ran."

Now with reference to this case; here is a bar to her claim to the share, which would be a flat bar, but for the saving of her power to renounce the bequest, and whether you call it an act of renunciation or election, it still gives her but an election to renounce, and makes the bar effectual against everything but her renunciation. It does not require her act or assent to make the bar effectual, the statute provides that--the act she is to do is to defeat the bar. Here then is a case in which it is admitted, that she never did renounce at all, and in which her representative asks the court to permit him to renounce long after the lapse of time limited by the law. It is admitted, therefore, that no such power to renounce, as is now sought to be exercised, is given by the act, and it is claimed, not because the act gives it, but because the power to defeat, which the act did save to the widow, could not be exercised by her because of her insane condition. What is it then but to ask the court to enlarge the saving of the widow's rights beyond the savings of the [**25]  statute to meet a case not foreseen or provided for by the statute? And if incapacity to exert the power in the manner or time directed, is to be held to give the court the power to enlarge it beyond the statute, what is it but to legislate to meet omitted cases? Under the act of 1798, the time for renouncing was ninety days: and in the imperfect mode of communication at that period, and the delays in travel, cases might readily occur, and most probably did occur, in which the widow, if absent in a foreign country, was in fact incapable of making the renunciation within the time, (as much incapable from those causes as a lunatic,) and yet was it ever supposed that such incapacity would entitle her to renounce afterwards? So long continued illness might produce substantially the same incapacity. And we do not suppose that any failure to exert the statutory power from causes beyond the control of the party, would entitle the court to add to or enlarge that power, even in cases where it is clearly shown to the court that the party, but for those causes, would have exerted the power.

To these general views many illustrations might be added, founded upon the well settled rules of law,  [**26]  as the effect of conditions, &c., upon estates held by infants and lunatics, and others laboring under disabilities, and which hold that where the performance of a condition is necessary to save an estate or to vest an estate, those under disabilities must perform or observe the condition according to its terms, just as those under no disabilities. See 2 Dana, 343, Shaw vs. Shaw. 7 Iredell, 72, Lewis vs. Lewis. 2 Dev. Eq. Rep., 344, Craven vs. Craven. 7 How. Miss. Rep., 665, Ex-parte Moore. 2 Harrison, 462. 2 Kent's Com., 452, 4 Do., 35. 1 Jarman on Wills, 799, (note.) 62 Eng. C. L. Rep. 566, Humfrey vs. Gery. But the present is a case, in which the court are called upon, not only to enlarge the time of renunciation to a period of nearly or quite four years beyond the time limited, but also to give it not to the widow, but to her personal representatives. The act of 1798, expressly gives the power of renunciation only to the widow, and it would, it seems to us, be difficult to maintain, that such an act, looking to and speaking of this act of renunciation as a personal act of hers, could be construed to give it to her representative if not exerted by her from incapacity, even upon [**27]  general principles, as to the nature of such personal powers. But there exist in the nature and objects of these provisions for the wife out of the husband's estate, obvious reasons for the statutory grant of the power to the wife alone. The wife's dower and distributive share, after the death of the husband, are provided by the law, only as means of securing her a comfortable maintenance after his death, and the right to renounce is given to the widow personally for the same end, and the act never contemplated that after her decease, and the object and end of these provisions, insuring her a comfortable support had gone by, the power to renounce should be exercised and the husband's will defeated, only for the purpose of taking away the share from the husband's estate, and giving it to the relatives of the wife. The power expressly given does not reach such a case; and we think it can scarcely be doubted, that the legislature, even if their attention had been directed to it, would not have extended it to such a case. At all events there is nothing in the act to warrant such an extension by judicial construction of the act of 1798. And that the privilege of renouncing belongs to the [**28]  widow alone is the precise point, decided in the case of Boone vs. Boone, 3 H. & McH., 95. There the widow died within forty days after her husband's death, without having made any election whether she would abide by the bequest or not, and the question was, whether the widow's personal representative could renounce and claim her share of the personalty. "And (to use the language of the report,) Jennings, chief judge of the orphans court, was of opinion that the representatives had no right to the privilege which the law allows the widow, being intended entielly for her benefit and personal privilege," and on appeal to the General Court, that opinion was affirmed. We have thus a decision on this precise point, entitled to the highest consideration, and one too still more forcible in its application, because it was a decision before the act of 1798, and upon the provisions as to the wife's right of election under the act of 1729, chap. 24, sec. 10.

The argument for the appellee concedes, that if the widow were capable, and died within the six months, the administrator, &c., could not make the renunciation, but even that concession, if made to distinguish this case from that in [**29]  3 H. & McH., will not avail; the point of the decision is that it is a power and privilege, personal and confined to the widow, intended only for her benefit, and therefore not to be exercised upon her death, even if she died before the time had gone by. See also, 7 Iredell, 72, Lewis vs. Lewis. 1 Thoma's Coke, Litt., 452, 567, 569. 3 Bac. Abr., (Bouvier's Ed.,) 310. 3 Comyns Digest title Election, B, 536, 540. 4 Kent, 70. 1 Md. Ch. Decisions, 147, Kiddall vs. Trimble.

And we may add, that not only is this personal power of the widow attempted to be executed in this case after death, but also by renouncing a bequest, under which the administrator takes nothing and is entitled to nothing. So that it is not only to extend the power to one to whom it is not given, but also to one to whom the bequest gives nothing, and who therefore renounces a bequest, under which he has nothing to renounce. The power to renounce should at least be limited to those entitled under the bequest.

Nor is there any thing in the facts of this particular case, which could cause regret, that the power is not by the statute extended to such a case. The provisions for the support and comfort of the wife,  [**30]  were exactly such as the most tender and careful husband would have made, far better for that end than any naked bequest, and were most faithfully observed during her life. And the husband not content with this, has by his will distributed among his wife's relatives a large part of his estate, and more, as is shown by the answer than her share of his estate would have amounted to.

We have not deemed it necessary (under our views of the case,) to consider particularly the case of Earl Digby Howard, 6 Cond. Eng. Ch. Rep., 267, and 2 Clark & Finnelly, 636, which is so much relied upon in the opposing argument. The point in that case, was whether pin-money, was or not the separate estate of the wife, and if such separate estate, whether the husband's receiving and using the separate property, whilst his wife was a lunatic, could be deemed an user of it with her consent, so as to bar the claim for it by her committee against her husband's estate. Assuming all that is claimed for the case, it does but hold that the separate property could only be given to the husband by contract, or such acquiescence as is evidence of a contract, and that the non-objection of a lunatic does not evidence [**31]  such a contract; and the answer to it is, that in this case, we do not bar the claim to the share by force of any contract express or presumed with the widow. We claim the benefit of the statute bar by force of the bequest unrenounced, the wife's right exists only under and by force of the power to renounce, that power to renounce the statute gives to her as the means of vesting in her a right to the share, and renunciation being admitted to be essential to give a claim to the share, is only authorized, and can only be made in the manner prescribed in the statute. And whatever might be the effect of acquiescence against the widow, if the power be personal and confined to the widow, and ceases with her death, the power to remove the bar by renunciation is gone, and the bar therefore remains in full force.

Upon the whole then we insist:

1st. That under our acts of assembly, relative to the effect of devises to the widow, the devises in this case to Mrs. Carman, were, by force of those acts alone, and independently of any consent, a bar to her claim for dower and share of the personal estate, unless, and until the devises were wholly renounced, and renounced in the time and [**32]  manner directed by those acts; and that no renunciation, other than that authorized by those acts, can remove such bar, nor can the courts alter the time or mode of renunciation, because of disabilities not provided for by those acts.

2d. That the right given to the widow to renounce the devises, so as to entitle her to her dower and shares of the personalty, by force of such renunciation, could not be claimed and exercised by the appellant, as her administrator, after her death and after the lapse of the time allowed by law for such renunciation; because such right is given by law, to the widow alone as a mere personal right, and also as one intended only to ensure her a comfortable maintenance and support during her life; and also, because under the acts relative to such renunciation, the administrator is incapable of making the renunciation as required by those acts, the devises and bequests to the widow having been fully enjoyed and exhausted during her life, and the renunciation required being of the whole devises both of real and personal; and also, because to allow such a renunciation as removing the bar of the acts, would give a new right, not only not given by those acts,  [**33]  but in fact repugnant to their provisions.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*522]  ECCLESTON, J., delivered the opinion of this court.
Eliza Carman, who was the wife of Wm. Carman, became insane some time prior to the date of her husband's will, and so continued until her decease, which occurred more than four years after his death and the grant of letters testamentary on his estate.
The will named the appellee with two others as executors and trustees. The others having renounced, the appellee took upon himself the trusts reposed in him.
The clauses in the will which are deemed important in the present controversy are the following:
"Out of the income of my estate and during the lifetime of my wife, Eliza, my trustees above named will pay all taxes and repairs of my lot and house in High street, in the city of Baltimore, in which I order and direct my trustees to take no account of the furniture, so as to have it removed or disposed of; the said lot, house and furniture to be used by my wife Eliza, free from any cost or charge to her during her life. 

