1 of 44 DOCUMENTS 

JNO. HENDERSON vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, use of JOHN ESCHBACH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 352; 1855 Md. LEXIS 60 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellees against the appellant, to recover the amount of a paving tax assessed upon the defendant as his proportion for paving that part of Biddle street between Pennsylvania avenue and George street. Plea, non assumpsit.

Exception. The proof on the part of the plaintiff shows that on the 4th of May 1848, application was made to the city commissioners for paving the street in question, agreeably to the acts of Assembly and the ordinances of the city authorities, purporting to be signed by a majority of the proprietors of the feet of ground fronting on said street, and accompanied by a private contract made by the same parties with Eschbach for doing said paving. Among the signers to this application and contract was J. T. Shipley, representing himself as the owner of 191 feet, fronting on the street aforesaid, and these feet were necessary to constitute the required majority. In the course of the trial due publication of the notice of this application, as required by the ordinances of the city authorities, was proved. On the 15th of May 1848, the board of commissioners passed the following order upon said [**2]  application, which order was, on the same day, approved by the Mayor:

"The city commissioners having given the notice required by law, and having ascertained that the owners of a majority of the feet of ground binding and fronting on Biddle street, between Pennsylvania avenue and George street, have signed the within application to pave said part of Biddle street, and having received the accompanying contract for that purpose, the city commissioners have determined that said part of Biddle street may be paved by private contract."

On the 6th of July 1848, the commissioners delivered their warrant, approved by the Mayor, to the collector, accompanied by a list of the persons liable to pay the paving tax for the same, and directing him to collect the same agreeably to the ordinance approved the 22nd of May 1838. The sum assessed to the defendant, as proprietor of a lot fronting 180 feet on this street, was $ 358.65. The several ordinances relating to paving in the city of Baltimore, and the ordinance relative to the paving of Biddle street, were also offered in evidence. The plaintiff also offered in evidence a deed from Ann Shipley and her children, as devisees of Johnsee [**3]  Sellman, conveying to Eschbach a lot fronting sixteen feet on Biddle street. This deed is dated the 19th of April 1848. Some of the grantors resided in Baltimore city, some in Anne Arundel and Worcester counties, and some in the State of Delaware. It was acknowledged by those residing in Baltimore city on the 13th of May, by those in Anne Arundel county on the 19th of April, by those in Worcester county on the 17th of June 1848, and by those in Delaware on the 29th of May 1850, and was recorded on the first of June 1850.

The defendant then proved, that he attended at the office of the commissioners and objected to the contract being entered into, because the requisite number of feet had not been subscribed for, and then proved by J. T. Shipley, that on the 3rd of April 1848, he made an agreement with Eschbach, (which was signed by Shipley and Eschbach and offered in evidence,) that in consideration that the latter would pave before the property of the devisees of Johnsee Sellman, that they, the devisees, would convey to him a lot fronting sixteen feet on Biddle street. The agreement also declared, that in case the devisees, or any one of them, shall refuse to sanction this agreement,  [**4]  then it was to be null and void, and that Eschbach was not to commence paving until such consent should have been obtained, either by power of attorney to him in their names, or by signing a deed conveying the lot of ground therein mentioned to Eschbach. He also proved by the same witness, that this was the original contract between himself and Eschbach with regard to the paving of Biddle street; that he told Eschbach he did not feel authorised to sign the petition to pave for the heirs, but agreed to sign it upon the condition mentioned in the above agreement, and that Eschbach consented. The defendant then asked six instructions to the jury, only one of which, the second, need be stated:

2nd. That there is no evidence in this case to establish the fact that the proprietors of a majority of the ground binding and fronting on that part of Biddle street upon which the paving was done, as stated in the evidence, assented in writing to the application to pave said street, and they not having so assented the plaintiff is not entitled to recover.

To the refusal of the court (FRICK, J.) to grant this, as well as his other instructions, the defendant excepted, and the verdict and [**5]  judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

The ordinances of the city of Baltimore in relation to paving of streets, confer on property owners, not only the right to have their own lots improved by paving in front of them, but also the power to compel others to submit to and pay for such supposed improvements.

The paving tax is due immediately after the commissioners make out the lists of persons assessed, and its payment may be enforced before any portion of the paving is commenced.

The assent in writing of the proprietors of a majority of feet fronting on the street to be paved must appear to have been given before the paving is ordered, and the want of such assent may be shown as a defence to an action to enforce collection of the tax.

Where a deed is executed and acknowledged by parties living in different counties and on different days, the presumption arising from its date, that it was delivered on that day, cannot stand against the positive averments in the acknowledgments, that it was executed afterwards.

Questions arising upon the face of a deed, unconnected with parol proof, are for the decision of the court.

A prayer that there is no evidence of the assent of certain parties, "and they not having so assented the plaintiff is not entitled to recover," is not objectionable in form; the latter clause is but a statement of a reason for the conclusion of law and not the assumption of a fact.

The certificate of the commissioners, stating that a requisite number of proprietors had assented to the paving, is not conclusive on the question of assent; it has but a prima facie effect as the warrant or authority to have the paving done, and those who act under it do so at their peril.

The authority of the commissioners as to paving of streets is special and limited, both as to its scope and effect, and when made the foundation of an action it must appear to have been exercised according to law.  

COUNSEL:
Benjamin C. Presstman and Grafton L. Dulany for the appellant, argued:

That under the provisions of the act of 1817, ch. 148, sec. 18, the Mayor and City Council of Baltimore are not authorised to cause any unpaved street, lane or alley, or part thereof respectively, within the city of Baltimore, to be paved without the previous assent, in writing, of the proprietors of the majority of the ground binding and fronting on such street, lane or alley, or the part thereof, to be paved; and that there was no evidence of any such previous assent, either at the time when the order of the commissioners to pave was passed or at the time that the contract was entered into with Eschbach. The conditional agreement entered into by Shipley, upon its face, requires the fulfilment of certain conditions before the paving should commence, and these conditions not being fulfilled prior to the making of said contract, no subsequent assent will validate the action of the commissioners in ordering the paving to be done. The learned counsel then cited and commented upon the acts of 1797, ch. 54, 1817, ch. 148, sec.  [**6]  18, and 1833, ch. 40, and the ordinances of the corporation of Baltimore, No. 47, approved May 22nd, 1838, and the supplement thereto, approved March 10th, 1842, ordinance No. 15, approved March 3rd, 1848, and ordinance No. 41, approved April 1st, 1848; and argued, that the ordinance of 1842, permitting the paving to be done by private contract and making the proprietors liable for the paving done under such contract, is null and void; it is directly in conflict with the maxim, potestas delegata non delegari potest, and is an absurd stretch of power, as it makes all the owners fronting on this street liable to a private contract which the city authorities never made and have no power or control over. But it is said, the order of the city commissioners directing the paving to be done, is to be regarded as a conclusive determination of the question, that a majority of proprietors did sign the application--that this is to be regarded as a judgment which cannot be inquired into. This, however, we submit, cannot be the construction of these proceedings. The previous assent of a majority is necessary, and is a condition precedent to the proper exercise of the authority vested in the commissioners [**7]  to direct the paving to be done, and this may be inquired into in any case in which an attempt is made to enforce collection of the paving tax assessed under such proceedings. We therefore say, upon the principles above stated, that the court erred in refusing to grant either the first, second, fourth and fifth prayers, or all of them.

James Malcolm and J. Mason Campbell for the appellee, after stating the provisions of the acts of Assembly and ordinances referred to by the appellant, argued, that the assent of a majority of the proprietors of ground fronting on the street to be paved, was necessary, according to the provision of the third section of the act of 1817, ch. 148, but that the tribunal designated by law to ascertain that fact are the city commissioners. No other body can find the fact, in the first instance, for the purpose of determining whether to pave or not to pave. They have found the assent, and state in so many words, "having ascertained that the owners of a majority of the feet of ground binding and fronting on Biddle street, between Pennsylvania avenue and George street, have signed the within application to pave said part of Biddle street." This is, therefore,  [**8]  a judicial determination of this fact by the judgment of a court of competent authority which cannot be questioned, and must, therefore, be taken as conclusive in this case. The second prayer, which asserts there was no evidence of an assent in writing, was correctly rejected, because this judgment of the commissioners was not only evidence, but conclusive evidence of this fact. The proposition in the prayer is very different from one which, conceding a prima facie assent, overthrows it by superior proof. The assertion is of "no evidence" of utter absence of proof, prima facie or otherwise, to show a written assent. Now the fact is directly the reverse, as we have shown. 2 G. & J., 114, Shilknecht vs. Eastburn. 4 Philips on Ev., 209, and cases there cited. But again, the latter clause of this prayer does not put it to the jury to find the fact of assent but assumes it, and for this reason was properly rejected.  

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

OPINIONBY:
TUCK 

OPINION:

 [*357]  TUCK, J., delivered the opinion of this court.
We do not think that the ordinances of the city of Baltimore, applicable to the present case, should receive the construction placed [**9]  upon them by the counsel for the appellee to the full extent of their argument. They virtually confer on property owners, not only the right of having their own lots improved by paving in front of them, but also the power to compel others to submit to such supposed improvements, and 

 [*358]  to pay for the same against their will; and the tax being due immediately on the commissioners making out the lists, payment may be enforced even before any portion of the work is commenced, though laid, not by the municipal authorities in the ordinary exercise of their taxing powers, but at the instance of persons who may be influenced solely by a regard for their own interests. It is true that this is done subject to the approval of the commissioners and the mayor, acting under the provisions of the ordinances, but the machinery necessary to give them effect can be put in motion only by those so interested. This is certainly a very high power to be possessed by any portion of citizens over others. It may be presumed that proprietors, looking to their own interests, will not object if they can perceive that their property will be appreciated by the improvement. But it is not difficult to perceive,  [**10]  that combinations may be formed for the advantage of some to the prejudice of others; and on the other hand, that a single individual, owning a majority of the feet of ground, may subject his neighbors to the operation of the ordinances when illy able to incur the expense, without, in either case, promoting the public convenience to any great extent. To prevent the abuse of the power, certain preliminaries are prescribed which must appear to have been at least substantially complied with, and among these, as most important, is the assent of the proprietors of the requisite number of feet binding and fronting on the street to be paved.
The defendant's second prayer asserts, that the evidence on this point was not legally sufficient, and as this proposition, if correct, will dispose of the case, we shall address ourselves to its consideration. There is no testimony to show that Shipley had authority to assent for the owners of the lot whom he claimed to represent. He states in his evidence, that he told Eschbach that he did not feel authorised to sign for the heirs, but did sign upon the conditions mentioned in the agreement of the 3rd of April 1848. The deed, bearing date April [**11]  19th, executed as a compliance with the condition on which Shipley signed the application, and relied on by the appellees as evidence of ratification, cannot be considered as operative from its 

 [*359]  date, even if it be otherwise sufficient to remove the objection. Deeds take effect from delivery. It is manifest that this was executed and acknowledged by some of the grantors after the 4th of May, and could not have been delivered on the day of its date. There was no proof as to the delivery other than what appeared on the instrument. Being a point arising upon its face, unconnected with parol proof, it was for the decision of the court.  Barry vs. Hoffman, 6 Md. 78. Where deeds, as in this case, are executed and acknowledged in different counties, and necessarily on different days, the presumption arising from the date that the instrument was delivered on that day cannot stand against the positive averment in the acknowledgment that it was executed afterwards. Though this deed may have been executed and delivered before the work was actually commenced, of which, however, there is no evidence, it was but a performance of the condition in the agreement of the [**12]  3rd of April, and not a compliance with the prerequisites of the ordinance.
But the frame of this prayer is objected to, on the ground that the latter clause assumes the want of assent without submitting the question to the jury, and that the instruction was, therefore, well refused. We do not think so. The theory of the prayer is, that there was no legally sufficient evidence on this point. The record shows there was no proof of assent by Shipley's heirs, and without the number of front feet owned by them there was not a majority of feet. It is then a case of total failure of evidence, in the legal sense of that expression. There was nothing to be left to the jury. The purpose of the prayer was to take the case from them, on the concession that all the plaintiff's evidence offered on this point was true and that the jury would so find, yet asserting that the facts conceded did not entitle the plaintiff to a verdict. If the words objected to, to wit, "and they not having assented," had been omitted, or if, instead of these, the words "therefore," or "because they have not so assented," had been used, we suppose the prayer would have been unobjectionable in form. The language employed [**13]  we consider as a mere statement of a reason for the conclusion of law, that the plaintiffs were not entitled to recover, as in the above examples.

 [*360]  Nor do we agree with the counsel for the appellees, that the certificate of the commissioners is conclusive on the question of assent. At best it has a prima facie effect only, as the warrant or authority to have the paving done. But the parties who act under it do so at their peril. If it were otherwise, these commissioners might deem it necessary, in the faithful discharge of their duty, to examine the records to satisfy themselves that the persons assenting as proprietors were really owners of the lots, and in this pursuit, they would doubtless find titles on which they would be wholly incompetent to decide. But if they did decide, the owners objecting would be bound by their judgment. We believe that no such power was designed to be conferred on them. Their authority is special, and limited both as to its scope and effect. It was granted for the purpose of giving sanction to acts in pais, affecting the property and rights of others; but when made the foundation of an action, as here, it must appear to have been exercised [**14]  according to law.
Eschbach cannot justly complain of this result. Without waiting for the consent of the owners in legal form, he treated with a person who he knew had no authority to act for them, and as the liability of the owners not assenting depends upon the regularity of the proceedings under the ordinances, he must take the consequences of his haste. There being a radical defect in the preliminary proceedings, the judgment must be reversed without procedendo.
Judgment reversed and procedendo refused. 

2 of 44 DOCUMENTS 

MAYOR AND CITY COUNCIL OF BALTIMORE, Garn. of JOHN T. BRASHEARS, vs. BASIL ROOT, use of JAMES ARMSTRONG.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 95; 1855 Md. LEXIS 35 

DECEMBER, 1855, Decided 

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

Attachment on a judgment against Brashears at the suit of Root, laid in the hands of J. J. Graves, register of the city of Baltimore. It was admitted, that at the time of trial there were in the hands of the register funds of the corporation due Brashears, for services as a police officer of said city, sufficient to pay the judgment upon which the attachment issued. The court below, (FRICK, J.,) sustained the attachment, and from that judgment the garnishee appealed.  

DISPOSITION:
Judgment reversed and no procedendo ordered.  

HEADNOTES:

Funds in the hands of the register of the city of Baltimore due by the city for the salaries of city officers, are not, upon grounds of public policy and convenience, liable to be attached by the creditors of such officers.

Municipal corporations are parts of the State government exercising delegated political powers for public purposes, and the rule exempting funds in the hands of one State officer due another from attachment, applies equally to the officers of such corporations.

The members and officers of public municipal corporations are officers of the government for the administration or discharge of public duties.

The act of 1825, ch. 114, sec. 2, authorising attachments on judgments to be laid in the hands of any "person or persons whatever, corporate or sole," does not include municipal corporations; they are excepted by reason and necessity.

In construing statutes, the intention of the makers must be regarded, and what is within such intention is within the statute though not within the letter, and what is within the letter but not within the intention is not within the statute.

The fact that the officer whose salary was attached could have sued the city therefor, does not authorize his creditor to attach the claim.

Because a claimant may sue, it does not follow that his creditor can attach the claim in every case, although as a general rule it may be so.  

COUNSEL:
Grafton L. Dulany and Benjamin C. Presstman for the appellant, argued, that the judgment below was erroneous, because the wages or salary of a public officer in the hands of the disbursing agent of a municipal corporation are not attachable in law. 3 How., 550, State of Maryland vs. Balto. & Ohio Rail Road Co. 12 G. & J., 438, State, use of Washington County, vs. Balto. & Ohio Rail Road Co. 9 Wheat., 738, Osborn vs. United States Bank. 13 Pet., 499, Wilcox vs. Jackson. 7 Monroe, 444, Divine vs. Harvie. 7 Mass., 259, Chialy, et al., vs. Brown, 3 Barr., 368, Bulkley vs. Eckhert, et al. These cases show that it is a [**2]  well settled principle, that those who exercise sovereign authority cannot be impeded and obstructed in the discharge of their duties, by attachments laid in their hands by the creditors of the parties to whom they are to disburse salaries or funds for public services. The public interests would be injured by such an invasion of the duties of public officers, who are created and exist solely for the public. The great doctrine in all such cases is that of inconvenience, and the cases go upon the ground, that if such attachments were allowed, they would hinder and delay the successful operations of government. Our attachment laws do not say that they shall extend to municipal corporations, and they are exempted unless there is a special clause embracing them.

T. Yates Walsh for the appellee. Are the wages of a police officer of the city of Baltimore liable to be attached to enforce the payment of his debts? The affirmative of this proposition it is my duty and purpose now to maintain. And first, let us remark, that this officer could have sued the corporation for these wages if they had been withheld. The whole argument on the other side proceeds upon the theory, that the sovereignty [**3]  of the city exempts her from the process of attachment, and yet the admission is, that Brashears, her subordinate, could have brought her before the court and recovered judgment for his claim. She cannot assume the purple for her own protection, but is to be allowed to throw it as a shield around the person of an unjust debtor. Such is the gross inconsistency involved in the argument on the other side.

I maintain, on the contrary, that whenever the original debtor can be sued by the original party, such debtor is liable to the process of attachment. The cases cited on the other side do not at all militate against this position. The cases in 13 Pet. and 9 Wheat. establish but this, that the funds in the hands of the agents of the federal government are in fact in the possession of the government. That government cannot be invoked to litigation by any contractor with whom she has dealt, and therefore she cannot be forced to assume the relation of a suitor by any third party claiming such contractor's rights. The case in 7 Mass. seems directly to concede, that if there was a right of suit by the garnishee against the trustee, the claim would be liable to the trustee's process. In [**4]  the case in 3 Barr., the money was in the hands of the commissioners as agents of the State, and the teacher himself could have brought no suit for it. No authority can be found for the assertion, that where there is a right of action by an original claimant against a debtor, such debtor cannot be made a garnishee in attachment. The sovereign can never be brought into his own courts; and money in the hands of a sheriff or other executive officer cannot be attached. The reasons of the first proposition are sufficiently obvious, and those of the other are well expressed by the Court of Appeals, in the case of Farmers Bank of Delaware vs. Beaston, 7 G. & J., 424 and 428, where the court distinctly intimate, that the exemption of the funds in the hands of the sheriff is because they are in fact and in law under the protection of the court.

But it seems to me hardly necessary in this case to rely upon any thing save the charter, the organic law of the city of Baltimore. By a reference to this, we may avoid the necessity of deciding upon the rights resulting from the division and delegation of sovereignties. The State might, by its organic law, and it may be said by an act of ordinary [**5]  legislation, allow itself to be sued. And if so, all the incidents attaching to a defendant would belong to her new relation. It was clearly competent for the legislature, when the charter was given to the city of Baltimore, to qualify the sovereign powers, which, for the sake of the argument, I admit were conferred upon her. And what was the qualification? Baltimore town is erected into a city by the name of the city of Baltimore, and the inhabitants thereof constituted a body politic and corporate by the name of the Mayor and City Council of Baltimore, and as such, shall have perpetual succession, and by their corporate name may sue and be sued, implead and be impleaded, grant, receive and do all other acts as natural persons. Now in this connection, let us look to the attachment law of 1825, ch. 114, sec. 2, allowing attachments on judgments to be issued against the goods, chattels and credits of the defendant in the hands of the plaintiff, or in the hands of any other person or persons, corporate or sole. Now how can any considerations of public policy at the hands of the judiciary interfere with the force of language like this? The act of 1795, ch. 56, did not by terms extend [**6]  to corporations. The language of the Court of Appeals, in Somerville vs. Brown, 5 Gill, 420, seems to establish the principle, that the terms of the statutes relating to attachments are to be strictly enforced. Judge Dorsey, in that case, says, "in rendering credits the subject of attachment, all that the legislature designed to effect thereby in a case like the present was, to substitute as it were the attaching creditor to the rights of his debtor creditor, and to enable the former to recover that which the latter would have been entitled to recover had no attachment been issued." And again, "the design of the act of Assembly was simply to provide the means by which the attaching creditor could as effectually recover the credit as could the debtor creditor had no attachment been interposed." The majority of the court declare in that case, in effect, that the attachment binds every description of debt. What was the salary of this police officer? A debt. Was the money in the hands of a party liable to be sued? Most clearly. The legislature who passed the act of 1825 well knew the character of all the corporations that had been brought into existence by the State. They make no exception,  [**7]  and it is not, I humbly submit, for the courts under any plea of public policy to add to their language. Considerations of public policy are not for the courts but for the legislative branch of the government. The debt due by Brashears, I have a right to insist, was founded upon moral and legal considerations. I have a right to infer it was due for services and assistance necessary for his comfort, if not for his livelihood. All debts are presumed to be contracted under circumstances which call for payment at the hands of honest men. And when these considerations of public policy, as they are called, are pressed before the proper department, its constituents will hesitate long before giving immunity to fraud against the rights of the confiding creditor.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*99]  ECCLESTON, J., delivered the opinion of this court.
The present attachment was laid in the hands of J. J. Graves, the city register, who, at the time, as register, held money due by the Mayor and City Council of Baltimore to Brashears, the defendant, for his salary as a police officer. The judgment below sustained the attachment, [**8]  and whether that decision is correct or not is the question for our consideration.

 [*100]  It has been repeatedly held, that money due by the government to its officers or agents for services rendered by them as such, whilst it remains in the hands of the government or in the keeping of its disbursing agents, is not liable to be attached or seized by the creditors of those having such claims upon the government. This is certainly true in regard to those who hold appointments directly from State authority. The opposite theory would be calculated to produce serious interruptions in the course of public business, and hinder and delay, if not entirely prevent, in some instances, the accomplishment of very important measures, depending for their successful termination upon the prompt and regular supply of the funds on which the officers or agents have to rely. Whilst treating of this subject in Divine vs. Harvie, 7 Monroe's Rep., 444, the court say:
"It would be a mortifying circumstance to see a member of the legislature rendered unable to pay his sustenance, while attending on its session, because a creditor, who never dealt on the credit of the fund, should, by injunction,  [**9]  detain his compensation, on which he obtained credit with his host."
In Chealy et al., vs. Brewer & Trustee, 7 Mass. 259, the treasurer of the county held $ 21.25, which was due to Brewer for services rendered by him as a juror. Under a statute of the State the plaintiffs made an effort to have this money applied to the satisfaction of their claim against Brewer; insisting that the treasurer was to be considered as his trustee under the statute. But the court held, that a public officer having money in hand to pay a demand, which one has on him merely as a public officer, cannot, for that cause, be adjudged his trustee. And the court say, "A contrary decision would be mischievous, as will appear from this single consideration: that it would suspend, during the pendency of an action, a possibility of settling the accounts of the officer, who should be summoned as the trustee; and it may be added, that it would unreasonably compel him to attend courts in every county in the commonwealth to answer interrogatories."
In Bulkley vs. Eckert et al. 3 Pa. 368, Bulkley had a judgment against Ulp and Eckert, on which 

 [*101]  an attachment issued.  [**10]  This writ was laid in the hands of J. Paul, who being a school director of a township in the county, and treasurer of the board of school directors, had in his custody, as treasurer, the public money to be applied to the support of the schools in the township. Ulp, one of the defendants, had been a teacher in one of these schools, and for his services as such there was money due him, but neither of the defendants had any other claim upon the garnishee. The decision in both courts was adverse to the claim of the attaching creditor, upon the ground that money in the hands of the treasurer, in his official character, could not be legally attached. The appellate court speak of his situation as being similar to that of a sheriff or prothonotary, having money in his hands as a public officer, which has been determined not to be subject to the process of attachment. The injurious effects upon the regular arrangement and administration of public business, by allowing such funds to be attached, are well described by Mr. Justice Sergeant, who, in delivering the opinion of the court says, "Great public inconvenience would ensue if money could be thus arrested in the hands of officers, and they [**11]  be made liable to all the delay, embarrassment and trouble that would ensue from being stopped in the routine of their business, compelled to appear in court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set there seems no reason why the State or county treasurer, or other fiscal officers of the commonwealth, or of municipal bodies, may not be subjected to the levying of attachments, which has never been attempted nor supposed to come within the attachment law. We do not, therefore, think this is such a debt as is contemplated by that law."
We do not understand the counsel for the appellee as contending that money due to a State officer for services, whilst it remains in the custody of a fiscal agent or officer of the State, can be attached. If the law will not permit it to be done in such a case, what good reason is there in support of such a principle, which does not also apply with perfect propriety to 

 [*102]  county officers and those of municipal corporations? City charters are granted by the legislature for the purpose of carrying on the machinery [**12]  of government within certain limits. And the power conferred in them to appoint fiscal agents and police officers, and to provide compensation for their services, are essentially necessary for carrying into effect the object and design of such charters as create corporate powers, which are, in reality, but branches of the State government having delegated limited authority. Chancellor Kent says, on page 275 of the 2nd Vol. of his Commentaries: "Public corporations are such as are created by the government for political purposes, as counties, cities, towns and villages, and the whole interest in them belongs to the public." In the Regents of the University of Maryland vs. Williams, 9 G. & J. 365, the court say: "A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government subject to the control of the legislature, and its members, officers of the government, for the administration or discharge of public duties, as in the cases of cities, towns," &c. And again it is said: "The corporation of the [**13]  University has none of the characteristics of a public corporation. It is not a municipal corporation. It was not created for political purposes, and is invested with no political powers. It is not an instrument of the government created for its own uses, nor are its members officers of the government, or subject to its control in the due management of its affairs."
As municipal corporations are parts of the State government exercising delegated political powers, for public purposes, the rule which prevents an attachment from being levied upon a claim of one State officer on funds in the hands of another, applicable to its payment, must apply with equal force to a case like the present. If an argument against the right to attach, based upon inconvenience, can have an influence in any case, it surely should do so where the officers of a large city are, necessarily, very numerous.
The appellee's counsel, however, contends that the attachment 

 [*103]  is clearly authorised by the act of 1825, ch, 114, sec. 2, which provides for an attachment against the goods, chattels and credits of a defendant in a judgment, "in the hands of the plaintiff, or in the hands of any other person or [**14]  persons whatever, corporate or sole." This he thinks renders not only private corporations, but those of a public municipal character also, liable to such process. But we do not agree with him. There is no necessity to give such a construction for the purpose of giving effect to the law, as there are institutions on which it may operate, without carrying it to the extent insisted upon by the appellee.
The argument from inconvenience, which, exclusive of the act, prohibits or denies the right of attachment, we think will sanction the construction that the legislature did not design to include municipal corporations. Although the language of the law of Kentucky, which was under consideration in Divine vs. Harvie, is very general and comprehensive, yet its general terms were not considered sufficient to entitle a creditor of an officer or employee of the State to demand payment of his claim out of a sum of money allowed the employee in the ordinary appropriation bill. There the public inconvenience exerted considerable influence upon the decision.
In Chialey, et al., vs. Brewer & Trustee, the court were called on to construe a statute under which the plaintiffs sought to enforce [**15]  the payment of their claim against Brewer, by demanding payment of the county treasurer out of money in his hands due to Brewer as a juror. There the injury to the public arising from sustaining such a proceeding is referred to as worthy of much consideration by the court in giving an interpretation to the statute.
In Pennsylvania the law relative to domestic attachments, passed in 1807, by its 2nd section, provides, that the officer to whom the process is directed "shall attach all the lands, goods, chattels and effects of the defendant or defendants, in whose hands soever the same can be found." And the act passed in 1836, on the same subject, prescribes the form of the writ; in which command is given to the sheriff to attach all and singular the goods and chattels, lands and tenements of the 

 [*104]  defendant, "in whose hands or possession soever the same may be." The 4th section then directs, that the writ shall contain a clause requiring the officer "to summon the garnishee, or person in whose hands any of the defendant's money or other effects may happen to be." This language is certainly very general, and looking at it in regard to its common import and meaning, would seem [**16]  to authorize an attachment to be laid on the property and effects of a defendant in the hands of any person having the same, whether the parties, or either of them, were officer or not. And yet we find the courts deciding, in Bulkley vs. Eckert, et al., that the fiscal officers of the State or county, or of municipal bodies, are not subject to the levying of attachments, and have never been supposed to come within the attachment law. Now, if in that case the treasurer of the board of school directors of a township having money in his custody to be applied to the support of the schools, is not, according to the proper construction of those laws, a person in whose hands any money or effects of the teacher are to be found, although for services rendered by the teacher there was money due him, and the necessity for guarding the public against the evils resulting from a different theory, induced the construction given in that case, there is just as much propriety, from necessity, in the present instance, for holding, that although the act of 1825 gives authority to levy an attachment in the hands of any person or persons, corporate or sole, nevertheless officers of a municipal [**17]  corporation are not subject to the provisions of that act. The principle seems to be well settled, that without this act such officers would not be liable to process of this sort. That necessity which established this principle, and which likewise justified the Pennsylvania courts in so restricting the general language of their statutes as not to include even the treasurer of the board of school directors for a township, will not permit us so to construe our law as to sustain the plaintiff's claim. Reason and necessity we think fully justify the construction that the act does not include but excepts cases of this sort. In Dwarris on Statutes, 728, in 9 Law Lib. 63, it is said: "In law all cases cannot be foreseen or expressed; the object of interpreting laws by what is called 

 [*105]  equity, is to supply, as far as possible, this deficiency, by a recurrence to natural principles of justice. It is the same with cases excepted by reason and necessity out of the prescribed rules. As relates to this branch of interpretation last considered, when cases fall out which should not be determined by the literal rule, and therefore excepted out of it, the expressions of Grotius [**18]  are strictly applicable: "Fit autem, ea correctio, non tollendo legis obligationem, sed declarando legem in certo casu, non obligare." And in the case of the State, use of Mayor & City Council of Balto., et al., vs. Boyd, 2 G. & J. 365, the court say: "Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter; on the principle that what is within the intention of the makers of a statute, is within the statute, though not within the letter; and that what is within the letter of a statute, but not within the intention of the makers, is not within the statute; it being an acknowledged rule in the construction of statutes that the intention of the makers ought to be regarded."
In Hawthorn vs. City of St. Louis, 11 Mo. 59, it was decided that under the provisions of the statute of that State, to be found in the Revised Code of 1835, page 254, a public municipal corporation could not be summoned as garnishee, on account of a sum due to an officer of the corporation as part of his salary, although it had been held that private corporations [**19]  might be "proceeded against by garnishment." Hawthorn caused the city of St. Louis to be summoned as garnishee of Clark, who was recorder of the city, the plaintiff being an execution creditor of Clark, to whom the city owed a balance on account of his salary. Because the city was "a public municipal corporation, created for the public benefit," the court held it not to be subject to the rules governing private corporations, such as banks, insurance companies, and other similar corporations. They then say: "It should not, therefore, be compelled to stand at the bar of all the courts in the State and participate in the judicial controversies carried on between debtors and creditors. Whilst these contests would be going on the public interest would suffer, by abstracting 

 [*106]  from their corporate duties the time and attention of the officers, and occupying them in contests about which the corporation had no interest. And however desirable it may be to creditors to enforce against the officers of the corporation their just demands, by the means resorted to in this case, yet we think that public policy forbids the imposition of such a liability upon the corporation."
Neither in [**20]  the Massachusetts or the Pennsylvania case are the officers held to be excluded from the operation of their attachment laws, because those laws are considered as having reference to persons as individuals, and not to corporations. And in the Missouri decision the liability of private corporations is distinctly recognized. In all those cases we find the exemption of officers from attachments placed upon considerations of public policy, having in view the necessity of preventing serious impediments to the prompt and efficient discharge of official duties; just such considerations as should exclude the present parties from the operation of the act of 1825, by construing its language as not including corporations of a public municipal character.
The counsel for appellee says, that under the city charter the defendant, Brashears, could have sued the corporation for his claim, if his salary had been improperly withheld: and being a claim for which he had a right of action, it was a credit subject to attachment. Admitting, however, that Brashears might have maintained an action against the corporation, still the right of the appellee to attach the claim is not relieved from the objection [**21]  to it, based upon considerations of public policy. Because a claimant may sue, it does not follow that his creditor can attach the claim in every case, although as a general rule it may be so. There is no intimation in the Pennsylvania case that the school teacher could not have sued the treasurer of the board of school directors. And although in Hawthorn vs. The City of St. Louis the liability of the city to be summoned as garnishee was denied, yet there can be no doubt that Clark, the recorder, had a right to sue the corporation for the amount of his salary then due. That this is true may be seen by reference to the decision in Carr vs. The 

 [*107]  City of St. Louis, 9 Mo. 191. There the plaintiff claimed fees due from the corporation to him, as recorder of the city, and his right to recover was sustained. See also article 1, section 2, of the amended charter of St. Louis, approved February 15th, 1841, and article 1, section 2, of "An act to reduce the law incorporating the city of St. Louis, and the several acts amendatory thereof, into one act, and to amend the same," approved February 8th, 1843.
Under the belief that the claim of Brashears was [**22]  not liable to attachment, we must reverse the judgment below.
Judgment reversed and no procedendo ordered. 

3 of 44 DOCUMENTS 

EMANUEL RAAB vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 483; 1855 Md. LEXIS 15 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Circuit Court for Anne Arundel county.

The plaintiff in error was indicted in the Criminal Court of Baltimore city, for receiving stolen goods, (four yards of satin, of the value of eight dollars,) knowing them to have been stolen. After plea of non cul. upon his affidavit and suggestion, the court removed his case to the Circuit Court for Anne Arundel county, for trial, where he was tried and found guilty.

After verdict, the traverser moved in arrest of judgment, upon the ground that the Circuit Court for Anne Arundel county had no jurisdiction to try the case, it not being a court of a county adjoining the city of Baltimore, to which alone the judge of the Criminal Court was required by the constitution to remove the cause. This motion the court (BREWER, J.,) overruled, and sentenced the prisoner to confinement in the penitentiary for eight years. To correct this judgment the traverser sued out a writ of error from the equity side of said Circuit Court. The following is the opinion of the court below, delivered upon overruling the motion in arrest:

"A motion in arrest of judgment was made in this case, for want of jurisdiction in the court, which has been [**2]  argued, and involves the question, 'Whether Anne Arundel county adjoins the city of Baltimore?'

"It seems to me that it is very convenient and desirable to bound both States and counties by streams of water; a stream being a natural, permanent and nearly unalterable boundary, especially a navigable stream, and that also seems to have been the object of the Legislature in dividing the State of Maryland; the Chesapeake bay and Susquehanna river dividing the Eastern and Western Shore, and nearly all the counties on the Eastern and Western Shore, certainly wherever it could be done, being divided by rivers. (I will hereafter refer to the particular acts.) Where the counties are divided by streams not navigable, in analogy to grants, each of the adjoining counties runs to the middle of the stream.

"The same rule may possibly obtain as to navigable rivers; of that, however, I doubt. It is indispensable, however, that some county should have jurisdiction over navigable water for some purposes, and to remove all doubt, if any existed, as to the bay, the act of 1809, ch. 138, secs. 19, 20, prescribed the jurisdiction as to offences committed on it. The act of 1704, ch. 92, recites,  [**3]  in its 3rd section, 'And whereas there are several counties that are divided by navigable rivers, and no rule yet made how far the jurisdiction of each county shall extend on the river, be it enacted, &c., that every county lying on any navigable river in this province, shall extend its jurisdiction from the shore to the channel of said river that divides the county, and be divided from the other county by the channel of the said river.'

"Before the passage of that act, by the act of 1695, ch. 13, the county of St. Mary's was laid off, including all that land lying between Patuxent and Potomac rivers, the division between it and Charles county being Bud and Indian creeks, and a line drawn from the head of one creek to the head of the other. St. Mary's is bounded by the lower side of the creeks.

"Charles county:--the bounds begin where the upper bounds of St. Mary's end, and extends itself upwards to Mattawoman creek and branch, (which is on the Potomac,) and is divided on the upper side from Prince George's by that creek and Swanson's creek, which runs into the Patuxent river, and a straight line from the head of one creek to the head of the other. Including all the land [**4]  lying on the upper part of Bud and Indian creek branches, where St. Mary's county ends, to the lower side of Mattawoman and Swanson's creek and branch, between Patuxent and Potomac rivers.

"Prince George's county, includes the land from the upper side of Mattawoman and Swanson's creek, &c., extending upwards, and bounded by Patuxent on the east, and Potomac on the west. No limit is fixed to the upper part of the county.

"Calvert county:--this county has always been understood to bind on the north-east side of Patuxent river. It lies in its whole length between that river and the bay. I can find no published law on the subject of its boundaries, except those relating to the divisional line between it and Anne Arundel, which do not mention other boundaries; but one of these, the act of 1823, ch. 183, terminates the divisional line at the river Patuxent, which sufficiently shows, I think, that it bounded on the north-east side of the river, and was divided by the river from St. Mary's, Charles, and part of Prince George's. I cannot find when it obtained the name of 'Calvert.' It was the county formerly called Patuxent, the bounds of which are to be found in ch. 6 of 1654, recorded [**5]  in the Council Chamber. This act extends the county from the south side of Mr. Marshes' creek, extending down the bay, including all the families and land on the south side of these creeks, including all the cliffs, with the north and south side of Patuxent river, with all the creeks thereunto belonging, and shall be called as it is, Patuxent county.

"Patuxent river runs nearly north and south, the upper side of the river being east or north-east. This act was passed more than forty years before the laying off of St. Mary's by the act of 1695. The law would seem to give it a considerable extent below the Patuxent, and if its boundaries were to be determined by this law, and the law of 1695, it might include the river, which is contrary to the received opinion now. Though the language of the law is peculiar and indefinite, giving no southern boundary, but including in the county the north and south sides of the river, with all the creeks, seeming to include the creeks in the county, but not the river.

"On the Eastern Shore, the Isle of Kent, by the same act of 1695, is added to and made part of Talbot county. That part of Talbot county lying on the north side of Corsica creek,  [**6]  running up the main eastern branch to the head thereof, shall be the southerly bounds of the county of Kent, and on the north by the county of Cecil.

"The act of 1704, ch. 92, recites in the preamble the laying off of counties by this act of 1695, and the act of 1698, ch. 13, relating to the division of Baltimore and Anne Arundel counties only, confirms them in its second section, and makes the provision before mentioned.

"The last act of 1698 begins Baltimore county on the Chesapeake bay, and extends it thence with certain lines to the Patuxent river, and up that river to its head, giving no bounds to the upper part of the county. All that tract of land lying on the north side of the said division lines, &c., to be in Baltimore county, and all the land, &c., on the south side thereof, to the ancient extent of Anne Arundel county, to be in Anne Arundel county.

"Then comes the act of 1704, reciting these acts, and establishing a rule as to the jurisdiction of counties binding on navigable rivers. This act, it is contended, applies only to the counties mentioned in those acts as binding on navigable waters, in which Anne Arundel and Baltimore counties are not included.  [**7]  

"I do not think it is thus confined. A part of the State only was, at that time, laid off into counties. It must have been then contemplated to lay off other counties. The bounds between Cecil and Kent, and the upper bounds of Cecil, were not accurately defined, nor the bounds of Talbot on every side, nor were the upper bounds of Baltimore and Prince George's. Some of the other counties thereafter to be laid off, might be bounded by navigable rivers, and the object of the act of 1704, although it refers only to the counties already laid off, seems to be to establish a rule applicable to all similar cases. The language of the law in the enacting part of the clause is very general, 'that every county lying on any navigable river.' The Legislature is establishing a rule applicable to a particular class of cases, and why should not the rule apply to all subsequent additions to that class?

"The first we hear of Anne Arundel county, is in the act of 1650, ch. 8, which provides, 'That that part of the Province of Maryland on the west side of the bay of Chesapeake, over against the Isle of Kent, formerly called by the name of Providence, by the inhabitants there residing, shall from [**8]  henceforth be erected into a shire or county, by the name of Anne Arundel county,' and by that name to be ever hereafter called.

"By the act of 1654, ch. 5, it is again called Providence, and so designated in ch. 17, of the same year.

"By the repealing and confirmatory law of 1676, ch. 2, the act of 1650 is confirmed. The act of 1654 is not, however, expressly repealed. At the period of 1750, I find no counties mentioned but St. Mary's, Anne Arundel, and Isle of Kent: no others appear to have been laid off at that time. Bacon says there were but two, St. Mary's and the Isle of Kent counties, (page 1649,) the only counties represented in the Legislature. Anne Arundel then included all the Western Shore on the north of the Patuxent, to the extreme bounds of the State, and Prince George's included all on the south side of the Patuxent. I see no mention made of Baltimore county, in the published laws, before the act of 1698.

"Next comes the act of 1726, ch. 1, entitled, 'An act for uniting part of Baltimore county to Anne Arundel county.' By this act 'the land lying on the south side of Patapsco river, and contained within the bounds following, viz., from the mouth of the [**9]  said Patapsco river with the said river to the head thereof, &c., shall be, and forever hereafter deemed as part of Anne Arundel county,' and 'all that part of the act of 1698, ch. 13, for dividing Anne Arundel county, which relates to the south side of Patapsco river being added to Baltimore county, is repealed.' What were the bounds of Baltimore county when the act of 1698 was passed, cannot be found in the published laws. Many acts of Assembly were lost, and among them probably a law laying off Baltimore and other counties, for in 1715, a court was provided for Baltimore county. There must, therefore, have then been many inhabitants in the county.

"In 1637, the Assembly, the first on record, passed a law for the dividing of the Province, of which Bacon says there is no record to be found.

"In 1654, the Legislature was held at Patuxent, and Patuxent, by ch. 6, was erected into a county.

"Baltimore county, like Prince Georges, must have had inhabitants in 1698, and probably reputed, if not fixed boundaries. The act of 1698 settled the division line between it and Anne Arundel different, no doubt, from the former boundaries, for the act of 1726, ch. 1, speaks of the [**10]  land on the south side of Patapsco being added to Baltimore county.

"This act, in addition to the last mentioned provision, bounds Anne Arundel county on the south side of the river, which, if the act of 1704 applies to counties subsequently laid off, carries it to the middle of the stream, and at any rate would leave to Baltimore county only half of the river, precisely the same as if a law bounded it on the north side.