 [*523]  My trustees will take an inventory of my books and furniture, [**34]  and give in special charge to the housekeeper, that they be not wasted or destroyed by neglect or imposition on the liberality of my wife. My trustees will employ a housekeeper, who will be kind and careful of my wife Eliza, and I would give the preference to Ann Bell or Elizabeth Miller, with the wages and necessary maintenance for the comfort of my wife Eliza."
"My trustees will pay to the niece of my wife, to wit, Susan H. Jones, fifty dollars per month, and monthly, for the expenses of all the comforts and necessaries that may be necessary for the family of my wife. My trustees will examine the accounts of Susan H. Jones, and for all moneys she may produce satisfactory vouchers for, they shall allow and pay her four per cent. out of other moneys than the fifty dollars per month above mentioned. Any expense of doctors or funeral charges for my wife, is not included in the fifty dollars per month above named."
No renunciation, by the widow, or by any one in her behalf, was made, or attempted to be made, during her life; but the provisions in the will for her benefit were fully complied with by the appellee. Shortly after her decease letters of administration on her estate were [**35]  granted to the appellant, and very promptly he filed in the orphans court a paper purporting to be a renunciation of the devises and bequests made for the benefit of his intestate. The right to make such a renunciation was denied and opposed in that court by the appellee.
Subsequent to this proceeding the present bill was filed, for the purpose of obtaining a decree declaring the renunciation of the appellant effectual and sufficient; or if, from any cause, it should be deemed informal or imperfect, the complainant prays that he may be considered as revoking, by his bill, the renunciation. He then prays for an account of the personal estate of William Carman, and that his executor, (the appellee,) may be required to pay to the complainant such sum as he may be entitled to receive, in right of his intestate, from the personal estate of her deceased husband.
The renunciation professes to renounce "all the bequests 

 [*524]  and provisions made to or for the benefit" of the widow, and claims in lieu thereof her share of the personal estate, and an account of the rents and profits of the realty.
The bill admits that the appellee faithfully fulfilled all the directions of the will,  [**36]  in relation to the support and care of the widow, and that in his accounts he had received credits for such disbursements. And the complainant states, that in case his renunciation shall be available in law, he is willing to make all just allowances in regard to the expenditures which have been made for the widow, upon an account to be properly stated; in which account he supposes the proportions of rents and income from real estate, accruing in right of the widow, so far as received by the defendant, will also be brought into view.
These facts are deemed sufficient to present the questions necessary to be decided. The first of which is, whether the provisions of the will, in regard to the widow, are such devises of realty and bequests of personalty, within the meaning of the act of Assembly, as created any necessity for a renunciation, assuming that where a widow is rendered incapable of renouncing, on account of insanity, her right of dower and share of personalty will be as effectually barred by the statute, as will similar rights of a sane widow, who fails to renounce in time.
Inasmuch as the act of 1798, ch. 101, sub-ch. 13, speaks of a devise or bequest "to the wife," it is [**37]  insisted that the meaning and design of this language has not been complied with by the provisions made for the benefit of Mrs. Carman; nothing, in reality, having been given to her, but the gifts are to others, for the purpose of taking care of her.
Notwithstanding this is the argument now urged by the appellant, it is evident that the bill concedes, or is based upon the assumption, that a renunciation would have been necessary if the widow had been of sound mind. And the written argument of the solicitors for the complainant in the court below, which is also before us, is a very faint denial, if a denial at all, of the necessity for a renunciation in regard to 

 [*525]  the realty. On this subject they say: "But our position is, that even if, in respect of the real estate, it can be said that there is a devise to her of the house for life, yet, that in respect of the personal estate, there is no bequest to the wife."
But independently of any actual or supposed concession, either in the bill or the argument, in our opinion, the provisions of the will, in relation to both species of property, were such as made it necessary for a renunciation under ordinary circumstances.  [**38]  
In Farwell vs. Jacobs Adm'r, 4 Mass. 634, the will directed the executor to support, "in sickness and in health," the testator's aged father. The executor having failed to execute the trust, letters of administration de bonis non cum testamento annexo were granted to the defendant. He also neglected to support the father, who instituted the suit to recover in damages a sum equivalent to the support and maintenance directed by the will. Upon a statement of facts the court held, that the plaintiff was entitled to a judgment against the estate in the hands of the administrator. Such a bequest, it was said, could be enforced by a bill in chancery, and damages are given at law, in consequence of there being no chancery court in that State. On page 636, C. J. Parsons says: "The direction to support and maintain the plaintiff results from the bounty of the testator declared in his will, and must be considered, as to the remedy, as a legacy." And therefore the case was considered to be within the provisions of their State law, which enacts, in general terms, "that any person having a legacy given him may sue for and recover the same at common law;" page 635.
By the [**39]  will in Tolson, et al., vs. Tolson, et al., 10 G. & J. 159, the testator gave the residue of his estate to his seven sons, and their heirs and assigns; and then added: "I request my seven sons, above named, to take care of their brother, John Tolson, and his family." John and his family were in abject poverty, but received no support or relief from his brothers. The provision in reference to the family was held void for uncertainty, but the seven sons were considered as 

 [*526]  trustees for John, and responsible, in equity, for the payment of such sum as would be proper to compensate for his maintenance since his father's death, and to secure the future payment of an annuity.
If those two cases are to be regarded as recognizing correct principles, we do not perceive how it can be successfully contended that this will gives nothing "to the wife" of the testator. The lot, house and furniture are to be used by her free from cost or charge to her during her life. The sum of $ 50 per month is to be paid by the trustees to Susan H. Jones, for the express purpose of furnishing "the comforts and necessaries" required "for the family" of the wife. In addition [**40]  to this monthly sum, her doctor's bills are to be paid out of the husband's estate, and upon all moneys disbursed by S. H. Jones for family expenses, she is to receive from the trustees four per cent. Under these provisions who was the object of the testator's bounty, S. H. Jones or the wife? Most undoubtedly the latter. If so, had she become sane before six months subsequent to the testator's decease, and had renounced "all claim to any bequest or devise made" to her by the will of her husband, and elected to take in lieu thereof her dower or legal share of his estate, we suppose it could not be said that, nevertheless, S. H. Jones, or any one else, could then have claimed any thing further under the clauses of the will which have been referred to. If we are right in this supposition, these provisions, in legal contemplation, must be gifts to the wife, within the meaning of the act of 1798.
But admitting it possible to entertain a doubt in relation to the $ 50 per month being a gift to the wife, how can there be any in regard to the house and furniture? The will declares they are "to be used by my wife Eliza free from any cost or charge to her during her life." Thus she is entitled [**41]  to the use of both for life. It is said, however, that the trustees are to take an inventory of the furniture and to give it in special charge to the housekeeper, and this is relied upon as manifesting an intention not to give it to the wife; but if it is to 

 [*527]  be in charge of the housekeeper, she is so to have it in charge for the use of the wife. It is only a cautious provision made in consequence of her insane condition, so as more effectually to preserve the property for her use. The house and furniture are for her use during life, and the testator speaks of the family as "the family" of his wife.
The remaining question, which has been argued with great ability, is an interesting one, and not clear of difficulty. It presents the inquiry, whether an administrator of a deceased insane widow can renounce the will of her husband, and claim such share of his estate as she would have been entitled to had she been sane and made a renunciation in due time; or as if there had been no will, notwithstanding she lived four years and upwards after her husband's decease, and during that period received, regularly, the benefits or gifts provided for her in the will. And supposing [**42]  the administrator has no authority to make such a renunciation, can he, nevertheless, by virtue of the widow's insanity, claim her legal share of the estate, notwithstanding the provisions of the will for her benefit? Can he do so because the statute does not create any bar to an insane widow's right to dower, or claim to her legal share of personalty, even although the will of her husband gives her both real and personal property?
After a careful consideration of the subject, we think he cannot make the renunciation, or claim any thing beyond what is given by the will. In saying this, we wish to be understood as not intimating any opinion upon the question, whether a court of equity can or cannot make an election or renunciation for an insane widow, during her life and in proper time. This case does not call for a decision on that point.
The argument in behalf of the appellant insists, that at common law, a widow had an acknowledged legal right of dower; and also, a legal right to a share of the personal estate, subject only to the payment of the just debts and claims against her husband. Neither of which rights could she be deprived of by his will without her consent. In support [**43]  of which, the cases of Griffith vs. Griffith, 4 H. & McH. 101, and Coomes vs. Clements, 4 H. & J. 480, have been referred to. But, 

 [*528]  although these cases treat of the common law rights of a widow, and decide what those rights were, under the facts disclosed in them, they do not decide how far the common law, in regard to the case before us, has been abrogated or altered by our State legislation.
The first case was decided at May term 1798. The will gave to the wife during widowhood, a portion of the real estate, provided she should claim no thirds in the testator's land, in "Rumney Neck;" making no other devise of realty to her, and containing no bequest of personalty in her favor. She made no renunciation. And the question before the court was, whether she was entitled to one third of the personalty, the same having been all bequeathed to the children of the testator? The court gave judgment in her favor. This decision and the act of 1798, are not at all in conflict. The will gave no part of the personal estate to the widow, nor does it declare any intention that the devise of realty should be in lieu of her legal share of the personalty. The [**44]  4th sec. of the 13th sub-chapter of the act, declares, that if only a part of the real estate, or only a part of the personal estate is given, the gift shall bar the widow "of only the real or personal estate, as the case may require;" providing, however, "that if the devise of either real or personal estate, or of both shall be expressly in lieu of her legal share of one or both, she shall accordingly be barred, unless she renounce as aforesaid." Since 1798, there would be no necessity for a renunciation to entitle a widow to her share of the personal estate, in a case similar to that of Griffith vs. Griffith, where the will gave her real estate only, and declared that to be in bar of her claim to thirds in a particular part of the testator's realty.
The question involved in the second case, (Coomes vs. Clements) did not call for a construction of the act of 1798, as to its effect upon a case like the present. This is apparent from the concluding remarks of the distinguished counsel for the appellee, on page 482. And Justice Johnson says: "The act of 1798, ch. 101, passed before the will in question was made, restricts the widow's interest, whether children or not, to one [**45]  third in cases to which the restriction applies. The 