"But what motive could influence the legislature to give to Baltimore county the whole of this navigable part of the river? By the former division it was necessarily in Baltimore county, as Severn, South river, &c., were in Anne Arundel, but as it was determined it should not extend south beyond the river, the intention of the Legislature to make the river the boundary is much more probable. The river was useful to both counties for the purposes of navigation, and the use of the shore to neither for any other purpose except that of a division line. I do not think any navigable river in the State will be found included in the body of the county, except where, by other outlines, it is necessarily embraced in it.

"Now let us look at the division of other [**11]  counties subsequent to the act of 1704.

"Talbot county, by the act of 1706, ch. 3, contains 'all the land on the north side of 'Great Choptank river' up to Tuckahoe bridge, across to Swetnam's mill, thence down the south side of Wye river to its mouth, showing the intention of the Legislature to make the river the boundary further by giving to Talbot, Bruff's island lying in Wye river.

"Queen Anne's county is laid off between Talbot and Kent counties, taking a part of each by the same act, and includes 'all the land on the south side of Chester river to Small's Branch,' making the bay the starting point for this line. The islands in the bay are divided, Kent island being given to Queen Anne, and Sharp's, Choptank and Poplar island being given to Talbot. Then making the bay again the starting point, it is bounded on the south with Talbot county to Tuckahoe Bridge, in words therefore, so far including Wye river by the south side of which Talbot county is bounded. But this could not have been the intention of the Legislature, because that line would include 'Bruff's island,' which by the same act is given to Talbot.

"Kent county, by the same law, begins on the bay 'at the [**12]  south point of Eastern neck,' (which is on the north side of Chester river;) thence up the bay 'to Sassafras river,' and up said river to the south end of long pine bridge, lying over the head of the said river, which shows the intention of bounding it on the south side of Sassafras river, thence with other lines till it intersects the line of Queen Anne's county, and 'with the said county down Chester river to Eastern neck,' where it first began. Here also the words would at first seem to include in Kent county, the whole of Chester river, because it runs down Chester river with Queen Anne's county, which county is bounded by the south side of Chester river. But that could not have been the intention, because the line down the river ends at the beginning on the north side of the river. It is clear that the counties were intended to join, the river being the boundary between them.

"Then comes 'Cecil county,' which 'shall contain all the land on the north side of Sassafras river and Kent county, bounded on the south with Sassafras river and Kent county, inconsistent expressions of it was intended to bind it on the line of Kent county, which is on the south side of Sassafras river.  [**13]  It is obvious that it was intended to join Kent county, but that the river should be the boundary line. On the west, Cecil is bounded 'with Susquehanna river and the Chesapeake bay.'

"Next comes 'Harford county:' by the act of 1773, ch. 6, this comprehends 'all that part of Baltimore county which is included within the bounds following, to wit: 'Beginning at the mouth of the little falls of Gunpowder river, and running with said falls to the fountain head;' thence with other lines, including Spesutia and Pool's islands, to the mouth of Gunpowder river, thence up the said river to the beginning, as aforesaid. This is very similar to the case now to be decided. Harford county runs from the mouth of Gunpowder river up the said river, not with the north side of the river, but it runs to the 'mouth of the falls,' which is on the north side. No part of the river is included in words in Harford county, which would leave the whole of it in Baltimore county, yet is it not obviously the intention to make the river the boundary between the two counties? In the case of Harford, commencing at the mouth of the river, it runs to the falls, thence running with the unnavigable falls, the middle [**14]  of the stream would be the boundary; with Anne Arundel the Patapsco is navigable but a short distance, then the middle of the stream is the boundary; would it not be absurd, in both cases, to run the line with the navigable part, on one side, then having arrived at the unnavigable part, to cross over and run up the middle? Harford is bounded on one side with Susquehanna river and Chesapeake bay, no side being mentioned--the same as with Cecil. The river is unquestionably the boundary between those two last mentioned counties.

"Somerset county.--I can find no law laying off this county originally; probably there never was one. The first notice I find of its boundaries is in the act of 1742, ch. 19, which prescribes its bounds from that time. It runs with the southern boundary of the State, Pocomoke river, then across to Nanticoke river, thence down the said river with Dorchester county to the mouth thereof, thence including all the islands formerly deemed to be in Somerset county, to the beginning; all the remaining part of what is now reputed to be within the county of Somerset to constitute Worcester county, which is not divided from Somerset by a navigable stream.

"Caroline [**15]  county, which is composed of parts of Dorchester and Queen Anne's county, by the act of 1773, ch. 10, runs one of its lines to the 'Nanticoke river;' thence with said river, to and with the exterior limits of the said county of Dorchester.

"Dorchester county.--I can find no act laying off this county, but a branch is made the division between it and Worcester county, which branch must run into the Nanticoke. 'The land on the north side of the branch to be in Dorchester county, and all the lands to the southward thereof to be in Worcester county.' That part of Dorchester now making a part of Caroline, runs with the river Nanticoke and the exterior limits of the county of Dorchester. It is evident from this and the line of Somerset county on the Naticoke, that the river is the boundary between the two counties.

"Thus we have all the counties on the Eastern Shore, except Worcester lying in the interior and not on a river, divided by navigable rivers, so Cecil and Harford, and Harford and Baltimore. What counties have jurisdiction on those rivers, or is there any jurisdiction if the act of 1704, establishing a rule in such cases, does not apply to them?

"Why should the line [**16]  between Baltimore and Anne Arundel be different?

"Anne Arundel, I have shown, is bounded by the river, which would carry it to the middle of the stream, and there is a strong presumption that Baltimore, before the act of 1698, ran to the river only.

"This view, I think, is strengthened, rather than weakened, by the act of 1816, ch. 209, extending the limits of the city of Baltimore. The line runs with the southern extremity of the Lazaretto lot to the Patapsco river; thence across the river to Whestone point, on which the Fort is built, on the main branch of Patapsco river, 'and running with and bounding on the said main branch' to the place called the Ferry point, being the junction of the said main branch with the middle branch, and thence due west to the western side of the middle branch, and on the west by a line running from the termination of the last mentioned line on the Western Shore of the middle branch, and binding on the said shore, &c. These lines include all the land on the south side of the old city limits, which was in Baltimore county and was intended to do so. Running with the river, if the county ran with the river, it would certainly give to the city all [**17]  the rights of the county connected with the land, which would carry the city to the middle of the river so far as it extended on it, which right is indispensable to the city. Adopting the other construction, that the city is confined to the shore and the whole river is still in the county, it would be of the greatest inconvenience to the city, and this the legislature understood. They include the whole of the middle branch, which is a much smaller and shorter stream in the city limit, while running to the shore of the main branch only; and by that, giving the command of the water to the middle of the river, which, as I have said, was indispensable to it.

"If it had been apprehended in the least that the whole of the main branch was in Baltimore county, they would have taken the precaution to run the line across the main as they did across the middle branch, or to have extended it into the middle of the stream, or have made some other effectual provision to give to the city a sufficient command of the adjoining water. This idea of Anne Arundel county holding the land on one side of the river and the city of Baltimore on the other, while Baltimore county held the middle of the stream,  [**18]  is neither a useful, practical, nor liberal construction of the acts of the Legislature. It is an afterthought of lawyers, astute in the discovery of technical points, and zealous in the behalf of their clients who are to be benefitted by them.

"Being satisfied that I am right in this point, which is important to be settled, I have not considered any other, although it may perhaps be made a question, whether an objection for want of jurisdiction can be taken in a removed case, by a motion in arrest of judgment, and whether it should not have been taken by motion to remand the cause." 

DISPOSITION:
Judgment reversed.  

HEADNOTES:

By the true construction of the acts of Assembly, defining the limits of Baltimore city, that city is not an adjoining jurisdiction to Anne Arundel county, and, therefore, under the present constitution and laws, a criminal case cannot be removed from the Criminal Court of Baltimore city to the Circuit Court of Anne Arundel county, for trial.  

COUNSEL:
William Pinkney Whyte and Reverdy Johnson for the plaintiff in error, argued, that Anne Arundel county does not adjoin the city of Baltimore, and that the transmission of the proceedings in this case to that court, was not in accordance with the 28th section of the 4th article of the constitution, which is the only guide in such cases, (State vs. Shillinger, 6 Md. Rep., 449,) and the judgment was therefore erroneous.

Baltimore county was formed in or about the year 1659, and its bounds were first described in a proclamation of the 6th of June 1674, by which its southern [**19]  boundary was defined to be "the south side of Patapsco river, and from the highest plantations on that side of the river due south two miles into the woods." Subsequently the lines dividing Baltimore and Anne Arundel counties, were described by the act of 1698, ch. 13. This act gives to Baltimore county land lying south of Patapsco river, beginning at a point one and a quarter miles below Bodkin creek, and running the line westwardly, changing its direction slightly, to the Patuxent. This boundary remained unchanged till the act of 1726, ch. 1. By this act "the land lying on the south side of Patapsco river" was added to Anne Arundel county. The northern boundary of Anne Arundel county was, therefore, limited to the south side of Patapsco river, and the jurisdiction over the entire river remained in Baltimore county. This was the very point decided in Handly's Lessee vs. Anthony, 5 Wheat., 374, in reference to the States of Kentucky and Ohio. It was there held, that where one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly erected State extends to the river only, and the low-water-mark is its boundary.  [**20]  See also 13 How., 381, Howard vs. Ingersoll.

Baltimore city having been subsequently erected out of a part of Baltimore county, and having a separate and independent jurisdiction, (5 Md. Rep., 375, Wright vs. Hamner,) it is necessary to see how its limits are defined. Baltimore town was located on the north side of Patapsco river, by the act of 1729, ch. 12. It was increased in size by the acts of 1732, ch. 14, and 1745, ch. 9, by the last of which Jones' town and Baltimore town were united. A great number of acts were subsequently passed, enlarging the limits of the town, but none affecting its southern boundary. It was incorporated as the city of Baltimore by the act of 1796, ch. 68. By the act of 1797, ch. 121, a court was established for the trial of criminals in that city. This court was afterwards abolished, and the old city court (which the present Criminal Court of Baltimore succeeded, const. art. 4, sec. 13,) established by the act of 1816, ch. 193. By the fifth section of this act the jurisdiction of this court is expressly limited to the limits and precincts of Baltimore, which limits are there correctly defined. The limits of the city, on its south side, are defined [**21]  by the act of 1816, ch. 209, and on Poppleton's map, made under the authority given in the act of 1817, ch. 148. In the year 1816, Baltimore county extended across the Patapsco river, and Baltimore city was part of Baltimore county. By the act of that year, ch. 209, that part of Baltimore county contained within the limits specified in the act, was made part of Baltimore city. These limits do not extend into the river; the act exhausts itself when the lines reach to the river. It therefore follows, from the acts referred to, that the entire bed of the Patapsco river is under the jurisdiction of Baltimore county, and this jurisdiction intervenes between Baltimore city and Anne Arundel county, and the case is entirely unaffected by the act of 1704, ch. 92.

The argument ab inconvenienti, based upon the fact, that this construction would make Baltimore county the only adjoining county to the city of Baltimore, and that, therefore, all criminal cases from the Criminal Court must be removed to that county, is not of greater force than in the cases of Worcester and Allegany counties, which confessedly have but one adjoining county. But provision was carefully made in the constitution,  [**22]  by which this inconvenience, if it should exist, might be remedied by the Legislature, by authorizing removals to be made to counties not adjoining, under the second proviso to the 28th sec. of art. 4, "that such further remedy in the premises may be provided by law, as the Legislature shall from time to time direct and enact."

The case of State vs. Dashiell, 6 H. & J., 268, is an answer to the difficulty suggested in the concluding portion of the opinion of the court below, as to the time when, and the mode in which the objection to the jurisdiction may be made. It was there made by a motion in arrest of judgment, as in the present case.

James S. Franklin, State's Attorney for Anne Arundel county, for the State, said that he desired the question of jurisdiction to be settled, and therefore waived all objection to the mode in which it was presented by the record. He then argued that Anne Arundel county is an adjoining county to the city of Baltimore, and that the transmission of the proceedings in this case was, therefore, in accordance with the requirements of the 28th section of the 4th article of the constitution.

The act of 1650, ch. 8, erected Providence into a [**23]  county by the name of Anne Arundel, and the act of 1698, ch. 13, defines the limits of Anne Arundel and Baltimore counties. The act of 1704, ch. 92, referring, in its preamble, to the act by which the bounds of St. Mary's, Charles, Prince George's and Kent counties were defined, as well as to that of 1698, ch. 13, dividing Baltimore and Anne Arundel counties, and reciting, that whereas "no rule has been made how far the jurisdiction of each county shall extend on the river," enacts, "that every county lying on any navigable river, shall extend its jurisdiction from the shore to the channel of such river that divides the county, and be divided from the other county by the channel of the said river." This act is analogous to the common law doctrine of ad filum medium aquae, between riparian proprietors, and establishes a natural and desirable rule which was to be fixed and apply to future as well as to existing counties. With full knowledge of this act, the act of 1726, ch. 1, was passed, which makes Anne Arundel county lie upon the Patapsco river. Then came the various laws incorporating Baltimore city, (which, for all the purposes of this argument, is to be regarded as a county, Wright [**24]  vs. Hamner, 5 Md. Rep., 375,) and these also were enacted with a full knowledge of the act of 1704. The act of 1816, ch. 209, clearly makes the southern limits of the city extend to the Patapsco, and therefore makes this river, as all others were, subject to the act of 1704, and thereby the limits of the city were extended to the channel, where they met those of Anne Arundel county. There must be a clear exception in the grant nullifying, pro tanto, the act of 1704, to render it inapplicable.

In the division of counties since the act of 1704, they are almost without exception divided by streams of water, and each runs to the river only. The jurisdiction over the Chesapeake bay is provided for by the act of 1809, ch. 138, secs. 19, 20. Unless, therefore, the act of 1704 was meant to, and does, apply to future as well as to existing cases, an offence committed on any of the rivers dividing such counties, to wit, Wye, Chester, Sassafras, Susquehanna, Gunpowder, Nanticoke, and Patuxent, all of which separate counties, could not be punished in any court of this State. The construction that this act was prospective in its operation, evidently governed the Legislature in laying off and [**25]  defining the bounds of counties subsequent to its passage.

The argument, ab inconvenienti, shows that it was not intended that Baltimore county should retain the exclusive jurisdiction over the Patapsco. The contrary hypothesis would make Baltimore county the only one adjoining the city, which is negatived by both the language and the spirit of the constitution. Baltimore city having the greater necessity for removals, the constitution intended to gratify it, and not to make comparatively a burlesque of the right, by confining the removal to one county. If Baltimore county had been, in the opinion of the convention, the only adjoining county, it would have been mentioned by name, and the right of removal specifically extended to others.

The cases cited from Wheat. & Howard, by the counsel on the other side, are not applicable to this, for there is a vast difference between a sovereign State ceding a portion of its territory, and a State dividing off its counties for the purpose of jurisdiction.  

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

OPINIONBY:
TUCK 

OPINION:

 [*497]  TUCK, J., delivered the opinion of this court.
We are to determine in this [**26]  case whether Baltimore city and Anne Arundel county are adjoining jurisdictions.
By the act of 1698, ch. 13, Baltimore county embraced a considerable portion of what is now within the lines of Anne Arundel county; but by the act of 1726, ch. 1, it is declared, that "from and after the last day of May 1727, the land lying on the south side of Patapsco river, and contained within the bounds following, viz: From the mouth of the said Patapsco river, with the said river to the head thereof, and from thence bounding on the south side of the main falls, &c., &c., shall be, and forever hereafter deemed, as part of Anne Arundel county." It is manifest that the river, after this act, remained as it had been for many years, within the limits of Baltimore county, and that the jurisdiction of these counties adjoined on its southern shore, unless affected by the act of 1704, ch. 92, which provides, "that every county lying on any navigable river in this Province, shall extend its jurisdiction from the shore to the channel of such river that divides the county, and be divided from the other county by the channel of said river;" and, under this act, if applicable, the river, as far as the channel, [**27]  remained in Baltimore county, and subject to the jurisdiction of its courts.

 [*498]  It is insisted on the part of the State, that because Baltimore city is a separate jurisdiction under the present constitution, the act of 1704, ch. 92, applies to it, and that by its terms and proper construction, it joins Anne Arundel county at the channel of the river. We are of opinion, that the present case does not depend on that act of Assembly, for the reasons about to be stated.
It is clear, that the act could have had no other effect than to enlarge the limits of Anne Arundel county to the channel, and that it did not extend the line of Baltimore county into the river. If it operated on these counties at all, its effect was to restrict the southern line of Baltimore county to the channel, and not to assign to it any jurisdiction not previously possessed. Before the act, this county had within its limits all the river, and afterwards, at least as far as the channel. In this state of things, the acts of 1816, chaps. 193 and 209, were passed: the former for the establishment of Baltimore city court and the latter to enlarge the bounds of Baltimore city. By chapter 209 it is provided, that [**28]  the precincts of Baltimore city and all that part of Baltimore county which is included within certain metes and bounds, shall be annexed to, and made part of, the city. The southern and western limits--all that is material in this case--extend from the Lazeretto lot "to the most southern part of Whetstone point on the main branch of the Patapsco river, and running with and bounding on the said main branch, (excludiug the fort,) to the place called the Ferry point, being the junction of the said main branch with the middle branch aforesaid, and thence due west to the western side of the middle branch aforesaid, and on the west by a line running from the termination of the last mentioned line, on the western shore of the middle branch, and binding on the said shore to the north of Gwynn's falls, thence up and with the south-west side of Gwynn's falls," &c., &c.
If, as contended on the part of the State, the effect of this application of the act is to give jurisdiction to the city, as far as the channel, over all that part of the river between it and Anne Arundel county, then, upon the same principle, that part of the middle branch which divides the city from Baltimore 

 [*499]   [**29]  county, must, as far as the channel, be under the jurisdiction of that county, because the county binds the southern and western shores of that branch, as Anne Arundel county does the south side of the main river opposite the city. The consequence of which construction would be to extend the city, on the river line, beyond the limits specified in the act, and to diminish its territory and jurisdiction as to the middle branch, though actually embraced by the act. The legislature, while professing to enlarge the city, surely did not mean to continue in the county the jurisdiction over any part of this area. On the contrary, it was the plain intent of the act to make the middle branch, and all other portions of the county taken within these limits, parts of the city, and subject to its authority, leaving to the county jurisdiction over all not thereby included.
This view is sustained by the act of 1816, ch. 193, by which the same limits were established as the sphere within which Baltimore city court, (to whose powers the criminal court succeeded,) should have jurisdiction; and the sixth section vests in the county court and its judges all the powers, jurisdiction and authority previously [**30]  exercised by the court of Oyer and Terminer in and over all that part of Baltimore county which was not included in the city and precincts as therein described.
If, as we think upon consideration of these acts of Assembly, the jurisdiction of the city was confined to the limits prescribed, part of the river at least was left within that of Baltimore county, and if so, there is an intervening jurisdiction between the city and Anne Arundel county, from which it follows that the record of the present indictment was improvidently transmitted to the circuit court for that county.
The argument predicated upon the supposed inconvenience that may result from a reversal of this judgment cannot apply to the present case, inasmuch as the Patapsco river has always been within the jurisdiction of one or both of the counties bordering on its shores.
The counsel for the State, wishing to have the prominent point on the record decided, waived all objection to the form in which it is presented. As a precedent, however, for determining 

 [*500]  the question as properly arising on a motion in arrest of judgment, see State vs. Dashiell, 6 H. & J. 268.
Judgment reversed. [**31]  

4 of 44 DOCUMENTS 

MARY WILDERMAN, EXC'X of JOHN WILDERMAN, vs. THE MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 551; 1855 Md. LEXIS 80 

DECEMBER, 1855, Decided 

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

Covenant by the appellees against the appellant to recover arrears of ground-rent due under a lease for ninety-nine years, renewable forever, executed by Henry Peters to John Wilderman; the rent reserved thereby having been devised by said Peters to the plaintiffs. Plea, nil debet.

The case was submitted to the court below upon an agreed statement of facts. The question presented is, as to the validity of the following devise in the will of Henry Peters, executed on the 26th of December 1836, and admitted to probate on the 20th of February 1838. The testator, after enumerating certain annuities, says: "I give, devise and bequeath to the Mayor and City Council of Baltimore and their assigns, in trust and special confidence that the said annuities, amounting aggregately to the said sum of one hundred and five dollars and fifty cents, shall annually forever hereafter be distributed, appropriated and applied, under the direction of said corporation, to the relief and support of the indigent and necessitous poor persons who may, from time to time, reside within the limits, as now known, of the twelfth ward of the said city [**2]  of Baltimore." The plaintiffs claimed and demanded the arrears of rent sued for in this case under this devise, but the defendant refused to pay the same by reason of notice from the residuary devisees of said Peters that they claimed the same, and that the aforesaid devise is null and void. It was also agreed that a pro forma judgment should be rendered in favor of the plaintiffs from which the defendant should appeal, and this was accordingly done.  

DISPOSITION:
Judgment reversed, but no procedendo.  

HEADNOTES:

A devise to the city of Baltimore, in trust, "for the relief and support of the indigent and necessitous poor persons who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city of Baltimore," is void as being too vague and indefinite, and the property vests in the next of kin of the testator, or his residuary devisees.

The right of the residuary devisees vested immediately upon the death of the testator, and it is not in the power of the legislature, by the subsequent act of 1842, ch. 86, to divest the vested rights acquired under the will, by giving that act a retrospective operation. 

COUNSEL:
William F. Frick for the appellant.

The validity of this devise can hardly be deemed an open question in this State after the decisions of this court in the cases of Trippe vs. Frazier, 4 H. & J., 446. Dashiell vs. The Attorney General, 5 H. & J., 392, and the same case in 6 H. & J., 1.

1. It is well settled, (5 H. & J., 401, 402,) that the Statute of 43 Elizabeth is not in force in Maryland. The devise can therefore receive no aid from the provisions of that statute, or of any of the numerous adjudications upon it in England, and the other States of this Union.

In any point of view the devise is void at law, and could only be made good by the intervention of a court of equity.  [**3]  But independent of the Statute of 43 Elizabeth, there is no jurisdiction in chancery to set up a charity, which is so vague and indefinite in its provisions, that the cestui que trusts can only be designated by the exercise of an arbitrary discretion in the trustee. The doctrine of Cy Pres has never been adopted in this country, even in those States in which the Statute of 43 Elizabeth has been either directly re-enacted, or forms, in its spirit, part of their common law.

The Supreme Court of the United States, in the case of the Baptist Association vs. Hart's Ex'rs, 4 Wheat., 1, held, that the entire jurisdiction of the chancery court over charitable uses grew out of the Statute of 43 Elizabeth. Whatever doubts may have since arisen about the correctness of this opinion, it is still clear, on all the authorities, that "a court of chancery in this country, independently of the Statute of Elizabeth, cannot support a devise to charitable uses where no legal interest is vested, on account of the two vague description of those who are to take."

This state of things presents an inherent difficulty, which can only be removed by the aid of the Statute of 43 Elizabeth, and the application [**4]  of the equitable doctrine of Cy Pres; neither of which is in force in Maryland.

In Dashiell vs. The Attorney General, 5 H. & J., 392, the devise was "to the poor children belonging to the congregation of St. Peter's Protestant Episcopal Church, in the city of Baltimore." The court say, (page 399,) "without the aid of the statute the cestui que trust can only be brought into being by the ascertainment and designation of the trustee; and there being no such ascertainment and designation, though certain selections have been made, no persons exist having in themselves a vested equitable interest which they are capable of asserting in a court of equity. The bequest is therefore too vague and indefinite, &c., &c., and is void, and the subject of the trust, being undisposed of, the benefit of it results to the next of kin."

In Trippe vs. Frazier & Wife, 4 H. & J., 446, the bequest was "to the real distressed private poor of Talbot county;" and was held to be void, owing "to the impracticability of correctly ascertaining the objects of the bequest."

2nd. A still further insurmountable objection to this devise, even if it were free from the objection last urged, is, that it is [**5]  a perpetuity, created for the benefit of the poor persons who should, from time to time, reside within the limits, &c., of the twelfth ward. Even if, at the time the devise took effect, the cestui que trusts were sufficiently capable in equity of being ascertained and designated, "The poor, &c., &c., of the twelfth ward" are not a body corporate capable of taking in succession the annual income forever devised to them by the testator. In Dashiell vs. Attorney General, 6 H. & J., 1, the devise was "to the trustees of Hillsborough school, to be by them applied towards feeding, clothing and educating the poor children of Caroline county, which attend the poor or charity school at Hillsborough." The court say, (page 8,) "the interposition of trustees does not make the bequest good, &c. The fund is a perpetual fund, intended, not only for the poor children who, at the death of the testator, attended Hillsborough school, but for such as should in succession attend that school, &c. The poor children of Caroline county which attend Hillsborough school are not a body corporate and cannot take in succession; and the bequest, if otherwise good, must fall as soon as the first objects of the testator's [**6]  beneficence ceased to attend the school."

It seems obvious, that whatever new lights may recently have been thrown upon the extent and character of the jurisdiction in chancery over charitable uses prior to the Statute of Elizabeth, the present case cannot be brought within the saving benefits of that jurisdiction, except as amplified and extended by the statute.

3rd. Neither is it aided by the act of Assembly of 1842, ch. 86. This act was passed by reason of the admitted incompetency of the city, as trustee, to take the devise in question. As a body corporate, chartered for specific limited purposes, it could not be seized of a trust foreign to the ends of its charter. It is only by virtue of the provisions of the statute of Elizabeth that a corporation can hold in trust for charitable uses when its charter confers no such power. The statute not being in force in Maryland the principle remains as at common law. 2 Bac. Abr., title Corporations, 2. The title of the act of 1842 sufficiently indicates the legislative interpretation of this question. It professes to confer additional powers upon the Mayor and City Council of Baltimore. Looking then at this act in its true purview,  [**7]  it can only be construed as conferring on the city corporation the power to receive and hold in trust, and to control for the purposes of such trust all property bestowed for valid corporate, educational and charitable uses. In other words it only enables the city to act as trustee in all cases where, without the act, equity would support the bequest by the appointment of competent trustees to execute it. If this be not so, why was it necessary to provide for the case of gifts for any of their corporate purposes? But the act does not profess to give validity to such charities, as the courts of equity in the State would, on general principles refuse to set up, by reason of their vagueness and uncertainty, their creation of perpetuities, their repugnance to State or public policy, or otherwise. It can hardly be said that this act was intended, quoad the city of Baltimore, to re-enact the provisions of the Statute of 43 Elizabeth; and to confine the benefits, if such they be, of that statute, to cases arising within the city limits. And unless some such construction be put upon its language, it cannot be taken to cure the inherent defects in the devise now in question.

But even if [**8]  it could be construed to give validity to such devises for the future, it is clear it cannot do so retrospectively. If, without the act, the devise could not take effect, the subject matter of the trust vested, at the death of the testator, in his residuary devisees. Their rights thus acquired could not be divested by any subsequent legislative act. "No State government can be presumed to possess the transcendental sovereignty to take away vested rights of property." Story's Com. on the Const., sec. 712.

No counsel appeared for the appellees.  

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

OPINIONBY:
MASON 

OPINION:

 [*555]  MASON, J., delivered the opinion of this court.
The question presented upon this appeal is whether the following devise can be supported? It is to the city of Baltimore in trust for "the relief and support of the indigent and necessitous poor persons, who may, from time to time, reside within the limits, as now known, of the twelfth ward of said city of Baltimore."
Since the decisions of this court in the cases of Trippe vs. Frazier, 4 Harr. & Johns. 446; and Dashiell vs. Attorney General, 5 H. & J. 392; and Same vs.  [**9]   Same, 6 H. & J. 1; 

 [*556]  the validity of the devise now before us can hardly be regarded as an open question. It is too vague and indefinite, and too difficult of being correctly ascertained, to be enforced, and is therefore void, and in all such cases the subject of the trust must vest in the next of kin of the testator, or his residuary devisees.
In the present instance the testator died, and the will took effect in the year 1838. The rights of the residuary devisees thereby became immediately vested, and it was not in the power of the Legislature, by giving the act of 1842, chap. 86, such a retrospective operation, so as to divest the vested rights acquired under the will. See the case recently decided by Judge Giles in the Circuit Court of Maryland reported in Volume 4th, page 526, American Law Register, and also to the Opinion of Chief Justice Taney, therein referred to.
We reverse the pro forma judgment, entered in the court below, and direct judgment to be entered for the appellant.
Judgment reversed, but no procedendo. 

5 of 44 DOCUMENTS 

STATE, use of DANIEL C. SPRIGG, vs. MARY J. JONES and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 88; 1855 Md. LEXIS 34 

DECEMBER, 1855, Decided 

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

Debt brought on the 28th of August 1852, by the appellant, on the testamentary bond of Mary Jane Jones, as executrix of Andrew D. Jones.

The declaration sets out as a breach, that Andrew D. Jones was one of the sureties in the guardian's bond of Samuel Jones, Jr., who received a large sum of money belonging to his ward which he failed to pay over to the plaintiff, Sprigg, (who was subsequently appointed guardian in the place of said Samuel Jones, Jr.,) as directed by the orphans court; that on the 10th of April 1852, after the death of Andrew D. Jones, the plaintiff sued out of the circuit court for Baltimore county, in which she resided, a writ of capias ad respondendum against the said Mary Jane Jones, his executrix, to recover this money, returnable on the 3rd Monday of April 1852, which was returned "non est," wherefore a right of action on her testamentary bond accrued to the plaintiff.

The defendants pleaded, that while they admit all the matters and things averred in the declaration, yet they say that after the return of the writ of capias ad respondendum non est as against the said Mary J. Jones, she duly appeared [**2]  in said court to answer it, to wit, on the 2nd of August 1852, being during the same term of the court to which the writ was returnable, and afterwards, on the 12th of August 1852, at the same term, filed her plea to the declaration, of all which the plaintiff had notice; to which plea the plaintiff, on the 30th of November 1852, replied, and that said case upon these pleadings is now pending in the said circuit court for Baltimore county.

To this plea the plaintiff replied, that said circuit court, after the said return of non est, to wit, on the 14th of July 1852, adjourned till the 27th of October 1852, and held no session upon any day between the said 14th of July and the 27th of October 1852, and that after said adjournment and before the day appointed for the session of said court, to wit, on the 2nd of August 1852, the said court not being in session, the said Mary Jane Jones, by her attorney, caused her voluntary appearance to said writ so returned non est to be entered on the docket in the clerk's office of said court; and at another day during said adjournment, to wit, on the 12th of August 1852, she, by her attorney, caused to be entered on said docket in said clerk's [**3]  office the filing of her plea in said suit, and then and there left in the clerk's office the paper called a plea in said cause, and on the 28th of August 1852, the plaintiff sued out of the Superior Court of Baltimore city the writ in this suit and filed the declaration therein, absque hoc, that said Mary Jane Jones duly appeared in said circuit court to said writ of capias ad respondendum as alleged in her plea.

To this replication the defendants demurred generally, which demurrer the court, (FRICK, J.,) sustained, and gave judgment thereon for defendants, from which the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The act of 1720, ch. 24, which prohibits a suit upon a testamentary or administration bond, before a return of non est to a capias against the executor or administrator, is a remedial statute, and, as such, is to be liberally construed; its design is to make the principal pay instead of the surety.

Under this act an executor may voluntarily appear to the capias at any time during the same term, though after the return of non est, and thus prevent a suit on his bond.

The return of non est gives the right to sue the bond, and if such suit be brought before an appearance by the executor, a subsequent appearance by him cannot arrest it.

The clerk of a court has no right to receive an appearance to a suit and make an entry thereof when the court is not in session.

Where a defendant relies upon an appearance in another case in another court as having been properly entered, the plaintiff cannot reply and aver against the record that the appearance was not properly entered.  

COUNSEL:
Richard T. Merrick for the appellant, argued:

1st. That the act of 1720, ch. 24, subjects the plaintiff's absolute right to sue on the bond to only one condition precedent. He is required to issue a capias against the personal representative in the county of her residence or where letters have been granted, and on the return of non est the right to sue the bond is absolute, and no subsequent appearance, voluntary or in pursuance of an alias, can divest the right to proceed against the sureties on the bond. This act is in derogation of the common law, and, like [**4]  all such legislation, is to be construed strictly. Prior to this law a creditor had the right to sue the bond. This law says he shall not sue until a return of non est to a capias against the executor. Upon the simple return of non est the creditor is restored to his common law right and cannot be divested thereof by any subsequent condition. A writ is said to be returned when it is returned to the place whence it issued. Evan's Pr., 86.

2nd. If a voluntary appearance could divest this right, there was and could be no appearance except in court, and while it was in session, and the appearance alleged is one in the clerk's office during an adjournment, and this suit was brought before the court again met. Any appearance to be valid must be in open court, in order that the party may be required to give bail and security for costs. Evan's Pr., 244, 245, 266, 267. There is an analogy between this case and that of fixing bail, which is regarded as fixed on the day of the return of non est, and if released it must be done in open court. Evan's Pr., 266. On this point see also 1 H. & J., 453, West vs. Hughes. 1 Tidd's Pr., 238, 239. 1 Salk., 8, Stroud vs. Gerrard. Cro. Eliz., 466, Corbet [**5]  vs. Cook.

3rd. The fact that the plaintiff filed a replication to the plea in the suit in the circuit court, being after this suit, cannot affect it, nor could it relate back, but can only be regarded as the acceptance of a voluntary appearance as of its date.

4th. That this is properly a case for a special traverse. All the authorities say that a record may be questioned by a record. 3 Bac. Abr., 371. It is the very case for a special traverse, for in no other way could the question of law be raised.

Benjamin C. Barroll for the appellees, argued:

1st. That the demurrer was properly sustained, because the executrix appeared in the circuit court and pleaded to the nar against her, and that court recognised her appearance by receiving and retaining her plea. The plaintiff also recognised her appearance and plea by the replication thereto, and having done so it is too late in the suit on her bond to say that the appearance and plea are nullities. The act of 1720 was intended to apply to a case in which the executrix does not in fact appear to the suit. If she appears and pleads, and gives the plaintiff notice, and he replies to her plea, such a case is within the reason [**6]  and spirit of the act. Stephen on Plead., 22 to 26. The act never designed that a plaintiff should at the same time prosecute his claim against an executrix and also against her bond. The basis of the right to prosecute the bond is the inability to prosecute the original debtor. This act is for the remedy of a mischief and is to be construed according to its spirit and design, and not according to its letter. 2 G. & J., 365, State vs. Boyd. 4 G. & J., 152, Canal Co. vs. Rail Road Co. 1 Md. Rep., 17, Milburn vs. The State. The authority cited on the other side from Evan's Pr., 266, is overruled by the case of Dunbar vs. Conway, 11 G. & J., 94. The appearance here was properly entered. 1 Tidd., 264. Stephen's Plead., 25. In 2 Smith's Lead. Cases, 512, the very point was made that the court was not in session, and was overruled.

2nd. The replication or special traverse in this case is not well pleaded; you cannot aver against the record, you are estopped from so doing. Stephen's Plead., 181. 1 Chitty's Pl., 618, 619. 2 Strange, 684, Helbut vs. Held. Ibid., 817, Palmer vs. Ekins. 1 Wilson, 85, Bradburn vs. Taylor. 16 Johns., 55, Green vs. Ovington. 3 Bac. Abr., 370 to 374, title,  [**7]  Error. 2 Smith's Lead. Cases, 512.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*91]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the decision of the Superior Court of Baltimore city, sustaining the demurrer of the appellee to the replication of the appellant to the plea of the appellee, under the following circumstances:
This proceeding commenced under the act of 1720, chapter 24, entitled, "An act to restrain the rigor of prosecutions on 

 [*92]  administration or testamentary bonds." As the act is short, we incorporate it, that our opinion may the more distinctly appear. Its preamble and enactment are, as follows:
"Whereas it is represented by some of the justices of the provincial court, that a most oppressive and pernicious practice is introduced of putting testamentary and administration bonds in suit in the provincial court for the non-payment of small debts recovered in the county courts, without ever suing out writs of fieri facias or other executions to affect the estate of the deceased in the executors' or administrators' hands, OR without any insufficiency of such [**8]  executors or administrators, whereby the act, entitled, an act to restrain the ill practices used by sheriffs in taking goods by fieri facias and selling them by venditioni exponas, is entirely evaded so far as it relates to executors and administrators, and the person and sureties of such executors and administrators are affected by such suing the said bonds, instead of the effects of the deceased; for prevention whereof for the future:
"Be it enacted," &c., &c., "That it shall not be lawful for any creditor or creditors to prosecute any such administration or testamentary bond for any debt or damages due from or recovered against any testator or intestate, or their effects, before a non est inventus on a capias ad respondendum be returned against the executor or administrator, or a fieri facias returned nulla bona by the sheriff of the county where such executor or administrator lives, or where the effects of such deceased lies, or such other apparent insolvency or insufficiency of the person or effects of such executor or administrator, as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other [**9]  reasonable means save that of suing such bonds, on pain that such person or persons that shall cause such bonds to be sued contrary to the true intent and meaning of such act, shall be condemned in full costs of suits, to be adjudged by such provincial court to the defendant or defendants that shall be so sued, against the person or persons that shall cause the same to be sued, and shall award execution thereof as usual in other cases.
"And be it further enacted, as aforesaid, That it shall and 

 [*93]  may be lawful for the defendant or defendants in such suits to give this act and the special matter in evidence without specially pleading the same; any law, statute, usage or custom to the contrary notwithstanding."
The plaintiff in this action, on the 28th of August 1852, commenced an action of debt, in the Superior Court of Baltimore city, against the defendants, upon the testamentary bond of Mary J. Jones, executrix of Andrew D. Jones. The declaration is in the usual form, setting out the breaches. The defendants pleaded specially, substantially as follows: that whilst they admit the matters and things charged and averred against them in the declaration, they say, that after [**10]  the return of the writ of capias ad respondendum "non est" as against Mary J. Jones, by the sheriff of Baltimore county, as alleged in said declaration, the said Mary Jane Jones duly appeared in the said court to which the said writ was made returnable, and at the same term thereof, to wit, on the 12th day of August, the said Mary filed her plea to the said declaration, of all which plaintiff had notice, and afterwards, on the 30th day of November 1852, filed its replication to the plea, and that the case, on such pleading, is now pending, &c. To which plea the plaintiff replied, that after the return of "non est," on the 14th day of July 1852, the court adjourned until the 27th day of October of the same year, and when the appearance and plea of the defendant, Mary J. Jones, was made, the said court was not in session. To this replication the defendants demurred and the court sustained the demurrer, from which decision is this appeal.
On behalf of the appellant it is contended, that a return of "non est" as against an administrator, under the act of 1720, ipso facto, gives the right, never thereafter to be questioned, to sue the administration bond. In this opinion [**11]  we do not concur. In the case brought to our view by the pleadings in this one, it appears, that although Mary J. Jones had been returned non est, nevertheless she appeared at the same term and pleaded, and that her plea was replied to by the plaintiff in this action, and that the suit is still depending.
Apart from all considerations growing out of the general 

 [*94]  law, we think, under the act of 1720 itself, the appellant has clearly no case. That act was designed, if there ever was one, as a remedial statute, and as such ought to be liberally construed. It was passed--to use its language--to do away with a "most oppressive and pernicious practice;" in other words, to prevent the property of sureties being taken to satisfy the debts of the principal, when such principal had sufficient property to satisfy them. And although it authorises the institution of a suit against the sureties on a testamentary bond after the return of a non est against the administrator, it does not, therefore, necessarily follow, that the administrator cannot appear voluntarily in the court to which the writ is returnable during the term, or on the same day, but [**12]  at a later hour of that day, on which the sheriff makes his return.
Before the adoption of the present constitution of the State it was the uniform practice of sheriffs to have their amercements stricken out when the party was produced, if at any time during the term. It was all the party had a right to demand. The body of the defendant was produced to answer. And surely under a proceeding commenced under an act passed to "restrain" the "rigor" of proceedings, it is not, and cannot be a too liberal construction, to allow to sureties the privilege which would have been granted to the principal. The purpose of the act is transparent. It is nothing more than this: to make the principal pay instead of the surety. In the case before us the appellant is in no way damaged. Had Mrs. Jones been returned "summoned" on the first day of the term to which the capias was returnable, instead of non est, the appellant would be in no better condition than it is now--her appearance during the term, and pleading, and its replication, gives to the State all the advantage which either justice or a fair construction of the act of Assembly entitles it. A reference to the authorities [**13]  cited in argument would show conclusively, that the appearance of Mrs. Jones was in sufficient time. We have forborne to notice them, because the very act under which this proceeding is professedly had, is too plain, in our opinion, to admit of a serious controversy as to its true meaning, liberal and just spirit.

 [*95]  The replication relies on the fact that Mary J. Jones appeared to the suit against her at a time when the court was not only not in session, but had adjourned from a day preceding to one succeeding the entry of the appearance. We do not think such an appearance can be entered. The clerk has no power to receive the appearance and make the entry when the court is not in session. But if there was any such irregularity it should have been corrected by a proper proceeding in that case. The defendant relies on the appearance having been properly entered, and the plaintiff cannot, as we think, aver against the record. Although the defendant may appear voluntarily, yet if the suit on the bond shall be commenced before the appearance is entered the plaintiff cannot be thereby barred of its right to prosecute that suit. The return of non est gives the right to sue [**14]  the bond, and when that writ is issued the appearance cannot arrest the proceeding.
Judgment affirmed. 

6 of 44 DOCUMENTS 

STEPHEN BROADBENT and others, vs. THE STATE, at the suggestion of the Lottery Commissioner.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 416; 1855 Md. LEXIS 10 

JUNE, 1855, Decided 

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

The bill in this case is a bill of discovery filed in the name of the State, at the instance of Lemuel Roberts, the lottery commissioner, against the appellants, to procure evidence in aid of suits at law, which had been instituted against the defendants, under the acts of 1846, ch. 109, and 1854, ch. 138. Its allegations are fully stated in the opinion of this court. The six interrogatories propounded to the defendants are in substance as follows:

1st. Whether the exhibit referred to in the bill was printed at their instance?

2nd. What is the meaning and purport of the same, and of every part thereof?

3rd. Does it not set forth the terms and conditions of insurances offered to be effected by them of numbers of lottery tickets in the Maryland consolidated lotteries, or some other, and if so, what other?

4th. Were not one or more persons, on the 21st of October 1854, employed by or acting for them, at their instance, or with their knowledge and consent, in the city of Baltimore, to effect insurance of lottery tickets, or the numbers or some of the numbers thereof, or do the things set forth or contemplated by [**2]  said exhibit? and what the names of such persons are? and where they carried on said business on that day? and where they now reside?

5th. Whether said persons, or any of them, effected insurances on said 21st of October 1854, of lottery tickets, or the numbers or any of the numbers thereof? and who such person or persons were, and what tickets or numbers of lottery tickets they insured on that day?

6th. Whether any of the persons employed by or acting for them, at their instance, or with their knowledge on that day, were colored persons? and if so, what are the names of such colored person or persons? and what insurances were effected on that day by such person or persons?

To this bill the defendants filed a demurrer upon the grounds, 1st, that by answering it, they might subject themselves to pains, penalties and forfeitures, and 2nd, because the State has no right to file a joint bill of discovery against them.

This demurrer the court (KREBS, J.,) overruled, and required the defendants to answer, and from the order to this effect they appealed.  

DISPOSITION:
Order reversed and bill dismissed with costs.  

HEADNOTES:

The 20th article of the bill of rights confides to the discretion of the legislature the exercise of the power to compel a party to give evidence against himself, but a just regard for the liberties of the citizen should at all times induce the most cautious and jealous exercise of it by the legislature.

The courts of justice should anxiously and narrowly watch the exercise of this power, and never, under any pretence, extend it beyond the limits to which the strictest interpretation of the language of the legislature confines it, in the particular case.

A bill of discovery was filed to procure evidence in aid of suits at law, instituted under the third section of the act of 1846, ch. 109, contained interrogatories which, if answered, might subject the defendants to a criminal prosecution, under the 4th section of that act. HELD, that they were not bound to answer such interrogatories.

The 2nd section of the act of 1847, ch. 284, only compels the party to answer on oath any bill of discovery filed against him "in the premises," which are the things specified in the third section of the act of 1846, ch. 109, among which is not the employment of colored persons to issue lottery tickets, which is an offence punished by the 4th section of that act.

Where there are separate proceedings before a justice of the peace against several parties, for a violation of the third section of the act of 1846, ch. 103, a joint bill of discovery cannot be filed against them, and such joinder is matter of substance and not of form, and is fatal on demurrer.

The 4th section of the 7th article of the constitution clearly contemplates the performance, by the commissioner of lotteries therein referred to, of the duties previously discharged by the lottery commissioners, and he can therefore file a bill for discovery under the acts of 1846, ch. 109, and 1847, ch. 284, there is nothing in those acts which has expired, or which is repugnant to the constitution, and they are protected by the 3rd article of the bill of rights.  

COUNSEL:
Robert J. Brent and Charles H. Pitts for the appellants, argued:  [**3]  

1st. This bill of discovery is alone in aid of a suit at law, and can only enforce discovery for the purposes of that suit, and beyond that purpose, it is a fishing bill. Story's Eq. Pl., secs. 321, 325. 2 Story's Eq., sec. 1497. What is the cause of action in the suits at law, in respect to which discovery is wanted? This is shown in the bill to be illegal insurances effected on the 21st of October 1854, by the defendants in the city of Baltimore, through some person or persons employed by them, or acting for them in the premises at their instance, &c. The complaint, therefore, is not that defendants personally insured on that day, but they did it by some person or persons. The 4th, 5th and 6th interrogatories require a discovery of all the persons and their names so employed by them, and whether such persons, or any of them, were colored persons? Therefore it is plain that the principal object of the bill is to enforce discovery of the agents who effected insurances for defendants, and it is charged that one or more of them were colored persons, and the names of all such persons are called for. Should it, therefore, turn out that all were colored, the defendants, if they answer [**4]  at all, must say so. If part are colored, the defendants must name them in their answer. Framed as this bill is, they must, if they answer fully, expose themselves to the indictment provided in the 4th sec. of the act of 1846, ch. 109, and by the act of 1847, ch. 284. Conceding, therefore, that the defendants are bound to expose themselves to the penalties of the 3rd section, which are to be recovered in the form of a civil action, as ruled in Day vs. State, 7 Gill, 325, yet they are not bound, even under the rigorous doctrine of that decision, to expose themselves under this bill to criminal prosecution, under the 4th section. In Day's case, no such enquiry or discovery was made as to the agents, or their being colored persons, but it was simply whether Day had not himself illegally insured, thereby exposing him only to the action of debt, and not to the criminal and indictable offence created in the 4th section, which is still in force and not repealed. The rule then applies, that though the bill may be in aid of a civil suit, yet its answer would involve a liability to an indictment, if the facts are as charged. Wigram on Discovery, 61, 150, 195. Story's Eq., sec. 1494, note 2.  [**5]  Glynn vs. Houston, 1 Keen, 329. Singery vs. Attorney General, 2 H. & J., 497. Wolf vs. Wolf, 2 H. & G., 387. If this bill had only sought discovery as to the single fact, whether they insured by white agents, and called for their names, it would have avoided this objection, but here the test is, that we cannot answer without giving the names of all the agents, one or more of whom are expressly charged to be colored; we cannot answer and give the names of white agents only, for that would not be a full answer. It is no answer to our objection to say, that the discovery is only sought to recover a penalty in a civil action of debt, and that such a discovery was allowed in State vs. Day. Here, it is true, the State only claims the pecuniary fine by an action of debt. But the frame and scope of this bill goes upon a state of facts not only subjecting the parties to the action of debt, but to an indictment hereafter, if they should discover colored agents in their answers to the interrogatories, or if they should furnish even a link to connect them with a res gesta averred to have been carried on by colored agents, and therefore indictable. Surely the State cannot make a party expose himself [**6]  to a future indictment, merely to enable her now to maintain "a civil action." 2 Younge & Jervis, 183, Maccallum vs. Turton. 1 Atk., 539, Harrison vs. Southcote. 2 H. & G., 389, Wolf vs. Wolf. Wigram on Discovery, 62, 63. This case, therefore, differs broadly from State vs. Day. The 20th article of the bill of rights (copied from the old bill of rights,) declares, that "no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the legislature." And the 42nd article declares, that "this enumeration of rights shall not be construed to impair or deny others retained by the people." From this it is manifest there was a residuum of natural rights never intended to be surrendered to the legislature. Now it will be observed, that the 20th article only applies to the cases where a man is called on to testify "against him in a court of common law, or any other court," and conceding that the legislature may direct in what cases he shall be a witness against himself, yet the question remains, whether the legislature can direct him to testify against [**7]  himself in a civil case, where his testimony would involve a liability to a criminal charge to be afterwards instituted in some other court? It is well known, that the exemption of the citizen from all obligations to criminate himself in any case, was based on the broadest principles of the common law, and solemnly reaffirmed by magna charta. Has the legislature of Maryland overthrown this great national right, by the act of 1846, for the contemptible and petty purpose of breaking up lottery policies? Assuming their power to exercise such despotic powers of government, the court will, at least, require a clear and positive manifestation of the legislative intention to do so. So sacred a natural right can never be wrested from a free citizen, upon construction or implication. There are many cases of natural right in which the power of the legislature may be well questioned, without any formal recognition of those rights in the constitution. 3 Story's Com. on the Cons., sec. 1393. And it is to this class of non-enumerated rights that the 42nd article of our bill of rights points, as not surrendered by the people. Surely no man can say, that the people ever meant to delegate to their [**8]  legislature the powers of absolute despotism--the power of declaring what should be criminal, and the power to make a man convict himself of any thing that the legislature might declare to be a crime. Give this power to the legislature, and there is not a vestige of liberty left to the citizen. Give it to the legislature, and you trample down the great natural rights of persons secured by magna charta itself, and you concede to the legislature of Maryland a power not possessed by the Parliament of England. Give it to the legislature, and you pass by the 42nd article of the bill of rights as idle and unmeaning; at the same time you pervert the spirit of the 3rd article, securing to all citizens "the common law of England, and the trial by jury, according to the course of that law," and also disregard the 4th article, which imposes restraints on the legislative power, and inculcates resistance to all acts "of arbitrary power and oppression." And above all, you strike down the letter and spirit of the 19th article, which secures the jury trial to every criminal, and the right to be confronted with his witnesses: for it would be a farce to give the form of a jury trial, when the State [**9]  had already compelled the prisoner to record his confession of the criminal offence, and the jury could not fail to convict upon this legalized, though extorted confession of crime. With these great and fundamental principles in view, let us approach the construction of these acts of Assembly. The act of 1846, ch. 109, sec. 3, inflicts a pecuniary penalty of $ 50, to be recovered in an action of debt. Sec. 4 makes it indictable to employ negroes or colored agents, as charged in this bill, but the act of 1846 does not give the right of discovery on oath. The act of 1847, ch. 284, changes the punishment inflicted by that of 1846, ch. 109, sec. 4, to a fine of $ 30 and costs, and imprisonment not less than sixty days, nor more than six months, and then declares, that a recovery and payment of the pecuniary penalties, shall bar the criminal prosecution based on the same act. Now it may be said, that the State could not prosecute by indictment on the discovery of these parties, because if this gives the discovery as prayed, the penalty will be recovered, and then, by payment, they can bar the indictment. But non constat, that the justice will enter judgment for the penalty, even though [**10]  the parties confess the facts in their answer. Nor can this court assume that the parties are able or will pay the fine, so as to bar the indictment. A rich man might pay and bar the prosecution, while a poor man, unable to pay, would still be liable to indictment on his own extorted answer. The 2nd sec. of the act of 1847, ch. 284, gives the right to file the bill of discovery in any proceeding, to recover the fine imposed by the original act of 1846, ch. 109; but it does not follow, except by loose construction, that the legislature meant to allow the discovery where the proceeding, though for a recovery of the fine, also involved, as here, an indictable offence. The legislature have not said, that on an indictment for employing colored persons, the prisoner should answer a blll of discovery; and where they have not said so directly, can you hold that they have said it indirectly? The true and rational construction, therefore, is, to authorize the bill of discovery in those cases where the facts charged exposed the party only to the pecuniary penalty, by way of action of debt, and not to cases where they involve an indictable offence, as well as the action of debt. The act of 1854,  [**11]  ch. 138, amends the act of 1846, ch. 109, sec. 3, so as to make the pecuniary penalty for selling lottery policies only $ 5, but says nothing of the bill of discovery. By the letter of the act authorizing the discovery, the right to demand it is conferred in those cases when the penalty of $ 50, imposed by the original act, is sought to be recovered, and this suit, therefore, is not within the letter of the act of 1847, conferring the right to discovery. It is only by implication or construction that you can apply the bill of discovery to a case like this, and we have shown that no such implication should be made for the purpose of exposing the party to a criminal prosecution. Again, it is manifest, from the facts stated in the bill, and the purpose charged, that the answer of the defendants, if they admit the facts, would convict them of a conspiracy. A conspiracy or combination between the three to do an illegal act, is, as such, indictable. State vs. Buchanan, 5 H. & J., 350.

2nd. Again, this privilege of discovery was allowed to the lottery commissioners, and the new constitution has created a new officer, and defines his powers and duties. It has not given him the powers [**12]  of the three commissioners, but only the enumerated powers. Const., art. 7, sec. 4. The act of 1852, ch. 113, which attempts to confer on the single lottery commissioner all the powers, &c., is therefore void, as adding powers not conferred on that officer by the constitution, but impliedly denied by the enumeration of what he shall do. 2 English's Rep., 172, Gibson vs. Emerson, 8 B. Monroe, 648, Page vs. Hardin. 5 Md. Rep., 347, State vs. Mace.

3rd. There are several actions at law against each of the three defendants. The discovery should be separately prayed for, and the demurrer lies in this case for a misjoinder of defendants. Certainly, if the causes of action are separate at law, the discovery cannot be asked for jointly. Story's Eq. Pl., secs. 270, 271, 277, 278, and the notes.

J. Mason Campbell and John Nelson for the appellee.

This bill was filed under the authority of the act of 1847, ch. 284, sec. 2, which is a supplement to that of 1846, ch. 109, and is in these words: "That upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party from whom it is sought to be discovered shall be bound to answer on oath [**13]  any bill of discovery which may be filed against him by the commissioners of lotteries in the name of the State, either in the high court of chancery, or in any county court as a court of equity." The present bill was filed within the terms of the act of 1847, in a proceeding to recover a fine imposed by the act of 1846, and that the act of 1847 is constitutional is not an open question. 7 Gill, 321, Day vs. The State. 5 Md. Rep., 349, State vs. Mace.

It is said the present lottery commissioner under the new constitution has no power to file this bill. This objection is not tenable, for the 4th section of the 7th article of the constitution confers upon the lottery commissioner the same powers that the old lottery commissioners had, for it requires him "to give such bond for the faithful performance of his duties as is now given by the lottery commissioners." This section does not profess to repeal all the laws regulating the duties of commissioners of lotteries, but on the contrary, contemplates that the commissioner should look to the existing laws for the purpose of ascertaining what those duties are. And besides this, the 3rd article of the bill of rights secures to the people [**14]  of the State the benefit of all acts not repealed by the constitution.

The only other question is in regard to the character of the bill. It unquestionably presents inquiries which the defendants are bound to answer apart from the objection taken by their demurrer. But can there be a doubt that they are bound to answer all these questions. The 20th section of the bill of rights expressly excepts cases in which the legislature may direct the parties to answer, and this article is precisely the same as that of the old bill of rights, which was construed by the Court of Appeals in Day vs. The State, which, in all respects, is similar to the present case. The party must answer the interrogatories not involving an indictment, even if he be not required to answer the others. Story's Eq. Pl., secs. 578, 578, (a,) 588. But the 1st section of the act of 1847, ch. 284, answers all the objections urged against this bill or any of the interrogatories, by enacting that the recovery and payment of the penalties shall be a bar to any indictment under this act for the same offence. It in effect says that the parties shall answer, but that their answers shall not be used as evidence against them [**15]  on an indictment. As to the objection of the joinder of the defendants, it is answered by the 6th section of the act of 1846, ch. 109.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*425]  LE GRAND, C. J., delivered the opinion of this court.
The State filed its bill for discovery in the circuit court for Baltimore city, alleging that it had instituted, under the acts of 1846, chapter 109, and 1854, chapter 138, before a justice of the peace, three actions of debt against Stephen Broadbent, three actions against Scotti Broadbent, and three against Joseph Beard, to recover the penalties imposed by the 3rd section of the act of 1846; and that each of said actions so pending are brought for the illegal insurance of lottery tickets, and that such illegal insurances were effected on the 21st October 1851, by the defendants in the city of Baltimore, through certain person their agents, one or more of whom were colored persons. The bill then avers that the appellants have caused to be printed and published a certain handbill filed with the bill of discovery, the true meaning of which is unknown to the appellee. It then asks that the appellants [**16]  shall answer and make discovery of certain things and matters in regard to which they are specifically interrogated. To this 

 [*426]  bill the defendants demurred. The circuit court overruled the demurrer, from which order this appeal is taken.
The third section of the act of 1846, chapter 109, is in these words: "That all insuring of lottery tickets, or numbers or certificates of numbers of lottery tickets, either foreign or domestic, is absolutely prohibited in this State; and any person, directly or indirectly, making or offering, or agreeing to make such insurance or insuring, or receiving any consideration for insuring for or against the drawing of any ticket or tickets in any lottery, whether authorized by law or not, or receiving any money, goods or thing in action, in consideration of any agreements to repay any sum or sums of money, or to deliver the same, or any goods or thing in action, if any ticket or tickets in any lottery whatever shall prove fortunate or unfortunate, or shall be drawn or not drawn, on any particular day, or in any particular order or otherwise howsoever, or promising or agreeing to pay any sum of money, or to deliver any goods or thing in action,  [**17]  or to do, or forbear to do, anything for the benefit of any other person or persons, with or without consideration, upon any event or contingency dependent upon the drawing of any ticket or tickets, or number or numbers of any ticket or tickets in any lottery whatsoever, shall, for each of said offences, be punishable as is provided for by the first section of this act in regard to the offences there described." The first section provides a fine of fifty dollars for each offence, which, by the act of 1854, chapter 138, section 1, is reduced to five dollars, to "be recovered before any justice of the peace, by action of debt in the name of the State," &c.
The 4th section of the act of 1846, chapter 109, provides, "that the employment, by any licensed vendor or vendors, or any other person, of any negro or colored person to do any of the matters or things prohibited by this act, or in any way to assist in doing them, shall be punished, upon indictment and conviction thereof, by a fine of not less than fifty, nor more than two hundred and fifty dollars, and by imprisonment for not less than twenty days, nor more than six months."

 [*427]  The second section of the [**18]  act of 1847, chapter 284, provides: "That upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party from whom it is sought to be recovered shall be bound to answer on oath any bill of discovery which may be filed against him in the premises by the commissioners of lotteries, in the name of the State, either in the high court of chancery or in any county court as a court of equity."
The bill in this case calls upon the defendants to answer six interrogatories. We are of opinion they ought not to be compelled to answer some of them. The bill was filed to procure evidence in aid of suits at law instituted under the third section of the act of 1846, chapter 109. That section does not make the employment, as does the 4th section, of colored persons a crime. Some of the questions ask of the defendants to make such disclosures as would, (if they have employed negroes or colored persons,) subject them to a criminal prosecution.
The 20th section of the existing bill of rights of Maryland, is precisely the same as the 19th section of the bill of rights of 1776, and the latter, in connection with the second section of the act of 1847,  [**19]  chapter 284, has received a judicial interpretation in the case of Day vs. The State, 7 Gill, 321. Both articles read as follows: "That no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the legislature." The concluding words of the article clearly confide to the discretion of the legislative branch of the government the exercise of the power to compel a party to give evidence against himself, and so it was expressly holden by the Court of Appeals in the case to which we have referred. But, although it is competent to the legislature to alter the rules of evidence so as to compel a party to give testimony against himself, it is, nevertheless, a power of such transcendent and overwhelming importance, that a just regard for the liberties of the citizen should, at all times, induce the most cautious 

 [*428]  and jealous exercise of it by the legislature. And especially should courts of justice anxiously and narrowly watch it; and never, under any pretence whatever, extend it beyond the limits to which the [**20]  strictest interpretation of the language of the legislature confines it in the particular case. In the case before us, the parties are not being proceeded against for the violation of the 4th section of the act of 1846, but of the 3rd section. They ought not, therefore, to be compelled to answer any question which is not essential to the ascertainment of the fact, whether or not they have violated the provisions of the third section of the act. So far as liability under that section is concerned, the color of the agents through whom the insuring, &c., may have been done, is a wholly immaterial inquiry. It is the 4th section which makes the employment of negroes a crime, punishable by fine and imprisonment. In the suits pending before the justice, the defendants are not charged with a violation of the 4th section, and we, therefore, can see no reason why they should be compelled to furnish evidence which would, in regard to a different matter, to wit, the employment of negroes, subject them to a criminal prosecution. The 2nd section of the act of 1847, chapter 284, only compels the party to answer on oath any bill of discovery which may be filed against him "in the premises.  [**21]  " The premises here are the things specified in the third section of the act of 1846, among which is not to be found the employment, eo nomine, of negroes or colored persons. Independently of the act of 1847, it could not and has not been contended, that the defendants could be compelled to answer the matters inquired of in this bill of discovery, and, for the reasons we have given, we are of opinion the defendants ought not to be compelled to answer the interrogatories to which we have referred, even were there no other objection to the bill. We think the joinder of the defendants is a fatal defect. The proceedings before the justice are separate. The cases have no necessary connection with each other, and the defendants in them ought not to be compelled to defend jointly, or to have their rights in a court of equity mingled with those of 

 [*429]  other parties, and for that reason the bill is bad on demurrer. But, it is said, this defect, if one, is cured by the sixth section of the act of 1846, which provides: "That no proceedings in any court, or before any justice, by indictment, action of debt, bill in equity, or otherwise instituted, upon the suggestion of the commissioners [**22]  of lotteries, shall be quashed, set aside, dismissed or delayed for any defect or (in) form whatsoever." There might be a question, whether this section has any bearing on the 2nd section of the act of 1847, chapter 284, but conceding that it has, on the principle that matters in pari materia shall be construed together, yet it cannot avail the State in this case, for we regard the joinder of the defendants as a matter of substance, and not of form, to which the section was evidently, in any event, designed exclusively to apply.
These views dispose of this case, but inasmuch as there was another question of practical importance presented and discussed, we deem it proper to dispose of it also. It was contended, on the part of the defendants, that under the present constitution of Maryland, the lottery commissioner has no right to institute such a proceeding as that now under consideration. In this view we do not concur. We think the 4th section of the 7th article of the constitution clearly contemplates the performance, by the commissioner therein referred to, of the duties previously discharged by the two lottery commissioners. He is required to give bond "for the faithful [**23]  performance of his duties as is now (then) given by the lottery commissioners." The 5th section of the same article only assigns to him another and additional duty, and in no wise confines his power to the mere making of a contract. The 3rd section of the bill of rights, however, is a conclusive answer to the objection. It distinctly declares to be in force all laws which were so on the first Monday of November 1850, except such as may thereafter have expired, or be repugnant to the constitution. There is nothing in the acts of 1846, or 1847, relating to the subject before us, which has expired, or which is repugnant to the constitution. The constitution expressly 

 [*430]  recognizes the continuance, for a specified term, of the lottery system, and in the absence of some express declaration to the contrary, we must understand the language of the constitution to mean the system in force at the time of its adoption. The objection can find no support from the decision of the case of Mace vs. The State, 5 Md. 337. The question of the jurisdiction of the Court of Common Pleas, considered in that case, was determined in reference to the language of the 10th and 11th [**24]  sections of the 4th article of the constitution, which, after conferring on the Superior Court certain powers, proceeds to say, that in addition to the enumerated powers, it shall have jurisdiction in "all other civil cases which have not been heretofore assigned to the Court of Common Pleas." This language undoubtedly makes the latter court one of limited and specified jurisdiction, and it was on this ground the court rested its decision.
Order reversed and bill dismissed with costs. 

7 of 44 DOCUMENTS 

GEORGE H. STEUART vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 500; 1855 Md. LEXIS 16 

JUNE, 1855, Decided 

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

The bill in this case was filed by the appellant, praying for an injunction to restrain the city authorities from further proceedings under ordinance No. 58, approved June 8th 1853, for the opening, grading and paving of Baltimore street, from the east side of Fulton street to the city limits.

It alleges, in substance, that this ordinance was inoperative and invalid, because, in attempting to open said street in a continuous line, it passes through and conflicts with a square lying on the grounds of the complainant, laid out by the commissioners, under the act of 1817, ch. 148, as a public square, and marked on Poppleton's plat as "Dr. Stewart's," but commonly known as "Maryland Square," and by them dedicated, delineated and set apart for public purposes; and that said square can only be opened or closed on definite notice for the opening or closing of said square in whole or in part, and then only by means of regular and valid proceedings for that purpose, in pursuance of an ordinance duly enacted for that express purpose, in conformity with published notice, and the existing acts of Assembly in relation thereto.

It further [**2]  alleges, that the Mayor and City Council, disregarding the existence of said square, and without any notice having been published for the opening or closing thereof, improvidently passed the said ordinance No. 58, which, complainant insists, they had no right to do; and that the commissioners for opening streets were about to open said street through the grounds of complainant, and for 360 feet through said square, which opening, without first lawfully closing the square, he alleges, will work him irreparable injury. He then avers, that he is willing that Baltimore street should be opened in a continuous line to the city limits, if said square be first closed in a regular and valid manner, but insists that the opening of it, without first closing the square, would leave his ground no longer available for and valuable as a square laid out in the midst of his property, (particularly after the same is deformed by a street run through it,) and also at the same time leave it unavailable and of no value for other purposes, inasmuch as the ground would still remain marked out, bounded, dedicated and set apart for public use, and, therefore, not available for the erection of buildings.

Upon [**3]  this bill the court granted the injunction prayed for.

The answer of the city authorities admits that the following notice (which was duly published,) was the only notice published, in relation to the application for the opening of Baltimore street, before the passage of the ordinance No. 58, and that said ordinance was passed in pursuance thereof.

"Notice is hereby given, that application will be made to the Mayor and City Council of Baltimore, at its next session, to open and condemn Baltimore street, from the east side of Fulton street to the city limits."

They deny that this ordinance was invalid or inoperative, or that it was not authorized by the act of 1838, ch. 226, under which they claim and exercise the power of laying out, opening or closing streets, squares, lanes and alleys, but admit, that in pursuance of said ordinance, Baltimore street was to be opened in a continuous line, and to pass through the square referred to in the bill. But, whilst they admit that this square was delineated on Poppleton's plat by the commissioners, under the act of 1817, ch. 148, they deny that said commissioners did or could dedicate the same to public uses, or that Poppleton's [**4]  plat is binding on them, in reference to streets or squares delineated thereon, or that any other or stricter proceedings are required to open or close a street marked thereon, than would be required to open or close a street or square not found thereon. They deny that said alleged square has ever been opened, or that it has any actual or legal existence, and aver that, under the act of 1838, ch. 226, they have full power to decide how or where streets or squares shall be opened, and that having determined, after due notice, to open Baltimore street in a continuous line from Fulton street to the city limits, the validity of the ordinance No. 58, is in no degree impaired or affected by passing through that part of complainant's property delineated as a public square, any more than by passing through any other part of his property.

They further admit, that the commissioners for opening streets have, under this ordinance, proceeded to locate and open said street through complainant's property, and aver that all proceedings in the premises have been in strict conformity with law, and a copy of the return of the commissioners is filed with the answer. They then insist, that if there [**5]  was any illegality or irregularity in the official proceedings in reference to the opening of this street, the complainant had the right to appeal to the Criminal Court of Baltimore city for redress, and not having availed himself of that remedy, he has no right to apply to the Circuit Court to assume jurisdiction over the subject matter.

The answer further states and charges, that the sums for which the complainant was assessed by the commissioners, for benefits derived by him from the opening of this street, were paid by him by a draft drawn upon the city register, to be paid out of the moneys due by the city to complainant, for damages assessed to him for opening said street through his property, and insists that this payment, for benefits and receipt of damages, amount to a ratification by him of all previous proceedings, and a waiver of all right on his part to object to the same. They further deny that any irreparable or other injury will ensue to the complainant by the opening of said street.

The answer then sets up an agreement between complainant and other owners of the property through which the street passes, as a reason why such owners were necessary and proper [**6]  parties to the bill, which they insist is defective in this respect, and the injunction should be dissolved, and the bill dismissed.

The testimony of Williams and Mayer, as to the location of this square, is sufficiently stated in the opinion of this court. The return of the commissioners, filed with the answer, shows that the complainant was allowed, for damages for the opening of this street, the sum of $ 3942.50, and was assessed, for benefits, in the sum of $ 3154.39, which latter sum, it was admitted, was paid by him by a draft for that amount on the city register, in favor of the city collector, payable out of the former sum awarded to him for damages.

The court below (KREBS, J.,) decided--1st. That the ground in question never was a public square, open or otherwise; never was dedicated for public use, and that the city never acquired any right or claim to it as a square, or for public purposes; and that the title of the complainant to it, is unaffected by any thing that the city authorities have done in reference to it, and that no proceedings were necessary to close it. 2nd. That the receipt by the complainant of $ 3154.39, from the register, for damages allowed him,  [**7]  and the payment by him of that amount to the collector, for benefits assessed to him, is a complete estoppel in pais, and that complainant cannot now insist that this property is a public square dedicated to public uses. 3rd. That the act of 1838, ch. 226, providing for the opening of streets in the city of Baltimore, does not conflict with the 46th section of the 3rd article of the constitution.

The court thereupon passed an order dissolving the injunction and dismissing the bill, from which the complainant appealed.  

DISPOSITION:
Order affirmed and bill dismissed.  

HEADNOTES:

A square designated as such upon Poppleton's plat of the city of Baltimore, and marked by two boundary stones, but which has never been used by the public for any purpose, but has constantly been held by the owners of the land, and has never been purchased by the city authorities, or conveyed to them, is not a square for public purposes, contemplated by the act of 1817, ch. 148, sec. 13.

The owner has the same right to improve the land in this square that he has to improve any other portion of his property within the city limits, and the city authorities have the right to open a street through it in the same manner as through the private property of any other person; there is no necessity for them to close this square, because it never was, in legal contemplation, a public square.

Notice that application will be made to the city authorities "to open and condemn Baltimore street from the east side of Fulton street to the city limits," describes with sufficient accuracy and distinctness the street designed to be opened, and is not defective in this particular.

Where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision securing that right, though such law may provide for a primary trial, without the intervention of a jury, because the party, if he thinks proper, may have his case tried by a jury, before it is finally settled.

The 46th section of the 3rd art. of the constitution provides, that the "Legislature shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." HELD:

1st. That the Legislature may pass a law taking private property for public uses, if provision be made for compensation first to be paid or tendered to the owner, the ascertainment of which is to be made by contract with him, or by the assessment of commissioners, giving the owner the right of appeal from their decision, and securing him a trial by jury before the appellate tribunal, provided the appeal be taken in some specified reasonable time.

2nd. If the owner does not appeal within the time prescribed, and the compensation assessed be paid or tendered, the property may be taken for public use; the neglect or refusal to appeal is considered a waiver or abandonment of the right to have the damages awarded by a jury, and as an agreement to take the compensation determined by the assessment.

3rd. The act of 1838, ch. 226, and the ordinance of the city authorities of Baltimore city, of 1850, ch. 17, for the opening of streets, &c., passed in pursuance thereof, giving the right of appeal from the decisions of the commissioners to the city court, and any ordinance for the opening of a particular street thereunder, are therefore constitutional and valid.

The constitutional prohibition against taking private property for public use, until compensation be first paid or tendered, means taking the property from the owner and actually applying it to the use of the public, and not the survey and other preliminary measures necessary in such cases.

The protection is sufficient if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained and paid, or tendered, and until then a street cannot be opened or used, but an entry to grade or prepare the ground for that purpose, is illegal.  

COUNSEL:
Neilson Poe and John Nelson for the appellant, argued:

1st. That Poppleton's plat is a plan of the city of Baltimore, prepared by commissioners fully authorised by law to lay down streets, lanes, squares, &c., and that the laying down of any street, lane, square or alley on said plat was such a delineation thereof as a street, square, &c., that the same cannot lawfully be opened, closed, widened or in any manner altered, except by virtue of an ordinance duly passed, upon proper notice, for the express purpose of closing, opening, widening or altering the same, and the ordinance in question for opening Baltimore street [**8]  was, therefore, invalid and insufficient to authorise the laying or opening of said street through the ground embraced by the said square. There never has been an instance known in which an ordinance to widen or close a street has been passed under notice to straighten or open one, yet in this case a square is sought to be closed under an ordinance to open a street, passed upon notice to open it. We submit that such a proceeding is totally irregular and invalid.

2nd. That the act of 1838, ch. 226, so far as it authorises the Mayor and City Council to take private property for public use without compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, is in conflict with the 46th section of the 3rd article of the constitution.

We admit, that as to all matters within the jurisdiction of the city court under this act, a court of equity has no authority to interfere, and we concede this upon general principles as well as upon authority. But the question here is, whether this is a matter within that jurisdiction? We do not object to any irregularity, in the proceedings under the ordinance, by [**9]  the commissioners, but upon the broad ground, that the whole proceedings by the city authorities are void and totally without authority; and upon this ground we have the right to go to a court of equity for relief. This act provides for an appeal from the decision of the commissioners in relation to the assessment of damages and benefits. It gives no right of appeal for the purpose of testing the constitutionality of an ordinance of the city; no such appeal is provided for. Nor does the ordinance of 1850, No. 17, provide for such an appeal. The very question then as to the jurisdiction of the equity courts in such cases is decided in the case of Alexander vs. Mayor & City Council, 5 Gill, 389. The case of the Methodist Church vs. Mayor & City Council, 6 Gill, 391, was not one in which the validity of the ordinance was assailed, but this was conceded, and the question was, whether the judgment of the commissioners in their assessment of damages was correct or not? But here the question is not one of regularity or of error in judgment, but of power, of authority, and in such a case equity has a clear right to interfere where an inferior tribunal undertakes to take private property for [**10]  public uses without authority.

Now we say the whole proceedings of the city authorities are utterly null and void. This act of 1838, which was held to be valid under the old, is not valid under the present constitution of the State, which, by the 46th section of its 3rd article, says, that no man's property shall be taken for public use except upon payment of compensation agreed upon between the parties or awarded by a jury. This is made a condition precedent; the legislature cannot grant the power to take the property without tendering and making this compensation. The city authorities must first ascertain the compensation by contract or the award of a jury, or they have no authority to act. 1 Baldwin C. C. Rep., 226, Bonaparte vs. Camden & Amboy Rail Road Co. Neither of these modes has been adopted in this case, and we therefore say that the whole proceedings are unconstitutional and void.

3rd. The receipt by the appellant of the sums awarded to him by the commissioners for damages did not, under the circumstances of the case, amount to an acquiescence by him in their proceedings, or to a waiver of any right he might have to contest the validity of their proceedings. He,  [**11]  in fact, never received a cent of this money, but simply transferred a part of the damages in payment of the benefits assessed to him, and the residue he has never touched.

Samuel Taggart and J. Nevitt Steele for the appellees, argued the following points:

1st. That Poppleton's plat is not obligatory on the Mayor and City Council of Baltimore in reference to the opening of the public squares delineated thereon, and that the alleged square on the property of the appellant never having been in fact opened, had no legal or actual existence; and it was therefore entirely in the power and discretion of the Mayor and City Council, under the act of 1838, ch. 226, to open a street through the ground on which said square is located on said plat, precisely in the same manner as if no such location or delineation had been made. Moale vs. Mayor & City Council, 5 Md. Rep., 314.

2nd. That the ordinance, No. 58, passed by the Mayor and City Council of Baltimore, in 1853, was a legal and valid exercise of the power conferred upon them by the act of 1838, ch. 226. The appellant has no right to make any objection to the notice in this case. He had notice in fact, and so avers in his bill.  [**12]  He was not damnified thereby and it is no ground for equitable relief. 6 Gill, 401, 402.

In regard to the question of the constitutionality of this act of 1838, we say, that so long as the right of appeal is allowed, by means of which a trial by jury can be had, the right of trial by jury is not taken away. 4 Conn., 535, Beers vs. Beers. 8 Yerger, 444, Morford vs. Barnes. 6 Seargt. & Rawle, 240, McDonald vs. Schell. 2 Murphey, 41, Keddie vs. Moore.

3rd. That the ground of the appellant included within the limits of the square marked out on Poppleton's plat, would, if the Mayor and City Council should at any time determine to open a public square in that particular spot, be as available for that purpose after the proposed extension of Baltimore street as before; and the appellant, after the extension of this street through his property, would have precisely the same right to improve, build upon and use for his individual purposes that part of his property included within the alleged public square, as he would have in reference to those portions thereof not so included, so that the two grounds of irreparable damage set forth and relied upon in the bill are both unfounded, and [**13]  the only remaining damage sustained by the appellant results from the taking of his land for the bed of the street, and for this the law has provided, and he has received, adequate compensation.

4th. That all the proceedings for the opening of Baltimore street have been legal and regular, and that if there was in them any illegality or irregularity, the only and exclusive remedy of the appellant was by an appeal to Baltimore City Court from the return of the commissioners for opening streets. Methodist Church vs. Mayor & City Council, 6 Gill, 391. Alexander vs. Mayor & City Council, 5 Gill, 383. Richardson vs. Mayor & City Council, 8 Gill, 433.

5th. That the appellant having suffered more than a year to elapse after the passing of ordinance No. 58 without applying to a court of equity for relief; and having permitted the Mayor and City Council to go on with the opening of this street and to incur expenses, and assess upon and collect from various persons considerable sums of money for the payment of such expenses; and having declined or neglected to avail himself of his right of appeal to Baltimore City Court; and finally, having paid to the collector of the city a large [**14]  sum of money for benefits to his property, resulting from the opening of the street, and received from the city register a like large sum for damages due to him for his land taken for the bed of the street, is estopped from denying the validity of this ordinance, and has waived all right of objection to any of the proceedings which have been taken under and by virtue of it. Savings Institution vs. Schroeder, 8 G. & J., 93. Okisko Co. vs. Elysville Manufacturing Co., 5 Md. Rep., 152. 2 Edwards' Ch. Rep., 229, Verplanch vs. City of New York.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*508]  ECCLESTON, J., delivered the opinion of this court.
The 12th section of the act of 1817, ch. 148, appointed certain commissioners, with authority to have surveyed and laid off, within the limits of the city of Baltimore, all such 

 [*509]  streets, lanes and alleys, as they should deem proper and convenient, and to cause the same to be marked with so many and such durable marks as they should think necessary, to return plots with such survey and location, with proper explanations, to the register of the city.
The 13th section enacts: "That [**15]  the said commissioners be, and they are hereby authorized, to contract for and lay out such and so many parcels of ground within the said city, as they shall judge convenient and necessary to be used for public purposes; and if the price demanded therefor shall be deemed reasonable by the Mayor and City Council of Baltimore, they are hereby authorized to purchase the same at the expense of the city, and such lots or parcels of ground shall be conveyed to the said Mayor and City Council, for the purposes aforesaid."
Under this act what is known as Poppleton's plat was made; and upon it is laid out or designated the lot or square then known as "Dr. Steuart's," which the appellant says has since been called "Maryland Square," and through which the proposed extension of Baltimore street passes.
The appellant says this is a public square, made such under the proceedings of the commissioners appointed by the act of 1817, and that the city authorities have no power to open a street through it without closing up the square according to the act of 1838.
This square has never been used by the public for any purpose, but has constantly been held and occupied by the complainant, or those under [**16]  whom he claims. And the only evidence, of any sort, tending to show this to be a public square, is Poppleton's plat and the depositions of B. Mayer and N. Williams; which depositions speak of two boundary stones planted for the purpose of designating two points of the square. The record furnishes no proof of any contract between the owner of the property and the commissioners, or that any price was demanded therefor and assented to, or deemed reasonable by the Mayor and City Council, or that they had purchased the same, or that it had been conveyed 

 [*510]  to them. Seeing that the owner of the property has held and used it for his private purposes; and perceiving no proof of any dedication of it to the public, except its having been laid out by the commissioners as described on their plat, and the setting up of two boundaries, it cannot be regarded as a square for public purposes, contemplated by the act of 1817.
The case of Moale vs. The Mayor and City Council of Baltimore, 5 Md. 314, was decided upon the principle that the proceedings under the act which gave rise to Poppleton's plat, did not deprive the owner of the soil of his right to build upon, or to [**17]  improve it, at his pleasure, although it might be covered by the bed of an unimproved street, designated on the plat, provided he had not been allowed compensation for the same; and that whenever the city authorities might think proper to open such a street he would be entitled to damages, just as if the street had never been so designated. And that decision was made notwithstanding the first proviso in the 16th section of the act of 1817, which is: "That no person shall be entitled to damages for any improvements, 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." Perceiving the injustice of this proviso the Legislature qualified it, to some extent, by the act of 1832, ch. 207. The language of the proviso, it will be seen, includes a street, lane or alley, but not a public square. If therefore the principle of the decision is correct, in reference to a street, it cannot be less so in regard to a square. If this be true, the appellant had the same right to improve what he calls the Maryland Square, which he had to improve any other portion of his land within the limits of the city. And we [**18]  see no reason why the city authorities have not the right to open a street through the same, in the same manner they have to open one through the private property of any other person. Nor can there be any necessity for them to close the square, for the plain and obvious reason that it never was a public square, in legal contemplation.
One of the grounds relied upon for reversing the order 

 [*511]  dissolving the injunction is, that the notice of the intended application to the Mayor and City Council to open and condemn the street is defective, in not describing with sufficient accuracy and distinctness the street designed to be opened. But we do not consider the notice defective in the particular referred to.
Another ground on which it is said the injunction should be sustained is, that the proceedings in regard to opening the street are illegal and void, because they are not in conformity with the 46th section of the 3rd article of our present constitution, which declares: "The Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties or awarded by a jury, being first paid or tendered to [**19]  the party entitled to such compensation." The appellant contends he has made no agreement in regard to compensation and that none has been awarded by a jury, consequently the proceedings on the part of the city authorities give him a right to relief by injunction.
It has been conceded, that the two cases of Alexander & Wilson, vs. The Mayor & City Council of Balto., 5 Gill 383, and The Methodist Protestant Church against the same defendants, in 6 Gill 391, fully recognize the constitutionality of the act of 1838, under which the city acted in this instance. But it is insisted, that those decisions cannot in any degree affect the rights of the complainant secured to him by the new constitution, adopted since those cases were decided. And this renders it necessary to enquire, whether those rights have been violated.
In the third section of the old bill of rights it was declared, "That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury according to the course of that law." Notwithstanding this, the legislature passed laws at different times extending the jurisdiction of justices of the peace in matters [**20]  of contract, and giving jurisdiction in matters of tort where they had none previously. These laws, of course, made no provision for trials by jury except on appeal 

 [*512]  to the county courts, and yet they were constantly acquiesced in and not considered as being repugnant to the bill of rights.
In several of our sister States where the right of trial by jury is guarded by constitutional enactment, it has been decided that laws passed subsequent to the adoption of the constitution, giving increased jurisdiction to justices of the peace, where there was no provision for a trial by jury except upon appeal, are not unconstitutional. Morford vs. Barnes, 8 Yerger Rep. 444.  Beers vs. Beers, 4 Conn. 535. McDonald vs. Schell, 6 Seargt. & Rawle 240.
In the Connecticut bill of rights the language is, "The right of trial by jury shall remain inviolate." And this provision was held not to have been violated by an act extending the jurisdiction of magistrates, before whom no trial by jury could be had but where an appeal was given, although an appeal bond was required. In delivering the opinion of the court, C. J. Hosmer says, "I am satisfied that the [**21]  liberty of appeal in the case under discussion preserves the right of trial by jury inviolate, within the words and fair intendment of the constitution; and that no such unreasonable hardship is put on the appellant by the bond required for the prosecution of the appeal as to justify the assertion, that the right of trial by jury is in any manner impaired."
In the case cited from Pennsylvania, the question was, whether a provision requiring payment of costs before an appeal could be taken was a violation of the constitution of the State? The plaintiff in error contended it was, because the costs might amount to such a sum as a poor man could not pay, and then he would be deprived of a trial by jury. The court refused to hear counsel for the defendant in error and decided the case in his favor, declaring the act requiring costs to be paid was not unconstitutional.
These cases fully establish the principle, that where a law secures the trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper,  [**22]  can have his case decided by a jury before it is finally settled.