 [*529]  case before the court does not come within the restricted exception mentioned in the act; and as the testator died without leaving children or their representatives, I am of the opinion the decision of the orphans court giving her one half was correct."
After stating what is claimed to be a widow's rights at common law, it is contended by the appellant, that, although the language of the act of 1798, on the subject of her renunciation, is very general and comprehensive, yet it can only apply to a widow of sound mind, who is capable of exercising a proper discretion, whether she will abide by her husband's will, or claim her legal rights; that those rights were not created by the act, but existed at common law, and are recognized by the provisions of the statute; that in the case of a sane widow she is left fully at liberty to renounce the devises and bequests made to her by the will of her husband, and insist upon her legal claims; that the act does not design to deprive her of her common law rights, unless she sees fit to surrender them, by voluntarily assenting to the will, or neglecting to renounce in proper time.  [**46]  In support of these views, the 5th section of the 13th sub-chapter, has been relied upon, which declares it to be the intent of the act, "and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser with a fair consideration." Seeing that a widow who is insane, possesses no discretion, is incapable of making an election or renunciation, or of doing any act which can legally affect her property, it is said to follow, necessarily, that the provisions of the statute, on the subject of renunciation cannot apply to such widow, and her common law rights will remain unimpaired, notwithstanding her husband's will may make devises and bequests in her favor, and there is no renunciation.
The ill effects of an opposite theory have been eloquently portrayed; and particularly the evil of subjecting an unfortunate wife to the danger of being but poorly provided for by a wealthy, but unfeeling husband, and leaving her remediless. It would be very proper that the supposed evil or hardship, should exert an influence in giving construction to a statute, 

 [*530]  where its language is ambiguous or doubtful, but when plain and [**47]  explicit, care should be taken not to allow such considerations to exert an undue influence. In regard to the effect of hardship, our late learned Chancellor, in Young vs. Mackall, 3 Md., Ch. Dec. 398, said, "Considerations of hardship have been pressed upon the court, and to such considerations, when at liberty to listen to them, I by no means profess to be insensible. But I sit here not to make, but to administer the law, according to my best judgment, as I find it enacted by the legislature, or settled by the courts."
In a case where the claims of a widow were concerned, Judge Gaston says: "Where the language of a statute is free from ambiguity, there is much hazard of misconstruction by departing from it in search of the supposed policy of the legislature." 2 Dev. Eq. Rep. 344, Craven vs. Craven.
The 1st section of the 13th sub-chapter of the act before us, declares that "every devise of land, or any interest therein, or bequest of personal estate, to the wife of the testator, shall be construed to be intended in bar of her dower in lands, or share of the personal estate, respectively, unless it be otherwise expressed in the will."
The 2nd section provides, that [**48]  "a widow shall be barred of her right of dower in land, or share in the personal estate, by any such devise or bequest, unless within ninety days," (now extended to six months,) "after the authentication or probat of the will," she shall renounce and quit claim to any bequest or devise made to her in the will, and elect to take in lieu thereof, her dower, or legal share of the estate of her husband. The only exception to the bar thus created, is to be found in the 5th section; which enacts, that if, in effect, nothing shall pass by such devise, the widow shall not be barred thereby, whether she renounces or not. Every valid devise or bequest is, therefore, made an effectual bar, unless it be removed by a renunciation. And until that is made the bar remains. The law admits of no excuse for a failure to renounce. If she makes no election within the time prescribed, the law makes it, without stopping to enquire why or for what reason she made none.
Thus it appears material changes have been made in the 

 [*531]  common law. Various acts on this subject have been passed by our legislature, but the one of most importance, now to be considered is that of 1798. Under this we conceive [**49]  that when a man dies leaving a will, making valid gifts of real and personal estate to his wife, she has not, as she had at common law, a vested right to dower in his land, or to a legal share of his personalty, but her vested rights are under the will by virtue of the statute law. The law clearly gives to the husband the power by his will to bar, or extinguish the common law rights of his widow, unless she thinks proper to quit all claim to the property conferred upon her by the will. And to effect the husband's object the wife need not declare her assent; if however, she desires to defeat it, she must manifest her intention to do so, by an express dissent. And such dissent is an act, which by the very terms of the law, must precede her becoming entitled to or vested with, those rights which she might have claimed but for the will; for the act declares, she shall be barred of those rights, if she does not renounce and quit claim to the devises and bequests, and make her election to take in lieu thereof her dower, or legal share of the estate. It is this election which vests in her the right of dower or legal share, in lieu of what the will had given. (See 2 Devereux's  [**50]   Eq. Rep., 344.) Whether from design, neglect, or from other cause, the widow fails to make such renunciation, the result is the same. It cannot therefore be said, with propriety, (as has been argued with much ingenuity and earnestness,) that the loss of dower or legal share of the estate, in consequence of a failure to renounce, is a forfeiture; and that consequently an insane widow cannot forfeit her common law rights by failing to renounce, because the law will not impose a forfeiture upon an insane person, for not doing an act which she is incapable of doing. If we are correct in our view of what are now the widow's vested rights, upon the decease of her husband, a failure to renounce does not work a forfeiting of any vested rights; but more properly speaking, that failure simply prevents her from acquiring the same rights she would have been entitled to had her husband died intestate, or made no provision for her in the will, or had expressly declared that such provisions 

 [*532]  should not bar her claim to dower or legal share of the estate. To acquire such rights in opposition to the will, the law makes the renunciation a necessary act. The non-performance of this act,  [**51]  is therefore, not a forfeiture of existing rights, but prevents the acquisition of those rights, which, by its performance, might be secured.
That the legislature possessed the authority to make such alterations in the common law, none can doubt; and we feel very confident that, in regard to sane widows, these changes have been made. Let us ascertain whether the present case of an insane widow is embraced within them.
The language of the statute is quite comprehensive enough to include every widow, whatever may be her age or mental condition, there being no exception in favor of infants or insane persons. By the 1st section of the 13th sub-chapter, "every devise of land, or any interest therein, or bequest of personal estate to the wife, shall be construed to be intended in bar of her dower in lands, or share of the personal estate respectively, unless it be otherwise expressed in the will." And the 2d section declares, that "a widow shall be barred of her right of dower in land, or share in the personal estate by any such devise or bequest," unless she makes her renunciation.
When the law directs an act to be done, or a condition to be performed for the purpose [**52]  of conferring a right, that right cannot be acquired if the act is left undone, or the condition is not performed. And if no exception is made in favor of insane persons, courts of justice have no more power to decree to them the allowance of such rights, because of their mental incapacity to comply with the requisites of the law, than they have to decree in favor of sane persons failing to comply. If the law makes no exception the courts can make none, whether they be courts of law or equity; for where the construction of a statute is before them, the rules of construction are the same in both courts. In 2 Harrison (N. J.) Rep., 462., Thompson, vs. Egbert, it is said, "There is but one rule of construction for statutes, and that must be applied as well in a court of equity as in a court of law. There is no relief against the provisions of a statute any where."

 [*533]  Humpfrey vs. Gery, 7 Man. Gran. & Scott 62 Eng., C. L. Rep. 567, is a case in which a lunatic and his committee were plaintiffs, claiming arrears of rent. The case was sent by the Vice Chancellor to the judges of the Common Pleas for their opinion, who certified that the plaintiffs were not entitled [**53]  to recover the rent due for more than six years. At page 589, justice Maule says, "there being no provision in the latter act extending the disability of lunacy to a case of this sort, and the court having no power to extend it by analogy, the plaintiffs are not entitled to recover the arrears in question."
In Demarest vs. Wynkoop, 3 Johns. Ch. Rep. 142, Chancellor Kent, with that ability for which he was justly admired, has examined the doctrine in regard to any inherent equity creating an exception as to any disability, where the statute of limitations creates none, and expresses the belief that such a doctrine has been long and uniformly exploded. He says, "General words in the statute must receive a general construction, and if there be no express exception, the court can create none. It was agreed without contradiction in Stowel vs. Zouch, (Plowd., 369, b., 371, b.,) that the general provision in the statute of fines would have barred infants, feme coverts, and the other persons named in the proviso, equally with persons under no disability, if they had not been named in the exception or saving clause." Many authorities are excited and commented [**54]  upon by the chancellor. Among them he refers to two opinions of Lord Redesdale, as being "remarkably elaborate in tracing the authorities, and in enforcing the duty of a court of equity to render entire obedience to all the provisions of the statutes of limitations." This opinion of Chancellor Kent has been approved of in our State, by both the former and present Court of Appeals. 3 Md. 366, 383, Hertle & Wife vs. Schwartze & McDonald. If these are the rules which apply to the statute of limitations, it is difficult to perceive why they should not be equally applicable to other statutes. In Lewis vs. Lewis, 7 Iredell R. 73, the court in reference to a matter very analogous to the present, say: "there is no proviso or saving in the statute, that in case the widow be a lunatic, then her committee may dissent for her. When the legislature 

 [*534]  has not thought proper to insert such a proviso in the act, it seems to us to be asking of the court too much, for it to tack such a proviso, by way of construction, to the statute."
With these principles before us, sanctioned by such authority, we cannot but believe the present case is embraced within [**55]  the broad and explicit language of the act of 1798, and that without a renunciation, the widow had no right to dower, or to her common law share of the personalty.
Can the renunciation of the administrator avail any thing? We think not. To such a proceeding there are various objections. In the first place, by the very terms of the act, the right to renounce seems to be a personal privilege. In one section, speaking of the widow, the language is, "unless she shall deliver," &c., and in another, "whether she shall or shall not renounce." The nature of the estate she thereby acquires in the realty, being an estate for her life, tends to sustain this view of the subject. And in Boone vs. Boone, 3 H. & McH. 95, the right to renounce was held to be a privilege personal to the widow, which her representatives could not exercise. But another serious objection is, that the widow for more than four years after the will was admitted to probate, enjoyed all the benefits provided for her by the will. If after this lapse of time, under such circumstances, the administrator can make an effective renunciation, or without any, (as has been contended,) he can claim [**56]  the common law rights of the widow, there is no reason why he may not do so after a much longer period. And so, whenever a man leaves an insane widow, for the whole period of her life, his estate must, to some extent, remain in an unsettled condition, very much to the annoyance and injury of those who have an interest in it. The law has been vigilant in endeavoring to avoid delay as far as practicable, and to secure a prompt adjustment of claims to property. It is this principle which prompted the legislature of 1798, to require that the renunciation should be made within ninety days; since then the time has been extended to six months. And finding in neither statute, any exception on this point in relation to any case whatever, how can we say there is no limitation of time, in this case, short of the widow's life?