 [*513]  It has been said these decisions can have no proper application to the present subject, because they relate merely to the private right of a citizen, whilst the provision of the constitution now under discussion is a restriction upon the exercise of public authority. But if it be so, it is a restriction for the protection of private property, and we do not perceive any real difference in principle between the two subjects so far as the rules of construction may be concerned. In truth, the first is a restraint upon legislative authority for the preservation of the right of each individual to a jury trial. The other prohibits the taking of private property for public use without compensation first paid or tendered, after having been ascertained in one of the modes prescribed.
The act of 1838 gives authority to the Mayor and City Council of Baltimore "to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of said city, which, in their opinion, the public welfare or convenience may require; to provide for [**23]  ascertaining whether any, and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which such owner or possessor ought to be compensated or ought to pay a compensation." It also authorizes them "to provide for granting appeals to Baltimore City Court from the decisions of any commissioners, or other persons appointed in virtue of any ordinance, to ascertain the damage which will be caused or the benefit which will accrue to the owners or possessors of ground or improvements, by locating, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within said city, and for securing to every such owner and possessor the right, on application within a reasonable time, to have decided by a jury trial whether any damage has been caused or any benefit has accrued to them, and to what amount."
Under this act the Mayor and City Council passed the ordinance of 1850, No. 17, providing for the annual appointment 

 [*514]  of three commissioners for opening streets in the city. By the ninth section [**24]  of which the right of appeal is given, providing for a trial by jury whenever any person shall be dissatisfied with the assessment of damages or benefits which shall be made by the board of commissioners.
The ordinance of 1853, No. 58, authorizing the opening of the street in controversy, and under which the proceedings complained of took place, was passed with express reference to the provisions of the act of 1838, and the ordinance of 1850. These proceedings are not, in our opinion, illegal and void under the present constitution.
The doctrine established by the practice in Maryland, and by the decisions in other States, which have been referred to, in regard to the highly valued privilege of trial by jury, we think will fully justify us in saying there is nothing in our present constitution which prohibits the Legislature from passing a law authorizing private property to be taken for public purposes, if provision is made for compensation first to be paid or tendered to the owner, the ascertainment of which is to be made by contract with him, or by the assessment of commissioners, giving to the owner the right to appeal from their decision, and securing to him a trial by jury [**25]  before the appellate tribunal, provided the appeal be taken within some specified reasonable time. And, in our opinion, if the owner should not appeal within the time prescribed, and the compensation assessed should be paid or tendered, the property might then be taken for public use. Under such circumstances the neglect or refusal to appeal would very properly be considered as a waiver or abandonment of the right to have the damages awarded by a jury, and as an agreement, on the part of the owner to accept the compensation proposed by the public, by means of the assessment. If this is a proper construction of the constitution in reference to a law which may now be passed, then, so far as the provisions of the act of 1838, and the ordinance of 1850, are not inconsistent with the power of the Legislature in reference to a future law, they are not unconstitutional and void; for the 3rd article of the 

 [*515]  declaration of rights continues in operation all acts and parts of acts of Assembly in force on the first Monday of November 1850, except such as have since expired, or were altered by the constitution, or have been changed or repealed by subsequent legislation.
Under the proceedings [**26]  for opening the proposed street, compensation to the appellant has been assessed by commissioners. We have seen that the act of 1838, and the ordinance of 1850, gave him a right to appeal from the decision of the commissioners, and to have his compensation awarded by a jury, if he had desired to do so. This he declined doing, and by waiving that right he has virtually agreed to take the proposed compensation. His failure to appeal is not the only evidence of an agreement to accept the damages assessed, for the appellant has received, voluntarily, a large portion of the amount allowed him, by applying the same in discharge of the benefits assessed upon his property. We have said voluntarily received, although it has been insisted that he applied a portion of the damages in payment of benefits, not voluntarily, but by compulsion, for the purpose of saving his property from being sold. If, as it is contended, because the proceedings were illegal and void, the appellant had a right to enjoin them, most undoubtedly he had an equal right, before his application of the damages in discharge of the benefits, to have prevented, by injunction, the sale of his property for the payment of benefits.  [**27]  The same illegality which would authorize the interposition of the strong arm of a court of equity to stop the opening of the street, would surely justify the exercise of the same power to prevent the city authorities from compelling payment for benefits assessed on account of the supposed increased value of property, by the opening of the street. If the proceedings were illegal, no sale could have been made under them for benefits, if proper steps had been taken to prevent it, and a payment under such circumstances, would be voluntary; especially so when, as in this case, no advertisement or notice of such a sale had been published or given. And if the proceedings were not illegal, but valid, it is a matter 

 [*516]  of no importance whether the payment was voluntary or not.
Prohibition against taking private property until payment or tender of compensation is first made, and the right to have the amount of compensation settled by a jury or by agreement, are the important rights designed to be secured to the owners of property by the present constitution. And although the proposed street has been surveyed, the survey reported, and the damages and benefits assessed, yet the appellant's [**28]  land has not been taken, in the legal sense of that word. Bonaparte vs. The Camden & Amboy Railroad Co., 1 Baldwin's C. C. Rep., 226. The constitutional prohibition against taking private property for public use, until compensation is first paid or tendered, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases. To hold that compensation must be paid or tendered, before a survey should be made, or other preparatory steps taken, would be a construction of the constitution not required by its language, or necessary for the protection of private rights. It is quite a sufficient protection, if the owner is secured in the use and enjoyment of his property until the damages he may sustain are constitutionally ascertained, and paid or tendered. And until then, we think, a street cannot be opened or used, but an entry to grade, or to prepare the ground for that purpose, would be illegal; and the persons so entering would be responsible, in damages, to the owner of the property.
So far as the proceedings on the part of the appellees have gone, we do not perceive such [**29]  illegality in them as will sustain the injunction, therefore the order dissolving it will be affirmed, and the bill dismissed with costs to the appellees.
Order affirmed and bill dismissed. 

8 of 44 DOCUMENTS 

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

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 582; 1855 Md. LEXIS 20 

JUNE, 1855, Decided 

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

This was a case of issues from the Orphans court, to try the validity of two wills executed by Rachel Colvin, deceased, the one on the 30th of October 1845, and the other on the 6th of April, 1848. These issues were granted by the Orphans court for Baltimore city, and sent to the Superior court of said city for trial, but were afterwards, upon suggestion of the appellants, removed to the Circuit court for Baltimore county. They were in substance as follows:

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

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

3rd. Whether the paper of the 30th of October 1845, was duly executed and published as the last will and testament of said Rachel Colvin?

4th. Whether the paper of the 30th of October 1845, was revoked by the paper purporting to be the will of said Rachel, dated [**2]  the 6th of April 1848?

5th. Whether the paper of the 30th of October 1845, was revoked by the said Rachel in any other manner than by the will of the 6th of April 1848?

6th. Whether the said Rachel was prevented, by the fraudulent concealment of the will of the 30th of October 1845, by any person or persons, from revoking the same by burning, cancelling, tearing or obliterating the same, or otherwise?

7th. Whether said Rachel was of sound and disposing mind and memory, and capable of executing a valid deed or contract at the time of the execution of the paper of the 30th of October 1845?

8th. Whether she was prevented, by the fraud or false representations, or undue influence of any person or persons, from revoking the said paper of the 30th of October 1845, by cancelling, tearing, burning or obliterating the same, or otherwise?

At the trial of these issues, the appellants, who were the caveatees and the alleged heirs at law and next of kin of the deceased, were the plaintiffs, and the appellee, who was the executor and principal legatee and devisee under the will of 1848, was the defendant.

1st Exception. The caveatee, to support the issue on his part,  [**3]  offered to swear Rachel Jane Warford, who was a legatee or devisee in the wills of 1845 and 1848, and the caveators having objected to her competency on the ground of interest, the caveatee, to show her competency, produced and read a duly certified copy from the records of the Superior court for Baltimore city, of a deed dated the 2nd of February 1855, from the witness to one Hamilton Warford, of Delaware county, in the State of Ohio, by which the witness conveyed to the said Hamilton, her brother, in consideration of natural love and affection, all her interest "under either of the wills" of the said Rachel Colvin. He also produced and read a deed duly signed, sealed and delivered, from the witness to Frederick W. Brune, dated the 5th of February 1855, which, after reciting that whereas doubts had been expressed as to the efficacy of the preceding deed to Hamilton Warford, to pass all the interest of the grantor under both wills, and that whereas the grantor is desirous to divest herself of all and every interest remaining in or hereafter to accrue to her under both said wills, and each and either of them, "so as to render her a competent witness in relation to both said instruments,  [**4]  " proceeds to convey to the grantee, in consideration of the premises and the sum of five dollars, current money, all the grantor's interest under said wills, and each and either of them, subject to the legal effect of said deed to Hamilton Warford.

The caveatee further proved by a witness, that he knew Hamilton Warford, who was a brother of Rachel Jane Warford, and of the caveatee, and lives in Ohio, and had seen him in Baltimore in 1853. The delivery and acceptance of the deed to Brune was admitted, but there was no proof given touching the knowledge or acceptance of the deed to Hamilton Warford by him, other than what is above recited. The caveators still insisting upon their objection, the court (CONSTABLE, J.,) overruled the same, and allowed the witness to be sworn. To this ruling the caveators excepted.

2nd Exception. The caveatee, upon the cross-examination of St. George W. Teackle, a witness produced by the caveators, proved that he (witness) endeavored to get the testatrix, Rachel Colvin, to insert in the will of 1845 the name of Mrs. Mary Ann Ellicott, as a devisee, but the said testatrix refused, upon the ground that Mrs. Ellicott was the only child of a rich father.  [**5]  The caveatee also proved by this witness and others, that at other times the said Rachel gave as a reason why she had not made provision for Mrs. Ellicott in her wills, that Mrs. Ellicott would be sufficiently provided for by her father, who was a rich man.

The caveators then proved by Mrs. Ellicott, a competent witness, that in the year 1847, and in the fall of that year, the defendant, Colvin Warford, called upon her, and in the course of conversation during his visit, asked her if she knew how much her father was worth? to which she replied, "I do not." That Colvin Warford then said he had been to New Jersey, and would tell her how much he was worth, and that he was worth $ 100,000. The caveators then proved by the same witness, that about three or four weeks after this interview, witness went to see Miss Colvin, and Miss Colvin said, "I wanted to see you, to tell you I had made a will, leaving you a legacy, but Colvin says your father is worth $ 100,000, and you will have more than the others, and I must not give you any thing."

The caveatee then offered to examine Mr. Shrope as a witness, and having called him to the stand, he was objected to by the caveators' counsel,  [**6]  and the counsel for the caveatee being asked what they offered to prove by said witness, said, that they offered said witness for the purpose of contradicting Mrs. Ellicott, or impeaching her, by showing that she was mistaken as to the time of said conversation, if any was had, or that the statement of said Warford in said conversation, if it was had, was true. The caveatee then proved by said Shrope that he was one of the assessors of one of the townships of Hunterdon county, New Jersey, where Elisha Warford, the father of Mrs. Ellicott, resided; that he had been assessor of taxes for nine years, once in 1840 to 1846, and was again appointed in 1850, and has continued to act as assessor from that period until the present time. That in 1852, Colvin Warford called upon him to ascertain what was the amount and value of Elisha Warford's estate, that Elisha Warford was going security upon a bond in Maryland; that witness showed to Colvin Warford the assessment of Elisha Warford's estate, which was $ 10,000 worth of real estate, and that he owned lands in other places; that his personal estate was valued at $ 10,500, clear of debts due by him; this amount being handed in by Elisha Warford,  [**7]  and witness concurring with him, he was accordingly assessed therewith; that he was assessed with debts due to him on bonds, mortgages and notes to the amount of $ 10,000, and that his name or bond would be good in that county for $ 30,000; that defendant never called upon witness at any other time than that above mentioned, for the purpose of ascertaining the amount of Elisha Warford's estate, nor did he at any other time give to Colvin Warford any other statement than that above mentioned.

The caveatee also proved, that when Benjamin H. Ellicott was appointed, by the chancellor, committee of the estate of said Rachel Colvin, he offered his father-in-law, the said Elisha Warford, as his surety, and on that occasion the said Elisha Warford, who then lived and still lives in New Jersey, for the purpose of satisfying the chancellor of the sufficiency of such security, filed his affidavit in the chancery court, stating that he was worth, at least, $ 60,000, which affidavit, with certificates attached, as to the value and assessment of his property, are inserted in the record.

To the admissibility of all which testimony of said Shrope, for the purpose for which it was offered,  [**8]  the counsel for the caveators objected, but the court overruled their objection, and permitted the evidence to go to the jury. To this ruling the caveators excepted.

3rd Exception. The caveatee proved the execution and publication of the two wills of October 1845, and April 1848. (These wills make different dispositions of the large estate of the testatrix, and the latter contains a clause expressly revoking all former wills.) The caveators then proved, by various witnesses, facts and circumstances tending to show that Rachel Colvin was not of sound and disposing mind, and capable of executing a valid deed or contract at the periods of the execution and publication of these papers. The caveatee also proved by like competent witnesses, a variety of facts and circumstances tending to show the capacity of the testatrix to make these wills at their respective dates.

The caveators then proved by Mr. Teackle, that for a series of years, beginning in 1843, and ending in 1849, he had been the legal adviser of Rachel Colvin, and, as such, prepared for her, under her instructions, a will, which was duly executed by her in 1847, but at what period in that year witness cannot say, except [**9]  that it was in or after the spring of that year, and that in the opinion of witness, derived from the relation in which he stood towards her, and from various interviews and conversations had with her, she was, at the time of executing the same, of sound and disposing mind, and capable of executing a valid deed or contract; that the name of Richard C. Warford, the caveatee, was wholly omitted in this will of 1847, and the name of Mrs. Ellicott inserted at the request of witness, as devisee of certain property; that witness was the executor thereof, and he believes it contained a clause revoking all former wills, from his habit of inserting such clauses in his preparation of wills.

The caveators then further proved by competent testimony, facts and circumstances tending to show that the will of 1847 was destroyed by the testatrix while her mind was sound, and likewise tending to prove that the will of October 1845 was not in her possession, or in the hands of any person authorized by her to retain the same, at the time of the destruction of the will of 1847; and further proved by competent testimony, facts and circumstances tending to show that she, at the time of the preparation [**10]  and execution of the will of 1847, and also at the time of its destruction by her, if she did destroy the same, did not know that the will of October 1845 was in existence or in her possession. The caveatee thereupon offered evidence of facts and circumstances of a contrary tendency.

The caveators further proved by competent testimony, facts and circumstances tending to show that the caveatee, during the life of the testatrix, retained from her possession the will of October 1845, and concealed the same from her knowledge, with intent thereby to prevent its cancellation by her, and with a view and under the design, after her death, to set up said will for probate as a valid will, should his interest require it. The caveatee likewise offered testimony of a contrary tendency.

Upon this proof the caveators offered sixteen prayers, eleven of which were granted, with the consent of the counsel for the caveatee. Of these prayers thus granted, the following is the only one material to be stated.

"6th. If the jury find from the evidence, that Rachel Colvin, in excluding Mrs. Ellicott from the will of 1848, was influenced by the representation of Richard C. Warford, that her [**11]  father, Elisha Warford, was worth one hundred thousand dollars, and shall further find that such representation was untrue, and that the will of 1848 was the result of such representation, then the verdict on the 2nd issue must be for the caveators."

The other prayers were in substance as follows:

1st. If the jury find that Rachel Colvin duly executed and published a will in 1847, when she was of sound and disposing mind, and capable of executing a valid deed or contract, differing materially from the will of October 1845, and containing likewise a clause of revocation, the subsequent cancellation or destruction by her, or by her direction, of the will of 1847, (if the jury shall find such destruction or cancellation,) will not have the effect in law to revive the will of October 1845, as her will.

2nd. If the jury find the facts stated in the preceding prayer other than that the will of 1847 contained a clause of revocation, still, if they find that it disposed of the estate of the deceased, in a mode materially differing from the will of October 1845, still the cancellation or destruction by her, or by her direction, of the will of 1847, if the jury find such cancellation [**12]  or destruction, will not in law revive as her will the will of October 1845.

8th. If the jury find that Rachel Colvin duly executed and published the will of October 1845, and afterwards, in 1847, when she was of sound and disposing mind, and capable of executing a valid deed or contract, duly executed and published another will, purporting to dispose of all her property, and differing materially in its dispositions thereof from the will of 1845, and containing a clause revoking all former wills, then such execution and publication of the will of 1847 revoked the will of 1845.

10th. If the jury find that Richard C. Warford, during the lifetime of Rachel Colvin, retained from her possession the will of 1845, and concealed the same from her knowledge, with intent thereby to prevent its cancellation by her, and with a view and under the design, after her death, to set up the same for probate as a valid will, should his interest require it, then their verdict must be for the caveators on the 6th and 8th issues.

15th. If the jury find that the will of 1845 was not in the possession of Rachel Colvin, or in the hands of any person authorized by her to retain the same for her [**13]  at the time of the destruction or cancellation of the will of 1847, (if the jury shall find from the evidence that said last mentioned will was cancelled or destroyed by said Rachel Colvin while her mind was sound,) then the said cancellation of the will of 1847 does not revive the will of 1845.

These five last prayers the court rejected, and to this ruling the caveators excepted.

Five prayers were also offered on the part of the caveatee, and granted by consent of the counsel for the caveators, which need not be stated. The verdict was in favor of the caveatee upon all the issues, and the caveators appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A deed executed by a legatee or devisee, conveying his interest for the purpose of restoring his competency as a witness for the will, cannot be assumed by this court not to have been executed in good faith, and whether it was or not, the grantor cannot assail it upon any such ground, and he is thereby made a competent witness.

The practice of restoring the competency of witnesses at the trial, by executing releases or deeds, has so long prevailed, and been sanctioned by the courts of this State, that it cannot now be disturbed.

An objection to a witness before he is examined, must be to his competency, and not to the admissibility of his testimony.

The legal presumption is in favor of the competency of every witness, and no objection to his competency should be entertained, unless the party making it, discloses at the time the ground on which it is based; a mere general, indefinite objection will not avail.

A party offering a witness is not bound to state any special purpose for which he is offered, or to show, until the contrary is at least prima facie established, that he is a competent and legal witness.

All legal and pertinent evidence, admissible for any purpose, may be offered generally.

If evidence offered for a particular purpose be inadmissible for that purpose, it is properly rejected, though admissible generally, or for some other object.

Where several purposes, for which testimony is offered, are specified, and it could have been offered for no others, the offer is virtually a general one, though, in point of fact, the evidence may not be legally applicable to all the specified purposes, and if admissible for any one of them, it is properly admitted.

To prevent the jury from applying the evidence to a purpose to which it does not relate, it is the duty of the party objecting, to point out specifically the purpose to which it has no legal application and ask of the court its exclusion for such purpose.

A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained, though it be inapplicable to others.

Where evidence is offered generally, it must be assumed that it will be applied by the jury to the purposes to which it is legally applicable, and if a party wishes to guard against its misapplication, he must ask the court to point out the branch of the case to which it is not to be applied.

Where testimony is per se admissible, its sufficiency to establish the whole case is a question to be determined by the jury, upon a prayer properly framed and presented after the evidence is closed.

Proof by one witness that a party was worth $ 30,000, and owned land in other places, is admissible as a step towards establishing the fact that he was worth $ 100,000, which was the issue to be proved.

Such testimony, though referring to the party's condition in 1850 or 1852, is admissible to prove the truthfulness and honesty of a statement that he was worth $ 100,000, made in 1847, the issue being not so much the precise time when he was worth that sum, as the truthfulness of the statement on the subject, and the testimony being also rebutting evidence, and connected with other facts and circumstances.

Where the rulings of the court below, in regard to the validity of a subsequent will revoking a prior one, are sustained by this court, and the subsequent will is established, all questions presented in the record as to the prior will, are wholly unimportant, and will not be considered or decided.  

COUNSEL:
Henry Winter Davis, Grafton L. Dulany and John Johnson for the appellants.

1st. The first exception relates to the competency of Rachel Jane Warford as a witness for the caveatee. She was a legatee under the will of 1845 and a devisee under that of 1848. She comes into court and during the trial executes two deeds to restore her competency. Both were executed during the trial and will be regarded as part of the same transaction. The second deed refers to the first and states upon its face that it was executed for the purpose of making the [**14]  grantor a competent witness. Now it is clear that if the grantees in these deeds had brought suit to recover the legacies conveyed by them the grantor would not be a competent witness to sustain that suit; for that would be directly in the teeth of the decision in the case of Crawford vs. Brooke, 4 Gill, 213. The question is not whether the deed is good inter partes, but whether it is good as against strangers. The court in that case say the deed was not good as against strangers and that is the case here; for the attempt is here made to use it against, and to the prejudice of, strangers. As to strangers the court in that case have said that a deed executed for the purpose for which these were executed is mala fide. The practice of executing these releases at the trial table ought not to be encouraged and should not be carried beyond the decided cases. If Mrs. Ellicott is to be regarded with distrust as a witness because she was a disappointed legatee, how much more liable to distrust is the testimony of a witness who has released her whole interest under these wills for the sole purpose of rendering her a competent witness? Such an assignment is not a valid mode of restoring competency,  [**15]  but tends directly to encourage fraud and perjury by creating testimony to create the title to the very thing pretended to be transferred, which but for such testimony would have no existence.

2nd. The second exception relates to the admissibility of the testimony of Shrope for the purposes for which it was offered. When Shrope was called as a witness and was objected to, and the counsel for the caveatee were requested to state for what purpose they offered him, they said that they offered him for the purpose of contradicting Mrs. Ellicott, or impeaching her by showing that she was mistaken as to the time of said conversation if any was had, or that the statement of Warford in said conversation, if it was had, was true. Now these purposes being legitimate we could make no further objection until the testimony was in. When the testimony was given we then objected that it did not come up to the purpose for which it was offered, and insisted that it was the duty of the court below to have ruled it out. Now we say:

1st. That this testimony was inadmissible and utterly incompetent to sustain any one of the purposes for which it was offered. A witness can be impeached in one of [**16]  three ways only:--1st, by proving by a competent witness the opposite of the facts testified to by the witness sought to be impeached; 2nd, by showing that he has made contradictory statements in regard to the matter about which he testifies; and 3rd, by proof of general bad character for truth and veracity. 1 Greenlf. on Ev., sec. 461. 3 Md. Rep., 425, Steuart vs. Williams. Now this testimony does not impeach Mrs. Ellicott, by showing that she was mistaken as to the time of the conversation, and that this conversation occurred after 1852; for in 1851 Miss Colvin was a declared lunatic, and it was therefore impossible for Mrs. Ellicott to have held a conversation with her after 1852. As to this proposition therefore it is impossible for the human mind to doubt. There is again no clashing or inconsistency between the testimony of Shrope and that of Mrs. Ellicott. The fact that Colvin Warford went to New Jersey in 1852, does not prove that he did not go there in 1847, and has no tendency to prove that what Mrs. Ellicott testified to in regard to the conversation in 1847 was not true. There is therefore no process of ratiocination by which the testimony of Shrope can be regarded as impeaching [**17]  that of Mrs. Ellicott, and yet the court below said it was testimony, and it went before the jury with the impress of judicial sanction upon it, and that too under the offer to impeach Mrs. Ellicott.

Nor does this testimony show that the statement of Warford in regard to the wealth of Elisha Warford was true. It proves only that Elisha Warford was in 1852 worth $ 30,000, and we are asked to infer from this proof that he was worth $ 100,000 in 1847. Upon this part of the argument the case of Keedy vs. Newcomer, 1 Md. Rep., 241, is conclusive. It was held in that case that a fi. fa. returned "made" in one year, was no evidence to show that the party had property out of which another fi. fa. issued the year previously could have been satisfied. The court there say: "It might very well be that a person should have property in March 1840 sufficient to satisfy a writ, and yet wholly without any in March 1839. The vicissitudes of life, and especially of that of men extensively engaged in business, make such testimony very unsafe data on which to predicate the conclusion sought to be arrived at in this case. The period is entirely too remote and we think therefore the court did right [**18]  in rejecting it." How much stronger is the argument in this case that proof of a man's condition in 1852 is no evidence of what he was worth in 1847, five years previously? That proof of this character, so light and inconclusive as to afford unsafe data to warrant the conclusion sought to be arrived at, ought to be rejected, see also 5 Md. Rep., 434, Stewart vs. Spedden. 4 Do., 244, Balto. & Susq. Railroad Co. vs. Woodruff. 3 G. & J., 435, Sothoron vs. Weems. 8 Gill, 18, Maslin vs. Thomas. 4 Md. Rep., 509, Marshall vs. Haney. Mrs. Ellicott's silence when Miss Colvin told her what Warford had said in relation to her father's wealth, is in favor of the witness rather than against her; for she had said she did not know what her father was worth, and therefore like a truthful woman abstained from contradicting the statement of Warford when repeated to her by Miss Colvin.

But it is said on the other side that we must prove that the statement was untrue, and that this is a vital part of our case, because the jury found that it was true. This argument is illogical, because the jury were further to find under the prayer that the conversation was had in 1847 and influenced the will of [**19]  1848, and therefore they may have believed that the statement was untrue and yet have believed it did not influence the will of 1848. The court will not look to what effect the testimony may have had on the jury. If it is illegal it ought not to be admitted. 2 Wash. (Va.) Rep., 359, Lee vs. Tapscott. 1 Munford, 291, Brown vs. May. 13 Johns., 350, Penfield vs. Carpender.

2nd. But conceding the evidence of Shrope was admissible for one or two of the three purposes for which it was offered and admitted by the court, we still ask for a reversal of the judgment, if for the remaining purpose for which it was offered and let in the proof was not admissible. The purposes were stated in the alternative, and therefore unless the appellee was entitled to the benefit of the proof in support of each and every alternative, he has by the judgment of the court below obtained an advantage to which he is not entitled. We say that unless it was admissible to establish each one and all of the purposes for which it was offered the testimony should have been excluded. 3 G. & J., 435, Sothoron vs. Weems. In the case of Nailor vs. Bowie, 3 Md. Rep., 251, if evidence had been admitted for the purpose [**20]  of proving protest of both notes, and it was inadmissible for the purpose of proving protest of one of them, the court would have reversed the decision below, as they did upon the prayer which assumed that the plaintiff was entitled to recover upon both notes, when the evidence as to each, if it had not been rejected, was insufficient to maintain the action. Upon this point see, also, 4 Md. Rep., 296, Greenway vs. Turner. 3 Do., 67, Stewart vs. Redditt. 6 Do., 525, Warner vs. Hardy. 3 Gill, 198, Budd vs. Brooke. 1 Do., 129, Whiteford vs. Burckmyer & Adams. 4 Md. Rep., 499, Marshall vs. Haney. 5 G. & J., 159, Md. Ins. Co. vs. Bathurst.

3rd. The third exception relates to the refusal of the court to grant the 1st, 2nd, 8th, 10th and 15th prayers of the caveators, and involves the law of the revocation and revival of wills. The principle of the first prayer is, that the revocation of a subsequent revoking will does not, as a mere matter of law, without more, revive the former will, but that the first will can be revived only by republication, or if that be not requisite then it can be revived only by showing the revoking will to have been revoked with intent to revive the former.  [**21]  We maintain that there is no adjudication to be found where an antecedent will, not in the possession of the testator, and not known by the testator to exist, has been revived by the destruction of the subsequent revoking will. In all cases where the prior will is held to be revived, it has been in the custody and possession of the testator at the time of his death. Here the testatrix did not know of the existence of the will of 1845 at the time she destroyed the revoking will of 1847, and the prayers so put the case to the jury. On this point the counsel cited 35 Eng. C. L. Rep., 299, Reed vs. Harris. 2 Conn., 67, Witter vs. Mott. 3 Do., 576, James vs. Marvin. Burr., 2512, Goodright vs. Glazier. 1 How., Miss. Rep., 336, Bohanon vs. Walcot. 7 Johns. Ch. Rep., 258, Walton vs. Walton. Cowp., 87, Harwood vs. Goodright. 1 Phill., 375, Moore vs. De La Torre. 3 Curteis, 774, James vs. Cohen. 1 Hagg., 325, Kirkcudbright vs. Kirkcudbright. 2 Add., 116, Usticke vs. Bawden. 2 Am. Lead. Cases, 643, 661. 2 Dallas, 266, Boudinot vs. Bradford.

The second prayer is the same as the first, omitting the finding of a clause of revocation in the will of 1847, and resting therefore on the implied [**22]  revocation resulting from diversity of disposition.

The eighth prayer is, that the execution and publication of the will of 1847, with its clause of revocation, did operate a revocation of the will of 1845. It rests on the words of the statute of 1798, ch. 101, that such shall be the effect of a subsequent will duly executed, declaring the revocation of a former will shall have that effect.

The tenth and fifteenth prayers relate to the effect of the fraudulent concealment of the will of 1845. They go on the principle that the facts stated in them involve a fraudulent prevention of the revocation of the will of 1845, and the three last issues put that fact only to the jury. If they find that fact they should find the issues affirmatively. The effect of the finding is for the orphans court to pass upon when the whole record and evidence on other points, together with the facts found by the jury, shall be before them. 8 Watts & Sergt., 275, Jones vs. Murphy.

We further insist that all the issues relating to both wills form but one record. That a finding of part will be no response to the inquiry of the orphans court, and the omission of any makes the whole finding of the [**23]  others void. That for the same reason, if the finding on any issue be now reversed for error, the finding on all must be set aside and the whole be again submitted to the jury; for the court cannot know what effect a new or different direction to the jury on any point might have on their minds on the whole case. This court cannot know on what facts the orphans court may be called to pass on, and consequently this court cannot know but that the will of 1848 may be found not the will of Rachel Colvin and be refused probate by the orphans court, even though these findings be affirmed; and consequently the question may still arise as to the validity of the will of 1845. The instructions therefore touching that will of 1845 are fit subjects of argument on this appeal, and a reversal on any one of them must produce a general reversal of the finding of the jury, and consequently a new trial of the whole matter. 7 Gill, 10, 33, Brooke vs. Townshend. If this were not so the result will be that a part of the issues awarded may be found and certified, and a part remain subject to appeal, be reversed and tried, and retried, till by a succession of juries verdicts may be rendered of the most discordant [**24]  character on the same evidence on each of the various issues.

William Schley and Reverdy Johnson for the appellee;

1st. As to the question arising under the first exception, we contend that the witness, Rachel Jane Warford, properly transferred her interest in the result of the suit, and was thereby made a competent witness. Such is the every day practice, and it was her duty to do it, if she had valuable information to impart, and was willing to impart it. 7 G. & J., 311, Deakins vs. Hollis, But it is objected that under the act of 1829, ch. 51, no assignment can be made so as to enable the party to sue in his own name, when the assignment is made for the purpose of making the assignor a witness, and the case of Crawford vs. Brooke is cited to sustain this position. But in that case the court say, that the fact that the witness was an assignor, would make no difference, and would not render him incompetent, but the point there decided was, that under the pleadings in that case the evidence destroyed the plaintiff's right of action, not that the witness was incompetent. The court refused to permit a question to be asked which went to the plaintiff's right of action. That [**25]  case turns wholly upon the construction of the act of 1829, ch. 51. But here the court cannot, in this case, inquire into the bona fides of these deeds. The grantor is estopped from denying that they are valid, and she is therefore divested of all interest in the result of the suit. The first deed being on record, the delivery was complete. The recording is, at least, sufficient to warrant the presumption of delivery, and a copy from the office is sufficient. 3 Md. Rep., 79, Stewart vs. Redditt. 1 H. & G., 175, Betts vs. Union Bank.

2nd. On looking to the second exception, it will be seen that prior to the evidence of Mrs. Ellicott, stated in that exception, testimony had been given, without objection, by Mr. Teackle, that he had endeavored to get the testatrix to insert in the will of 1845 the name of Mrs. Ellicott, as a devisee, but that the testatrix refused, upon the ground that Mrs. Ellicott was the only child of a rich father. And testimony had been given, without objection, by Teackle and other witnesses, that the testatrix at other times gave as a reason why she had not made provision for Mrs. Ellicott in her wills, that she would be sufficiently provided for by her father,  [**26]  who was a rich man. Then the evidence of Mrs. Ellicott was introduced by the caveators, that in the fall of 1847, the appellee called upon her, and in the course of conversation, told her that he had been to New Jersey, and that her father was worth $ 100,000. This was followed by the further evidence of Mrs. Ellicott, that about three or four weeks afterwards, she paid a visit to Miss Colvin, who said, "I wanted to see you, to tell you I had made a will, leaving you a legacy, but Colvin says your father is worth $ 100,000, and you will have more than the others, and I must not give you any thing."

Now the only issue to which the evidence of Mrs. Ellicott had any application, was the second, and the object was to show by it that Miss Colvin was so influenced by the suggestion of the appellee, that Elisha Warford was worth $ 100,000, that no legacy was given to Mrs. Ellicott, the only child of Elisha Warford. It was therefore important that the appellee should contradict this testimony, so far as was in his power. If he went to New Jersey at all to ascertain the pecuniary condition of Elisha Warford, it was relevant to show that he went there for an honest purpose, unconnected [**27]  with the making of the will of 1848. It was therefore pertinent to show that when he did go thither, he went for the purpose of ascertaining the sufficiency of Elisha Warford, as the proposed surety of Mr. Ellicott, as receiver in the lunacy case. It was also important to show that the time of his visit was subseqnent to the date of the will of 1848. We wished to take from the testimony of Mrs. Ellicott some of the facts to which she testified, and we had the right to show that Shrope, the collector, to whom the appellee made application afterwards, and was the person to whom the application would probably be made, had not seen him in 1847. If the fact had been conceded, or if the statement had been permitted to pass as coming from himself without any effort on his part to show the contrary, that the appellee went to New Jersey in 1847, for the purpose of ascertaining the pecuniary condition of Elisha Warford, this circumstance would have greatly strengthened the evidence of Mrs. Ellicott. If, on the contrary, it was shown that he did not go there at that time, or at any time prior to the will of 1848, for any such purpose, then it would follow that he could not, in 1847, have said [**28]  to Mrs. Ellicott that he had been to New Jersey, and had there ascertained her father's wealth, unless he told her a wilful and deliberate lie, and by thus narrowing the question to the inquiry, whether he made such statement in 1847, the evidence of Mrs. Ellicott being unsupported by the collateral fact of an actual visit in 1847, and further evidence being offered tending to prove that his visit for such purpose was after the will of 1848 was made, the caveatee became entitled to the full benefit in his favor of the legal presumption of his innocence, and justified the argument that Mrs. Ellicott was mistaken as to the date of the conversation to which she had testified. How far this legal presumption, in connection with the temper and deportment of the witness as exhibited in court, the fact that she was a disappointed expectant of testamentary bounty, together with the other evidence in the cause, would have justified the jury in believing that she was mistaken, was not the province of the court to decide. The evidence was properly admitted for what it was worth for the consideration of the jury.

It will be noticed that the second exception is taken to the admissibility, not [**29]  to the effect of the offered evidence. They do not except to our offer, but make their objection in advance, and require us to state for what purpose we offered the witness. They then permitted us to go on and give the proof, and then except to all the testimony for the purposes for which it was offered. It is conceded that the purposes for which we offered the witness were legal, competent, admissible and material. Now what is the meaning of the objection? It is said, that if this testimony was not admissible for any one of the purposes for which it was offered, it was improper to admit it. But this is an entire misapprehension of the law, and is only applicable to prayers presenting alternate hypotheses, any one of which being erroneous, will vitiate the instruction. 5 G. & J., 223, 225, Md. Ins. Co. vs. Bathurst. The objection was a general one, that the testimony was not admissible for the purposes for which it was offered. The counsel for the caveators were therefore bound to frame a prayer asking that the testimony should be rejected upon a specific ground, which the prayer must point out; for if admissible for any of the purposes offered, it was properly admitted. 3 Md. Rep.  [**30]  , 251, Nailor vs. Bowie.

It was open to the caveators to argue before the jury that Mrs. Ellicott was not mistaken, and that proof of the affirmative fact, that the appellee was in New Jersey in 1852, and then saw Shrope for the first and only time, did not prevent the caveators from showing that he was, in fact, there in 1847, or, without proof of such presence, from contending that he was there in 1847, and saw some other person than Shrope, or from contending that on the unsupported evidence of Mrs. Ellicott, they ought to believe that he had made such representation precisely as stated by her. Besides this, the exception was to all the testimony of Shrope, for the purpose for which it was offered. If any part was admissible, the exception pro tanto was too broad. The evidence in part related to the actual pecuniary condition of Elisha Warford, and whether that evidence, in connection with the other evidence in the cause, proved that he was worth $ 100,000 or not, was for the jury to determine, and certainly on the point of alleged misrepresentation as to the condition of Elisha Warford, evidence of his actual condition was relevant and admissible.

But again, there is nothing [**31]  to show that Elisha Warford was not worth $ 100,000. The prayer assumes that it was true, and there is nothing in the case to show that he was not worth that sum. The onus is upon them to prove this negative. They must prove the statement to be false. This they have not done; on the contrary, Mrs. Ellicott does not deny it; she did not contradict it when repeated to her by Miss Colvin. We say, then, that even if the ruling in this exception was wrong, the judgment ought not to be reversed. Our positions therefore, upon this exception, are:

1st. That the evidence of Shrope was admissible for the purpose of showing (should it avail with the other evidence in the case,) that Mrs. Ellicott was mistaken as to the time of the alleged conversation with the appellee.

2nd. That it was admissible for the purpose of showing that the representation, if made by the appellee, as to the pecuniary condition of Elisha Warford, was true, and was not a misrepresentation. All that we had to do, was to show that this evidence tended in some degree to show that the statement was true. Does not this evidence do this? It shows that he was worth at least $ 60,000; he himself swears to this; and it [**32]  is uncontradicted; and, besides, it shows that he owned lands in other places.

3rd. That proof of the fact that the appellee never applied but once, and in 1852, to Shrope for information as to the pecuniary condition of Elisha Warford, was a circumstance which, with other facts and circumstances stated in the third exception to have been given on the part of the caveatee, tending to support his side of the second issue, the caveatee was entitled to have submitted to the jury as part of his rebutting evidence. 6 Md. Rep., 295, Townshend vs. Townshend. 1 Md. Rep., 14, Milburn vs. The State. As rebutting evidence that may be admissible which would be inadmissible as original testimony. 20 Conn., 254, Barnes vs. The State. 12 Pet., 151, Zacharie vs. Franklin.

4th. That it was admissible for all the purposes specified respectively in the preceding points.

5th. That if admissible for any of these purposes, this second exception is not well taken.

6th. That if any part of this evidence was admissible for any one of the purposes indicated, the exception being taken to the whole, cannot be sustained. 1 Md. Rep., 474, Waters vs. Dashiell. Ibid., 337, Middlekauff vs. Smith.  [**33]  In the search after truth, every door should be open, and every fact tending to illustrate, modify or rebut any fact proved in the case should be admitted, and especially where imputations of fraud are cast upon a party, any evidence, however slight and otherwise inadmissible, will be admitted as rebutting testimony. If any part of the testimony is admissible, it should be admitted, and the particular part of the objectionable testimony must be specifically excepted to and pointed out. 14 Penn. State Rep., 471, Brown vs. Clark. 1 Pet., 328, Elliott vs. Piersol. 2 Do., 44, Columbian Ins. Co., vs. Lawrence. 13 Do., 310, Moore vs. Bank of Metropolis. 3 Gill, 220, Budd vs. Brooke. 3 Md. Rep., 255, Nailor vs. Bowie. 6 Do., 295, Townshend vs. Townshend. Ibid., 407, Hatton vs. McClish. 3 Do., 178, Emory & Gault, vs. Owings, et al. 5 Do., 37, Wright vs. Brown. Ibid., 552, Tyson vs. Shueey.

7th. That the effect of this evidence was not necessarily involved in the question of its admissibility. 1 Md. Rep., 474, Waters vs. Dashiell.

8th. That the exception does not show that the points, or either of them, relied on by the appellants, were or was made and decided in the court below.  [**34]  

9th. That even if there was error in the admission of this evidence, still the appellants are not entitled to ask a reversal, as in any event they are not interested in the question of the validity or invalidity of the will of 1848. The findings of the jury in relation to the will of 1845, fully establish that that was a valid will, and had not been revoked, except by the will of 1848. The will of 1845 disposes of the entire estate, and therefore, in any event, the appellants claiming as heirs and distributees solely on the ground of alleged intestacy, have no cause of complaint against the will of 1848, because the will of 1845 shuts them out, and they have no interest to file a caveat against that of 1848. 5 Md. Rep., 324, Maurer vs. Naill.

3rd. If it be conceded that the rulings of the court in the third exception are erroneous, still the judgment will not be reversed, because the appellants have suffered no injury thereby, if the will of 1848 be sustained, and therefore they cannot complain. 9 Gill, 56, Ramsay vs. Glass.

But these rulings are correct. The destruction of a second will operates per se to revive and republish a preceding one. Upon this point the language [**35]  of the act of 1798, ch. 101, is conclusive.  