 [*535]  In Ex-parte Delilah Moore, 7 How. (Miss.) Rep., 668, where an effort was made to renounce a will, some two or three days after the six months prescribed by law had expired, the court say: "It is a dangerous experiment to extend the terms of a statute by construction beyond their obvious import. In attempting thus to moderate the apparent vigor of a rule,  [**57]  we may do more mischief than by a strict adherence to it. It would tend to destroy the certainty of the law, and thereby increase litigation, and disturb the repose of society." Again they say: "It is better therefore to abide by the law as it is written, than to create exceptions without being able to foresee where they may end."
In a note to Moot vs. Parkhurst, 2 Hill (N. Y.) Rep., 373, 374, Justice Marcy says, "Neither a commissioner in vacation, nor the court in term, can enlarge the time within which an act is to be done, when such time is regulated by statute."
The great importance of having a widow's rights finally settled within a reasonable and definite period, has been the subject of judicial discussion and decision in many other States of the Union. In Craven vs. Craven, 2 Devereux, Eq. Rep. 346, 347, the court rejected the claim of a widow for dower, because she had not renounced the will in due time. The able opinion delivered by Judge Gaston, speaks of interests of great magnitude and of general concern, demanding the decision which the court felt it their duty to make. And inasmuch as the right of dower is paramount to the claims of the husband's creditors,  [**58]  and attaches to the lands after they are alienated by his heirs, the judge thinks, justice and the repose of the community require, that it should be ascertained as speedily as convenience will permit, whether the lands of a deceased man, in the hands of his heirs and devisees are, or are not subject to this incumbrance. He then says, "The law has defined the time, and prescribed the mode, when and how this fact can be certainly known. The most obvious considerations of public policy forbid, without the clearest warrant, judicial exposition which will have a tendency to defeat this great purpose of the law."
In Hinton vs. Hinton, 6 Iredell 277, "the business of the 

 [*536]  estate, and the interests of creditors and other legatees," are considered just grounds for requiring an election to be made strictly according to the terms of the law.
In Reid vs. Campbell, Meigs' Rep., (Tenn.,) 388, because the power to dissent changes the whole operation of the will, and opens both real and personal estate to the widow's rights, the court consider it a wise provision, that she is required to make her election within six months after the probate of the will, before any division [**59]  or distribution of the estate has been made, "so that persons claiming under the will may know what their rights are, and not be harassed by the claims of the widow at any indefinite time after the death of the testator."
In Shaw's Devisees vs. Shaw's Adm'r, 2 Dana's Rep., 343, a renunciation within a reasonable time is held to be necessary for the sake of distributees and legatees, that there may be a speedy adjustment and distribution of a decedent's estate.
If it may be considered a hardship upon those who claim under an insane widow, not to permit her administrator to renounce the will, or without a formal renunciation to repudiate the will and claim the widow's rights, as if nothing had been devised or bequeathed to her, the recognition of such an authority in the administrator would be productive of equally great, if not much greater, hardship and inconvenience to those whose interests are to be affected thereby. And if the argument ab inconvenienti should be allowed to exert any influence in the decision of this case, it ought to operate most favorably to the appellee, the question before us being, whether the administrator, after a lapse of years, can renounce, [**60]  or if not, whether he can insist that no renunciation in such a case is necessary, but without it may claim in behalf of the widow, what she would have been entitled to in case of intestacy or if the will had given her nothing?
An administrator can have no power to make an effectual renunciation in a case like this. He only represents the personalty. This will gave both real and personal estate to the wife, and consequently a renunciation to be legally effective should extend to both kinds of estate.

 [*537]  When the early case of Boone vs. Boone was decided, forty days was the period within which the law required the widow to make her election. She died before the forty days expired, and notwithstanding the shortness of the time, and but little progress had been made in the settlement of the estate, the representatives of the widow were not permitted to renounce the will. The authority of which case, decided in 1791, has never been questioned by any judicial decision or dictum in this State, which has come within our knowledge.
The statute of North Carolina requires that the widow "shall dissent in open court," and this statute came under consideration in Hinton vs.  [**61]   Hinton. There the widow being unable from sickness to travel, appeared in court by attorney, and through him signified her dissent to the will of her husband. Notwithstanding this manifestation of her unwillingness to abide by the will, and although she was prevented, by physical inability, from complying with the strict terms of the law, nevertheless the court rejected her claim, because she had not signified her dissent in open court, in propria persona. It was this same statute which came before the court again in Lewis vs. Lewis. The widow in that case was a lunatic under the care of a committee. It appears that, in point of fact, her dissent to the will was signified in open court. Assuming this dissent to be valid, a petition was subsequently filed in behalf of the widow, claiming that some suitable portion of the husband's estate should be allotted to her according to the statute. The Supreme Court, however, held that the dissent was not hers, but that of the guardian, and as the act gave him no power to dissent, the claim was rejected and the petition dismissed. But it has been said these North Carolina cases cannot have any great weight on the side of the appellee,  [**62]  because, in that State, the widow never had such a common law right to a share of the personalty as prevented the husband from bequeathing the whole of his personal property to others, to the exclusion of the wife; and as her rights were created by the statute, her voluntary assent to the will could not be necessary to bar or defeat her 

 [*538]  common law privileges, because she had none to be barred or defeated. We need not stop to ascertain the correctness of the position here assumed, as to the law of North Carolina independently of their statute, for admitting the assumption to be correct, still the argument of the appellant based upon it cannot avail him, if the views already expressed by us in reference to the change made in the common law by our legislature are not erroneous. Our opinion is, that when a will makes valid gifts to a wife, then, under our statute, she has no such common law rights as render her voluntary assent to the will necessary to bar or defeat them; the law itself creates the bar, unless being dissatisfied with the will she actually renounces it, and her positive dissent confers upon her just such portions of the estate as she could have claimed [**63]  had her husband died intestate. We think the language of the statute not only sanctions, but requires, such a construction. And we are confirmed in this opinion by the decision in Boone vs. Boone. The act then in force, so far as assent or dissent by the widow is concerned, is very much the same as that of 1798. The former act allowed the widow forty days to deliberate, and yet her death, before the expiration of that time, prevented her representatives from renouncing. There no evidence of voluntary assent was furnished, but the absence of dissent concluded her, and those claiming under her. Because she might have renounced before her decease, it is by no means a fair inference that she was satisfied with the will, for the law allowed her forty days for reflection, and to ascertain the condition of the estate, and her renunciation on the thirty-ninth day would have been as effective as on the first. Her privilege was just the same each and every day until the fortieth. If death on the thirtieth, without a renunciation, put an end to the right of election, we do not see why the death of the widow the next hour after her husband's decease should not have produced the same effect.  [**64]  It is not true that the bar is based upon consent, and the failure to renounce is to be considered as the evidence of that consent. If lapse of time can create a legal inference of consent, surely 

 [*539]  to justify the inference it must require the whole time prescribed by law within which the renunciation may be made. Should the widow die within that period, would not the inference fail for want of sufficient time? It would be a strange proposition to assert that the failure to renounce by a deceased person could afford a presumption of consent. And yet in Boone vs. Boone the widow died in less than forty days, and her common law rights were barred.
We cannot subscribe to the doctrine, so much insisted upon by the appellant's counsel, that the widow's rights are barred only in virtue of her assent to the will, and as an insane widow can give no assent, the statute does not apply to such a case. We think the common law rights of a sane widow are barred by the devises and bequests in her favor contained in the husband's will, unless they are actually renounced, even although she may desire to renounce them. The bar does not rest upon her assent, but is created by the will,  [**65]  and those rights of a widow which existed at common law, if she desires them, can only be vested in her by a renunciation. And inasmuch as the language of the statute is comprehensive and explicit enough to embrace the case of every widow to whom valid and effectual gifts are made by the will of her husband, and there is no proviso or saving in favor of an insane widow, such a case as the present is within the bar created by the statute.
The 5th section of the 13th sub-chapter has been repeatedly referred to as having much influence in favor of the appellant's claim. This considers the case of a widow accepting or abiding by a devise in lieu of her legal right, as analogous to that of a purchaser with a fair consideration. When the object of the section is looked to, it is evidently not intended to have any effect upon the matter of volition or consent, but the analogy to the case of a purchaser is manifestly in reference to the validity of the devise. The section commences thus: "But if, in effect, nothing shall pass by such devise, she shall not be thereby barred, whether she shall or shall not renounce as aforesaid." What is it which renders the renunciation 

 [*540]   [**66]  unnecessary? Clearly the failure of the devise. And it is declared to be so, because it is consonant to justice that a widow accepting or abiding by a devise, in lieu of her legal rights, shall be considered as a purchaser with a fair consideration. As the failure of the devise is the case intended to be provided for, a fair consideration in a purchase is the point to which the analogy has particular reference. And inasmuch as the prior sections of the chapter provide that every devise, &c., shall bar the widow's rights, unless the bar is removed by a renunciation, the law necessarily makes the failure to renounce, whether voluntary or not, an acceptance or abiding by the devise. In legal contemplation every widow who does not renounce the valid gifts made to her by the will does accept or abide by them.
It would seem to be a forced construction of this section, to suppose it was designed to provide for the free exercise of volition on the part of the widow, when it declares she shall not be barred, whether she shall or shall not renounce, if in effect she gets nothing by the will. With more propriety it may be considered as intended to protect her from being injured by [**67]  her own voluntary act. For although she may, deliberately and freely, determine to abide by the will, yet, notwithstanding her positive assent thereto, if the provisions designed for her benefit prove to be of no value, she may still claim those rights which a widow would be entitled to at common law.
Decree affirmed with costs. 

9 of 12 DOCUMENTS 

RACHEL MAURER vs. DAVID W. NAILL and JNO. W. WALKER, EXC'rs of PAUL MAURER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 324; 1854 Md. LEXIS 3 

JUNE, 1854, Decided 

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

By an ante-nuptial settlement between the appellant and the testator of the appellees, the former agreed that neither she nor her representatives, either before or after the death of the latter, would "in any way" claim "his property, real or personal," in consideration of a similar relinquishment of claim by him and his representatives to her property. After the death of the latter, his will, which was signed and sealed by him, but not attested by witnesses, though the attestation clause was duly inserted, was, upon proof of his signature thereto and that the body of the same was in his handwriting, admitted to probate, and letters testamentary upon his personal estate granted to the appellees, the executors therein named. The appellant thereupon filed her petition, objecting to the validity of the probate of the will, and praying that the same, as well as the grant of the letters testamentary, might be revoked, and letters of administration granted to herself, as widow of the deceased. From the order of the court dismissing her petition, she appealed.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

A widow, who, by an ante-nuptial agreement, had relinquished her rights to her husband's estate, in virtue of the marriage, has no right to administer upon his estate nor to object to the validity of the probate of his will.  

COUNSEL:
Wm. Schley for the appellant, insisted:--1st.  [**2]  That the paper ought not to have been admitted to probate in the state of circumstances under which it was offered. There should have been some evidence offered to the court, that the party intended the paper to be his will in the state in which it then stood. 1 Jarman on Wills, 93, 98, and cases there cited. 4 H. & J. 166, Tilghman vs. Steuart. 2nd. If the will be void the widow is entitled to letters of administration. The record shows that the only children of the deceased are married women, the appellant, therefore, is the party to whom, by the act of 1798, ch. 101, sub-ch. 5, secs. 10 and 19, administration must be granted. The words of the act are imperative and unqualified:--"shall be granted to the widow." If she brings herself within the description of the act, she is entitled, whether she may have relinquished her right to any share in her husband's estate or not.

John Nelson for the appellees. The only question in the case is, whether the appellant had the right to administer, for it is clear that no stranger can come in and interpose a caveat to the will. Having relinquished all interest in her husband's estate, she has no such right. Tollers on Exc'rs, 85. 1 H.  [**3]  & McH., 346, Govane vs. Govane. 6 G. & J. 349, Ward vs. Thompson. 8 Gill 285, Ex-parte Young. 6 Munf., 132, Bray vs. Dudgeon. 4 Leigh, 152, Thornton vs. Winston. 14 Sme. & Mar., 68, Fowler vs. Kell.  

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

OPINIONBY:
TUCK 

OPINION:

 [*326]  TUCK, J., delivered the opinion of this court.
This case must be disposed of upon the construction of the ante-nuptial agreement between the appellant and her husband. If she has relinquished her rights to his estate in virtue of the marriage, she has no claim to the administration of his estate, nor to object to the validity of the probate of his will. Something was said at the bar as to the inadequacy of the consideration of that agreement, reference being had to the extent and value of the husband's property before the marriage. But with such questions we have nothing to do on the present record, so long as the agreement remains in existence.
We do not perceive how this case can be distinguished from Ward vs. Thompson, 6 G. & J. 349. The point there was as to the right of administration on the wife's estate. Letters were claimed by the husband and by one of [**4]  her children, and the Court of Appeals held, that the husband, by his marriage contract, had not only suspended his marital rights during coverture, but had relinquished them forever. In this case it appears that the parties mutually agreed, that at the death, or before or after the death, of the other, his or her property should not be claimed in any way by the survivor. This was as entire an abandonment of all right of administration as was contained in the deed in Ward vs. Thompson. We have no doubt that the court would have also decided, if the question had been before them, that Thompson had no interest whatever in any part of the wife's estate. That is certainly the effect of the agreement in this case; and having abandoned all claim to the property, the appellant can have no right to question the propriety of the probate of the will. We express no 

 [*327]  opinion on the rights of this appellant merely as widow independently of the marriage agreement.
Order affirmed with costs. 

10 of 12 DOCUMENTS 

JOSEPH C. YATES vs. SAMUEL C. DONALDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 389; 1854 Md. LEXIS 13 

JUNE, 1854, Decided 

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

Assumpsit by the appellant against the appellee and one Garland, to recover the balance due for the "Western Continent," a newspaper sold by plaintiff to defendants. Plea non assumpsit.

Exception. The proof shows that Garland, intending to be owner of two-thirds, and Donaldson of the other third of said paper, and Yates knowing the proportions in which they intended respectively to own it, the following agreement, in writing, dated the 23rd of June 1848, and signed by Garland and Donaldson, was entered into between the parties:

"We agree to purchase from Mr. J. C. Yates the 'Western Continent' as it stands, with subscription list, &c., for the sum of seventeen hundred dollars, payable one-half in a satisfactory note at six months from 1st July; four hundred and twenty-six dollars in nine months from this date; and the balance in twelve months from same date: all bearing interest from 1st July."

Afterwards, in December 1848, Garland and Donaldson made an arrangement to give separate notes each, for his share of the purchase, to which Yates agreed, "Provided the notes were endorsed to his satisfaction." With this agreement [**2]  Donaldson complied, and the notes given by him for his third were duly paid at maturity; but Garland says he never complied with his part.

Yates several times called upon Garland for satisfactory notes for his two-thirds of the purchase money, and in December 1848, the latter gave Yates a note of one Bailey for $ 441.21, which was paid at maturity. In January 1849, one Homans purchased from Garland one-half of his interest in the paper for $ 1000, and gave him several notes therefor; two of which, one for $ 300.52, and the other for $ 296.26, were, in Homan's presence delivered to Yates, on account of what was still due for Garland's two thirds. Homans says that Yates expressed himself satisfied, and accepted the notes; but Garland says Yates took them, with his endorsement, as an accommodation to him, advising him that he did not think they would be paid, and to get himself secured. These notes were never paid, and constitute the balance for which the suit was brought. All the negotiations for the sale to Homans were carried on between Homans and Garland, exclusively, as to amounts and time; and between those two and Yates, exclusively, as to the acceptability of Homan's proffered [**3]  notes: Donaldson not being consulted in reference thereto. Garland says there was no understanding between Yates and himself, at the time the separate notes were taken, or at any other time, by which the former stipulated to divide the responsibility of the parties, and forego his remedy against either, for the amount of the notes given by the other, in case they should not be paid; but Homan says he was led to believe that Yates considered Garland alone liable for his two-thirds of the purchase. Upon this proof the plaintiff asked instructions, in substance as follows:

1st. That he was entitled to recover from Donaldson the amount of purchase money due under the original agreement, and then unpaid, unless the jury should believe that the notes were received under an express agreement to receive them as absolute payment to the amount thereof, and run the risk of their being paid.

2nd. Or unless they should believe that the giving and taking of the notes, was intended by and between the parties as an abandonment by Yates of his original claim against the defendants jointly.

3rd. That whether the notes were accepted by Yates as satisfactory was a question for the jury.  [**4]  

4th. That whether the parties, by the transaction in reference to the notes, intended, as between themselves, an extinguishment of the joint liability and an acceptance in its stead of a separate liability, according to the tenor of the notes, was a question for the jury.

5th. Even if the notes were accepted as satisfactory by the plaintiff, the acceptance of them did not extinguish the joint liability of the defendants, unless they were accepted under an agreement to receive them as absolute payment and run the risk of their being paid, or unless the giving and taking was intended, by and between the parties, as an abandonment by Yates of his original claim against the defendants jointly and a severance of their joint liability.

6th. If the giving and taking of the notes was merely an arrangement between the parties, made for the accommodation and at the request of the defendants, in order to facilitate the adjustment of their respective interests in the property, without its being intended, by either plaintiff or defendants, that the joint liability of the latter to the plaintiff under the original agreement should be altered thereby, or his ultimate remedy against [**5]  them jointly be thereby affected, then such giving and taking of the said notes did not, nor did the payment of such of them as had been paid, preclude the plaintiff from recovering from the defendants in this action such part of the purchase money as was still due and unpaid.

7th. That the knowledge by the plaintiff of the unequal interests of the defendants in the property, and the giving and taking of the notes, were not, of themselves, either separately or together, conclusive in law as to the abandonment or loss by the plaintiff of his right against the defendants jointly, but that it was for the jury to judge whether it was intended by and between the parties to alter their rights under the original contract, or sever the liability of the defendants.