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

OPINIONBY:
MASON 

OPINION:

 [*602]  MASON, J., delivered the opinion of this court.
The first exception presented by this record, relates to the witness, Rachel J. Warford, a devisee and legatee under both of the wills of Miss Colvin. As such, she was supposed to be incompetent to give evidence, upon the ground of interest. Before appearing as a witness, she had duly executed two instruments or deeds, purporting to convey all her interest under said wills. We have no doubt that those papers were duly and legally executed, and that they were, upon their face, sufficient in law to pass the whole interest or title of the grantor. It was, however, with some show of reason, contended, that those deeds 

 [*603]  having been made merely to restore the competency of the witness, and not being bona fide conveyances, are to be regarded as a fraud upon the law, and therefore not effectual to accomplish the purpose intended. Though we have no doubt that such was the design of this transaction, still this court cannot assume as a legal fact, as the case is now presented, that the [**36]  deeds in question were not executed in good faith. But whether they were or were not, they are sufficient forever to conclude the grantor from assailing them upon any such ground, and for this reason her divestiture of all interest under these testamentary papers, may be said to be complete, by virtue of the deeds in question, and therefore she is a competent witness.
Besides, this practice, by which witnesses have been restored to competency at the trial, by executing releases, deeds, or other instruments, has so long prevailed in Maryland, and been so long sanctioned by all our courts, that it may now be regarded as so firmly established as not to be disturbed, however disposed we might be to discountenance it, if it were now for the first time resorted to. These views, we think, do not conflict with the principle settled in the case of Crawford vs. Brooke, 4 Gill 213.
We see no error in this exception.
The second exception relates to the testimony of the witness Shrope. When the caveatee proposed to examine this witness, he was objected to by the other side, but the record does not disclose upon what ground the objection then rested. Such an objection,  [**37]  at such a time, must go to the competency of the witness, and not to the admissibility of his testimony, for until the evidence is offered, no question of admissibility could arise. The legal presumption being in favor of the competency of every witness produced on the stand, no objection to the competency of such witness should be entertained, unless the party making it discloses at the time the ground upon which the objection is based. A mere general, indefinite objection will not avail. Hence the objection in this case, to Shrope, was improperly made, and the caveatee was not bound to state any special purpose for which he was offered, or to show, until the contrary was at least prima facie established, that the 

 [*604]  party was a competent and legal witness. The facts to be disclosed by this witness, if admissible for any purpose, might have been offered generally, as all legal and pertinent evidence for the most part may be offered.  Goodhand vs. Benton, 6 Gill & John. 481. But the caveatee did not avail himself of his legal rights in this particular, but proceeded to assign three several objects in the alternative, for which the evidence [**38]  was offered, each of which, in the then aspect of the case, was a legitimate subject of proof. By the case of Goodhand vs. Benton, just cited, it may be regarded as settled, that if evidence offered for a particular purpose, be inadmissible for that purpose, though admissible generally, or for some other object, it may be properly rejected. Acknowledging this principle to be sound, it would follow, that if the evidence of Shrope had been inadmissible for all the special objects for which it was tendered, though perchance it might be legal evidence for some other purpose, it should have been rejected; and the appellants contend that the principle should be carried to the extent of determining that unless admissible for each and all the several purposes for which it was offered, it should not have been received, and this is the main point involved in this exception.
The testimony of Shrope, if applicable at all to the issues in the case, might have been offered generally, as we have already shown. If it were competent testimony for any purpose, it must be presumed to have been for one or the other of the subjects for which it was alleged to be offered; at least no attempt [**39]  was made to use it for any other. If it could have been offered for no other purpose, does it not follow that the offer was virtually a general offer, even though, in point of fact, the testimony may not have been legally applicable to all of the points to which it was declared to relate? If there be any reason why the omission to mention all the purposes for which the testimony might be applicable, when you have attempted to name some, would be fatal to its admissibility for the purposes not mentioned, it must be because the opposite party might be thereby misled, and prevented from fortifying himself with rebutting testimony upon the point, in reference to 

 [*605]  which he may have been led to believe the testimony was not to be used. While the omission to mention all the purposes to which this testimony might relate, might have such an effect, it is difficult to imagine why such a result, or why any other inconvenience could follow from enumerating among the proper purposes for which testimony was offered, others for which it was not. The question resolves itself then into this, was the testimony admissible for any of the purposes for which it was offered?
An attempt [**40]  had been made on the part of the caveators to show, by Mrs. Ellicott, that Miss Colvin, the testatrix, had been deceived by false representations made by Colvin Warford, as to the pecuniary condition of Elisha Warford, the father of Mrs. Ellicott, by which the latter lost a legacy which she supposes she would otherwise have received. It is said he represented Elisha Warford to Miss Colvin as being worth $ 100,000. If this were a fact, or if he honestly believed it to be a fact, there was no impropriety in Warford's having mentioned it to Miss Colvin, let his motive for doing so be what it may. The caveatee offered Shrope, at this juncture of the case, as he stated, "for the purpose of contradicting Mrs. Ellicott, or impeaching her, by showing that she was mistaken as to the time of said conversation, if any was had, or that the statement of said Warford, in said conversation, if it was had, was true."
"The caveatee then proved by said Shrope that he was one of the assessors of one of the townships of Hunterdon county, New Jersey, where Elisha Warford, the father of Mrs. Ellicott, resided; that he had been assessor of taxes for nine years, once in 1840 to 1846, and was again appointed [**41]  in 1850, and has continued to act as assessor from that period until the present time; that in 1852 Colvin Warford called upon him to ascertain what was the amount and value of Elisha Warford's estate, that Elisha Warford was going security upon a bond in Maryland; that witness showed to Colvin Warford the assessment of Elisha Warford's estate, which was ten thousand dollars worth of real estate, and that he owned land in other places; that his personal estate was valued at ten thousand five 

 [*606]  hundred dollars, clear of all debts due by him; this amount being handed in by Elisha Warford, and witness concurring with him in that sum, he was accordingly assessed therewith; that he was assessed with debts due him on bonds, mortgages and notes to the amount of ten thousand dollars, and that his name or bond would be good in that county for thirty thousand dollars; that the defendant never called on witness at any other time than that above mentioned, for the purpose of ascertaining the amount of Elisha Warford's estate, nor did he at any other time give to said Colvin Warford any other statement than that above mentioned."
To the admissibility of all of which testimony of said [**42]  Shrope, for the purpose for which it was offered, the counsel for the caveators objected, but the court overruled the objection and permitted the evidence to go to the jury.
One of the purposes, then, assigned for offering this testimony, was to show that this statement of Warford was made in good faith. The issue thus collaterally arising was simply, was or was not the statement true, that Elisha Warford was worth $ 100,000? Nothing could be clearer than that if each of four witnesses had proved a separate estate in Warford, respectively worth $ 25,000, or more, that the affirmative of the issue would be established. To prove, as Shrope did, that Warford was worth $ 30,000, "and that he owned land in other places," is certainly a step, and an important step, towards establishing the issue in dispute. It was for the jury to say whether the whole amount of $ 100,000 was made up or not. Shrope surely proved a material part of that sum, and his testimony was therefore clearly admissible. This precise point was determined in the case of the Plank Road Co. vs. Bruce, 6 Md. 457. In that case the plaintiff was prevented by the inferior court from offering evidence to [**43]  establish a part of his case, unless he showed in advance his ability to prove his whole case. This court pronounced this ruling erroneous, as the testimony offered was per se admissible, and its insufficiency to establish the whole case, was a question to be determined by the jury, upon a prayer properly framed. In that case the court say: "These questions cannot arise upon the admissibility 

 [*607]  of evidence, but must be presented by prayers after the evidence has been closed." See, also, Nailor vs. Bowie, 3 Md. 251.
But it has been said, that as this evidence was received for all or either of the three purposes for which it was offered, unless it was legally applicable to each, the jury might have been misled, and applied it to one of the purposes to which it did not relate. To avoid such a result, it was the duty of the counsel objecting to have pointed out specifically the purpose to which the testimony had no legal application, and to ask its exclusion for such purpose. A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained, though inapplicable for other purposes; and such general [**44]  objection would leave the testimony to go to the jury as if no objection had been made at all; in other words, it would be virtually an offer generally of competent testimony. Under such circumstances, suppose, in argument before the jury in this case, the counsel for the appellee had endeavored to show that besides the testimony's tending to establish that the statement of Warford was true, it also contradicted the previous statements of Mrs. Ellicott, when, in fact, if it had been offered solely for the latter purpose, it would have been rejected as illegal evidence, what would have been the effect? Could the judgment have been reversed upon the assumption that the jury made an improper, instead of a proper application of the evidence? Surely not! We must assume, where evidence has been offered generally, that it will be applied by the jury to the purposes to which it is legally applicable; and if counsel wish to guard against the contingency of a misapplication of the evidence by the jury, they should ask the court, as has been already said, to point out the branch of the case to which the evidence is not to be applied.
Again, it has been said this testimony was not admissible [**45]  for the particular purpose of showing that in 1848, Elisha Warford was worth $ 100,000, because it did not relate to that precise period, but referred to his condition in 1850 or 1852, and the case of Keedy vs. Newcomer, 1 Md. 241, is relied on to support this view. The cases are different in several particulars. 

 [*608]  In the case cited, the testimony which was excluded was primary evidence offered by the plaintiff to support his case. He had sued the sheriff, the defendant, for a false return of nulla bona to a fi. fa. The evidence was excluded because the precise time when the debtor had property was the very essence of the issue, while the testimony related to a period more than a year removed. The issue in the present case is not so much the precise time when Mr. Warford was worth $ 100,000, as it was the truthfulness and honesty of Colvin Warford's statement upon the subject. And again, in the case before us, the testimony was rebutting evidence; and it must be further remembered, that the testimony of Shrope was not the only evidence in the case upon this point. Mrs. Ellicott, the caveator's own witness, to refer to no [**46]  other, furnishes a most pregnant fact upon this part of the case. When Miss Colvin told her of the statement of the extent of her father's fortune, as a reason for not giving her any thing, she did not deny it. This circumstance might have been regarded by the jury as virtually an admission of the truth of the statement, and we think that upon this evidence, and that of Shrope alone, the court would have been right in submitting to the jury the question of whether Elisha Warford was or was not worth $ 100,000. As to the sufficiency of this evidence to establish the fact, we say nothing; it was for the jury alone, upon a properly framed prayer, to say whether the issue was proved or not. We are of opinion that the caveators have secured all they had a right to ask under the law, in the then aspect of the case, by having had granted by the court below the following prayer, which, we think, covers this entire branch of the case:
"If the jury find from the evidence, that Rachel Colvin, in excluding Mrs. Ellicott from the will of 1848, was influenced by the representation of Richard C. Warford, that her father, Elisha Warford, was worth one hundred thousand dollars, and shall further [**47]  find that such representation was untrue, and that the will of 1848 was the result of such misrepresentation, then the verdict on the second issue must be for the caveators."
The third exception relates to the refusal of the court to 

 [*609]  grant certain of the caveators' prayers, which relate to the wills of 1845 and 1847. The ruling of this court upon the two previous exceptions, render any decision upon the third unnecessary.
Upon a proper state of pleadings and evidence, and upon correctly framed prayers, the validity of the will of 1848 was distinctly drawn in issue upon this trial, and sustained by the verdict of the jury. That will revoked all prior wills. Does it not therefore follow, that all the questions presented in this record, as to the wills of 1845 and 1847, become wholly unimportant and valueless in this aspect of the case? What matters it, whether the will of 1845 was revived or not by the cancellation of the will of 1847? Or what matters it, whether the will of 1845 was surreptitiously withheld or not from Miss Colvin by Warford? These all might well have been all-important questions, if the will of 1848 had not been sustained. But there being no error in [**48]  the law, as disclosed by this record, upon which the will of 1848 was sustained, we are not willing, for the purpose of granting a new trial in regard to that will, to overrule the court below upon questions wholly immaterial and irrelevant.
Judgment affirmed.
ECCLESTON, J., dissented.  

9 of 44 DOCUMENTS 

THOMAS CORNER, BAPTIST W. CORNER, and GEO. W. CORNER, vs. EDW ARD H. PENDLETON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 337; 1855 Md. LEXIS 58 

DECEMBER, 1855, Decided 

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

Assumpsit, brought on the 3rd of November 1852, by the appellants against the appellees, to recover money lost at play at defendant's gaming-table by Rogers, their clerk, alleged to belong to the plaintiffs. The count in the nar relied on was for money had and received. Plea, non assumpsit.

1st Exception. The plaintiffs proved by Rogers, (to whose competency as a witness all objections were waived by the defendant,) that he played at faro at the defendant's gaming-table and lost there $ 400 between April and July 1851. They then proved that Drakely and Fenton, during the months of May and June, paid said clerk two checks upon the Western Bank of Baltimore, (which were paid by the bank,) for sums of money which it was his duty to collect for the plaintiffs. They then offered in evidence a collection book kept by said clerk, and offered to follow it up by proof that it was his duty as such clerk to enter therein all sums of money collected by him, and that said sums so paid by Drakely and Fenton were not entered in said book; but to the admissibility of the same defendant objected, which objection the court (MARSHALL,  [**2]  J.) sustained, and the plaintiffs excepted.

2nd Exception. The plaintiffs then proved, that in July 1851 said clerk was under arrest, they charging him with having embezzled from them the sum of $ 2000, and that, induced by a desire to keep the matter a secret from their mother and family, his two brothers gave plaintiffs their four joint promissory notes for the $ 2000 thus claimed of said clerk, in sums of $ 500 each, payable at six, twelve, eighteen and twenty-four months from date. They then proved that said clerk was born and raised in the city of Baltimore, never having been out of the city for more than four years during all his life; that he possessed no means whatever, and that he had not one cent. They then offered various receipts showing that said clerk, in his duty as such, had collected various large sums of money from Drakely and Fenton on account of plaintiffs during the months of June and the early part of July 1851. Upon all the evidence the plaintiffs offered the following prayers:

1st. If the jury believe from the evidence that said clerk collected money for the plaintiffs in this case and lost the same, or a part thereof, in gaming, to the defendant,  [**3]  then they are entitled to recover of defendant so much as the jury may find he won of said money.

2nd. If the jury find that the promissory notes given to plaintiffs by the brothers of said clerk, were so given by them with the motive to conceal from their mother and family the fact of the alleged retention by said clerk of the money of the plaintiffs, then such motive constitutes no valid legal consideration of itself to render them responsible upon said notes, and that their mere existence in the hands of the plaintiffs creates no obstacle to the plaintiffs' recovery in this case.

3rd. That there is no evidence in this cause of any valid legal consideration moving from the plaintiffs, or any other person, to the drawers of said notes for the same.

4th. If the jury find the facts set forth in the first prayer, then the giving of said notes and the acceptance of them by the plaintiffs do not of themselves in law operate as a payment of the sum claimed in this action, nor as satisfaction for the same, nor as an accord and satisfaction for the demand set forth in the declaration, nor as a waiver or extinguishment thereof, nor as purging the tort as arising out of the gaming [**4]  set forth in the first prayer upon which the implied assumpsit in this case is founded.

The court rejected each of these prayers, and to this ruling the plaintiffs excepted.

3rd Exception. The defendant upon all the evidence asked the following instructions:

1st. That the plaintiffs are not entitled to recover, because there is no evidence that defendant was at any time in possession of the plaintiffs' money, for the recovery of which this action is brought.

2nd. That if the jury find from the evidence that plaintiffs took the notes of the brothers of said clerk in satisfaction, if paid at maturity, for the sum or sums claimed or alleged to have been embezzled by said clerk, then the plaintiffs are not entitled to recover.

These prayers the court granted, and to this ruling the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action to recover money lost at play by the plaintiffs' clerk from the party to whom it was lost, the plaintiffs proposed to produce a collection book kept by the clerk, and to show that he had not entered therein certain sums collected by him as it was his duty to do. HELD, that this evidence was wholly irrelevant to the issue in this case.

Where the right to recover depends upon several distinct propositions of fact, and the party fails in either, there is, in the language of the law, a total failure of evidence, and the court may so instruct the jury.

This total failure of evidence also occurs where the evidence is so slight and inconclusive, that no rational well constructed mind can infer from it the fact which it is offered to establish, and the jury would be left to draw deductions from wild speculation and conjecture.

Where the fact to be proved involves moral delinquency, the evidence should be so strong as to exclude the presumption of innocence, for innocence is presumed until guilt is proved.

Slight presumptions, although sufficient to excite suspicion or produce an impression in favor of the truth of the facts they indicate, do not, when taken singly, either amount to proof or shift the burthen of proof.

Where a number of such circumstances concur, they should be so strong as to satisfy the jury of the existence of the fact they are offered to establish; they must furnish more than the probability of the fact.  

COUNSEL:
Grafton L. Dulany for the appellants.

1st. It is very clear, that if the money lost by the clerk of the plaintiffs to the defendant was not his, but theirs, they can recover in this action. The proposition may be assumed, that whenever the property of one man comes to the hands [**5]  of another, unless he be a bona fide purchaser for a valuable consideration without notice, the title of the original owner still continues, and he may sustain an action to recover it from the possessor. 3 How., 402, Oliver, et al., vs. Piatt. 1 Maule & Selw., 714, Randoll vs. Bell. 15 Ves., 440, Lupton vs. White. 14 Penn. State Rep., 295, McCullough vs. McCullough. 12 Clark & Finnelly, 764, Murray vs. Pinkett.

2nd. The notes given to the plaintiffs did not extinguish or satisfy the demand in this case. There is not a single fact in the case which shows that they were given or intended for the benefit of the defendant. The evidence is expressly and positively the other way, the consideration being to pass concealed the entire transaction, from motives of affection to a parent. With the gamester, Pendleton, the drawers of the notes had no dealings, nor even an acquaintance, nor any imaginable inducement to pay him the money which he held of others. The creditor may go against the original debtor, notwithstanding the notes; nothing but payment will satisfy the debt. 5 H. & J., 425, Merryman vs. The State. 6 Do., 256, McIlhenny vs. Jones. 1 H. & J., 48, Pearce vs. Wallace. 2 G. &  [**6]  J., 344, Williamson vs. Allen. 11 Do., 287, Sangston vs. Maitland, et al.

3rd. There was evidence to go to the jury, that the money lost by Rogers to defendant belonged to the plaintiffs. I do not believe that it is possible for any impartial mind, attentively considering the circumstances disclosed by the record, to arrive at any other conclusion than that the money lost was the property of the plaintiffs. It was proved that the clerk of the plaintiffs, between the months of March and July 1851, lost $ 400 to the defendant at his gaming-table. It was proved, that whilst he was in their employment he had taken of their money $ 2000, which he did not return to them. There is positive proof, that at this time he had no means--not one cent; that is, of his own money. The inference is irresistible, that the money which he lost to Pendleton was part of the money which he had withheld from the Corners. There is no proof that he had money belonging to any one else, or that he borrowed money upon his credit, or had received wages as a clerk, or that he was entrusted with their money by others than the Corners. The question then is, whether the facts in the cause in favor of the plaintiffs,  [**7]  taken by themselves and uncontradicted, constitute evidence sufficient to go to the jury as tending to prove the issue on the plaintiffs' side? The solution of this question does not depend upon any legal principles, but upon the nature and character of the facts virtually proved, whether in themselves they directly support the issue on behalf of the plaintiffs, or carry along with them the probable existence of another or other facts not expressly proved which do support the issue. In either case the evidence would not only be admissible, but sufficient; for in all civil cases, according to elementary principles, the verdict is given on that side upon which the weight of probability inclines the scales. The jury are not required to find the existence of any facts, but merely their probable existence.

The cases cited on the other side, decided by the Court of Appeals, are not any of them analogous in their circumstances, in regard to the question I am now considering, to those of the present case, and establish nothing more than the general principle, which is not denied, that it is for the court to pronounce, in the first instance, upon the "sufficiency of the evidence" to be [**8]  submitted to the jury; but as furnishing a test whether the evidence in this particular case is sufficient, they vary so much, each of them in their circumstances, from the special facts proved in this cause, that they are quite inapplicable and useless. The case of the Mechanics Bank vs. Cook, tried in Baltimore county court, before Chief Justice Le Grand and Judge Purviance, appears to me to be a case directly in point, upon the question mooted here. The facts of the case, as well as I can recollect them, were strictly these:

It was proved that Turner, one of the clerks of the bank, had, in the course of a series of years, embezzled a very large sum of money from his employers, and being charged with his offence, or conscious of the suspicions existing against him, had fled the city; proof was also adduced of peculation on his part some two or three weeks before his flight. Cook, the defendant in the action, was a police officer, who was sent in pursuit of Turner, whom he found, some six weeks or two months after he had left Baltimore, in Canada, having on his person a roll of British guineas, amounting to $ 284.84.

This sum was taken by Cook, brought to Baltimore and placed [**9]  on special deposit in the Mechanics Bank, Cook being warned by Turner that he claimed the money as his own, and that he should not pay it over to the bank. An action of assumpsit was then brought by the bank against Cook for the recovery of the money he had taken from Turner, on the ground that in fact it was the bank's property. At the trial of the cause, in addition to the facts proved as stated above, testimony was adduced to the effect, that Turner had no means of his own; which was attempted to be rebutted by evidence that he had. There was no direct proof that the roll of guineas found on the person of Turner was the property of the bank; they were not identified by positive evidence.

On this state of facts the bank asked the court's direction to the jury, that if they found from the evidence, either that the money taken by Cook from Turner was by him embezzled from the bank or was the proceeds of that which had been so embezzled by him, then the bank was entitled to recover; this direction was granted by the court, and the jury gave a verdict in favor of the plaintiffs for $ 284.84.

But before the court's decision on the plaintiffs' prayer was given, the defendant's [**10]  counsel, as well as I recollect, the late Attorney General, Mr. Richardson, objected, that there was no sufficient evidence to go to the jury of the plaintiffs' title to the funds they sought to recover--that the money was not identified as the plaintiffs' property. This objection was earnestly argued on both sides, and the court, overruling the objection, decided that there was prima facie evidence sufficient to go to the jury for their consideration in relation to the purpose for which it was offered. The verdict being for the plaintiffs, a motion for a new trial was made and argued before a full court, when the motion was overruled. This case appears to me to be strongly in point.

R. T. Merrick and Robert J. Brent for the appellee.

1st. As to the first exception: It is difficult to perceive what the duty of Rogers, as clerk of the plaintiffs, had to do with the liability of the defendant in this case. There is no attempt to identify the money collected by Rogers, and not entered in the book referred to, with any money the defendant ever had. And even if there was, the book kept by Rogers would not be competent evidence to aid in establishing that identity in this case.  [**11]  It is nothing but his declaration. In an action against him it would be admissible, but in action against a third party he is, himself, a competent witness, and had actually been sworn in this cause.

2nd. The taking of a note for a precedent debt, if taken with the understanding that it is in full discharge of that debt, is an extinguishment of that debt, whether the note be paid at maturity or not. And the fact of taking a note for a precedent debt is, in law, a suspension of the right of action on the debt until the maturity of the note. 1 Parsons on Cont., 365, 368, 369. 2 Do., 197, 198. 16 Penn. State Rep., 450, Stone vs. Miller. 1 Barn. & Adol., 603, Smith vs. Alger. 1 Md. Rep., 110, Mudd vs. Harper. 2 G. & J., 493, Glenn vs. Smith.

3rd. There is no evidence whatever, in the record, that Rogers ever appropriated to himself, or to any purpose, other than proper and legitimate purposes, any money of the plaintiffs that came into his possession. The only attempt made to establish the fact that he had been guilty of the charge they made against him, was in the offer of the book in which they allege it was his duty to have made an entry of certain moneys received by him on [**12]  their account, and in which book they allege the entries did not appear. From this fact they intended to draw the inference that he had appropriated that money. The court very properly rejected this evidence. It was the declaration of a third party, and if proved by a competent witness, was a fact, from which no rational mind conld draw the conclusion, that a clerk who had thus simply failed in a manual duty of his office, had therefore been guilty of so grave and serious an offence as that sought to be established by it. It was not an attempt to prove a false or fraudulent entry, but simply a failure to make an entry, which was a circumstance perfectly consistent with a more charitable hypothesis than criminal guilt. But if it were in proof that he had embezzled the money of the plaintiffs, where is the proof that this defend-ever received it? The only proof relative to this defendant's intercourse with Rogers is, that he won from Rogers some $ 400. But there was no attempt to identify this money, and privity between the plaintiffs and this defendant was not pretended. The plaintiffs were pursuing a fund, which, in order to recover from this defendant, it was necessary they should [**13]  identify--should establish by evidence to be the particular money to which they had title. There is no such evidence in the record. The most unfavorable view of this case for the defendant, when presented by the plaintiffs on their behalf, is: Rogers was the plaintiffs' clerk; Rogers had the plaintiffs' money; Rogers lost $ 400 to defendant; Rogers had no money of his own, and therefore the money Rogers lost was the plaintiffs' money, and they are entitled to recover it in an action for money had and received to their use. This certainly institutes a new mode by which an indebtment is to be established in the State of Maryland. But Rogers had more than $ 400 of the plaintiffs' money. They allege he appropriated $ 2000. Where is the rest? Pendleton didn't get all of it: what became of the rest?

The case of Jones vs. Mechanics Bank, 8 Gill, 123, is one similar to the present, but with much stronger proof against the defendant than in the present case, and yet the Court of Appeals did not hesitate to say that the evidence was not sufficient to support the action. Where the deduction sought to be drawn would be merely from wild speculation and conjecture, or where the evidence is [**14]  so slight and inconclusive that no rational, well constructed mind could make therefrom the inference sought to be deduced, in all such cases the court may, and will instruct the jury, that there is no evidence, or no sufficient evidence, in point of law, to establish the fact sought to be proved. 7 G. & J., 95, Farmers Bank vs. Duvall. 4 Md. Rep., 283, Thurston vs. Lloyd. 9 Gill, 331, Clarke vs. Marriott.  

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

OPINIONBY:
TUCK 

OPINION:

 [*344]  TUCK, J., delivered the opinion of this court.
We are of opinion that the point made by the first exception, as to the admissibleness of the collection book offered by the 

 [*345]  plaintiffs, was properly ruled against them. The failure on the part of their clerk to enter collections in the book was wholly irrelevant to the issue in the cause, which was whether Rogers had lost the plaintiffs' money at play with the defendant. The offer concedes the necessity of proving that he had collected money of the plaintiffs' before the book could be used. Of what avail then the omission to enter the sums collected could be after its receipt by the clerk had been proved, we are at a loss to conjecture. [**15]  But suppose it had appeared by the book that these sums were entered, would that have affected the plaintiffs' case? Certainly not. He might still have recovered if he had traced the money to the defendant's possession. In either aspect, the effect of producing the book would be the same, and not tending to prove the issue it was well rejected.
The second exception embraces four prayers offered by the plaintiffs, all of which were rejected. The reason assigned here for the refusal of the first of these prayers is, that there was no evidence legally sufficient to warrant the jury in finding, that Rogers lost the plaintiffs' money with the defendant. If this proposition be maintained, the defendant's first prayer in the third exception was properly granted.
In many cases it is very difficult to define the line which separates the province of the jury, in deciding facts, from the power of the court to withdraw the case from their consideration altogether, on the assumption, that the evidence, if believed by the jury, is not legally sufficient to prove the issue sought to be established. If the right to recover depends on several distinct propositions of fact and the party fails [**16]  in either, it is a case of total failure, in the language of the law; and this may occur, not only where there is no evidence whatever as to one or more of the propositions, but where it is so slight and inconclusive that no rational, well constructed mind, can infer from it the fact which it is offered to establish, ( Cole vs. Hebb, 7 G. & J. 20,) and the jury would be left to draw deductions from wild speculation and conjecture. Ibid., 95, Farmers Bank vs. Duvall. Considering that juries are designed for the trial of issues of fact, it would perhaps have been safer if courts had 

 [*346]  contented themselves with interfering only in those cases where there was an absolute want of evidence as to all or any one of the propositions necessary to be proved, leaving to the jurors the right to decide in all cases where any evidence was offered tending to prove the matters in dispute. The court's control over verdicts by the power to grant new trials, would, we think, be a sufficient security against abuse of authority by the jurors. But as we find this to be the established law in this State and elsewhere, substituting in such instances the judgment of the [**17]  court for that of the jury, it is our duty to apply it in the present case, unless the record shows that the evidence offered leads to the conclusion, as matter of fact, that the money collected by Rogers passed to the possession of Pendleton, at his gaming-table.
That Rogers collected money for the plaintiffs during the time that he was in the habit of visiting the defendant's rooms there can be no doubt, but that this money was lost there is not apparent. If it had been proved that during this period of time Rogers had no other money from any source, the inference would be reasonable, that this money only could have been gambled by him. But the evidence does not go to that extent. It shows that "he possessed no means whatever and that he had not one cent," without defining the time to which this statement of his condition was intended to apply. The inference is not reasonable that the witness was speaking of the whole lifetime of this young man. He was employed in the commercial house of these plaintiffs, discharging, among others, the responsible duty of collecting large sums of money. We cannot presume that he was doing this for nothing, or that he had no credit by which he could [**18]  obtain money. The case goes upon the ground that the clerk embezzled from his employers, and a verdict for the plaintiffs could have been rendered on no other hypothesis. This it was sought to establish by inferring, that contrary to his duty, the sums collected had not been accounted for, and superadded to this, by another inference, that because he had, during these periods, played at faro with the defendant, therefore he lost this money and none other. The identity of the money lost with the funds 

 [*347]  collected was the fact to be proved. Depending upon circumstantial evidence, and involving moral delinquency, not to say criminal offence, by the clerk, we think the inference should be so strong as to exclude the presumption that he obtained the money elsewhere. "Slight presumptions, although sufficient to excite suspicion or produce an impression in favor of the truth of the facts they indicate, do not, when taken singly, either amount to proof, or shift the burden of proof." Best on Presumptions, 41. 47 Law Lib. 45. And where a number concur, they should be so strong as to satisfy the jury of the existence of the fact they are offered to establish.  5 G. & J. 304. [**19]  They must furnish more than a probability of the fact. Moreover, this is a case of conflicting presumptions, where the inference claimed by the plaintiffs, that the money lost by Rogers belonged to them, is met by the principle, that innocence is presumed until guilt is proved. In Rex vs. Inhabitants of Twyning, 2 Barn. & Ald. 386, a point of legitimacy arose, depending on the question, whether the mother, whose first husband had left the county twelve months before, was a widow when she married the father of the children, and it was held that the second marriage should be presumed to be valid. The court said, "this is a case of conflicting presumptions, and the question is, which is to prevail? The law presumes the continuance of life for seven years; but it also presumes against the commission of crime, and that even in civil cases, until the contrary be proved. If the female had been indicted for bigamy, the evidence would clearly not be sufficient." Best on Presumptions, 59. 47 Law Lib. 54. We suppose that if Rogers had been tried for embezzling these funds, no conviction could have been had on these inferences, when set up against the presumption that [**20]  he had paid over the money collected, as it was his duty to have done.
Cases of this kind sometimes depend on the authority of decisions on similar facts. And in this view, we think the ruling of the court is sustained by the case of Jones vs. Mechanics Bank, 8 Gill 123, where the circumstances were very strong to show that Perry had improperly obtained the plaintiff's money and deposited that very money in the bank. But the 

 [*348]  court held that there was a failure of evidence on this point. In some respects the inference was sustained by facts, about which there could be no dispute, stronger than those presented by the record before us, but the identity of the bank notes drawn by Jones with those deposited by Perry, was not made out by testimony legally sufficient for that purpose.
The case of Mechanics Bank vs. Cook, referred to in the argument of the appellants' counsel, if in conflict with Jones vs. The Mechanics Bank, 8 Gill 123, must yield to its authority, as the judgment of the court of last resort.
As this view of the case shows the plaintiffs had no standing in court, the other prayers, based upon the matters offered [**21]  in defence, need not be considered and passed upon by us.
Judgment affirmed. 

10 of 44 DOCUMENTS 

THOMAS Y. CANBY vs. GEORGE A. FRICK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 163; 1855 Md. LEXIS 41 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellee against the appellant, to recover for services rendered by the plaintiff to the defendant in the sale of a farm. Plea, non assumpsit.

1st Exception. The testimony and the prayer of the plaintiff, to the granting of which the defendant excepted, are fully stated in the opinion of this court.

2nd Exception. This was taken by the defendant to the refusal of the court (MARSHALL, J.,) to grant an instruction, that there is no evidence of any contract between the plaintiff and defendant, and the former is, therefore, not entitled to recover.

3rd Exception. The defendant asked an instruction, that if the jury believe the plaintiff was not a land-broker at the time of the occurrences given in evidence, and that defendant did not employ the plaintiff in the sale to Evans, then the plaintiff is not entitled to recover; which the court refused to grant, and the defendant excepted and appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A prayer that the jury, in estimating the sum to be allowed the plaintiff for his services, "should be guided by the custom in such like cases," is defective, because it assumes the existence of such custom.

A judgment will not be reversed because of a failure to grant a prayer which ought to have been granted, when all the advantage the appellant could have derived from such prayer was given him in a prayer granted at the instance of the appellee.

A party who is neither a land broker nor had been employed by the defendant, has no right of action for services rendered in the sale of the defendant's land.  

COUNSEL:
Wm. A. Talbott for the appellant, argued:

1st. That there was no evidence from which the jury could infer that the plaintiff was employed by the defendant [**2]  to find a purchaser for the land in question. The evidence shows that the plaintiff's whole action was at the request of and for the purchaser.

2nd. That the introduction of a purchaser to the defendant, unless at his request or by his authority, did not entitle the plaintiff to compensation, and no implied assumpsit was created thereby. 3 Md. Rep., 201, Beale vs. Creswell.

3rd. That no custom was sufficiently proved which entitled the plaintiff to recover, the proof showing that the plaintiff not being a land-broker, did not come within the alleged custom, and if proved it is not a reasonable custom which this court will sustain. 6 Md. Rep., 47, Foley & Woodside, vs. Mason & Son.

4th. That the court erred in the instruction granted, because it assumes that a custom had been proved and does not leave the fact to be found by the jury. 6 G. & J., 70, Crawford vs. Berry. 3 Md. Rep., 161, Gaither vs. Martin. Ibid., 294, Lewis vs. Kramer. 4 Do., 242, Balto. & Susq. R. R. Co. vs. Woodruff. 7 Do., 300, Balto. & Ohio R. R. Co. vs. Resley.

5th. That there was no evidence from which the jury could infer a contract between plaintiff and defendant, and the defendant's first [**3]  prayer should have been granted.

6th. The defendant's second prayer should have been granted, because the plaintiff could only recover, either from having been employed by the defendant in the sale or under the custom applying to land-brokers.

Wm. Shepard Bryan for the appellee.

The prayer of the plaintiff embodies a clear legal proposition. Let us examine its different parts. The first section is, in effect, that if defendant employed the plaintiff to find a purchaser for the land, and the plaintiff found a purchaser, he is entitled to recover. For if the plaintiff introduced a person to whom, in consequence of that introduction, the defendant was enabled to dispose of the land, and did dispose of it, he introduced a purchaser. Can any argument assert that introducing a purchaser is not finding a purchaser? We refer to 34 Eng. C. L. Rep., 267, Wilkinson vs. Martin. 32 Do., 641, Murray vs. Currie. The next portion of the prayer is, in effect, that if no sum was agreed upon, (or, which is the same thing, if no sum was proved,) the jury must allow a reasonable sum. This is very clear. Then "in estimating this sum, they should be guided by the custom in such like cases.  [**4]  " That is, they should be guided by what was usually paid--by the market price, so to speak. The customary price--the usual price--the market price--the price established by usage or custom in such cases, are equivalent expressions. The court do not instruct the jury as to the existence of any custom, nor could the jury have so understood it. The evidence applicable to this portion of the instruction was, that the "usual charge" was so much. Most clearly, the instruction leaves it to the jury to find from the evidence what this customary or usual charge was, or custom or usage about charging, in whatever way the idea may be expressed. Just as much so as if it said, "they should be guided by whatsoever they shall find the usual charge to be." The court do not even tell the jury they should give the usual sum, but merely, in estimating what a reasonable sum amounts to, they should be guided by what is customarily paid. This was something to assist them in their investigation.

If the prayer then was correct as a legal proposition, the next question is, whether there was evidence to support it. And certainly there was. Evans says, "defendant said he did not know what amount plaintiff [**5]  was going to charge him, and desired witness to see Frick and get him to make the charge light," &c. And on cross-examination says, "he would swear that Canby agreed to pay plaintiff's commissions." It cannot be seriously denied, that this was evidence to be submitted to the jury of a contract between the parties, even if there were no other. If the above views be correct, the defendant's first prayer was properly rejected.

In the second prayer of the defendant, the jury are directed to make two inquiries:--First, whether the plaintiff was a land-broker. Secondly, whether he had been employed by the defendant. The first of these inquiries was totally irrelevant. It could make no possible difference whether the plaintiff was a land-broker or not. There is nothing in the law to prevent persons other than land-brokers from making contracts of this kind. The second inquiry proposed had been already submitted to the jury by the plaintiff's prayer. The court, therefore, properly rejected it. But this is not the only objection to the prayer. Whatever may be the astute criticism of the learned counsel upon the language, it is clear that its obvious meaning is that it was incumbent on [**6]  the plaintiff to prove:--First, that he was a land-broker. Secondly, that he made a contract with defendant. If this were not the intention in drawing the instruction, it is difficult to see why the clause about the land-broker was inserted. It surely cannot be supposed that the jury were obliged to consider a question which was to have no bearing on their verdict. No ingenuity can make it appear that it was not the design of the prayer that the jury should regard the two questions contained in it as decisive of the cause.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*166]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted to recover for services rendered by the appellee to the appellant in the sale of a farm. It was proved by Mr. Evans, that in the year 1852, he purchased of appellant a farm for the sum of $ 10,000. The appellee took the witness to appellant to introduce him, a week or ten days before the purchase was consummated. In the early part of the negotiation, the appellant made it a part of his agreement, that the witness should pay to the appellee his commissions. This was not assented to, and [**7]  the appellant "agreed to pay plaintiff's (appellee's) commissions."

 [*167]  It was proved by Thomas J. Gott that he is a land-broker, and that the usual charge by such brokers for making sales is a commission of two per cent.; some charge two and-a-half, or get it where it is offered; and also, that there is a custom in Baltimore, that if a broker takes a purchaser to a seller and introduces him, he is entitled to his commission from the seller when the sale is made: this custom extends to a class of persons whose business is buying and selling land, and known in Baltimore as land-brokers. The appellee is not a land-broker, but a clerk in the office of the Baltimore Cemetery Company.
The only testimony offered on behalf of the appellant was, that on a certain day, appellee called at his counting-room and inquired if he had a farm to sell, and if so, what he asked for it. The appellant replied he had, and would take for it $ 20 per acre for five hundred and forty acres; appellee then said, he knew a gentleman who wanted it.
On this state of case, the appellee asked the following instruction, which was granted by the court:
"That if the jury shall believe that the plaintiff [**8]  was employed by the defendant to find a purchaser for a tract of land called Bailey farm, belonging to the defendant, and that the plaintiff did introduce to the defendant a person who, in consequence of that introduction, the defendant was enabled to dispose of said tract of land, and did dispose of it, that then the plaintiff is entitled to recover. And that if the jury cannot ascertain from the evidence the amount of compensation agreed to be paid to the plaintiff by the defendant, they should allow him a reasonable sum for his services, and in estimating this sum, they should be guided by the custom in such like cases."
Two objections are urged to this prayer:--first, that there is no evidence from which the jury could infer the plaintiff was employed by the defendant; and second, that the prayer took away from the jury the finding of the custom, in such like cases, which they were told they should be guided by; in other words, assumed the existence of a custom in like cases.
The first objection, in our opinion, is not tenable. The evidence on the part of the defendant was confined entirely to a single interview between him and the plaintiff. There may 

 [*168]  have [**9]  been others, and the other evidence in the case was sufficient to authorise the jury so to infer. The purchaser distinctly states, that in the early part of the negotiation, the defendant insisted he should pay the commissions of plaintiff. Why this, if he did not consider himself under an obligation to pay them? Again, the same witness is equally positive the defendant distinctly "agreed to pay plaintiff's commissions." Evidence could not be more unequivocal. We think the second objection well taken. The proof of custom--waiving, for the sake of the argument, all inquiry as to its sufficiency, even as to a particular class--the plaintiff was by the proof shown and conceded on all sides not to be embraced in it. The only use which could be made of it was to enable the jury to form some idea of the rate at which similar services are compensated, not, however, because of the custom, but as a fact tending to show that services of a particular kind were esteemed in the community of a certain value. It would not be binding on the jury, but would be a fact to which they would have the right to look in making up their judgment. The prayer in taking from the jury the finding of the [**10]  fact was error, and by assuming its existence, in the absence of all other testimony on the subject of the value of similar services, was clearly defective under the decisions of this court.  Balto. & Susq. R. R. Co. vs. Woodruff, 4 Md. 242, and the cases there referred to. What we have said in regard to the prayer of the plaintiff disposes of the first prayer of the defendant. It was properly rejected. The second prayer should have been granted. For if the plaintiff was neither included within the class known as land-brokers nor had been employed by the defendant, he had no right of action. Had, however, the plaintiff's prayer been free from the defect to which we have alluded, we would not have reversed the judgment because of a failure to grant defendant's second prayer, inasmuch as the plaintiff's prayer gave him all the advantage he could have derived from his second prayer.
Judgment reversed and procedendo awarded. 

11 of 44 DOCUMENTS 

WILLIAM BROWN vs. ROBERT GILMOR'S Exc'rs, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 322; 1855 Md. LEXIS 56 

DECEMBER, 1855, Decided 

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

The appellant was the purchaser at trustee's sale of a tract of land, and took this appeal from an order of the court below, (FRICK, J.,) dismissing his petition and refusing to open the final order of ratification of sale. The facts of the case are sufficiently stated in the opinion of this court.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

The act of 1853, ch. 123, is a legitimate exercise by the Iegislature of the power conferred by the 23rd section of the 4th article of the constitution, in reference to the removal to the counties of the cases in the Court of Chancery.

The ratification of a chancery sale is final and conclusive unless irregularly made by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, resulting from some act or conduct of the trustee or interested parties, from making his objections in due time.