The defendant then asked the following instructions:

1st. If Garland and Donaldson owned, with the knowledge of the plaintiff, different interests in the property, and made an arrangement among themselves to give the plaintiff separate notes, each for his share of the purchase money, and the plaintiff, in pursuance of said arrangement, accepted from Donaldson three notes for one-third of the purchase money, such being [**6]  his share according to said arrangement, and the said notes were paid at maturity, Donaldson was discharged from all liability on account of the purchase money due for the other two-thirds.

2nd. If the plaintiff, after agreeing to the said arrangement, called on Garland for endorsed notes for his proportion of the purchase money, and subsequently accepted from him Bailey's note, which was paid, and, in January 1849, Homans agreed to purchase the half of Garland's interest for $ 1000, and the plaintiff agreed with Garland to take Homans' notes for the amount still due for Garland's two-thirds, provided they were satisfactory to him, (the plaintiff,) and did actually accept them, then Donaldsonh as been discharged from all liability on account of the purchase money due for said two-thirds interest.

3rd. If there was an arrangement, either express or implied, between the plaintiff and Donaldson, subsequent to the execution of the original agreement, that Donaldson should give satisfactory notes for one-third of the purchase money, on the payment of which he was to be discharged from all liability for any other part of said purchase money, and the said notes were given and accepted [**7]  for the said amount and paid at maturity, the plaintiff was not entitled to recover against Donaldson.

The court, (FRICK, J.,) rejected all the prayers of the plaintiff and granted all those of the defendant. To this ruling the plaintiff excepted. Judgment was confessed by Garland, and the verdict and judgment being in favor of Donaldson, the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where two are by agreement jointly bound for a debt contracted for the purchase of property, which as between themselves they were to own in different proportions, if either pays the whole or more than his share, he can recover the excess from the other, and his right of action accrues on the expiration of the time at which the creditor could have sued upon the agreement.

The acceptance of a security or an undertaking of an equal degree does not extinguish the former debt, unless it be received in satisfaction, or be intended as an abandonment of the remedy on the first contract, and these are questions for the jury.

The acceptance of promissory notes suspends the remedy on the first contract until the notes mature.

Giving time to a principal will discharge the surety, but where two are jointly bound as principals, it cannot be shown, at law, when both are sued, that one is surety for the other, and giving time to the one does not discharge the other.

Where two are jointly bound as principals, if one be released both will be, except in a case where the remedy against the other is expressly reserved.

It is no defence to an action against one of two makers of a promissory note, that he made it as surety for another, and for his accommodation, which fact was known at the time to the payee, the plaintiff; and that after it became due, the plaintiff gave time to the other maker without defendant's consent.

The payee of a joint and several promissory note made by two can be placed in a situation for treating one as surety for the other, only by his express assent to do so when the note was delivered to him.

The maker of an accommodation note is liable to the holder, though the latter knew at the time the note was made that it was for the accommodation of the endorser, and giving time to the endorser will not discharge the maker.

There is no difference between accommodation notes and those negotiable for value; the court will look to the relation that the parties bear to each other on the instrument, and determine their legal liability accordingly.

Where a party does not appear upon the instrument as surety, he cannot, at law, avail himself of the equities between himself and the other parties to the instrument, unless he be accepted by the creditor as surety, or has been discharged from the first contract by agreement of the creditor.

If a creditor assents to an arrangement between his two joint debtors to give two separate notes for their respective shares of the joint debt, provided the notes were satisfactory to him, and one of the debtors complies with this arrangement, and the creditor accepts notes from the other as performance of his part, it amounts to a discharge of the debtors from the first contract.  

COUNSEL:
F. K. Howard and S. T. Wallis for the appellant, argued the following points:

1st. Though the appellant knew that Garland and Donaldson intended to own the paper in different proportions as between themselves, yet they nevertheless purchased it from him, and by their agreement bound themselves jointly, and without regard to such proportions, for the whole purchase money, and the subsequent giving and taking of notes was not, under the circumstances, a payment pro tanto of such joint liability, unless there was an express agreement to receive them as payment. The court therefore erred in refusing the appellant's first, and granting the appellee's first and second prayers. 2 G. & J. 509, Glenn vs. Smith. 8 Gill 177, Md. and N. Y. Coal and Iron Co., vs. Wingert.  [**8]  1 Md. 514, Hunter vs. Van Bomhorst.

2nd. The transaction in reference to the notes did not operate as a severance or extinguishment of the joint liability assumed by the original agreement, unless it was agreed or intended by the parties that it should so operate, and whether there was such an agreement or intention was a question of fact for the jury, as was also the question whether the notes were satisfactory to the plaintiff. The court therefore erred in refusing the appellant's second, third, fourth, fifth and seventh prayers. Collyer on Part., secs. 487, 559, 560, 563, 569. Story on Part., sec. 158. Abbott on Shipping, 116. 5 Whart., 538, Estate of Davis and Desauque. 4 Watts & Seargt., 100, Mason vs. Wickersham. 4 Metcalf, 25, Wildes vs. Fessenden. 6 G. & J. 71, Crawford vs. Berry.

3rd. The court erred in refusing the appellant's sixth prayer, thereby treating an arrangement made at the request and merely for the accommodation of the defendants as an extinguishment of their joint liability, although they and the plaintiff both intended that it should not produce that effect.

4th. Even if the plaintiff agreed to take from Donaldson notes for less than the [**9]  whole amount of his liability in satisfaction thereof, it was an agreement without consideration, and not binding on the plaintiff. The court therefore erred in granting the appellee's third prayer. 4 G. & J. 305, Geiser vs. Kershner. 30 Maine Rep., 413, Chase vs. Vaughn.

Thomas Donaldson for the appellee.

The question is not whether the receipt of the notes was an absolute satisfaction of the pre-existing debt without an express agreement to that effect, but whether, where two joint debtors agree each to pay his separate portion of the debt, and this arrangement is assented to by the creditor, provided notes with satisfactory endorsements are given by each debtor respectively, and the creditor accepts notes from one for his portion of the debt, which are duly paid, such debtor is discharged from all liability for the portion due by the other? As to the general principle, as to what kind of agreement will sever a joint liability, see Story on Part., sec. 158. There need not be an express agreement; it may be implied, and the subsequent conduct of the party who knows of the agreement is sufficient; so is a prolonged credit. See 5 Barn. & Adol., 927, Thompson vs. Percival.  [**10]  4 Esp., 89, Evans vs. Drummond. 5 Esp., 122, Reed vs. White. Collyer on Part., secs. 559, 560. 2 Mees. & Wels., 484, Hart vs. Alexander. If a party deals separately with one of two jointly bound, he puts them upon the footing of principal and surety. 4 Wash. C. C. Rep., 98, Harris vs. Lindsay. 10 Bligh. N. S., 550, Oakeley vs. Pasheller. Where parties agree to give notes and do not comply, they cannot be sued on the original debt until the time of the notes has run out, but may be sued immediately for a breach of this special contract. 21 Wend., 90, Hanna vs. Mills. Ibid., 175, Yale vs. Coddington. The only possible meaning of the arrangement for giving separate endorsed notes, each for his portion of the purchase money, was to separate the liability of the parties; if their liability remained unchanged the arrangement was a nullity, without any purpose or effect so far as it regards the joint debtors. By agreeing to take separate notes, Yates elected to consider Garland and Donaldson in the relation in which they stood as between themselves, that is as sureties for each other, and consequently, by receiving from Garland the notes of Bailey and Homans, he released Donaldson from all [**11]  liability on account of Garland's portion of the debt.  

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

OPINIONBY:
TUCK 

OPINION:

 [*396]  TUCK, J., delivered the opinion of this court.
By the agreement of 23rd June 1848, the appellee and Garland became indebted to the appellant. As between them Garland owned two-thirds of the property, and Donaldson one-third; and this was known to the appellant at the time. If either had paid the whole or more than his proportion he would have been entitled to recover from the other for such excess, Owens vs. Collinson, 3 G. & J. 25; and his right of action would have accrued on the expiration of the time at which Yates himself, could have sued upon the agreement.
It appears that before the expiration of that time, and before compliance with the agreement, by the delivery to Yates of notes for the amounts, and at the times stipulated, the purchasers made an arrangement between themselves to give separate notes for their respective interests, to which Yates assented, provided they were endorsed to his satisfaction. With this agreement the appellee complied, but it does not clearly appear whether Garland did or [**12]  not. He says that he did not; but Homans states that two of his notes, (for the amount due by Garland,) were endorsed and delivered to Yates; that he expressed himself satisfied and accepted them. Garland also states that the negotiation for the sale to Homans was carried on between them alone; and between Yates, Garland and Homans, as to the acceptability of Homans' notes, which Yates had agreed to take from Garland if they were satisfactory to him. The principle is well settled, that the acceptance of a security or undertaking of equal degree does not extinguish the former debt, unless it be received in satisfaction, or be intended as an abandonment of the remedy on the first contract. It is equally clear that these are questions for the jury. Such an arrangement, however, suspends the remedy on the first contract until the notes mature.  Glenn vs. Smith, 2 G. & J. 493. Hunter vs. Van Bomhorst, 1 Md. 504. It follows, from this state of the law, that the prayers offered by the appellant should have been granted, except the sixth, unless there be something in the case overlooked in framing the prayers, to the benefit of which the appellee [**13]  was 

 [*397]  entitled in submitting the law of the case to the jury. And as to the sixth the instruction would also have been proper, if it had not submitted to the jury, the finding of a fact of which there was no evidence whatever, to wit, that the acceptance by Yates of Homans' notes was at the request, and for the accommodation of both the parties, Garland and Donaldson.
It is contended, however, on the part of the appellee, that the knowledge by Yates at the time of the purchase, that the purchasers held separate interests, and his afterwards dealing with them separately, for the security of their respective proportions of the debt, and accepting Homans' notes, in the manner stated in the evidence, without the knowledge of the defendant, by which time was given to Garland, have discharged the appellee from all liability on the original contract. If Donaldson had been merely surety for Garland this view of the case would be certainly correct; for time given to a principal will discharge the surety, because it places him in a new situation in reference to the principal debtor. But here both parties are principals according to the agreement, and how can it appear that a party [**14]  to a joint contract is a surety for part of the debt, except by going out of the instrument? Can this be done at law where both are sued? If one be released both will be, except in a case where the remedy against the other is expressly reserved, as in Clagett vs. Salmon, 5 Gill & Johns. 314, and the cases there cited. Where the act of the creditor operates a release of the surety, there can be no difficulty in enforcing this principle. The remedy is gone entirely. But in a case where both are principals, how are the equities between them to be adjusted in a suit at law by the creditor against both? If time given to one released the other, the discharge would avail only to the extent of that portion of the debt which was due by the party to whom time has been given. The party not indulged would, at any rate, be liable for his own proportion of the debt. Supposing that this might be easily worked out to its proper result in a case like this, where one party is liable for one-third, and the other 

 [*398]  for two-thirds, and the verdict is to be rendered against one only, because the other has confessed a judgment, the difficulty of doing complete justice among [**15]  all the parties, is apparent in a case where there are several parties to the contract, who are defendants in the cause, liable in different proportions as among themselves, though all responsible to the creditor in the first instance. It would be impossible to render a judgment upon any adjustment of these equities. The judgment at law must be for the same amount against all the defendants. It is not a sufficient answer to say that the appellee paid his share, and that therefore this difficulty could not arise. We are dealing with a principle, upon which, the party, if discharged at all, was exonerated at the moment the indulgence was given by the arrangement with Garland as to Homans' notes. At which time the appellee's part had not been paid, because the notes passed for his share did not per se extinguish his liability.
We have not been referred to any case at law, in which such a defence has availed, while there are some to the contrary. In Bedford vs. Deakin, 2 Barn. & Ald. 210, one of the members of a dissolved firm undertook to pay the joint debts, and this was made known to a creditor who received his notes for the amount of the joint indebtedness,  [**16]  which notes were subsequently renewed, and not paid, the original partners were held liable on the joint note. It is true that the creditor reserved his remedy on the first note and retained possession of it, and sued on it; but all this was unknown to the other partner. The creditor had given time, without his assent to the settling partner, and he had failed after being so indulged. The judges, Abbott, Bayley and Holroyd, agreed that the first debt was not extinguished. They notice the very argument employed in this case, the injury to the appellee by preventing his recourse on the agreement if he had paid the debt, by saying that as joint debtor, it was his duty to have seen the debt was paid; and the last judge says: "The dishonor of the bill gave a right of action against all the partners, and the circumstance of a creditor 

 [*399]  giving time to one of three joint debtors will not discharge the others, nor even suspend his right of action against them." In Manley vs. Boycot, 18 Eng. Law & Eq. 357, the defendant, who was one of the makers of a promissory note, to an action against him by the payee, pleaded that he made the note as surety for another and [**17]  for his accommodation, which was known at the time to the payee, and that after the note had become due the plaintiff gave time to the other maker, without the consent of the defendant. It was held, that this was no defence to the action. Lord Campbell said, "that the plea was bad in not alleging that the note was delivered by the defendant as surety for the other party. The bona fide holder of a bill or note cannot be prejudiced in the rights which he prima facie has, according to the terms of the instrument, by knowledge subsequently acquired, or even by knowledge which he has at the time he takes it, if there is no evidence of a special agreement at the time when he takes it to affect the rights and liabilities of the parties. If the payee of a joint and several promissory note made in the common form by two, may be placed in a situation for treating one as surety for the other, it can only be by his express assent to do so when the note was delivered to him." The case of Smith vs. James, same vol. 353, note, is likewise in point. Perfect vs. Musgrave, 6 Price 111.  Sprigg vs. Bank of Mount Pleasant, 10 Peters 257. See also Rees vs.  [**18]   Berrington, 2 Ves., Jr. 542, and in 2 White & Tudor's Eq. Cases, 707, (72 Law Lib. 352,) and Forsyth on Composition with Creditors, ch. 8, in 1 Lib. Law & Eq. 34, in both of which the subject is fully treated.
The same principle has been often applied in the instance of accommodation notes, where the endorser is the real debtor, as between him and the maker. Although releasing the endorser does not discharge the maker, for the reason that the latter can have no claim against the former, if he should pay the debt, it being his own, yet equities between them will not vary the legal principle, and affect the operation of the instrument, where the party seeking to shield himself, as 

 [*400]  surety, appears to be a principal. He will not be allowed to deny the character in which he appears on the paper. In Carstairs vs. Rolleston, 5 Taunt. 551, which was an action by the assignees of Kensington & Co. upon a promissory note, of which they were endorsers, and the defendants the makers; the latter pleaded that they made the note as sureties for one Rolleston and not on their own account, and that K. & Co. had since released R. from all their [**19]  claims against him. Rolleston was an endorser; but the court held the release to him was no ground of defence, the defendant being the maker. This, however, was a case in which the state of the business, as between the maker and endorser, was unknown to the holder of the note, and the court reserved its opinion in such a case. But in Fentum vs. Pocock, 5 Taunt. 192, the same point was ruled without reference to knowledge on the part of the holder. Mansfield, C. J., alluding to the judgment of Lord Ellenborough, in Laxton vs. Peat, 2 Camp. 185, says: "We think we are bound to differ from him, and to hold that it is impossible for us to consider the acceptor of an accommodation bill in the light of a surety for the payment by the drawer, and that we cannot, therefore, say that he is discharged by the indulgence shown to the drawer. If the holder had known, in the clearest manner, at the time of his taking the bill that it was merely an accommodation bill, it would make no manner of difference, for he who accepts a bill, whether for value or to serve a friend, makes himself in all events liable as acceptor, and nothing can discharge him but payment [**20]  or release." And Lord Tenterden, in Yallop vs. Ebers, 1 Barn. & Adol. 698, said: "Laxton vs. Peat, where it was held that an accommodation acceptor might be considered as a surety, has been long overruled." This question came before the Court of Appeals in Clopper vs. Union Bank, 7 H. & J. 92, and the maker of the note was held liable to the bank which discounted it, with knowledge that it was for the accommodation of the endorser, even after the bank had given time to the endorser. In every bill of exchange the acceptor, and in every promissory note the maker, is, in law, the principal, and is first liable, and every endorser 

 [*401]  in the order in which his name appears on the bill or note. There is no difference between accommodation notes and those negotiated for value. The court will look to the relation that parties bear to each other on the instrument itself, and determine their liabilities accordingly.
The cases cited on the part of the appellee show, that there must be an agreement to discharge or something that amounts to an abandonment of the remedy on the first contract, and that this must be left to the jury, except in those cases [**21]  where the nature of the evidence is such that the court must pass upon its construction and effect. In Harris vs. Lindsay, 4 Wash. C. C. 271, the court said, if it be agreed on dissolution, that one member shall pay the debts, they are yet bound as principals, so that no indulgence granted by a creditor to the paying partner, which falls short of an agreement, express or implied, to take him as the debtor and to discharge the other, can place them in the situation of principal and surety so as to discharge the retiring partner. To support a defence of this kind, such an agreement must be satisfactorily made out. (See also page 98.) The retiring partner in that case was discharged, because, in the opinion of the court, "the new contract amounted to an agreement to discharge Lindsay, and the intention of the parties formed no part of the question which the jury had to decide. There were no circumstances in the case other than such as grew out of written documents, the construction and legal effect of which were proper for the consideration and decision of the court." But it was also held, that if the agreement be a mere inference from circumstances tending to show [**22]  that such was the intention of the parties, the jury were the proper judges of such intention. In this case the evidence, as is insisted, was taken in writing, as by a commission, but that is not such as Judge Washington meant when he spoke of documentary proof.
The present case, however, is not as favorable to the appellee, as far as concerns the propriety of the proposed defence, as those to which we have referred. Here the defendant does not pretend that he was surety for the whole debt; his original liability for one-third is admitted. And hence, the greater 

 [*402]  difficulty of allowing such defences, at law, than where the party claims that he was mere surety for the whole, and that he has been altogether released by the acts of the creditor. If the law be correctly stated in the cases cited, it will apply more strongly and with greater reason to the one under consideration, where the party insisting on the benefit of this equity was at any rate liable for a part of the debts.
Upon a careful consideration of the record and of numerous decisions, we are of opinion that the appellee was not discharged at law; the principle deducible from the cases being, as we think, that [**23]  where the party does not appear on the instrument to have made himself liable as surety, he cannot, at law, avail himself of the equities between himself and the other parties to the instrument, unless he was accepted by the creditor as a surety, or has been discharged by the acts of the creditor, according to the principles recognized in Glenn vs. Smith, 2 G. & J. 493.
The first of the appellee's prayers assumes that he was discharged by Yates having taken the notes of Donaldson for one-third of the original purchase money, without reference to the question of agreement to take them in satisfaction of his liability on the contract, or of intention to release him. As the case is presented on that prayer, these notes when paid amounted only to a part payment of the original debt. The second, we think, should also have been refused. If the plaintiff agreed with Garland to take Homan's notes in satisfaction of the amount then due by Garland, provided they were satisfactory to him, and did actually accept them, in performance of that agreement, the appellee was discharged; and had the jury been left to find that the plaintiff assented to the arrangement on that [**24]  condition, that Donaldson complied on his part, and that Yates accepted Homan's notes, as performance on Garland's part, the prayer would have been proper. The arrangement, if complied with, would according to Judge Washington, have amounted to an agreement to discharge the parties from the first contract. But this prayer omits a fact material to be found, viz: the acceptance by Yates of Homan's notes, in performance of Garland's part of this new arrangement.