The passage of an order of ratification nisi is not originating new business, but the mere continuation of an old proceeding, and it is no objection to such an order that it fixed a day for the final ratification after the Court of Chancery would cease to exist.

The jurisdiction of the Court of Chancery to pass such orders in pending cases was never suspended until the court itself expired, and then its jurisdiction passed to and continued in the court to which the case was removed, as if no removal had taken place.

From the passage of the order nisi to that of removal, the proper place to file objections to the sale was in the Court of Chancery, and after the removal they should be filed in the court to which the case is removed.

The order for removal transfers the jurisdiction, and from that moment the case, in legal contemplation, is in the court to which it is removed, whether the papers have actually been transmitted from one court to the other or not.

After the order for removal was passed the register in chancery had no power to receive any paper to be filed in the case.

An order nisi was passed by the chancellor, and the case was then removed to the Superior Court of Baltimore city, which passed the final order of ratification. HELD, that this is final and conclusive in the absence of misrepresentation, surprise or fraud, on the part of the trustee or other interested parties. 

COUNSEL:
Neilson Poe for the appellant, argued, that the passing of the order of ratification was, under the circumstances, a surprise upon the appellant, and that he was not concluded by it. The chancellor had no right to set the case down for hearing at a day after that on which, by the organic law of the State, his office expired. Under the provisions of the constitution the Court of Chancery ceased to exist on the 10th of March 1854, and yet the chancellor fixed the day for the final ratification of this sale on the 6th of April 1854, nearly one month after his office expired. The order of removal does not help the case, because the party asking it never took any proceeding under it, and though passed on the 8th of March 1854, the papers were not removed to the Superior Court of Baltimore [**2]  city until the 12th of April 1854, only four days before the final order of ratification was passed. Where then was the appellant to file his objections? The Court of Chancery existed but little more than one month after the order of ratification nisi was passed. After that time he could not file his exceptions in the Court of Chancery. He could not file them in the Superior Court before the 8th of April, because the papers were not until that day transmitted to that court. The whole time therefore between the 10th of March and the 8th of April was lost to the appellant, for the purpose of filing his exceptions, and yet the law and the language of the order contemplates, that he should have all the time between the order nisi and the final ratification within which to show cause against the sale. Of this the appellant here was deprived without fault or laches on his part, and we therefore insist that the ratification was a surprise upon him.

John Spear Nicholas and Jonathan Meredith for the appellees, argued, that the appellant has no just cause to complain of surprise in the passing of the order of ratification. The general rule is, that a ratified sale is conclusive upon the [**3]  purchaser unless irregularly ratified by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, resulting from some act or conduct on the part of the trustee, or those interested in the proceedings, from making his objections in due time. The only one of these grounds relied on here is that of surprise under the circumstances of the passage of the order of ratification. The chancellor had the right to pass the order nisi limiting the time for the final ratification. It was not new business, but a regular and necessary proceeding in a pending case. The constitution and the act of 1853, ch. 123, had provided for the removal of the chancery papers. The order of removal in this case was passed in strict conformity with this law, and immediately after its passage the Superior Court had jurisdiction of the case. There was no cessation or suspension of jurisdiction, but it was continuing for the entire period intervening between the order nisi and the final order of ratification. From the date of the order nisi to that of removal he could file his objections in the Chancery Court, and after the order of removal he could file them in the Superior Court, whether [**4]  the papers were actually removed to that court or not, yet during all this time, and though he had full notice of all the proceedings, he yet takes no steps to file the objections he now sets up. We insist, therefore, that the final order of ratification is conclusive upon this party and ought not to be opened.

(The argument upon the merits of the objections made by the petition, and attempted to be sustained by proof, is omitted, as the case was decided solely upon the ground argued above.) 

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

OPINIONBY:
MASON 

OPINION:

 [*324]  MASON, J., delivered the opinion of this court.
On the 28th of October 1853, Jonathan Meredith and John Spear Nichols, Esq'rs., trustees, under a decree of the High Court of Chancery, in the case of Gilmor's Executors vs. Brien's Executors, & others, offered at public sale on the 

 [*325]  premises, in Washington county, amongst other property, a tract of land described in the advertisement thereof, "designated on the plat as 'the Summer-House Farm,' containing about six hundred and eighteen acres, and improved by a dwelling house and other buildings." William Brown, the present [**5]  appellant, became the purchaser thereof, at $ 10 per acre.
The sale, with others made at the same time, was reported to the Hight Court of Chancery, and on the 6th of February 1854, that court passed the usual provisional order for the ratification of the sale, unless cause should be shown to the contrary, on or before the 6th day of April 1854.
On the 8th of March 1854, an order was passed by the chancellor, on the application of the present appellees, for the removal of the cause from the High Court of Chancery to the Superior Court for the city of Baltimore; and it is agreed between the counsel in this cause, although the record does not disclose the fact, that the papers in the said cause were not transmitted to the Superior Court until the 8th of April 1854, when the cause was first docketed in that court.
On the 12th day of April 1854, four days after the actual transmission of the papers in the cause, the sale to Brown was finally ratified by the Superior Court.
On the 12th of May 1854, the appellant filed his petition in the Superior Court, setting forth a number of reasons why the sale should be set aside and himself released from the obligation of complying [**6]  therewith, and concludes with the prayer, that the final order of ratification might be opened, that the trustees answer the petition, &c. The petition further alleges, and it is not denied, that on the day after the order for the removal of the cause was passed, and while the papers were still in the chancery court, the appellant applied to the register to receive objections to the ratification of the sale, but the register refused to receive or file his petition.
The trustees answered the petition, and proof was taken in support of its allegations. Upon final hearing the court below dismissed the petition, from which decree this appeal was taken.
Under the 4th art. and 23rd sec. of the constitution, the 

 [*326]  Court of Chancery ceased to exist on the 10th day of March 1854. The same section provides, "that no new business shall originate in said court after the ratification of the constitution," which was on the first Wednesday of June 1851; and that the legislature should provide for the removal of undisposed of cases to the counties and city of Baltimore, "in such manner and under such regulations as may be deemed necessary and proper."
In pursuance of this [**7]  last provision, the legislature passed the act of 1853, ch. 123. It was conceded by the counsel upon both sides, that the order of the chancellor of the 8th of March, providing for the removal of the cause to the Superior Court, was in strict compliance with the act of Assembly; and this court is of opinion, that the act itself was a legitimate exercise by the legislature of the power conferred by the constitution.
The case thus made presents two questions for this court to determine: the first is, whether the ratification of the sale was final and conclusive, in view of the circumstances under which it was made? and if not, then secondly, whether the appellant has made such a case upon his petition and proof as to entitle him to the relief prayed?
Public policy and justice to parties interested require, that the ratification of judicial sales by courts having jurisdiction over the same should be final and conclusive, unless irregularly made by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, from making his objection to the ratification in due time; and it must further appear, that such misrepresentation, surprise or fraud, resulted from [**8]  some act or conduct upon the part of the trustees, or on the part of those interested in the proceedings.
The conclusiveness of this order of ratification is first assailed, upon the ground, that the conditional or provisional order, passed on the 6th of February, was irregular, because it fixed a period for the final ratification, (viz., 6th of April,) beyond that at which, under the constitution, the existence of the Court of Chancery was to terminate.
This objection is not tenable. The passage of this order was not originating new business, but the mere continuation 

 [*327]  of an old proceeding. The jurisdiction of the Court of Chancery to pass such orders in pending cases was never suspended until the expiration of the existence of the court, and then its jurisdiction passed to, and continued in, the court to which the case was removed, as if no removal had taken place. Therefore, from the time of the passage of the order of ratification nisi until the order passed for the removal of the cause to the Superior Court, the proper place for filing objections to the sale would have been in the chancery court: after that time, the objections should have been filed in the [**9]  Superior Court, which court received the case, and all its pending or unexecuted orders, in the same condition in which they were when the removal was ordered. For the purpose of giving the Superior Court complete control over the case, it was not necessary that the papers should have been actually transmitted from the one court to the other. The order for the removal transferred the jurisdiction, and from that moment, in legal contemplation, the case was in the Superior Court. If this were not the true view of the subject, the proceedings might be suspended for an indefinite time between the two courts, a condition of things never contemplated by the constitution and laws. Besides, it is to be remembered, that the papers were actually in the Superior Court four days before the final ratification was made.
Nor had the register in chancery, after the order for removing the case had passed, any power to receive any paper to be filed in the cause, and therefore he was right in refusing to receive or file the appellant's petition.
Unless, therefore, there was some other cause which prevented the purchaser from making his objections to the ratification of the sale within the time [**10]  limited by the order nisi, such as misrepresentation, surprise, or fraud, on the part of the trustees or other parties interested, the ratification by the Superior Court of Baltimore must be regarded as final and conclusive. No such cause or reason has been urged, nor can we discover any ground for any such allegation.
The view thus expressed dispenses with the necessity of considering the second question, namely, whether the appellant 

 [*328]  has made such a case, by his petition and proof, as calls for the interposition of this court. However meritorious his grounds of objection to the sale may be, having suffered the time fixed by the court to elapse within which those objections were to be presented, he cannot now open a proceeding which, by his own laches, has been suffered to ripen into a final and conclusive decree.
Decree affirmed, with costs. 

12 of 44 DOCUMENTS 

BERNARD U. CAMPBELL, Attorney and Trustee of EMILY L. HARPER, vs. WASHINGTON BOOTH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 107; 1855 Md. LEXIS 36 

DECEMBER, 1855, Decided 

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

This is an appeal from a judgment quashing a writ of scire facias upon motion. The facts are briefly as follows:

On the 19th of September 1843, an action was docketed by consent in Baltimore county court, by the appellant as plaintiff, against the appellee and John B. and Richard B. Fitzgerald, partners, trading under the firm of John B. Fitzgerald & Co., as defendants, upon their joint and several promissory notes in favor of J. J. Speed, trustee of Emily L. Harper, and on the same day judgment was confessed in favor of the plaintiff for $ 1600.85, with interest from the 13th of October 1842, and costs, subject to a deduction of $ 402.53 when paid, (and which was subsequently paid,) it being the sum awarded in the auditor's report in the case of John B. Fitzgerald an insolvent debtor, and subject to the release of said insolvent under the insolvent laws. In the docketing of this suit Charles Z. Lucas acted as the attorney for the plaintiff, and J. J. Speed and J. Hanan as attorneys for the defendants.

On the 21st of October 1843, a fi. fa. was issued on this judgment returnable on the 1st of January 1844, which was returned [**2]  by the sheriff: "Laid as per schedule." The schedule shows that the property levied on consisted of several lots of ground in the city of Baltimore, valued at $ 4680.

On the 11th of June 1844, the following papers and receipts were filed in the case: 1st. A letter dated the 28th of May 1844; from Charles Z. Lucas to George M. Gill, in which the writer states: "I am authorised by B. U. Campbell, Esq., attorney of Emily L. Harper, to release the judgment obtained by consent, on September 19th, 1843, against R. B. Fitzgerald, upon his paying the per centum heretofore offered by him, (which I believe was 20 per cent.,) upon the amount of the judgment, ($ 1600.85,) with interest from October 13th, 1842; and upon your giving me in writing Mr. Speed's agreement, that no advantage will at any time be taken by him in any manner of this compromise with Capt. F. I hope these terms may meet your approval." 2nd. The following receipt, dated June 7th, 1844, signed by Charles Z. Lucas, attorney for Bernard U. Campbell: "Received of George M. Gill, attorney of R. B. Fitzgerald, $ 348.03, and $ 6.25 costs, the same being in full of judgment against said R. B. Fitzgerald at suit of Bernard U. Campbell,  [**3]  attorney of E. L. Harper, rendered at September term 1843, in Baltimore county court;" and 3rd. A receipt from the sheriff for $ 10, as "sheriff's costs in the above case." On the same day the following entry was made on the docket in said case: "11th June 1844, receipt of plaintiff's attorney for $ 348.03, and $ 6.25 costs, in full of judgment against R. B. Fitzgerald, and receipt of sheriff for $ 10, his costs, filed."

On the 6th of September 1851, the plaintiff sued out a scire facias upon this judgment against all the defendants, which was returned "nihil" as to the others, and "made known to Washington B. Booth," who appeared and moved to quash the writ for the two reasons stated in the opinion of this court, which motion the court, (FRICK, J.,) sustained, and gave judgment for the defendant, from which the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Defences to a scire facias, that there was an outstanding fi. fa. in full force when the sci. fa. issued, or that the judgment was satisfied before issuing the writ, cannot be availed of upon motion to quash, but can only be taken advantage of by plea.

The mere taking of property under a fi. fa. is not of itself equivalent to payment, and does not amount to a satisfaction of the judgment.

Irregularities apparent upon the face of a scire facias may be taken advantage of by motion to quash, but objections involving questions of fact only, or dependant partly upon matters of record and partly upon matters in pais must be pleaded.

Payment of a less sum than is due on a judgment, though received in full thereof, cannot operate as a discharge or satisfaction of the judgment.

Where two or more parties are jointly bound the claimant may release one, and reserve his remedy against the others, with their consent.

An entry upon the docket of the filing of the receipt of the plaintiff's attorney for part of the sum due, in full of the judgment against one of the defendants, is not an entry of satisfaction, nor can it operate as a release of the judgment.

Such entry is not the act of the court but of the clerk, merely noticing the filing of the receipt as usual in regard to papers filed in a cause.

Where an entry of satisfaction made by the clerk, by order of the plaintiff or his attorney, under the act of 1840, ch. 96, is relied on as a defence, the law must be strictly complied with.  

COUNSEL:
T. Parkin Scott for the appellant, argued:

1st. That the levying of the fieri facias was not in law a satisfaction of the judgment, and that the return of the writ and the subsequent arrangement between the parties show that that levy was abandoned. 5 G. & J., 109, Sasscer vs. Walker. 2 Gill, 486,  [**4]  Hardesty vs. Wilson. If the writ had not been returned the burden of proof would have been on the appellant to show that the judgment had not been satisfied, but here the writ was returned and the levy abandoned. Again, one obligor cannot plead that the goods of his co-obligor were taken in execution. Such is the case here. Booth, one of the original defendants, is seeking to take advantage of the levy upon the lands of his co-defendant, which he cannot do. 2 Saunder's Pl. & Ev., 47, note (a,) 72 (aa.) The fi. fa. we insist therefore was not outstanding when the scire facias issued, but had been returned before.

2nd. That this was not an attempt to have two outstanding executions upon the same judgment at one and the same time, but simply an effort to revive a judgment that it might be executed. 7 G. & J., 357, Mullikin vs. Duvall.

3rd. That the partial payments made were not received or intended to be in extinguishment of the judgment, but only in relief of one of the parties with a salvo. There is no evidence that Speed ever made any agreement to give a release, and if he did, that it was ever executed. Besides, Speed acted as counsel for these defendants, and the agreement [**5]  to be made by him that he would take no advantage of the compromise with one of the defendants, may be very well construed into a reservation of the plaintiff's remedy against the other defendants. The whole proceedings show that there was only a compromise of the judgment so far as Capt. Fitzgerald was concerned, and not of the whole judgment. The entry on the docket is not an entry of satisfaction of the judgment, but simply a receipt in full of the judgment as against Capt. Fitzgerald. Payment of part is not satisfaction of the whole. The defendants were equally liable as partners, and promised jointly and severally to pay the notes on which the original judgment was obtained. In support of these positions, see 2 H. & J., 324, Hughes vs. O'Donnell. 5 G. & J., 356, Clagett vs. Salmon. 5 Gill, 196, Hardey vs. Coe. Ibid., 217, Gurley vs. Hiteshue. 7 Md. Rep., 108, Jones vs. Ricketts.

4th. That the grounds of defence taken to the scire facias cannot be availed of on motion, but can only be taken advantage of by plea. 48 Eng. C. L. Rep., 634, Holmes vs. Newlands.

George M. Gill for the appellee, argued:

1st. That before the issue of a scire facias the fi. fa. and levy [**6]  under it ought to have been countermanded or disposed of, for whilst a fi. fa. is levied and outstanding, the plaintiff cannot legally issue a scire facias. The taking of property under a fi. fa. is not of itself equivalent to payment, and the plaintiff might have countermanded the writ and restored the property, but until he did so he could take out no other process. 5 G. & J., 109, Sasscer vs. Walker. 3 Do., 384, Turner vs. Walker. 1 H. & McH., 407, Waters vs. Caton. 3 Gill, 246, Baldwin, use of Owings, vs. Wright, et al. 23 Wend., 501, Green vs. Burke. 4 McLean, 133, Corning vs. Burdick. Coxe. N. J. Rep., 118, Stille vs. Wood. 3 English, 388, Anderson vs. Fowler. In 2 Harr. Ent., 526, is the form of a plea to a scire facias, that the sheriff had caused to be levied a fi. fa. upon the property of the defendant. See also 5 H. & J., 77, Purl vs. Duvall; Evan's Pr., 372, and Act of 1829, ch. 158. But it is said the defendant should have plead this defence, and that a motion to quash the writ is not the proper remedy. To this objection we reply that a scire facias is not a new case, but a continuation of the original judgment. It is not a new suit, but its object and effect is to revive [**7]  the old judgment. The case is analogous to that of attachments, which are quashed on motion in all cases where it is apparent on the face of the record that the proceedings are erroneous. Wherever upon the face of the record the error is apparent a motion to quash is the proper remedy. Evan's Pr., 238. It is true we might have pleaded this defence, but this does not preclude us from making the motion to quash.

2nd. The judgment in this case being against partners, satisfaction by one is a satisfaction by all, and a release to one is a release to all. Smith on Mercantile Law, 67. 4 Adol. & Ellis, 675, Nicholson vs. Revill. 6 Term Rep., 525, Clark vs. Clement.

3rd. The payment of a less sum than the whole debt will not, per se, work a satisfaction, though such lesser sum be paid and received as satisfaction, but where there is something collateral to show the possibility of benefit to the party relinquishing, this will be sufficient. Thus if a lesser sum be paid before it is due, or at another place than that limited in the condition, it is a good satisfaction. 5 East, 232, Fitch vs. Sutton. So if a note of a third person is received. 11 East, 390, Steinman vs. Magnus. So if [**8]  there be inconvenience to the defendant in procuring a surety. 20 Johns., 78, Boyd vs. Hitchcock. 6 Cranch, 253, Shieehy vs. Mandeville. So if the debtor, in addition to the agreement to pay part of the debt, gives to the creditor any thing which in judgment of law can be considered a benefit to him, and the creditor accepts it as a satisfaction of the whole, it is a good accord. Forsyth on Comp., 17. Here the proposition by the plaintiff to the defendant and partner, R. B. Fitzgerald, was to pay a certain per centage and to obtain the agreement in writing of Mr. Speed, (the first trustee of the plaintiff,) that he would take no advantage of the compromise. This proposition and the receipt showing its acceptance and performance of the conditions are both on the same paper, bear very nearly the same date, were filed in the cause on the same day, and on that day also the entry on the docket is made of satisfaction of the judgment in full. This was a release to R. B. Fitzgerald, and if to him, then also to the other defendants.

4th. The entry on the docket of the 11th of June 1844, shows that the receipt of the plaintiff's attorney, as in full of the judgment against R. B. Fitzgerald,  [**9]  had been filed in court. This entry showing satisfaction, remained unchanged until the 6th of September 1851, and then without any change, or motion for a change; the application for a scire facias against all the defendants, including R. B. Fitzgerald, is made to the clerk who issues the writ. This was an error, and the scire facias could not properly go until the docket entry showing satisfaction had been first altered, even if it could be altered at so late a day.

4th. The defendant, R. B. Fitzgerald, not only paid the amount agreed to be received in satisfaction and obtained the agreement in writing of Speed, but in addition thereto paid the sheriff's costs of $ 10, which was beyond the agreement, and he as defendant was not bound to pay in the then state of the case. Taking both receipts, the docket entries and the lapse of time, before any attempt is made to change these entries or treat them as nullities, there was conclusive evidence of satisfaction by R. B. Fitzgerald and of a release to him. The release to one releasing all, the original judgment was discharged and no scire facias could be issued.  

JUDGES:
The cause was argued before LEGRAND, C. J., ECCLESTON, TUCK and MASON,  [**10]  J.  

OPINIONBY:
ECCLESTON 

OPINION:

 [*112]  ECCLESTON, J., delivered the opinion of this court.
In the court below the defendant made a motion to quash the writ:

 [*113]  First, because it appears that a fieri facias had been issued which was levied upon certain real estate, and had not been countermanded nor in any way disposed of, but continued in full force and operation when the writ of scire facias issued.
Secondly, because the judgment on which the present writ issued was satisfied before the issuing of the writ.
The court sustained the motion by ordering the sci. fa. to be quashed; from which decision the plaintiff appealed. And he now says, the execution was not outstanding when the sci. fa. issued nor was the judgment satisfied. He also contends, that the grounds of defence relied upon could not be available under such a motion, but could only be taken advantage of by plea.
A question of this sort arose in the case of Holmes vs. Newlands, 5 Adol. & Ellis, N.S. 367, in 48 Eng. Com. Law Rep. 366. There a fi. fa. issued, which was returned nulla bona. Afterwards an alias fi. fa. was obtained and also a ca. sa. The latter [**11]  of these two writs was set aside for want of a return of the former. Subsequently, a scire facias being sued out, the defendant obtained a rule calling on the plaintiff to show cause why this writ should not be set aside on account of the previous proceedings. The court discharged the rule because the sci. fa. could not be set aside in that summary manner, but such facts when relied on in defence should be pleaded. The case clearly shows, that where an outstanding execution, whether returned or not, is the ground of defence, the party must plead it to make it available. And this is the rule in England, where it seems to be held, that a levy without a sale and no money is paid, under some circumstances, is a satisfaction of the judgment. If there a plea must be resorted to, we think the present motion cannot be sustained upon either ground relied on by the defendant.
The case of Holmes vs. Newlands is also reported in 1 Davison & Meriv. 642, and a branch of it is to be found in 5 Adolp. & Ellis, N. S., 634.
In Sasscer vs. Walker's Ex'rs, 5 G. & J. 102, Chief Justice Buchanan says: "The mere taking the property under the fieri facias was [**12]  not itself equivalent to payment, and did 

 [*114]  not amount to a satisfaction of the judgment." This principle is not intended to be impugned in any degree by our reference to Holmes vs. Newlands for the purpose of sustaining the position, that the court below were wrong in deciding the present motion to quash in favor of the defendant. It is deemed proper to make this remark, because the opinion of Lord Denman in that case, so far as relates to the effect of a levy or seizure under a fi. fa., may seem to be at variance with the principle announced in 5 G. & J.
 Philpot vs. Manuel, 5 Dow. & Ry. 615, is an authority in support of the principle adopted in Holmes vs. Newlands, by discharging the rule because a plea was necessary.
Irregularities apparent upon the face of a sci. fa. may be taken advantage of by motion, and should it be conceded there are irregularities depending exclusively upon matters of record, but not appearing on the face of the writ, which may be made the ground of a motion to quash, yet whenever objections to the writ involve questions of fact only, or depend partly upon matters of record and partly upon matters in  [**13]   pais, then such objections should be presented by plea; otherwise, a plaintiff might be deprived of his right of trial by jury upon issues in fact, which the court is never disposed to do except where it has been sanctioned by practice or by previous decisions. Believing that both objections now relied upon may, when fully disclosed by pleading, present issues in fact proper for the consideration of a jury, we think the motion to quash was not the proper mode of defence.
For the purpose of showing satisfaction of the judgment in support of the second ground of objection to the sci. fa., reliance is placed upon the compromise made with R. B. Fitzgerald, which it is said discharged him, and thereby his codefendants were also discharged. The evidence relating to which consists of the letter, dated the 28th of May 1844, from plaintiff's attorney to the attorney of R. B. Fitzgerald; the receipt from the former to the latter, dated the 7th of June 1844, for $ 348.03, and $ 6.25 costs; the filing of those two papers in court, on the 11th of the same month, together with the sheriff's receipt for $ 10 costs, and the entry made the 

 [*115]  same day on the docket in the following [**14]  words: "Receipt of plaintiff's attorney for $ 348.03, and $ 6.25 costs, in full of judgment against R. B. Fitzgerald, and receipt of sheriff for $ 10, his costs, filed."
Although the receipt states the amount paid to be in full of the judgment against R. B. Fitzgerald, yet as that amount is less than the sum due, the payment and receipt, unaided by any thing further, could not operate as a discharge or satisfaction of the judgment, even if R. B. Fitzgerald had been the sole defendant. This principle we need not stop to sustain by argument, because it has been fully recognised by numerous decisions in this State, and especially in the late case of Jones vs. Ricketts, 7 Md. 108, and the cases there referred to. But the appellee's counsel says, that in addition to the payment of the money, R. B. Fitzgerald, or his attorney for him, was required by the terms of the arrangement, as proposed in the letter, to give the plaintiff's attorney, in writing, Mr. Speed's agreement, that no advantage would at any time be taken by him in any manner of the compromise; that the required agreement was given, is fully established by the speedy payment of the money and the receipt;  [**15]  and that a compliance with this part of the arrangement, superadded to the payment under the contract, released R. B. Fitzgerald, which operated as a release of all the defendants in the judgment. And if wrong in this view of the subject, the appellee insists that the circumstances just alluded to, when considered in connection with the filing of the papers and the entry made upon the docket, which entry was permitted to remain without any effort to have it corrected up to the date of the sci. fa., are sufficient to sustain the second ground of objection to the writ.
It is of no importance whether the appellee is right or not, in assuming that the circumstances relied upon do prove the giving of Mr. Speed's written agreement. If the evidence does not show it was given, of course the agreement can have no influence upon the subject. But let us see what is the effect of that instrument, considering it as having been executed and delivered. The record shows that Mr. Speed was attorney for the defendants when the judgment was confessed. 

 [*116]  That being the case, and not having the agreement before us or any proof showing what were its terms or its design, except what is to [**16]  be derived from the letter; in this very unsatisfactory state of the evidence, we are disposed to consider Mr. Speed's agreement as one entered into by him, as attorney for the defendants, that no advantage would "at any time be taken by him in any manner of this compromise" with one of the defendants; and that the object and design of the plaintiff in obtaining the agreement was, for the purpose of reserving and protecting his right to recover from the other defendants the balance of the judgment remaining unpaid, after deducting the amount to be paid under the compromise. Whether this view of the agreement may or may not be shown to be erroneous by further evidence on the subject, it is impossible for us at present to form any correct conjecture. If Mr. Speed executed the agreement as attorney for the defendants, and the design of the instrument was such as we have stated, then, so far from its operating to any extent as a release or discharge of the defendants, other than R. B. Fitzgerald, it was a reservation of the right of the plaintiff to hold them responsible, notwithstanding the compromise. To which reservation these defendants are to be considered as assenting, through their [**17]  attorney, Mr. Speed. And it cannot be doubted, that where two or more persons are bound, jointly, the claimant may release one and reserve his remedy against the others, with their consent. The subject of releasing one party and reserving the remedy against others who are responsible under the same contract, is very fully treated of in Yates vs. Donaldson, 5 Md. 389. We also refer to that portion of the opinion of the court of Queen's Bench, in Price vs. Barker, 30 Eng. Law & Eq. Rep. 157, which relates to the effect of releasing one of several parties, bound as principals, and reserving the right to proceed against the others.
Should it be suggested, that as attorney, Mr. Speed had no authority to enter into such an arrangement, we need not enquire whether the suggestion is true; for if it is, then the plaintiff's attorney could not bind him by the compromise, and consequently it could not release the defendants.

 [*117]  The entry on the docket, in addition to the other circumstances, the appellee's counsel seems to consider as a complete discharge or satisfaction of the judgment, even if exclusive of the entry, the proof in the case does [**18]  not amount to satisfaction. But we do not see how it can be so. We have said the payment and receipt, standing alone, do not amount to a release, and they cannot do so if Mr. Speed's written agreement was executed and delivered to the plaintiff's counsel in the manner and with the design we have stated. The entry is nothing more than a mere statement of the fact, that the receipt of the plaintiff's attorney had been filed, which professes on its face to be in full of the judgment as against R. B. Fitzgerald. If, before filing and making the entry, the receipt was not in law a release or satisfaction, how could the mere filing, and the entry on the docket of such filing, impart to the paper any greater effect or influence upon the rights of the plaintiff than it possessed by virtue of its execution and delivery by the plaintiff's attorney to the defendant, or his attorney? This is not an entry of satisfaction in the ordinary mode, under the sanction or order of the court. Nor can it be regarded as satisfaction of the judgment entered by a clerk, by order of the plaintiff or his attorney, under the act of 1840, ch. 96, which act should be strictly complied with when it is to be made [**19]  a ground of defence. For without such a compliance, if not with it, the rights of plaintiffs in judgments will be exposed to considerable danger. The present paper is not an order to enter satisfaction, neither is it a release under seal, but merely a receipt for a less sum than was due, stating the same to be in full of the judgment against one defendant. We do not regard the entry as an act of the court but of the clerk, merely noticing the filing of the receipt, as usual in regard to papers filed.
The entry itself shows the receipt to be for a sum less than the judgment and as being in full only in regard to R. B. Fitzgerald, and therefore certainly not designed by the plaintiff or his attorney as an order to the clerk to enter the entire judgment satisfied. The filing of such a receipt and the entry of the filing upon the docket by the clerk, cannot convert it into a release. If it was not one before, it was not one subsequently.

 [*118]  As the judgment will be reversed because the writ could not be quashed upon the present motion, we refrain from expressing any opinion in regard to several points discussed in argument, for the reason, that when the case is fully [**20]  disclosed by pleadings and evidence, it may present a very different aspect from what it now does.
Judgment reversed and procedendo ordered. 

13 of 44 DOCUMENTS 

WILLIAM G. W. WHITE vs. ALEX. B. DAVIDSON, THOMAS HARRISON, BENJAMIN F. HARRISON, CARTER A. HALL, THOS. W. HALL and BEVERLY C. SANDERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 169; 1855 Md. LEXIS 42 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellant against the appellees. The nar contains the usual money and insimul computassent counts. Plea, non assumpsit. A bill of particulars was furnished on demand, stating that plaintiff's claim is founded on a written promise to indemnify him if he would become security of Henry Carter in an injunction bond to James M. Carlisle and others, dated the 22nd of June 1846, made to plaintiff by Joseph H. Bradley, the solicitor and agent of defendants, and by authority of defendants to Bradley, and is accompanied by particular items of costs, and amounts paid Carlisle by plaintiff on account of a judgment recovered against him on this bond, amounting to $ 3726.32.

1st Exception. The facts of the case as proved in evidence are sufficiently stated in the opinion of this court. The plaintiff then offered six prayers, in substance as follows:

1st. If the jury find that defendants, or their respective firms, were creditors of Carter and Washington, and they, or any member of their respective firms, were privy to the employment of Bradley as counsel to secure their claims, and that Bradley so employed, advised [**2]  the filing, and did file the bill of injunction in the name of Henry Carter, with the privity and consent of defendants, and that to obtain the requisite security upon the injunction bond in that suit, Bradley, as such counsel, prevailed upon plaintiff to become such security, upon the assurance that the creditors whom he represented as counsel would indemnify him, then such assurance so made by Bradley to plaintiff is legally binding on defendants,--(rejected.)

2nd. If the jury find that Sanders and Hall, or either of them, were the agents of defendants, and that they authorised Sanders to employ Bradley to obtain the injunction mentioned, and that Bradley, with the approbation of Sanders, acting for these creditors, drew up a paper assuring plaintiff that he would be indemnified for going on the injunction bond, and that in consideration of this he did become security on the bond, then defendants are bound by the acts and promises of their agent and attorney, Bradley,--(granted.)

3rd. If the jury find that Sanders, assuming to act for the Baltimore creditors of Carter and Washington, employed Bradley as their counsel to file an injunction bill in the name of, and by arrangement [**3]  with, Henry Carter, for their benefit, and also to settle with one Patterson his claim under a deed of trust as stated in evidence, and that Sanders did, at the time of so employing Bradley, authorise him to write the letter to plaintiff, requesting him to become security on the injunction bond, and in consequence thereof plaintiff did become such security, then he is entitled to indemnity against the defendants, provided the jury further find that defendants, or any member of their respective firms, did, subsequently, and with a knowledge of such employment, contribute their respective proportions of Bradley's fee in the premises, and their proportion towards the settlement of Patterson's claim according to said arrangement made through Sanders, and with a knowledge that the same was effected by him, and it is no defence in this case that defendants had not previously authorised Sanders, or were not aware of the agreement made by Bradley with plaintiff under the sanction of Sanders, (rejected.)

4th. (This prayer was abandoned by the appellant in this court, and therefore need not be stated.)

5th. If the jury find that defendants were creditors of Carter and Washington, and [**4]  desired to secure their claims by legal proceedings to annul the deed of trust to Carlisle, and that Sanders, assuming to have full power from them to act in the premises as their agent, went to Washington, and, under the advice of Bradley as counsel, made an arrangement with Henry Carter, by which Sanders caused an injunction bill to be filed with a view to benefit defendants, and, with a view to obtain the necessary security on the bond required in that suit, was privy and consented to the writing of Bradley's letter to plaintiff, and that in consequence thereof and the promise of indemnity therein plaintiff became such security, and that at the time of so acting Sanders and Davidson, trading as Davidson and Sanders, were creditors of Carter and Washington, then both Sanders and Davidson are liable to indemnify plaintiff against loss as such surety in this suit, if the jury find a joint liability to plaintiff between them and their co-defendants. And if the jury further find that at the time of his procuring Bradley to file said bill, Sanders promised that the creditors would pay him a fee, and further arranged through Bradley that defendants would retire a note in bank by the substitution [**5]  of another note, which they would pay as part and parcel of the arrangement made by Sanders to secure their claims, and upon his return to Baltimore Sanders reported to his co-defendants that he had employed Bradley as counsel for them, and that Bradley had filed the bill and obtained the injunction for their benefit, and for so doing, as well as his future management of the suit, they were to contribute to his fees, and that Henry Carter was to be released by them from all liability for the debts of Carter and Washington to them, but that said Carter had furnished the security on the injunction bond; and further reported said arrangement in reference to the note, then his co-defendants had notice from that time that Sanders had assumed to act in the premises as their agent upon his own judgment and discretion, and especially in reference to the institution of the suit and employment of counsel. And if the jury further find that, with full knowledge of the representations of Sanders so made to them, defendants agreed to, and did, recognise his said agency in their behalf, and for that purpose did perform what he had undertaken they should perform in respect to the counsel fees and [**6]  note, and then and there agreed and consented that Sanders should continue to act as their agent in respect to the future management of said suit, and that Sanders, with their consent and privity, afterwards wrote the letters to Bradley read in evidence, and continued to act and was recognised by them as their agent until the dissolution of said injunction, then from the time of their so continuing Sanders as their agent, his co-defendants are chargeable with all notice which Sanders had of the promise of indemnity contained in Bradley's letter; and if the jury further find that Sanders had at the time of being so continued as agent, and recently before then, by his previous acts, authorised Bradley to write said letter, which Sanders fully recollected, then it is not competent for his co-defendants to repudiate their liability on their promise of indemnity in that letter, if the jury find that before the termination of Sanders' agency, and after his continuance therein, by consent of his co-defendants, there was sufficient and reasonable opportunity for them to have notified plaintiff that they repudiated the promise of indemnity to him, and that they failed so to do,-- (rejected.  [**7]  )

6th. If the jury find all the facts stated in the preceding prayer they ought to find therefrom, that his co-defendants have, with full knowledge of the material facts connected with Sanders' agency in their behalf, agreed to ratify and adopt his agency in the premises; and if they find that his co-defendants so ratified his agency in part with such knowledge and the further knowledge, that he had been acting as their agent upon his own judgment and discretion, then they are responsible for his contracts and undertakings at the time of transacting them within the scope of said agency, notwithstanding at the time of such partial ratification they may have relied on his erroneous statements in respect to some of the terms of the arrangement so made by him in their behalf,--(rejected.)

The defendant then offered prayers in substance as follows:

1st. If the jury believe there was an arrangement between Carter and defendants in regard to legal proceedings to be instituted by Carter to set aside a deed of trust made by his former partner, and that the terms of this agreement were, that Carter should file an injunction bill and furnish the security upon the injunction bond,  [**8]  upon condition that defendants should release him from their claims against him as creditors, and that after this agreement the plaintiff became surety in the bond without any further agreement between defendants and him or Carter, the plaintiff is not entitled to recover,-- (granted with consent of plaintiff.)

2nd. That under the bill of particulars filed in this case the plaintiff can only recover upon the promise in writing referred to therein,--(granted with consent of plaintiff.)

3rd. That the plaintiff cannot recover unless the jury find the letter to him, set up as the foundation of this suit, was duly authorised by all the defendants, or subsequently ratified by them after notice of the same, or was authorised by some and ratified by the rest after notice,--(granted.)

4th. That the mere relation of counsel or attorney without any special authority, gave Bradley no power to write this letter so as to bind defendants or any of them to any contract of indemnity contained in it,--(granted.)

5th. That this letter is insufficient in law to bind the defendants, and therefore the plaintiff cannot recover,--(rejected.)

6th. If the jury find that plaintiff became [**9]  the surety of Carter in the bond referred to, and on the 2nd of February 1854, executed and filed in this case a release to Carter from all liability or responsibility to him by reason of such suretyship, then the plaintiff is not entitled to recover,--(rejected.)

To the several rulings of the court, (FRICK, J,) as indicated in this exception adverse to him, each party excepted.

2nd Exception.--The defendants objected to the admissibility in evidence of what passed at the interviews between Bradley and Sanders and Hall, and to the competency of Bradley to testify in relation thereto, and to the letters to him from Sanders, upon the ground that what passed at such interviews and said letters, were privileged communications between client and attorney; and also to the competency of Bradley, upon the ground that he was interested in the event of this suit, all which objections the court overruled and defendants excepted.

3rd Exception.--The plaintiff offered in evidence a copy of the injunction bond referred to, attested by a certificate of the clerk of the circuit court of the District of Columbia, under the seal of said court, "that the annexed is a true copy of the original [**10]  bond filed in the case of Henry Carter vs. James M. Carlisle, et al." The attestation of the clerk was also certified to by the chief judge of said court. The defendants objected to this copy being read in evidence upon the ground that the same appeared to be a part of a record, and that part of a record, however authenticated, should not be permitted to be read in evidence; and also that said copy was not legally certified or authenticated. These objections the court overruled and defendants excepted.

The verdict and judgment were in favor of the defendants and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The employment of an attorney to prosecute an injunction suit does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who becomes surety on the injunction bond.

An attorney as such may submit a cause to arbitration, and if he makes a compromise bona fide which works no considerable hardship the courts will be slow to disturb it, and will refuse when it has been acquiesced in with full knowledge of the facts.

Where an agency created and defined by a written instrument is delegated to three it cannot be executed by one, and the agents cannot delegate their authority to another.

Where a party without authority assumes to act as agent for others, the latter are not bound, unless on full knowledge they recognised and adopted his acts.

The issuing of an injunction does not necessarily require a bond, for that is a matter resting in the discretion of the judge who is to order it.

If a partner without authority therefor, agrees to indemnify a surety on an injunction bond in a suit prosecuted for the benefit of the firm of which he is a member, his act does not bind the firm unless his co-partners subsequently acquiesced therein.  

COUNSEL:
Robert J. Brent for the appellant, argued:

1st. The plaintiff's first prayer was erroneously rejected. Bradley was unquestionably the counsel of these defendants in the injunction suit. They all contributed pro rata to the payment of his retaining fee, and in all respects and at all times followed his advice as such counsel, to promote the purposes of that suit. The paper of the 19th of June 1846, signed by the firms comprising all these defendants, clearly shows, that they had all placed their claims under his legal advice and control, and he was to exercise plenary [**11]  judgment and discretion, whether the proceedings should be in the name of the creditors or of Carter. In pursuance of this authority he states that he filed the bill in the name of Carter, and as a necessary means to that end, promised indemnity to the security on the injunction bond, and at the time he did so Sanders was privy and assentlng for those who were acting with him in the common purpose of prosecuting under his advice and through his professional agency their affiliated and associated rights as creditors. He also proves, that Thomas W. Hall authorised him to procure security for Carter's bond and to promise indemnity in behalf of the creditors. Thomas W. Hall was a member of the firm consisting of the two Harrisons and himself, and as this agreement was with a view to the recovery of a claim due to that firm, we hold, upon the implied authority of each partner, to bind the firm to this agreement, irrespective of all other considerations, that it is conclusive upon these three defendants. One partner can release a debt. 4 G. & J., 310, Smith vs. Stone. He can bind the firm by any act in relation to their partnership claim. 7 H. & J., 28, Coursey vs. Baker. Ibid, 213, Barger [**12]  vs. Collins. 2 Pick., 285, Marsh vs. Gold. If one partner, within the scope of the partnership authority, commits a fraud, it is equally in law the fraud of all the partners. 1 Parsons on Cont., 62. For the like reason the agreement of Sanders binds his co-partner, Davidson. Here then are five defendants, all of whom, either personally or by their co-partners, expressly authorised Bradley to make this contract of indemnity. The other defendant, Carter A. Hall, was one of the committee on behalf of the creditors, but states that he did not take an active part therein, and denies that he assented to any agreement about the security. But he and all the defendants concede, that Bradley was their counsel, feed by them, as such filed the bill for their benefit and with their privity in Carter's name. On this, and independent of any express authority, we contend, that as a means to the common aim and object of the defendants their counsel had a right to procure the requisite sureties in the injunction bond, and for that purpose to bind them to indemnity, and this whether they knew it or not. 2 Greenlf. on Ev., sec. 141. 2 McCord's Ch. Rep., 409, Smith vs. Bossard. 1 Pick., 462, Adams vs.  [**13]  Robinson. 3 Md. Ch. Dec., 395, Kent vs. Ricards. 7 Cranch, 436, Holker vs. Parker. 1 Dallas, 164, Somers vs. Balabrega. 1 Overton, 299, Blount vs. Foster. 8 Shepley, 558, Rice vs. Wilkins. 1 Am. Com. Law Cases, 4. 17 Ohio, 460.

Where there is a community of design, and the combined action of many for the attainment of a specific object, the rule of law makes all responsible for the action of any one of the confederates in furtherance of the general purpose of all, and upon this principle alone the authority given by Sanders and Hall, or either of them, to Bradley, the selected counsel of the defendants, is to be considered as the authority of all, especially when it is seen that the injunction in the name of Carter, which was sought for, could not be obtained without security on the bond of Carter. 1 Greenlf. on Ev., sec. 174, note 3. 2 Starkie on Ev., 29, 31, 205. 9 Eng. C. L. Rep., 414, Perham vs. Raynal. 5 G. & J., 144, Owings & Piet vs. Low. In such case the declarations of one are the declarations of all acting with him. 2 Barn. & Ald., 673, Sandilands vs. Marsh. 1 Starkie's Rep., 81, Nicholls vs. Dowding. If plaintiff pays money for a debtor to his creditor upon an agreement [**14]  to indemnify plaintiff by mortgage and to assign judgments, the plaintiff is an agent and may recover the money paid. 12 G. & J., 36, Hall vs. Creswell. If C becomes bail for a debtor at the request of B, and on B's promise to indemnify him, B is liable, on his parol promise, which is original. 1 Pet., 476, De Wolf vs. Rabaud. 2 Do., 170, Townsley vs. Sumrall. 12 Mass., 297, Perley vs. Spring. 17 Johns., 114, Chase vs. Day. If a guarantor promises, before delivery, absolutely to pay, the statute of frauds does not apply. 2 Saund. on Pl. & Ev., 54. 1 Esp., 121, Croft vs. Smallwood. 2 Ld. Raym., 1087, Buckmyr vs. Darnall, also reported in 1 Salk., 27. And it seems, that if before delivery defendant verbally promises absolutely to pay, he is liable, though the party for whom he promises may be also liable. Manuscript case of Wolfolk vs. Baltzell in the Court of Appeals in 1839, 1 Gill, 260, Conolly vs. Kettlewell. The distinction is whether the promise is to pay absolutely or only secondarily on default. It is always for the jury to whom the credit is given. 2 Saund. on Pl. & Ev., 547. Wherever the promise is not within the statute indebitatus assumpsit lies. 7 H. & J., 392, Elder vs.  [**15]  Warfield. There is in this case a sufficient consideration for the promise of indemnity. 1 Saund. Pl. & Ev., 179. But here we have a written indemnity in behalf of the creditors, signed by Bradley, their agent, and his authority may be proved by parol. 2 Saund. Pl. & Ev., 551.

2nd. The next question arises on the refusal of the court to grant the plaintiff's third prayer. This prayer is designed to maintain the legal sufficiency of the evidence, if believed, to show the liability of the defendants for the authority given by Sanders to Bradley, and under which he made the contract of indemnity to the plaintiff. If the three defendants constituting the committee named in the agreement of June 1846, instead of Sanders, had authorised Bradley to give this indemnity to White, and had not disclosed their written authority and the terms of it to White, there can be no doubt that the principals for whom they acted would be bound on the indemnity promised, because they had authorised the committee to indemnify the surety of Carter under the advice of Bradley, and for so doing had promised indemnity to the committee. Even a special agent to do a thing may bind his principal at the time [**16]  by a warranty or promise of imdemnity, if not expressly forbid to do so, upon the principle, that every thing is supposed to be comprehended in the authority which is necessary to effectuate the object in the best manner. Paley on Agency, 210. 1 Parsons on Cont., 50, 51. But this written authority, so far from denying to the agents the power to promise indemnity in behalf of their principals to the surety of Carter, expressly promises them indemnity if they personally incur responsibility to such surety. It contains the strongest implied authority to contract directly for the principals, and incur primarily for them a liability which they agreed indirectly to assume. But we draw a still stronger inference from this paper. It is subscribed by the three firms of which the six defendants were members, and the three agents named in it are three of these defendants; these agents are, therefore, both principals and agents in that paper. We show, therefore, by this paper as against all these defendants, that they and their firms contemplated giving indemnity to the sureties of Carter, and that they were willing themselves to authorise the very thing to be done which was done by the advice [**17]  and procurement of their counsel and with the privity of Sanders, acting as a substitute for the original committee of three. In such a case, very slight evidence of the authorised substitution of Sanders to act in place of the three original agents who failed to act conjointly, would be sufficient; and we insist, that if such substitution is proved, that the substitute is to be taken, prima facie, to have all the powers conferred upon the three for whom he is substituted. So far as Carter A. Hall is involved, we have his explicit admission that he recognised Sanders, and ratified his arrangement with Carter upon the representation made by Sanders that Carter was to furnish the security. He also admits that he declined to act on the committee, and acquiesced in the acting of Thomas W. Hall and Davidson. It would be to sanction a constructive fraud now to allow, after such acts of acquiescence and laches, and after his direct sanction of the agency of both Thomas W. Hall and Sanders, and of Bradley, the counsel for the creditors, to turn round and repudiate the solemn contract made by his own counsel, with the privity of both Hall and Sanders; and this especially after he had, as a [**18]  creditor, taken all the benefit he could by the injunction suit, based on the bond signed by the appellant, which suit he knew was brought, and which he sanctioned by paying his proportion of Bradley's fee and of the note given to retire the prior lien of Patterson, as arranged by Bradley and Sanders. After such acts, shall it be tolerated in morals for him, at this late day, to repudiate the contracts made in his behalf because not informed or falsely informed by his own agent of a particular stipulation? But independently of an express indemnity, we contend, that upon all these facts, if White was told the suit was for the benefit of the creditors and that Carter was to be released, as shown on the face of the written indemnity, then he would have a right to recover on an implied assumpsit as against all these creditors, upon the principle, that he was in fact their security and went on the bond at their request and for their benefit, and that on such a state of facts the law would not, in the absence of a special contract, imply a right to recover against Carter, the nominal principal in the bond. It was, in effect, their suit, prosecuted by their counsel and for their benefit,  [**19]  and upon their agreement to release Carter in consideration of the use of his name as nominal complainant. 2 Pet., 613, Chirac vs. Reinecker.

This prayer rests also on the distinct principle, that the subsequent ratification of the act of Sanders in employing Bradley as counsel to obtain this suit, by contributing money through Sanders towards the fee of Bradley and the Patterson claim, with full knowledge of Sanders having so claimed to act for them, and of all the material acts done by him, is equivalent to a previous authority, and that it is no defence to show that they were, at the time of such ratification, unaware of the agreement made by Bradley with the plaintiff, under the sanction of Sanders. An agent may be constituted by ratification with knowledge of material facts, and it is equal to a previous authority. Story on Agency, secs. 133, 134, 135, 138, 139, 140, 249, 253. 28 Law Lib., 74, 82, 86, 91, 111. 2 Kent's Com., 616. 7 East, 164, Hovil vs. Browning. 9 Cranch, 161, Clark vs. Van Riemsdyk. Sanders and Bradley were both continued as agents after the co-defendants were informed and ratified what was told them, and nobody else transacted the business but Sanders.  [**20]  Under this sanction of his acts and the continuing authority to superintend the suit, notice of this contract of indemnity to Bradley and Sanders is notice to their principals from the time they constituted them their agents, and they cannot deny such notice any more than their agents could. Ambler, 439, Le Neve vs. Le Neve. 2 Strange, 1183, Scrimshire vs. Alderton. 1 Esp., 290, Cowen vs. Simpson. 2 Eq. Cases Abr., 685. 3 Merivale, 210, Toulmin vs. Steere. 1 Term Rep., 12, Fitzherbert vs. Mather. 4 Do., 66, Willis vs. Martin. 1 Ves., Sen., 62, Maddox vs. Maddox. 13 Ves., 121, Hiern vs. Mill. There is no difference between actual and constructive notice in such a case. Ambler, 626, Sheldon vs. Drummond.

3rd. The fifth prayer of the appellant ought to have been granted, as in its first part it simply establishes a joint liability between the two co-partners, Davidson and Sanders, for the acts of Sanders in respect to their partnership claim, and then proceeds to charge the other defendants with constructive notice of the contract of indemnity made with the plaintiff from the time that they recognised Sanders as their agent in superintending and managing the injunction suit, and [**21]  thus became bound by the previous notice fastened on their agent, Sanders. We consider that this prayer is fairly deducible from the doctrine above discussed, in relation to constructive notice to the principal, of what is known by his agent in respect to the res gestae of his agency. The plaintiff's sixth prayer is for the same reason maintainable, and stands upon grounds equally secure, as it raises legitimate inferences from the facts stated in the fifth prayer. The defendants' third and fourth prayers cannot be maintained if the principles above discussed by us are approved by this court, as they virtually negative all right in the plaintiff to recover on this evidence.

4th. In regard to the appellees' exceptions, we insist there was no error in the court's rulings on these points. Their first exception was correctly decided, because Bradley was a competent witness and committed no breach of professional confidence in giving the testimony, because he was also an agent, and as such a party to the transaction, and therefore White is entitled to all the facts bearing on the question of his authority. 1 Greenlf. on Ev., secs. 244, 245. 8 Car. & Pay., 596, Regina vs. Avery. 2 Nev.  [**22]  & Man., 310, Ripon vs. Davies. 5 Man. & Gr., 271, Shore vs. Bedford. 5 Barn. & Adol., 502, Griffith vs. Davies. Peake's Cases, 108, Duffin vs. Smith. The evidence being admissible for any purpose, as to prove the retainer of counsel or the authority to make the offer of indemnity, or any part of the evidence being legally admissible, the general objection to the whole cannot be insisted on in this court. 3 Gill, 220, Budd vs. Brooke. Their second exception shows on its face very clearly that the attested copy of the injunction bond was read by consent of parties. And so also, we contend, the appellees' prayers were correctly refused.

Wm. A. Talbott and Geo. Wm. Brown for the appellees, argued:

1st. That the employment of counsel to secure the claims of the defendants against Carter and Washington, and the filing by such counsel of a bill for injunction, did not confer an authority on the counsel to bind the defendants by any assurance of indemnity to the plaintiff, and the appellant's first prayer was therefore properly rejected, inasmuch as it did not require the jury to find that the counsel gave such assurance with the privity and consent of the appellees, or any subsequent [**23]  ratification by them, and the appellees' third and fourth prayers were properly granted as containing the law of the case. That an attorney, by virtue of his retainer as such, cannot bind his client to any such obligation as to indemnify a surety on an injunction bond, see 4 Gill, 20, Doub vs. Barnes. 21 Conn., 245, Derwort vs. Loomer. 2 Greenlf. on Ev., sec. 141. 13 Metcalf, 413, Shores vs. Caswell, et al. 15 Verm., 320, Vail vs. Jackson. Kyd on Awards, 45. Bradley was an agent for a special purpose, and he could not bind his principals beyond the terms of his special authority, which must be strictly pursued. Smith's Mercantile Law, 58, 60, in 17 Law Lib., 36, 37. 5 Johns., 58, Nixon vs. Hyseroot, and note (e,) on page 59. 7 Johns., 393, Gibson vs. Colt. 5 Hill, 634, Birckhead vs. Brown. No necessity, however pressing, would authorise the agent to exceed his authority. 7 Mees. & Wels., 596, Hawtayne vs. Bourne. But suppose he had express authority, how is it proved? The paper of the 19th of June 1846, was a joint authority to three, which could not be exercised by one or two. Smith's Mercantile Law, 60.

2nd. That whatever may be the appellant's remedy against Sanders, he cannot [**24]  recover in this action against these appellees, even though the jury should find all the facts stated in his third prayer, because the co-defendants never empowered Sanders to bind them, and never had notice that he had so bound them. Their subsequent acts did not ratify his previous acts, except in so far as those acts had been communicated to them, and this prayer assumes as matter of law from the facts stated in it that Sanders' acts were recognised by his co-defendants, whereas such recognition was a question for the jury. 8 G. & J., 323, Steam Packet Co. vs. Dandridge. 3 Pet., 81, Bell vs. Cunningham. 9 Do., 629, Owings vs. Hull.

3rd. That a knowledge by Sanders of all the facts stated in the appellant's fifth prayer was no notice to his co-defendants, and their subsequent recognition of his employment of counsel, and having taken legal proceedings, was in no way a recognition of his authority to bind them, because, as appears from the testimony of Hall and Davidson, he stated to them that Carter had furnished the security on the bond, and in consideration of his so doing they were to release Carter, pay counsel fees and contribute to the Patterson debt. 8 G. & J., 323. 9 [**25]  Pet., 629.

4th. That the fifth and sixth prayers of the appellant were properly rejected, because they do not leave the jury to find that Bradley wrote the letter to the appellant on which the suit is founded, but assume that the letter was written and that it was received by the appellant. 6 G. & J., 70, Crawford vs. Berry. 3 Md. Rep., 294, Lewis vs. Kramer. 7 Do., 297, Balto. & Ohio Rail Road Co. vs. Resley.

5th. That if the ruling of the court be erroneous, there can be no procedendo because of the release by the appellant to Carter. The appellees, if liable to the appellant at all, were so for the default of Carter, and had against him at law a claim for whatever sum they might be compelled to pay the appellant. Carter was equally liable to the appellant, and the release discharges him from responsibilities to appellant, and thus discharges the appellees who were his sureties to the appellant. 2 Md. Rep., 286, Scott vs. The State. Theobald on Principal & Surety, 114, 115, 252, 253, in 1 Law Lib., 67, 68, 150. Burge on Suretyship, 160, 161, 348, 352, 353.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*183]  LE GRAND,  [**26]  C. J., delivered the opinion of this court.
The record in this case shows the following state of facts: A mercantile firm, under the style and name of Carter & Washington, in the city of Washington, D. C., were indebted to merchants in the city of Baltimore. Washington, by transfer, as it was alleged, had conveyed the joint assets to secure the payment of his own debts to the exclusion of those of his partner, Carter. The creditors of both, in the city of Baltimore, being desirous of having the property appropriated to the payment of the debts of the firm, appointed a committee in the following words, to superintend and guard their interests:
"We, the undersigned creditors of Carter & Washington, agree to contribute, ratably, our proportion of all expenses incurred, (agreeably to the amount of our claims,) in any legal or other proceedings which have or may be taken by A. B. Davidson, C. A. Hall and T. W. Hall, in reference to the assignment and bill of sale made by R. C. Washington, for the benefit of B. F. Gardner and Franklin Gardner; and we do hereby further agree to indemnify them against all loss for any liabilities assumed, or security given by them or by Henry Carter, of [**27]  the late firm of Carter & Washington, in any further proceedings which may be taken by him or them, under the advice of their counsel, J. H. Bradley, Esq., of Washington. Given under our hands this 19th day of June 1846.
Signed,   HARRISON & CO.,
DAVIDSON & SANDERS,
HALL, TAYLOR & CO.,
CAMPER & BRUFF,
MARRIOTT, MARYE & CO.,
W. H. HARRISON & CO.,
SPILKER & ALBERTI."
In pursuance of this authority Sanders and Thomas W. Hall went to Washington, assuming to act on behalf of their own firms, and as representatives of the other creditors of Carter and Washington, to advise with counsel and take measures to oppose the deed of Washington. They employed Joseph H. Bradley, Esq., as counsel, to file a bill for an injunction and to set aside the deed. Hall returned to Baltimore, leaving 

 [*184]  Sanders in Washington. Bradley procured the appellant to go on the injunction bond. The injunction was subsequently dissolved, suit instituted on the bond, and a judgment obtained against the appellant for upwards of three thousand dollars.
Mr. Bradley testifies that he requested the appellant, White, to go on the bond, but he positively refused to do so, unless he had some written evidence [**28]  of indemnity. Bradley then informed him that both Hall and Sanders had distinctly agreed, that if such security could be got, the creditors whom they represented would indemnify the security; that on the same day, White being in the office of the witness, the latter then, in the presence and with the privity and consent of Sanders, wrote the following letter:

"MR. W. G. W. WHITE,
Dear Sir:--If the judge grants the injunction to-day, Mr. Carter will have to give security of course. It is very important that none of the creditors should join in the bond, for I may want to make them or some of them witnesses. I have their authority for saying, that if this thing is done they will release Carter, and indemnify any one who goes his security. The penalty in the bond will probably be two thousand dollars, or possibly $ 5000, but the risk cannot be any more than the loss on the postponed sale of goods, and the interest on their value and the expense of keeping them. Under these circumstances I have suggested to Mr. Carter to ask you and Dr. Gunton, as the friend of Mr. Davidson, (or some other gentleman here,) to join him in the bond."
In reply to certain interrogatories propounded [**29]  to Thomas W. Hall and others on behalf of the appellant, he states in substance, that he, in company with Mr. Davidson, visited Washington city, and there endeavored to get Carter to take legal measures to have set aside the deed of Washington, and, as an inducement, promised to procure a release from his firm and that of Davidson & Sanders, of all liability for what he was indebted to them. That Sanders, who was then the partner of Davidson, went to Washington without any appointment from the creditors of Carter & Washington constituting him their agent, for the purpose of taking the place of his partner, the said Davidson. He also denies that any arrangement 

 [*185]  in regard to the injunction or security obtained for it was assented to by him or his colleagues, Messrs. Davidson and Carter A. Hall, other than that of which the creditors were informed by Sanders, to wit: that Carter should file the bill and find the security, provided the creditors would release him unconditionally and pay the fee of Mr. Bradley.
The answer of Carter A. Hall and that also of Alexander B. Davidson explicitly denies the authority of Sanders to bind the creditors as he sought to do, according [**30]  to the testimony of Bradley.
This statement of the facts is sufficiently full to present the questions of law arising out of the case.
The theory of the appellant's case is simply this:--he claims to be indemnified for his loss because of the recovery had against him on his bond: first, because of a specific contract to that effect; and second, that the employment of Bradley, as counsel, to file a bill for an injunction necessarily carried with it authority to do all things essential to its procurement, and, if to such end, a bond was indispensable, he had the right to promise an indemnity to any one who should become security on it, which would be binding on those whom he represented.
As to the first proposition: It involves a question of fact only, to wit, the existence of the contract. Bradley states that Thomas W. Hall and Sanders authorized it; Hall on the other hand denies it. From Sanders we have no response except that which is detailed in the answers of the two Halls and Davidson. Mr. Bradley states that Thomas W. Hall, at an interview had between him, witness and Sanders, "produced a paper and said they were authorized by the creditors who signed that paper to [**31]  come to Washington and employ said Bradley to enjoin the sale, which was advertised to take place." He did not, however, "read said paper or see the names signed to it." The only written authority to any one to superintend and manage the rights and interests of the Baltimore creditors, of which there is any evidence, is that bearing date the 19th day of June 1846. This must have been the one produced by Thomas W. Hall, and had Mr. Bradley examined it he would have seen it conferred no authority 

 [*186]  whatever on Mr. Sanders to employ counsel, or in any other manner to intermeddle with the business. Unless the parties, sought to be held liable, distinctly authorized him to act, anything he might do would not bind them, unless, on full knowledge, they recognized and adopted his act. There is no proof whatever in the record that they have adopted the act of Bradley in writing to the appellant, and promising him indemnity with the consent and privity of Sanders, as testified to by Bradley. So far from it they expressly deny Sanders ever communicated to them any such promise as that spoken of by Mr. Bradley. In this state of case if the defendants be responsible at all, it must be [**32]  because the employment of Bradley, as counsel, conferred on him, as such, the right to bind them to hold any one who might be obtained as security on the injunction bond harmless from all loss which might result from the dissolution of the injunction, or because the action of Sanders and Hall, as testified to by Bradley, is binding on the firms of which they were partners. A consideration of these propositions necessarily assumes that the jury would believe the testimony of Mr. Bradley instead of that of Mr. Hall, which is in conflict with it.
Assuming then the facts to be as testified to by Mr. Bradley, we are of opinion that the defendants, either in whole or part, are not responsible to the appellant. The employment of counsel does not confer on him, ex necessitate, the right to bind his clients to indemnify a third party who may become security in the progress of the suit. The power of an attorney is very extensive, but it is not equivalent to that of his client. As such, it has been doubted, to say the least of it, by high authority, whether he may make a compromise, although he may submit a cause to arbitration. Holden and others, vs. Parker, 7 Cranch's Reports,  [**33]   434. It is true, if the compromise be bona fide and work no considerable hardship, courts will be slow to disturb it, and they will refuse to do so when it has been acquiesced in with a full knowledge of the facts. In the case before us, there is no evidence the facts were ever communicated to the defendants; so far from it, those of them who have been examined expressly deny all knowledge of the 

 [*187]  agreement between Bradley and appellant, with sanction and privity of Sanders. It did not necessarily follow, that the issuing of an injunction required a bond; that was a matter resting in the discretion of the judge who was to order it, and if he did require it and security could not be obtained without an assurance of indemnity, the client should have been so notified.
We do not think the action of Hall and Sanders, as testified to by Bradley, binding on the firms of which they were members, unless they subsequently acquiesced in it. There is not only no proof they ever did so, but on the contrary, the evidence is distinct and uncontradicted, that they neither authorised or subsequently ratified what was done by Mr. Bradley in so far as his engagement with appellant is [**34]  concerned.
The question involved in the case is not, strictly speaking, one of the authority of a partner to bind his co-partners, but one of agency. Mr. Bradley was distinctly notified the agency had been created and defined by a written instrument. Had he consulted it, as, perhaps, it was his duty, he would have seen that the agency had been delegated to three persons and not to one. A power to three cannot be executed by one of them; nor is there anything clearer or better established, than that an agent cannot delegate his authority to another, the maxim being delegatus non potest delegare.
There is no necessity for our examining in detail the prayers, inasmuch as the views we have expressed plainly indicate our opinion to be, that in the case made by the record the plaintiff cannot recover. We think, however, there can scarce be a doubt, that on the facts contained in it, an action could be maintained against Mr. Sanders and a recovery had against him.
Judgment affirmed.
NOTE BY THE REPORTER.--The case of Woolfolk vs. Baltzell, referred to in argument in this case, was an action of assumpsit by Jacob and Charles Baltzell against Woolfolk, brought in [**35]  Baltimore county court, in 1834. The fourth count in the nar charges, that defendant, in consideration that plaintiffs, at his request, would sell goods to one Hutchinson on credit, undertook and promised the plaintiffs to guarantee the payment, eventually, to them of the amount of the bill for such goods, and that relying on this promise of defendant, the plaintiffs did sell goods to Hutchinson to the amount of $ 1187.36, for which he failed to pay, &c.

 [*188]  1st Exception. The plaintiffs offered in evidence the bill of goods sold by them to Hutchinson, on the 16th of February 1832, amounting to $ 1187.36, at the bottom of which was the following guaranty, signed by the defendant, Woolfolk: "I hereby guaranty, eventually, the payment of $ 1187.36, amount of Mr. Hutchinson's bill of this date." They also offered in evidence Hutchinson's promissory note to them for this sum, payable in six months, and then offered to prove that Woolfolk, before the goods were sold to Hutchinson, agreed to endorse Hutchinson's note for the amount of the purchase, and that the goods were sold on this assurance; but that afterwards the plaintiffs, at Woolfolk's request and on his assurance [**36]  that he did not design thereby to change his responsibility, consented to accept the guaranty above stated, and also that Woolfolk admitted Hutchinson's death and the insolvency of his estate. The defendant objected to this proof, on the ground that it went to set aside or materially vary the written agreement alleged to have been entered into at the time the goods were sold, but the court, (MAGRUDER and PURVIANCE, A. J.,) overruled the objection and the defendant excepted.
2nd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover:--1st, because the promise and undertaking of the defendant was a promise to answer for the debt or default of another, and the agreement, or some memorandum or note thereof upon which the action is brought, is not in writing, signed by the party now sought to be charged therewith; and 2nd, because if the said promise and undertaking is in any manner or under any circumstances binding on the defendant, yet the plaintiffs are not entitled to recover unless they had used all due diligence and proper means to collect the same from Hutchinson, and there is no evidence that they did so. This prayer [**37]  the court refused and the defendant excepted.
3rd Exception. The defendant prayed the court to instruct the jury, that the plaintiffs are not entitled to recover in this action upon the evidence under either count, which instruction the court gave as to all the counts except the fourth, as to which they overruled the objection of the defendant and decided that there was evidence to go to the jury upon this count. To this ruling the defendant excepted.
The verdict and judgment were in favor of the plaintiffs and the defendant appealed. The judgment was affirmed by the Court of Appeals at its June term 1839.  

14 of 44 DOCUMENTS 

THOMAS J. FLACK vs. MARIANNE GARLAND, Exc'r of NATHANIEL GARLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 188; 1855 Md. LEXIS 43 

DECEMBER, 1855, Decided 

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

The bill in this case was filed by the appellant, for an injunction to restrain execution upon a judgment recovered against him in 1843, by the appellee's testator and his then partner, Elwell, whom the testator survived. The allegations of the bill are fully stated in the opinion of this court. The answer of the executrix denied the facts on which the equity of the bill rested.

The testimony chiefly relied on to support the complainant's case is that of the two Masons, composing the firm of Mason & Son. The son testifies that their firm was a creditor of Flack at the time of his failure, which they subsequently settled by receiving fifty cents in the dollar; that Garland came to their store several times and said he was a creditor of Flack, that they had better take fifty cents in the dollar, as they never could get any more, and it was partly through Garland's influence that witness took the fifty cents in the dollar after a conversation with his father; that their settlement with Flack took place July 8th, 1846, and the conversations with Garland in the latter part of 1845 or the beginning of 1846, in [**2]  front of their store on the pavement, or in the store.

Mason, the father, testifies that he had repeated conversations with Garland about their respective claims against Flack; that Garland told him he had agreed to take fifty cents in the dollar; that Flack had nothing they could get hold of, and he had a conversation with Mr. Hinkley, his lawyer, and they agreed it was the best that could be done and advised witness to go and see Hinkley, which he did; that at the time of the last conversation with Garland witness had not concluded what to do, but he called and saw Hinkley, and afterwards saw his son, and they agreed to take the fifty cents, not seeing any possibility of getting any more; that Garland and he were holding out until the last conversation took place, in which Garland said that he understood that many of the creditors had agreed to take fifty cents and some less. In answer to additional interrogatories this witness states, "at the time I saw Garland I found he had concluded to take fifty cents. He having held out the longest I concluded to do the same. I knew Garland many years and had great confidence in his judgment, and as he had concluded to do it I concluded [**3]  to do the same. I did not tell Mr. Garland I had concluded to do it. This was the last conversation I had with Garland." In reply to a cross-interrogatory, he also stated that he was influenced in some degree by Garland in taking the fifty cents, and should have delayed longer unless Garland had concluded to take it.

On the part of the defendant a witness proved that he was present at a conversation between Garland and Flack, early in July 1846, in relation to the former's claim against the latter, in which Flack stated he was about to settle with Mason, and that Mason had informed him that Garland wanted to settle his claim at fifty cents in the dollar. "Garland replied it was false; he had told Mason no such thing, and desired Flack to go then and bring Mason into his presence and let him say so to his face."

The court below, (KREBS, J.,) dissolved the injunction upon final hearing, and from the order of dissolution the complainant appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

Where a debtor sets up an agreement with his creditor to compound his claim by paying a certain sum in cash or notes at a specified time, as a bar to the creditor's claim, he must show compliance with his part of the agreement either by paying, or offering to pay, in conformity with its terms, before he can rely upon the composition. 

COUNSEL:
John Stewart and Charles F. Mayer for the appellant.

The doctrine on which this bill is filed is eminently one of good faith. It is that where one creditor has persuaded or induced another to [**4]  accept a compromise, that he shall not himself afterwards reject his own proposal and demand more than what he has induced others to accept. The testimony fully establishes the allegations of the bill implicating Garland as a party to the composition, and now to allow him or his executrix against the terms of the composition to enforce the judgment for more than one-half the demand, would be a fraud upon Flack and upon Flack's creditors. To bind the appellant to the composition, it is sufficient to show that otherwise a fraud would be operated upon the Masons, who, by Garland's avowed accessions to the composition, were led to accept it and relinquish one-half of their demand. In support of these positions we rely upon the following cases: 3 Eng. C. L. Rep., 411, Wood vs. Roberts. 22 Do., 89, Good vs. Cheesman. 2 Term Rep., 763, Cockshott vs. Bennett. 3 Do., 551, Jackson vs. Duchaire. 4 Do., 166, Jackson vs. Lomas. 11 Mees. & Wels., 492, Horton vs. Riley. 1 Bos. & Pull., 286, Stock vs. Mawson. 3 Anstruther, 910, Fawcett vs. Gee. 5 Bing., 432, Knight vs. Hunt. 7 Gill, 379, Gardner vs. Lewis. 13 Ves., 586, Jackman vs. Mitchell. 15 Do., 52, Sadler vs. Jackson. 12 Pet., 178, Clarke vs.  [**5]  White. 2 Camp., 383, Bradley vs. Gregory. 3 Do., 174, Boothby, et al., vs. Sowden. 1 Peere Wms., 751, Pollen vs. Huband. Foster on Composition, 1 Lib. Law & Eq., 1. 16 Ves., 372, Mackenzie vs. Mackenzie. 19 Law Lib., 114. Story's Eq., sec. 191. Prac. in Chan., 310. 1 Coxe, 287. 8 B. Monroe, 599, Cutter & Co., vs. Reynolds.

John H. B. Latrobe for the appellee: Measured by the evidence the case put by the bill dwindles down to that which is made by the testimony of the two Masons, and rests upon the only two allegations which the appellant has attempted to sustain by proof:--1st, that Garland agreed to compound the judgment, and 2nd, that his representing to the Masons that he had done so, so far influenced them in following his supposed example as to bring this case within the decisions which make such conduct on the part of a creditor a bar to the recovery of his claim in full.

1st. Now as to the first of these points, it is clear that Garland's agreement by itself did not bind him to receive less than the full amount of his claim. The leading case of Cumber vs. Wane, in Smith's Lead. Cases, 146, in 19 Law Lib., 111, and the cases there cited, settle this. Upon this point [**6]  argument is unnecessary. There was no consideration to uphold an agreement, either to take a less sum or to exchange the superior security of a judgment for a claim on open account or promissory note.

2nd. The only considerations to support such an agreement is to be looked for in what took place between Garland and the Masons. Assuming it to be true, for the argument, that Garland told Mason he had agreed to compound, was this, even if followed by Masons doing the same in his reliance on Garland's judgment, such an agreement between Garland and the Masons as furnished the consideration that supported the agreement between Flack and Garland? None of the cases have gone this length. The most prominent are given in the notes in Smith's Lead. Cases, to Cumber vs. Wane. In Wood vs. Roberts, 3 Eng. C. L. Rep., 411, there was an express agreement between two creditors, amounting to "if you will then I will." In Steinman vs. Magnus, 11 East, 390, there was a regular agreement in writing between the debtor and his creditor. In Good vs. Cheesman, 22 Eng. C. L. Rep., 89, there was also a regular agreement in writing to grant a release on terms. So also in Norman vs. Thompson, 4 Wels., Hurls.  [**7]  & Gordon, 755. In the cases cited on the other side from 13 and 15 Ves., 2 and 3 Camp., and 12 Pet., there were in all of them special agreements to which the creditors were parties, and whereby, binding themselves to each other, they furnished the consideration which otherwise, under the authority of Cumber vs. Wane, would have been wanting. Putting the broadest construction upon the testimony of the Masons it amounts to no more than this, that Garland told them what he had proposed to do, leaving them to follow his example or not as they pleased. It is idle to say there was any agreement between Garland and the Masons, such as existed in the cases referred to where the parties either made a special contract or signed a release of the debtor, because, as the elder Mason testifies, he did not even tell Garland in their last conversation on the subject what he had concluded to do.

But even if we are wrong here and there was such an agreement between Garland and the Masons as furnished a consideration for the agreement between Flack and Garland, and assuming such an agreement, still, under the circumstances, the appellant could not avail of it because of the want of a tender of [**8]  performance on his part. If any agreement was made it was in July 1846. If there was any agreement it was to pay cash or give four months' notes. The scire facias did not issue till January 1850. In the interval there was no tender of either money or notes, and this alone is fatal to the appellant. 2 Maule & Selw., 119, Cranley vs. Hillary. 12 Pet., 191, Clarke vs. White. It cannot be said that this is a case where tender was unnecessary because it was known it would be refused; because the bill dwells on the friendliness of the relations of the appellant and Garland in his lifetime, and he survived the alleged composition quite long enough to have received either the notes or the money. In truth nothing was said about a tender until the bill for injunction was filed.

But we say the Masons are in error in their recollections of what took place with Garland, and have magnified ordinary conversations about a common debtor into an agreement to compound. And again we say that the appellant is here asking specific performance of an agreement, the consideration of which was a supposed agreement between him and Garland, and being in equity should come with clean hands if he is to find [**9]  relief here. In other words, his right to have the injunction perpetuated must rest upon the fact that the Masons settled with him under an agreement with Garland that he would do the same, or having understood from Garland that he would do so, and yet Flack having ascertained from Garland that he would not compound, completed the composition with the Masons without informing them of the fact. If this was so, then his silence was a fraud upon the Masons, and he can have no standing here. Or if he informed the Masons of Garland's refusal and they settled notwithstanding, then such settlement ceases to afford a consideration for the agreement, which it is the object of the present bill to set up, admitting it in every respect to be otherwise satisfactorily made out. The appellant is in a dilemma and may select the horn he prefers. We contend therefore:

1st. That as between Flack and Garland alone, admitting the agreement as alleged, it was without consideration and void.

2nd. That looking to what took place between Garland and the Masons, there was no such agreement between them as could furnish a consideration to support the alleged agreement between Flack and Garland.

3rd.  [**10]  Even admitting that such agreement was supported by a sufficient consideration, there was not such tender of performance on the part of Flack as authorises it to be set up as a bar to the recovery by Garland of the entire indebtedness.

4th. That there was, however, not only no such agreement between Garland and the Masons, but that, even admitting the declarations of Garland in regard to his willingness to compound, the Masons were not influenced by them, but acted on their own judgment in the matter.

5th. That in point of fact Garland made no such declarations as are sworn to by the Masons, and that they are mistaken in their recollection, as appears from the testimony in the record.

6th. That, if for no other reason, Flack is not entitled to the relief prayed by his bill, because he either was guilty of fraud in concealing from the Masons Garland's denial of what they alleged he had stated, or, if he told them and they compounded notwithstanding, their conduct destroyed the consideration, such as was necessary to support the alleged agreement between Flack and Garland to compound.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [**11]  
 [*194]  LE GRAND, C. J., delivered the opinion of this court.
The bill in this case prays an injunction (which by the Superior Court of Baltimore city, where the bill was filed, was granted) against a judgment of Baltimore county court recovered against the appellant, Flack, by Nathaniel Garland, of whom the appellee is executrix. The judgment was rendered for a debt due by Flack to Garland and Elwell, of whom Garland was survivor. The bill alleges that Flack failed in business in the year 1842; that after some time had passed, during which he was endeavoring, having the confidence of his creditors, to make most available for their satisfaction the means left to him, he finally proposed to his creditors a composition, by which on paying fifty cents in the dollar he was to be released from his liabilities, determining and declaring 

 [*195]  that if such composition should fail to be effected, he would seek release by application for the benefit of the insolvent laws. The bill states that among his creditors, whose good will he thus had, was Garland, who, although during the suspense of the appellant's affairs before the composition was projected, had obtained judgment, yet [**12]  had taken that step with no adverse purpose, but merely to preserve the highest evidence of his claim. The bill states that after judgment was thus had by Garland, (which was rendered in the year 1843,) he, (Garland,) in the year 1846, and at the period when the composition referred to was in train, acceded to it and agreed, like the rest of the appellant's creditors, to accept the one-half of the amount of his claim in satisfaction of it; to be paid on demand made by Garland, in money, or by the appellant's note at four months. The appellant states that, by Garland so acceding to the composition, all his debts being provided for, he forbore applying for the benefit of the insolvent laws, and again embarked in business;--but that meanwhile Garland died, without receiving or applying for the composition money; and that his executrix, the appellee, unmindful of the adjustment thus binding her testator, was about to issue execution upon the judgment. The bill further states that Garland went forth among the other creditors to solicit and urge them to come into the composition, representing to them that he had acceded to it--stating that fact to persuade them to follow his example.
The [**13]  proceedings in the cause show that the judgment was obtained at January term 1843; and that on the 5th January 1850 a scire facias was issued, on which there was a fiat, and then an appeal to this court, where the judgment was affirmed at December term 1852.
The only testimony in the cause which can be regarded as tending, in any degree, to show that Garland had agreed to the composition alleged in the bill, or, that by his persuasion or statements, he induced others to assent to such an arrangement, is that of the Messrs. Masons. This testimony is very far from being decisively conclusive of the question when the other testimony is considered in connexion with it. But, be 

 [*196]  this as it may, it is not important to the decision of the case we should pronounce on its efficacy, for, even were it conceded that the composition had been clearly made out, yet the complainant would not be entitled to the relief which he seeks. By its terms the appellant was to pay the sum agreed to be accepted, either in cash or in notes, at four months. It is not pretended he did either, nor that he ever made an effort to do so. He did nothing so far as this record discloses until June 1853,  [**14]  when he filed his bill praying that the execution of the judgment might be enjoined. For several years he did nothing; he neither paid the money, delivered the notes, or offered to pay the money or to deliver the notes. We therefore think, on his own showing, that he has no equity. In the case of Green & Trammell, vs. Trieber, 3 Md. 11, this court said, when speaking of arrangements similar to the one relied upon here, that "the debtor offers his property to his creditors in payment of their claims, or for distribution according to such priorities as he may prescribe. Payment being the proposed object of the assignment, it must not contain any provision to defeat or hinder this purpose, beyond such reasonable delay as may be incidental and necessary to the proper execution of the trust." Every composition, in its very nature, contemplates payment in conformity with its terms. In the case now before us, if any was agreed upon, the appellant has wholly failed to perform his part of the contract. If he wished to avail himself of an arrangement for his benefit, he should have performed his part of it, or, at least, offered to do so. His failure to comply is a complete [**15]  answer to his present complaint.
Decree affirmed with costs. 

15 of 44 DOCUMENTS 

CITIZENS BANK OF BALTIMORE vs. JOHN A. HOWELL & BROTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 530; 1855 Md. LEXIS 78 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellees against the appellant to recover the amount of a promissory note for $ 122.11, at sixty days, dated the 25th of March 1851, drawn by Wesley F. Walter in favor of Edmond T. H. Walter, the payee, who endorsed it to the plaintiffs, who deposited it with the defendant, the bank, for collection, and the amount of which, the declaration alleges, was lost to the plaintiffs by the neglect of the notary public employed by the bank, in not properly notifying the endorser of the dishonor of the note by the maker. Plea, non assumpsit.

Exception. The plaintiffs offered in evidence the protest of the note by the notary, stating that it was presented at the place of business of the maker, and the reply was, that it could not be paid; and that the notice of this dishonor for the endorser "was left at Wesley F. Walter's." They then proved the handwriting of the maker and endorser, and that before its maturity, viz., on the 24th of March 1851, they deposited it with the Citizens Bank for collection; that Duvall, a notary public, called at their store on the 27th of May 1851, with the note, and asked if they [**2]  wished it protested, and was informed that they did; and that the maker resided in Caroline street; and the place of business of the endorser was No. 3, West Pratt street; and that the maker was insolvent, but the endorser was good. They further proved, that the endorser's place of business is at No. 3, West Pratt street, but that his name was not upon the sign over the door; and that his place of residence was in East Baltimore street, in 1851; they further offered in evidence the City Directory for 1851, showing the endorser's place of business to be at No. 3, West Pratt street, and the maker's residence in Caroline street at the time of the protest.

The defendant then proved by Duvall, the notary, that he was a duly commissioned notary in the city of Baltimore; that it is the universal usage and custom of the banks in that city to cause demand, protest and notice to endorsers to be made and given by a notary in case of inland as well as foreign bills of exchange and promissory notes; and that he was in the habit of discharging those duties for the defendant, the Franklin Bank, and Purvis & Gover, bankers; that the note in question was handed to him by the bank on the day of [**3]  its maturity, with directions to enquire of the plaintiffs whether they wished it protested; that he called at their store and enquired of their clerk if they wished it protested, and the reply was that they did; that he then enquired of the same party where the maker and endorser resided, and was informed that they resided in Caroline street; that he has no recollection that he said the endorser's place of business was at No. 3, West Pratt street, and does not believe he did, because in going to Caroline street he had to pass immediately by the door of No. 3, West Pratt street, and would, of course, have called; that he had difficulty in finding their residence in Caroline street, and meeting with a man at work he asked him where the maker and endorser resided, and was told on the opposite side of the street, pointing to the house, that he called at the house and inquired of a lady who came to the door, if Wesley F. Walter was in, she replied no; he then asked if Edmond T. H. Walter was in, she said no; witness then handed her a notice and requested her to give it to him when he came in. The defendant also offered in evidence the Directory of 1849, and also that of 1851; in the first [**4]  of which the endorser's residence is given, viz., West Fayette street, and in the latter no residence is recorded. The defendant also proved by the cashier of the Union Bank, that it is the universal custom and usage of the banks in the city of Baltimore to cause demand, protest and notice to be done by a notary of bills and notes, as well those deposited with the banks as their own. The defendant then asked the following instructions to the jury:

1st. That if they shall believe from the evidence in the cause, that the note in question being duly made and endorsed, was, on the 24th of March 1851, deposited with the defendant for collection; that it was duly handed to Duvall, a notary duly appointed and commissioned for the city of Baltimore, and that he having enquired at the counting-house of the plaintiffs was informed that the drawer and endorser both lived in Caroline street, and made other inquiry and was also informed by others that they resided in Caroline street, and that notice was accordingly left at said place, and at the same time directed to the said endorser; and notice was also given to the plaintiffs on said day at their place of business and between said hours;  [**5]  that it is the universal custom and usage of banks in the city of Baltimore to hand all notes to a notary of said city for presentment and notice, as well such as are left with them for collection as those belonging to them, then the plaintiffs are not entitled to recover, although the jury may further find that the endorser did not reside with the maker, but had a residence in another part of the city but not recorded in the Directory for the year 1851; and also had a place of business which was named in the Directory for said year, and that said notary, as soon as he had ascertained that he had mistaken the residence, gave notice to said endorser, first, because the defendant is not responsible for the want of due diligence, if any, on the part of the notary; and secondly, because due diligence was used by the notary as well as by the defendant.