 [*403]  The third prayer of the appellee was also erroneous. It assumed the defendant's right to a verdict on the delivery by him to Yates of notes for his third of the purchase money, under an agreement supposed in the prayer, which the jury were left at liberty to have implied from the proof adduced, when, as we think, it was not competent for them to have found any such agreement by implication, even conceding that there was no necessity for an express agreement, in order to discharge the party.
In the case of Oakeley vs. Pasheller, 10 Bligh. 548, (relied upon by the counsel for the appellee) before the House of Lords, on appeal from the lord chancellor, it was held that by arrangements between [**25]  the surviving partners and the representatives of a deceased partner, the former had assumed a joint debt, and the latter had become sureties only, and that the extension of time granted this new firm, without the knowledge and assent of the representatives of the deceased partner, had discharged the latter; the creditor knowing that these arrangements had been made. We do not question this doctrine as between creditor and surety debtor, where that relation exists. That is the principle in Harris vs. Lindsay. In equity the court decides both the law and the fact; but, in cases like this, whether the relation of the parties is changed or not, depends on intention, and at law, that must be submitted to the jury. If we were sitting in equity, that case might be entitled to great weight, being an opinion of Lord Lyndhurst, affirming the master of the rolls, and the lord chancellor. We think, however, it does not contravene what we suppose to be the principles governing courts of law. Upon the remedies in equity in such cases, we express no opinion.
Judgment reversed and procedendo awarded. 

11 of 12 DOCUMENTS 

THE STATE vs. JAMES BOGUE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 352; 1854 Md. LEXIS 7 

JUNE, 1854, Decided 

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

The appellee in this case, as in the preceding, was proceeded against for a violation of the act of 1854, ch. 138. From the judgment of the justice imposing a penalty of $ 5 and costs, he appealed to the Court of Common Pleas. That court entertained the appeal and reversed the judgment of the justice. From this judgment of reversal the State appealed.  

DISPOSITION:
Appeal dismissed with costs.  

HEADNOTES:

Where the right of appeal from the judgment of a justice of the peace to the Court of Common Pleas exists, the judgment of that court is final and conclusive, and no appeal lies from it to this court.  

COUNSEL:
J. M. Campbell and John Nelson for the appellant, insisted, that the court below had no jurisdiction over the judgment which it reversed, an appeal to it being expressly prohibited by the act of 1854, ch. 138, under which the proceedings were instituted, in which case this court will reverse the judgment. 7 Gill 92, Webster vs. Cockey.

Charles H. Pitts for the appellee, argued that the party had the right to appeal to the Court of Common Pleas. If it be a criminal proceeding the law is in direct violation of the 19th article of the Bill of Rights, which secures to the party in all criminal cases the right of trial by jury. If it be a civil proceeding, the 19th section of the 4th article of the Constitution expressly gives the right [**2]  of appeal "in all civil cases from the judgment of a justice of the peace to the Court of Common Pleas," and any prohibition of this appeal by the act of 1854, ch. 138, is unconstitutional and void. The right of appeal to the Court of Common Pleas existing the judgment of that court is final and not subject to review in this court, and the appeal must therefore be dismissed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*353]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the judgment of the Court of Common Pleas, reversing a judgment rendered by a justice of the peace against the appellee in this court for a violation of the act of 1854, chapter 138. We have stated in the case of the State vs. Mace, that we think the Constitution gave the right of appeal to the Court of Common Pleas, and, as that court was but in the exercise of its proper jurisdiction when reviewing the decision of the justice, its judgment is final and conclusive, from which no appeal lies to this court, and we therefore accordingly dismiss the appeal.
Appeal dismissed with costs. 

12 of 12 DOCUMENTS 

MOORE N. FALLS and CHARLES W. KREBS, vs. BENJAMIN ROBINSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

5 Md. 365; 1854 Md. LEXIS 9 

JUNE, 1854, Decided 

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

This appeal is taken from an order of the court below dissolving an injunction, to restrain the execution of a judgment at law granted upon a bill filed by the appellants.

The bill alleges, that the account between them, which was the basis of the judgment recovered by the defendant, (the present appellee,) against the complainants, contains this mistake, viz., that in it the defendant is credited with the sum of $ 3693.75, for three-quarters of an annual mail pay of $ 4925, whereas he should have been credited only with his proportion as a partner, or with one-half of said sum; that the account shows that the defendant and complainants were partners in the business therein referred to, and that defendant was entitled to only one-half of the said annual mail pay, which amounted to $ 4925. That this mistake was not discovered during the progress of the trial of the suit at law, nor until after the verdict was rendered therein, and after the time for a motion for a new trial had elapsed.

The account bears date the 24th of May 1841, and is signed by the complainants. All the items composing it are particularly [**2]  set forth, and among them is the item in controversy, being a credit to the defendant, as follows: "By mail, pay for three-quarters $ 4925,--$ 3693.75."

The answer avers that the account was correct in every particular, and was stated between the parties after a careful examination of their mutual dealings, and every item of it was carefully examined, fully understood, and admitted by complainants to be just and correct. As to the item alleged to be erroneous, respondent expressly denies that there is any mistake or error in regard thereto, and avers and insists that the same is correct. That this account was in possession of the counsel of complainants for several months before the trial of the suit at law, and this item was the subject of discussion before the jury at the trial, and before the court upon a motion for a new trial.

The court, (FRICK, J.,) upon bill and answer, dissolved the injunction, and the complainants appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

The allegation that there was a mistake in an account, upon which a judgment at law was recovered, which was not discovered until after the trial and verdict, and the time for a motion for a new trial had elapsed, is not sufficient to authorize an injunction restraining execution of the judgment, the error, if any, being apparent on the face of the account, and the relation of the parties perfectly well known to each other.  

COUNSEL:
William Schley for the appellants.

The bill makes a proper case for an injunction. The answer denies generally that there is any mistake in the item complained of, but this is not sufficient. It must state [**3]  the facts upon which the denial is founded and on which the claim in the bill rests. It does not deny the allegation that there was a partnership, but simply says there was no mistake in the account. It pleads conclusions, and does not state the facts upon which those conclusions are based. A defendant must answer facts and leave the legal consequences of those facts to the court. 9 Gill 505, Adams vs. Whiteford. The answer is to be taken as true, on motion to dissolve, so far as it is responsive, but the averments of the bill, which are not denied, are also to be taken as true. 5 Gill 148, Alexander vs. Ghiselin. 10 G. & J. 317, Hardy vs. Summers. 7 Gill 190, Briesch vs. McCauley. 1 Bland, 352, Gibson vs. Tilton. 3 Do., 125, Salmon vs. Clagett. The allegations, therefore, that they were partners as to the mail pay, and the amount of this pay not being denied, are to be taken as true, and the injunction should not have been dissolved.

Charles H. Pitts for the appellee.

The bill states that the mistake was patent upon the face of the account. It nowhere avers that the complainants had not knowledge of the account and of the item in it complained of, but the [**4]  simple averment is, that the knowledge of this mistake was not found out until after the trial at law. Where a mistake is alleged as the foundation for an injunction, the answer denying that there is such a mistake is all that can be required of the defendant, and covers the ground upon which the equity of the bill rests. 8 G. & J. 170, Dilly, et al., vs. Barnard. There must be clear proof of the mistake. 9 Gill 420, Beard's Exc'x vs. Hubble. 7 Gill 190, Briesch vs. McCauley. 2 H. & J. 179, Contee vs. Cooke. The defendant in this item credits himself with the whole mail pay for three-fourths of a year, not with three-fourths of an aggregate sum. The case of Gott and Wilson, vs. Carr, 6 G. & J. 312, settles the general rule that equity will not relieve against a judgment at law, unless the justice of the verdict can be impeached by facts, or on grounds of which the party could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with any negligence or fault on his part.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*367]  LE GRAND, C. J., delivered [**5]  the opinion of this court.
We think the injunction was properly dissolved by the court below. Apart from all questions as to the sufficiency of the answer of the defendant, we are of opinion there was no case made by the bill.

 [*368]  The case made in the bill is simply this: the appellee instituted his suit at law to recover a sum of money ascertained to be due by an account settled between him and the appellants. The equity set up in behalf of the appellants is, that the account was erroneous, and that the mistake in the calculation "was not discovered during the progress of the said trial, nor until after the verdict was rendered therein, and after the time for a motion for a new trial had elapsed." The account bears date the 24th May 1841, and the suit at law was brought in the year 1846.
If there be error in the account it was apparent on its face, for the elements of which it is composed are distinctly set out on its face, and the relation of the parties perfectly well known to each other. To allow such a circumstance to set aside a judgment at law, would be to render null and void solemn adjudications on the most trivial pretexts, and that too when the party seeking to [**6]  have it done had within his reach, and in fact, in his possession, all the facts essential to put the matter fairly before the jury. Such a doctrine cannot receive the sanction of any court.
Decree affirmed with costs.