2nd. That the bank having complied with its uniform usage as well as the usage of the banks of the city of Baltimore, by delivering the note at the regular time to the notary public, had entirely discharged its duty and relieved itself from all responsibility in the premises to the plaintiffs.

3rd. That the notary public was not [**6]  in any wise the agent of the bank, he being a public officer, created as such by the law, upon whom devolves all the responsibility arising from a failure to perform his official duties in a proper manner, and that therefore the bank was not responsible for any failure of duty on the part of the notary.

4th. If the jury find that it is the usage of the banks in the city of Baltimore to cause all demands, protests and notices to be made and given by a notary, that the bank in this case is not responsible for the acts of the notary, unless they believe that there was a special contract by the bank to be responsible for the acts of the notary, of which there is no evidence.

These instructions the court, (MARSHALL, J.,) refused to give, but was of opinion and directed the jury as set out in the opinion of this court. "To which opinion and direction of the court to the jury" the defendant excepted, and the verdict and judgment being in favor of the plaintiffs the bank appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

In this State when a note or bill is received in the ordinary course of business, without any special agreement on the subject, by a bank for collection, and the bank in due time delivers it to the notary usually employed by it in such matters, so that the necessary demand, protest and notices may be made and given, the bank will not be answerable for loss resulting from the failure of the notary to perform his duty.

The act of 1837, ch. 253, makes protests of inland bills and promissory notes prima facie evidence, and to secure the benefit of this law to the owners of such instruments it is the duty of the banks receiving them for collection to place them in the hands of a notary that they may be protested in due time when necessary.  

COUNSEL:
D. C. H. Emory and Thos. S. Alexander for the appellant.

The appellees suppose the only question open on the exception involves the propriety of the [**7]  instruction given by the court to the jury. But it is apparent from the structure of the whole exception, that the appellants intended to except as well to the refusal of the court to give the instructions prayed for as the instruction actually given. The instruction is, in truth, a response to the prayer, and involves the very contrary of the propositions advanced by the defendants. Thus the court say, there is evidence of a special contract by which the bank guaranteed the plaintiffs against the neglect of the notary. The defendant had insisted that there was no such evidence. The court instructed the jury that there was evidence of negligence or omission on the part of the notary. The defendant had asked for an instruction, that upon the facts offered in evidence the charge of negligence was not made out. Conceding, then, for sake of the argument, that in the general an exception to the instruction actually given will not entitle the party to contest the propriety of the court's refusal to give the instruction prayed for, it is insisted that the rule does not apply to a case like the present, where the subject of the instruction is identical with the subject of the prayer, and the [**8]  instruction is intended as a response to the prayer. In such case the instruction is wrong if the prayer ought to have been granted.

We propose to discuss, in the first place, therefore, the propriety of the defendant's prayers, and then the propriety of the court's instructions to the jury. The plaintiffs' case supposes that the notary was guilty of negligence, and that the defendant is liable for such neglect of the notary. We shall endeavor to show that there was no negligence on the part of the notary, and next, assuming there was negligence, that the bank is not responsible therefor.

When the holder is ignorant of the place of residence of an indorser, he may excuse his failure to give notice of the dishonor of the bill or note to such party, by showing that he used reasonable diligence in the effort to ascertain the place of residence of the party, but without success. And if, on inquiry of persons whom he has fair reason to believe can give him correct information on the subject, he does receive information which he credits and acts on, he is likewise excused.

Reasonable diligence is that degree of diligence which men of ordinary habits of attention to business [**9]  usually devote to their own affairs. What is reasonable diligence depends on the special circumstances, and is usually, therefore, a mixed question of law and fact. But where the state of facts is given or assumed, it becomes a question of law to be determined by the court. For the rule and its application, we refer to Chitty on Bills, 453, and passim., and especially to 4 How., 336, Harris vs. Robinson, and 9 How., 552, Lambert vs. Ghiselin; in this last case the bill, being protested in Baltimore in the year 1846, was returned to the holders in Alexandria. They addressed notices to the indorser at Nottingham. They acted on information received from a person who had, prior to the year 1842, sailed a vessel between Nottingham and Alexandria; and showed there was in 1846 little intercourse between the two places; and that there was no one in Alexandria who was likely to give more correct information on the subject. In fact, the indorser resided in early life in Nottingham, but had removed thence as early as the year 1839. But the Supreme Court were of opinion, that due diligence had been used by the holder and the indorser was held liable. In the present case the notary addressed himself [**10]  to the plaintiffs, and by the clerk he was informed that the maker and indorser resided together in Caroline street. He proceeded thither, making inquiry of a number of persons on the street. At length he met a laborer, in his shirt sleeves at work, of whom he inquired where the maker and indorser resided, and by him he (the notary) was told that they resided in a house on the opposite side of the street, to which the laborer pointed. He called at that house and was met at the door by a lady, who, to his inquiry whether the drawer was in, answered no. The notary then handed her a notice addressed to the indorser, and requested her to hand it to him when he came in. On the same day notice of dishonor was also given to the plaintiffs. The plaintiffs attempted to prove, that their clerk had also informed the notary that the indorser had a place of business in Pratt street. But the notary has no recollection of any such statement having been made, and the reason stated by him would seem to be conclusive on the subject. He passed through Pratt street on his way to Caroline street, which is beyond the limits of business in Baltimore and is comparatively an obscure street, and there wasted [**11]  time in making inquiries which would have been unnecessary if the notary had understood that the drawer had a place of business in Pratt street. On the whole evidence it is admitted, that the notary evinced a strong desire to discharge his duty--that he labored faithfully to discharge his duty--and that he really believed he had in good faith acquitted himself of his duty. What more can be expected in any case?

But again, the plaintiffs have failed in proving any special agreement between them and the bank. They deny that the usage of the bank, to hand over all bills and notes to the notary, can bind them. They trusted to the bank. The notary was the bank's agent; and what was done and what was omitted to be done by the agent, are to be treated as done and omitted by the bank itself. The General Law Merchant is, therefore, to be invoked to determine whether the bank, as collecting agent, has fulfilled its duty. Now we apprehend it is clear, that the holder of a bill is bound to give notice to such of the parties as he proposes to hold answerable to himself. If he gives notice to the last indorser only, this latter has the right, and if he deems it essential to his own indemnity,  [**12]  must give notice to the prior parties in obligation on the paper. If the demand is made by an agent, it is sufficient that he give notice of dishonor to his principal, and it then becomes necessary for the principal to give the proper notices to the prior parties to be fixed. 3 Bos. & Pul., 599, Haynes vs. Birks; 8 Barn. & Cres., 387, Firth vs. Thrush, and 2 Johns. Cases, 1, Tunno vs. Lague, will be sufficient on this point. Now, it is put to the jury to find, as a part of our case, that the notary gave a notice of dishonor to the plaintiffs on the very day on which the note became payable. Again, the general law does not require that the notary shall assume the office of a general directory, and know at his peril the residence of every one who may become a party to negotiable paper. He is at liberty to apply to the holder for direction, and if the holder undertakes to give information which turns out to be erroneous, the loss must be borne by himself. In this case the notary informed the plaintiffs that the note was in his hands; he inquired whether the note was to be protested if not honored, and where the indorser was to be found. He was informed by the holder that the indorser [**13]  resided on Caroline street. He betook himself accordingly to Caroline street, and whilst there made every effort to discover the house wherein the indorser was supposed to reside. The charge now is that he was misled by the holders. Conceding, then, for the sake of the argument, that there was neglect on the part of the notary, we deny that the appellant is liable for the consequences thereof.

It was proved to be the invariable usage of the banks in Baltimore to cause demand, protest and notices to indorsers to be made and given by a notary, in the case of inland as well as foreign bills and notes. And the prayer puts it to the jury to find that this usage exists, as well in relation to bills and notes left with the banks for collection as to those which are issued by them. Of this usage the plaintiffs had actual notice; and in the absence of such proof, it would be presumed that they had notice thereof and that their deposit was made with reference to the usage. 11 Wheat., 431, Mills vs. Bank of the United States. The placing of the note with the defendant was equivalent to an agreement, that it should be delivered by the defendant to a notary for the purpose of demand and protest,  [**14]  in accordance with the usage. 6 H. & J., 150, Jackson vs. Union Bank. The usage is reasonable in itself and highly proper to be observed, since the act of 1837, ch. 253, makes the protest prima facie evidence of the facts of demand and notice of dishonor to the indorsers. The usage was obligatory on the bank. If it had failed to hand the note over to the notary, and by such failure had deprived the plaintiffs of the facilities for establishing their case against the indorsers, which would have been supplied by the protest, the bank might have been held answerable for all the consequences of the default. But if the plaintiffs had a right to require the delivery of the note to the notary, in order to insure to them the advantages to be derived from a notarial protest, and if the omission to deliver the note over to the notary would have been culpable negligence on the part of the bank, with what color of justice can it be pretended that the bank, which has delivered the note to the notary in deference to the usage, shall be responsible for the defaults of the notary in the performance of his duty? In 4 Whart., 105, Bellemire vs. Bank of United States and same case in 1 Miles, 173, it [**15]  was expressly adjudged, that where a bank receiving a note for collection, hands it over to a notary for the purposes of demand, conformably to the usage of the bank, it is not liable for any act or default of the notary. Vide also 1 La. An. Rep., 13, Baldwin vs. Bank of Louisiana. 17 La. Rep., 560, Hyde vs. Planters Bank.

It is undoubtedly a general rule, that an agent cannot delegate his authority, and is, therefore, in the general, held to answer for the deficiencies of the persons employed by him. They are treated as his agents. But the usage of trade sometimes requires, and at other times justifies, a departure from the rule. And where, in deference to usage, the deputy is selected, he becomes the agent of the principal, and is answerable to the principal for any negligence in the discharge of his duty. The agent is never responsible for the defaults of a deputy who has been appointed, according to the usage of trade, to assist him in the performance of his agency. Story on Agency, sec. 201. 1 G. & J., 147, Pawson vs. Donnell.

Thus it is settled, that the owner or master is not liable for a collision happening whilst the vessel is in charge of a licensed pilot. In 22 [**16]  Conn., 213, Windham Bank vs. Norton, it was held, that the holder is not responsible for delay occasioned by miscarriage of a letter containing a note through the negligence of the post-office. These cases are strictly analogous to the case of the notary, who, like the pilot and the postmaster, is clothed with official authority. In 6 H. & J., 150, Jackson vs. Union Bank, this court suppose, that a foreign merchant sends goods to his consignee in Baltimore, with instructions to dispose of them for him to the best advantage; the consignee sends them to auction, the auctioneer makes way with the goods, or sells them and makes way with the money, and fails, in such case it is declared, the consignee would not be responsible; and the court therefore adjudge, that if a bill drawn on Washington is deposited with a bank in Baltimore for collection, and is by that bank remitted to a bank at Washington--its usual agent--to be collected, this last bank becomes the agent of the holder, and its defaults are not to be visited against the bank in Baltimore. 23 Pick., 330, Fabens vs. The Mercantile Bank. 1 Cush., 177, Dorchester Bank vs. New England Bank. 12 Conn., 303, East-Haddam Bank vs. Scovil,  [**17]  amongst others, may be cited to the same effect.

A different rule would seem to prevail in New York. In 22 Wend., 215, Allen vs. Merchants Bank, it was held, that the bank to which the note was remitted for collection was the agent of the bank with which the note was deposited by the holder, and the latter bank was liable to the holder for the defaults of its agent. This is the leading case on the subject in New York, and was decided in the Court of Errors by a vote of fourteen to ten, reversing the judgment of the Supreme Court. The ground of the New York rule is stated, in 223, to be, that the acceptance of negotiable paper thus deposited for collection forms an implied undertaking to make the demand, and give the notice required by law or mercantile usage, for the perfect protection of the holder's rights against all previous parties--for which undertaking the use of the funds thus temporarily obtained, or of the average balances thereof for the purposes of discount or exchange, forms a valuable consideration. Now it will be observed, that the liability of the bank is thus rested on contract implied by law, from the fact that the depositary is a bank of discount and deposit,  [**18]  ordinarily using the funds of its customers in the transaction of its own business. The profit which is derived from the employment of the aggregate balances to the credit of its customers, is the consideration upon which the law will imply a special contract with the wayfarer who accidentally deposits a bill for collection, to indemnify him against the defaults of the agents who may be employed in the collection of that bill. Conceding that the guarantee ought to be sustained against the defaults of the clerks of the bank or other agents, voluntarily selected to assist in the discharge of its agency, there would yet remain a difficulty in extending it to the default of a public officer to whom the note was entrusted, for the purpose of authenticating the facts which fix the responsibility of the indorsers, and of thereby facilitating the recovery of the claim by the holders against them. There was no proof offered of usage or commercial understanding, that the banks should assume any unusual responsibility for agents, whose appointment should be rendered necessary by usage or the exigency of business, much less that they should assume the obligation of giving notice of dishonor to [**19]  all the parties to the instrument. In England it is certain, that the banker is bound to give notice of dishonor only to the holder by whom the bill was deposited for collection, (3 Bos. & Pul., 599, Haynes vs. Birks,) and the inference is very fair, that the courts at Westminster would ignore the existence of the other branch of the supposed implied contract. If the use of the average balances in hand is a consideration for the contract, to be implied that the banker shall guarantee his customers against the negligence of the agents necessarily employed by the agent, why should not the law, in the case supposed in Jackson vs. Union Bank, imply a contract or undertaking, on the part of the consignee, to indemnify his principal against the frauds of the auctioneer employed to sell the goods consigned?

The ground assumed in New York is petitio principii, assumed in the absence of evidence, sustained by no authority, and warranted by no principle. But it will be sufficient to conclude the argument by suggesting, that the decision, and the reasoning on which it is rested, are directly at variance with the point adjudged and the reasoning adopted by this court in Jackson vs. Union [**20]  Bank.

The instruction given by the court below assumes there was evidence of a special contract on the part of the bank to do all that was necessary to fix the responsibility of all prior parties to the plaintiffs. But there was no evidence of any such special contract. The extent of the obligation of the bank was determinable by the general law. The court ought to have stated what were the obligations which this general law casts on the bank, and ought not to have left it to the jury to find what were the obligations of the contract which this law implied from the relation of depositor and depositary existing between the parties. In this particular the jury were required to find matter of law.

But in the next place, the court based the second branch of its instructions upon the facts enumerated in the first branch thereof, and amongst others, upon the fact that the plaintiffs had misdirected the notary as to the actual residence of the indorser. The effect of the instruction then was, that if the jury should, from the relation of depositor and depositary, imply a contract on the part of the bank to do all that was necessary to fix the liability of the indorser, and that [**21]  the bank had not given due notice to the indorser, then the plaintiffs were entitled to recover, although they should find that the plaintiffs had misdirected the notary as to the actual residence of the indorser, and that the failure to give proper notice to the indorser was the necessary consequence of such misdirection. In this, as before stated, the jury were charged to find what were the legal consequences resulting from the relation of depositor and depositary. And the contract supposed, being implied as matter of law, the court instruct the jury, that the defendant cannot excuse the non-performance of the contract, by showing that this default was caused by the false information given to the notary by the plaintiffs. This would be hard law indeed, unless it can be shown that the notary is bound, at his peril, to find out the places of residence of the indorsers. We have already stated, that these instructions involve the reverse of the propositions submitted by the appellant.

Charles W. Ridgely and St. Geo. W. Teackle for the appellees:

The greater portion of the argument on the other side is bestowed upon the discussion of the prayers of the appellant, all of which [**22]  were rejected by the court; and if those prayers were open for argument in this court, we apprehend that it would be an easy task for us to show that each and all of them were properly rejected. But as no exception was reserved to the rejection of either of those prayers in the court below, we deem it unnecessary, and a useless consumption of the time of this court, to discuss either of those prayers, and will proceed at once to discuss the true and only questions open upon this appeal, in the order in which they are presented in the record.

The first question arises upon the first branch of the instruction of the court. Now it will be seen from an examination of this portion of the instruction, that the only proposition of law decided in it is, that if the maker and indorser of a promissory note both reside in the same city, and the note at its maturity is not paid, and the indorser had no notice of the non-payment of the note on the day of its maturity or on the next day thereafter, and no notice of non-payment was left at the residence or place of business of said indorser, that then the said indorser is not responsible for the payment of said note, by reason of his said indorsement,  [**23]  notwithstanding any misdirection given to the notary by the plaintiffs or other persons as to the actual residence of said indorser, unless upon proper and reasonable diligence it was not in the power of the notary to have procured more correct information as to such residence or place of business. Now can any proposition of law be clearer than that announced in this instruction? The point decided is simply that if the jury find the facts stated in the instruction, that then the indorser is discharged from his liability as indorser. It does not follow from the instruction, as is erroneously supposed in the argument on the other side, that therefore the plaintiffs are entitled to recover as against the defendant, for it might well be, that if the failure of the notary to find the indorser or his residence or place of business resulted from the misdirection of the plaintiffs, that the notary, or the bank, whose agent he was, should not be held responsible for such failure to notify such indorser.

We deem the above sufficient upon this question and proceed to the consideration of the next question which arises upon the second branch of the court's instruction. The question here presented [**24]  is simply this: whose agent was the notary for the purposes of demand and notice? Upon the facts stated in this instruction, was he the agent of the bank or the agent of the plaintiffs? Two important facts bearing upon this question are free from all doubt:--1st. That the bank received the note in question from the plaintiffs for collection, and undertook to collect it, or have it collected; and 2nd. That the bank, without consultation with, or notice to the plaintiffs, employed the notary in this case to take the necessary steps to secure the collection of the note, and also employed him as general agent in similar cases. Now upon general principles it seems clear, that the person employed as an agent, is the agent of the person who so employs him, unless specially employed as the agent of another, under a sufficient power for that purpose. And the privity being between the agent and the person employing him, the principal ought to be, and is ordinarily, responsible to third parties for the acts of such agent. This, as a general rule, is conceded in the argument of the appellant's counsel, but they contend that a notary public, being an official character, forms an exception to this [**25]  general rule of law. Now it is unquestionable law, that no protest of an inland bill or promissory note is necessary to bind an indorser--demand and notice are alone sufficient for that purpose, and the notary in this case could have done every thing necessary to bind the indorser, in his individual capacity as Lemuel Duvall, as well as in his official capacity as Lemuel Duvall, notary public. And the usage proved in this case is not to protest all or any inland bills or notes, but simply to place them, if not paid at maturity, into the hands of a notary, for what purpose the evidence does not state. But, say the learned counsel for the appellants, the bank was bound to have this note protested, in order to secure to the holder the advantage of the prima facie proof afforded by a protest under the act of 1837, and if it had failed in this duty which it had undertaken, it would have been liable to the plaintiffs. This argument of our opponents we deem conclusive upon this question: for, we ask, how could the bank be held liable for not securing to the appellees in this case the prima facie evidence of a protest to facilitate the plaintiff's recovery upon the note, as against this indorser,  [**26]  and not be held liable to the appellees for not giving notice of demand and non-payment to the indorser, without which all the protest and other evidence would be entirely inefficacious towards the recovery of the amount of the note as against such indorser? There was but one undertaking of the bank, and that was a general one, viz: to collect the note, or rather to take the necessary means to do so. And amongst these means, notice of demand and non-payment to the indorser is the most necessary and imperative. We deem it only necessary, in support of the foregoing views, to refer the court to the following authorities: Allen vs. Merchants Bank, 22 Wend., 215. Smedes vs. Bank of Utica, 20 Johns., 371. Thompson vs. Bank of S. Carolina, 3 Hill S. C. Rep., 77. Bank of Utica vs. McKinster, 11 Wend., 473. Fabens vs. The Mercantile Bank, 23 Pick., 330. The Bank of Utica vs. Smedes, &c., 3 Cowen, 662.

Now it is not questioned in either of these cases that the notary is the agent of the bank in which the note is deposited for collection, where the bank is located in the place where the note is payable, and where the parties responsible on the note reside. Even the chancellor and his nine [**27]  compeers, in the case in 22 Wendell, admit that, but they put their dissenting opinion solely upon the ground, in that case, that the note was payable in another city, and necessarily required the intervention of other agents in such other city, and that such necessity was known to the depositor, and he was to be presumed to acquiesce in the employment of some one as his agent other than the bank in which he deposited the note. The opinion of the majority of the court allows no such distinction, but holds the bank that first receives the note for collection liable as agent to the depositor for all negligence, whether of its officers or of other banks or persons employed by them wherever located or residing. It is not necessary for us to go to the extent ruled in this case;--in the case now before this court the bank, the holders of the note, and all the parties responsible upon it, lived in the city of Baltimore. Before leaving this branch of the case, we beg leave to say that all the cases cited by our opponents upon this point will, upon examination, be found to harmonize with the view we have above expressed, if they are examined with reference to the distinction above taken between [**28]  banks or agents located or residing in the place where the note is payable and the parties responsible upon it reside, and where they are not so located.

In conclusion, we submit that there is no foundation for the objections started by our opponents, either that any question of law has been put by the court to the jury in this case, or that any question of facts has been taken from them--this error arises from the counsel of the appellants blending the facts and principles of law stated in their prayers to the court, with the court's instructions--the rejection of those prayers not having been excepted to below, every thing in them is outside of this case.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*545]  ECCLESTON, J., delivered the opinion of this court.
The counsel for the appellant insist, that the record presents for our consideration, not only the inquiry whether the court was right in the instructions given to the jury, but also, whether there was not error in refusing to grant the prayers of the appellant; whilst the appellees contend that no exception was taken to the rejection of the prayers but only to the instructions [**29]  by the court. We are inclined to think the latter is the correct view, but the point need not be decided, because, confining ourselves to the instructions, we find such error in them as to require a reversal of the judgment.
The following is the language of the court: "If the jury believe from the evidence in the cause, that the note offered in evidence was drawn by Wesley F. Walter and indorsed by Edmond T. H. Walter, and that the said indorser and drawer both resided in the city of Baltimore at the time of maturity, and that the note was held by the bank at said time, in said city, for collection on account of the plaintiffs, and shall believe they were then and still are the owners of the same; and if they shall further believe that the said note was not paid at maturity, and that said indorser had no notice of the non-payment thereof, on the day of its maturity or the next day thereafter, and that no notice thereof was left by the plaintiffs or their agent at the residence or place of business of said indorser, then the indorser is not responsible for the payment of said note by reason of his indorsement, although they should believe that the plaintiffs, or their agent duly authorized [**30]  thereto, as well as other persons in the city of Baltimore, misdirected the notary as to the actual residence of the said indorser, unless they should believe, that upon proper and reasonable diligence it was not in the power of the notary to have procured 

 [*546]  better and correct information as to the residence or place of business of the said indorser.
"If the jury believe the facts stated above as to said note, that the contract and undertaking of the bank with the plaintiffs is to be found by the jury from all the evidence in the cause; and if they shall find from such evidence that the bank undertook, on receiving this note for collection, only to employ a competent and proper person to demand payment of said note at maturity, and give the proper notices of its non-payment, and that they did employ such competent and proper person, and placed the note in his hands in time to have said demand made on the day of the maturity of the note, and such notices given, then the bank is not responsible, although they should believe, that by the negligence or other fault of such person so employed, the note has become lost to the said plaintiffs. But if the jury should believe from [**31]  the evidence in the cause, that the undertaking of the bank in their receiving said note for collection was, that they would do all that was proper and necessary to be done by the plaintiffs themselves, in order to the security of the interests of the plaintiffs, so far forth as the responsibility of the drawer and indorser was concerned, then the defendant is answerable to the plaintiffs for whatever loss they may find the plaintiffs to have incurred by reason of such negligence, and insufficient action of the bank or the person employed by it as aforesaid."
In the latter part of the opinion and direction thus given by the court, the jury are told, if they believe from the evidence, that in receiving the note for collection the bank undertook to do all that was proper and necessary to be done by the plaintiffs themselves, in order to secure the interests of the plaintiffs so far as the responsibility of the drawer and indorser was concerned, then the bank is answerable to the plaintiffs for any loss they had incurred by reason of negligence and insufficient action of the bank or the person employed by it. "The person employed," here spoken of, means, of course, the notary. But we [**32]  see no evidence tending to prove any undertaking or agreement whatever, on the part of the bank, which can render it responsible to the plaintiffs for the alleged negligence 

 [*547]  of the notary, or for his insufficient action in the premises, and for want of proof to sustain such responsibility we think there was error in giving the instruction.
The act of 1837, ch. 253, makes protests of inland bills of exchange and promissory notes prima facie evidence; and for the purpose of securing the benefit of this law to the owners of such instruments, it is the duty of the banks receiving them for collection to place them in the hands of a notary that they may be protested in due time, when necessary. And we think, that in this State, when, in the ordinary course of business, without any special agreement on the subject, a note or bill is received by a bank for collection, which is in due time delivered by it to the notary usually employed in such matters by the bank, so that the necessary demand, protest and notices may be made and given by him, the bank will not be answerable in case of loss resulting from a failure of the notary to perform his duty.
The responsibility of banks [**33]  receiving notes for collection, where they have employed other banks or agents, has been carried further in New York than in some other States of the Union. But even there, in Smedes vs. Utica Bank, 20 Johns. Rep. 384, where the bank was held answerable on account of having employed a person to make demand and give the notice, who was not a competent agent, the court say: "If the note had been delivered to a notary it would present a different case. Notaries are officers appointed by the State; confidence is placed in them by the government. This may be evidence sufficient to justify an agent in committing to them business relating to their offices, although in point of fact it might subsequently appear, they did not possess the necessary qualifications." See also Story on Agency, sec. 201.  Pawson vs. Donnell, 1 G. & J. 1. Jackson vs. Union Bank, 6 H. & J. 146. Fabens vs. The Mercantile Bank, 23 Pick. 330. Dorchester Bank vs. New England Bank, 1 Cush. 177, 188. East Haddam Bank vs. Scovil, 12 Conn. 303. Bellemire vs. Bank of the United States. 4 Wharton 105, [**34]  and 1 Miles 173. Baldwin vs. Bank of Louisiana, 1 Louisiana Annual Rep., 13.  Hyde & Goodrich vs. Planters 

 [*548]  Bank of Miss., 17 La. 560. Tiernan & others, vs.  Commercial Bank of Natchez, 7 How. 648. Angel & Ames on Corp., 186.
Judgment reversed and procedendo ordered. 

16 of 44 DOCUMENTS 

WILLIAM HAMILTON and A. ROBINSON, vs. CHAS. ROGERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 301; 1855 Md. LEXIS 55 

DECEMBER, 1855, Decided 

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

Trespass vi et armis, brought on the 18th of July 1854, by the appellee against the appellants for entering the plaintiff's store house and seizing and taking therefrom certain goods described in the declaration. Plea, non cul.

1st Exception. The plaintiff offered in evidence a mortgage to him from Joseph D. Worley, dated the 6th of June 1851, reciting that Worley is indebted to Rogers in the sum of $ 5314.80, being for the purchase money of the stock in trade and property conveyed by the mortgage for which he had given his promissory note, payable in ten days, and to secure which the mortgage is executed. It then conveys to Rogers "all the stock and materials" in certain stores in the city of Baltimore, "consisting of saddles, trunks, harness, saddlery, hardware tools, leather and other materials, together with all renewals of and substitutions for the same or any part or parts thereof; the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley's business, so long as said note in whole or in part remains due [**2]  and unpaid; together with the household furniture in the house occupied by said Worley." The mortgage further states, that Worley had put Rogers in possession of all the property thereby conveyed, by delivering to him "one saddle, one bridle and one chair, at the sealing and delivery of these presents, in the name of the whole premises." The mortgage was to be void on payment of the promissory note above mentioned, according to its tenor, and until default in payment thereof the property was to remain in possession of Worley, the mortgagor.

The plaintiff then offered to examine Worley as a witness, but defendants objected to his competency. The plaintiff then filed two releases, one from Rogers releasing Worley and all the property conveyed by him to his trustee in insolvency, from all claim on account of the balance of the debt still due, secured by the mortgage; and the other from Worley assigning to Rogers all claim to the property described in the nar and in the mortgage, and to all damages which may be recovered in this suit. The defendants still objected on the ground that he was interested in the result of the suit, but the court, (MARSHALL, J.,) overruled this objection [**3]  and the defendants excepted.

2nd Exception. The plaintiff asked a witness what each set of harnesses, which defendant, Robinson, took from plaintiff's store, was worth at retail prices? To this question defendants objected, but the court overruled the objection, saying, that evidence as to retail and wholesale prices might be given, and that the jury might judge as to what price they would allow if at all. To this ruling the defendants excepted.

3rd Exception. The facts proved in this exception are fully stated in the opinion of this court. After all the evidence was closed the defendants asked the following instructions:

1st. If the jury find from the evidence, that the deed from Worley to Rogers was made with the view and for the purpose and intent to hinder, delay or defraud the creditors of Worley it is void, and plaintiff cannot recover.

2nd. If they find that Worley, on the 6th of June 1851, was unable to pay his debts and insolvent, and that on the 22nd of July 1854, he petitioned for the benefit of the insolvent laws; and at the time he made said deed he had no reasonable expectation from being exempt from execution or liability, for or on account of his [**4]  debts, except by applying for the benefit of the insolvent laws, then the plaintiff is not entitled to recover, provided the jury believe that Rogers had notice of the insolvency of Worley.

3rd. That if they find that none of the goods so levied on by the officer were in the store of Worley on the 6th of June 1851, in specie, or in such manner as could be, by the defendant, Robinson, identified as those in the store on that day, and that other goods were introduced by Worley, with consent of the plaintiff, into the store since that day, and worked up with those in the store previously, and that said first mentioned goods were not pointed out to the officer by the plaintiff or any one for him, then the plaintiff is not entitled to recover against defendants in this form of action.

4th. If the jury find that the goods levied on by the officer, as stated in the evidence, were not in the store on the 6th of June 1851, in specie, or in the form in which they were at the time they were so seized on by the officer, or in such a manner as by him to be identified, and that all or most of the materials used in making them were purchased by Worley on his own credit, after the making [**5]  of said deed, to wit, some time in 1854, then the plaintiff is not entitled to recover for any of said property except that in the store on the 6th of June 1851, and that the burthen of proof is on him to show that any goods for which he seeks to recover in this action were in the store at the time of making said deed.

5th. That said bill of sale conveyed no goods except those in the possession of Worley at the time of the making thereof, or such goods as he had some right or claim to at the time he executed it, and that any goods purchased by him afterwards are not affected thereby, and that before the plaintiff can recover he must show that the goods levied on were the property of Worley on the 6th of June 1851, or that he had some right or claim thereto on that day.

(The only evidence in the record to show that any of the goods levied on were in the store on the 6th of June 1851, is that of Dempsey, who states, "that some of the buckles used in the manufacturing of the goods so levied on may have been in the store on the 6th of June 1851; that the buckles used in making a trunk that would cost from $ 9 to $ 16 would cost from 12 1/2 to 25 cents.")

The court granted [**6]  the first prayer and refused all the others as presented, but granted the fourth with this modification added: "or that the goods supposed not to have been in the store at the time of the execution of said mortgage were purchased by the proceeds of sale of such goods as were in the store at said time." For the rejection of the second prayer the judge assigned as a reason, "that notwithstanding the jury might believe all that is stated in that prayer, the plaintiff might recover, as the only person who could set aside the deed because of the reasons stated in said prayer would be the trustee of the insolvent." The learned judge also assigned the following reasons for rejecting the third prayer as presented, and the fourth and fifth prayers:

"There is so large an amount of property involved in transactions like the one now in question, and so many estates have been controlled in their distribution by instruments of similar import to the mortgage under consideration, that if I really doubted its validity I should be disposed to sustain the deed notwithstanding, and leave it to the Court of Appeals to determine at once the question, without affecting the community with protracted [**7]  doubts upon an important usage. I feel, fortunately for myself, as much confidence in the decision I have made as a man should feel in a question upon which the profession is much divided, and courts of different countries have differed. The question is, whether this mortgage be void as to such goods as were brought into the store as 'renewals' or 'substitutions' of the original mortgaged stock, so far forth as the jury should find from the evidence such renewals or substitutions to have been made by the mortgagor with the proceeds of sale of the original mortgaged stock. It is contended, that at law no man can convey that to which he has no right, either 'actual' or 'potential.' The cases in 4 Metcalf, 306; 10 Metcalf, 488; 2 Cushing, 300; 7 Adol. & Ellis N. S., 850; 1 Man., Gran. & Scott, 385, assert this as a common law principle, undoubtedly, but they do not apply the principle, if I understand those cases, to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement, by a reinvestment of the proceeds of the original mortgaged property. I will remark, moreover, that some doubt at least is thrown upon those cases, as to the [**8]  abstract principle asserted by them as common law in Maryland, by the case of Hannon vs. Robey, 9 Gill, 440. The deed in that case was from a father to two sons, of one-half of such personal property as he might die possessed of. The court say, page 443, 'it is impossible to regard the deed as a testamentary paper.' After referring to 9 Gill & Johns., 77, and 7 Har. & Johns., 147, in answer to objections taken to the deed, as such, the court go on to say, page 446, 'nor do we find any authority to forbid the transfer of such personal property, subsequently acquired, as the grantor may leave at his death.' With a court of subordinate jurisdiction this case must exert great power, although in seeming opposition to those which I have just cited, whatever disposition the Court of Appeals may make of the question. For the matter now under discussion, this principle may be conceded against the case of Hannon vs. Robey. What I have to decide is, whether property, the proceeds of that originally and expressly mortgaged, acquired by barter or sale, with the consent of the mortgagee and in pursuance of the original agreement, can stand within the mortgage provisions. The cases cited in denial [**9]  of this proposition concede, that there is no objection in law to the conveyance of 'a potential title,' as of growing crops, the future fleeces of a flock, of tithes, &c., &c. In Maryland it has been decided, that the offspring of a female slave held by the mortgagor, by agreement, and born before the right of possession was lost by the mortgagor, was bound to the mortgagee of the mother by the condition of the mortgage. If an analogy be conceded between these cases and the one now under adjudication, it is easy to harmonize the decisions referred to in support of the present mortgage with those adduced in opposition to it. Otherwise, I think there is to be found a conflict of judicial opinions difficult to reconcile, and embarrassing from the weight of authority on either side. I shall notice briefly now the cases which seem to me to declare affirmatively the principle involved in this enquiry. In 6 Man. & Gra., 248, 249, two of the judges seem to me to intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. In 14 Pick., 502, 505, a party made a pledge [**10]  of property to secure a debt, and among other property, pledged such bricks as he then had made, and such as he should thereafter make in the prosecution of his business. He was to continue in possession of the property, with power to sell, &c. The lien of the creditors having the pledge was held good against other creditors. In Cross on Liens, a case is reported, (Appendix, 408,) the principles of which I cannot distinguish from those in the present controversy. A contractor agreed with his principals, that as a security for such advances as they should make him towards the completion of his undertaking, they should have a lien on the tools, materials, &c., that he then had or should thereafter place upon the described premises. He used the materials, removed them, replaced them by others, and altogether changed the elements of the security, yet the original agreement was held to bind all the property in the agreed predicament at the moment the contingency presented itself. In 20 Maine, 408, I find the court determining the question here involved, it seems to me precisely and without reserve, in support of the deed. In two cases, reported in 2 Story's Rep., the late Judge Story sustained [**11]  in equity liens created by agreement upon property not then owned by the mortgagor. The cases are Fletcher vs. Morey, 555, and Mitchell vs. Winslow, 630. These cases are supposed to decide such liens good in equity, but bad in law. I do not so understand them; on the contrary, I understand the distinguished judge to rule such agreements valid at law and equity, whenever it may be within the scope of a legal tribunal to enforce them: I refer more particularly to the case of Mitchell vs. Winslow, 630, of 2 Story. In the argument of his case, it is true the judge says he may admit all that is alleged against the deed at law, citing the common law principle asserted in the cases I have heretofore referred to, and that he may, for the sake of the argument, admit the deed bad at law, and still he proceeds to show that it might be, and was, good in equity. (See pages 636, 638.) In the further prosecution of his argument, however, I understand Judge Story to review this concession thus made, for the sake of the argument, and to deny its propriety. In pages 645, 646, &c., I understand him to say, that at law he can see no valid objection to this power to sell and to substitute other property [**12]  for that specifically mortgaged; and in support of this position, he refers to the above cases in 14 Pick., 20 Maine, and in the Appendix of Cross on Liens, as sustaining at law the principles for which he had been contending in equity. In Maryland, so far as I know, this case is undecided, whether in the Court of Appeals or in the subordinate tribunals. It has been but once, I believe, presented to the Court of Appeals, (in Hudson vs. Warner & Vance, 2 Har. & Gill, 428,) and then the court declined to decide the question. It has been decided in 9 Gill, 201, that an action for money had and received will lie in favor of the mortgagee against an assignee of the mortgagor for the benefit of his general creditors. Now, if the proceeds of the property be converted into money by the mortgagor with the consent of the mortgagee, and then, with like consent, invested in other property for the purposes of the mortgage, and the right and intention of this commutation of property be notified to all the world in the mortgage duly recorded, I cannot, I say, understand why, under such circumstances, the deed should not be capable of legal enforcement, supposing it to be free from other objections.  [**13]  "

To each of these rulings adverse to them the defendants excepted and appealed.  

DISPOSITION:
Judgment reversed and procedendo refused.  

HEADNOTES:

A clause in a mortgage of goods in a store, providing for "all renewals and substitutions for the same, the object being to include, not only the articles then in the store, but whatever may be at any time therein, in the course of the mortgagor's business," cannot convey subsequently acquired goods so as to give the mortgagee a right of action at law against a party seizing them.

To make an assignment valid at law the thing which is the subject of it must have an actual or potential existence at the time of the grant or assignment.

Where the mortgagee sues for the taking of goods so mortgaged the onus is on him to show that the goods seized were on the premises at the date of the mortgage.

To enable him to recover to the extent of the goods on the premises at the date of his mortgage he must show that they were known to the defendant so to have been on the premises, or he must point them out as such to the officer making the seizure.

Where the property mortgaged is commingled with that subsequently acquired by the mortgagor it is presumed to be done with the mortgagee's permission, and if it be so intermixed as to prevent separation or identification the rights of third parties cannot be affected thereby.  

COUNSEL:
P. M'Laughlin for the appellants.

After the defendants had shown that any property was purchased and placed in the store, after the execution of the mortgage, the burthen of proof then rested with the plaintiff, to show the particular goods affected by the mortgage. 1 Starkie on Ev., 363. Hudson vs. Warner & Vance, 2 H. & G., 416, 428.

The fifth prayer of the defendants is in reference to the power of Worley to assign by a present conveyance, goods in which he had no interest at the time of the making of the conveyance, and which then had no existence. Whatever may be the rule on this subject in courts of chancery, bankruptcy, and insolvency, it has been settled at law in England, from the earliest period to the present, without a single dissenting voice of which we have any knowledge, that the goods, the subject of the sale, must at the time have an existence, and that the vendor must have some interest therein. It is said in Bac. Ab., title Grant, D: "A man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards,  [**14]  for there he hath it not actually or potentially." Grantham vs. Hawley, Hob., 132, Com. Dig., title Grant, D. In Lunn vs. Thornton, 50 Eng. C. L. Rep., 379, the same question was presented to the court, in an action of trover, by the assignor against the assignee. The goods were described in the deed, which was dated 4th August 1843, and the following words added: "Or which should, at any time thereafter, be in, upon or about his dwelling at Stoney Stratford, aforesaid." In the month of October following, under color of the deed, the assignee seized all the goods on the premises mentioned--part of which were not on the premises or in the plaintiff's possession at the time of the execution of the deed, but were afterwards acquired by the plaintiff, and were on the premises at the time of the seizure. Tindall, C. J., says, (page 386:) "That the principle contention on the part of the plaintiff was, that the facts of the case brought it within the exception in Lord Bacon's rule: that the bringing of these goods on the premises of the plaintiff, where they were seized, at a time subsequent to the execution of the bill of sale, was the new act done by the plaintiff, which gave to the declaration [**15]  contained in the bill of sale effect."--"The new act upon which Lord Bacon relies, appears in all the instances he puts, to be an act done by the grantor, for the avowed object and with the view of carrying the former grant into effect. Lord Bacon's language is: 'There must be some new act of conveyance to give life and vigor to the declaration precedent.'"

Very soon after the above decision, came, in 1845, the decision of the case of Gale vs. Burnell, 53 Eng. C. L. Rep., 850, between the mortgagee and an execution creditor. The mortgage was made by Allen to Gale, on the 1st of January 1843, and after describing certain property, contains the following words: "And other things which are now, or which may at any time during the continuance of this security be, in and about the said premises, as his and their proper goods and chattels." After the condition there is this clause: "It shall be lawful for the said Gale, his, &c., peaceably and quietly to receive and take into his and their possession, and thenceforth to hold and enjoy all and every the said household goods, &c., and sell and dispose of the same and every part thereof," &c. Lord Denman, C. J., (at page 861,) in pronouncing [**16]  the judgment of the court, says: "We think it clear that this is a present conveyance from Allen to the plaintiff," &c. At page 862, he says: "We are of opinion," &c., "that the deed could not operate as an assignment of the goods to be brought upon the premises." See also Robinson vs. Macdonell, 5 Maule & Selw., 228. From these and other authorities referred to by them, it is believed that this prayer contains the law on this subject as understood at the time of the American Revolution, and as understood and administered in England in courts of law up to the present time. And if so, the same law is binding on us. Mayor & City Council vs. Williams, 6 Md. Rep., 235, 264, 265.

We shall now proceed to examine what is the settled rule, if any has been settled on this subject, in other States of this Union, for although the question has been twice presented in this State, there is no express adjudication of it. It came before the appellate court of Massachusetts in 1845, in the case of Winslow vs. The Merchants Ins. Co., 4 Met., 306, which was an action of trover, for a steam engine, two boilers and fixtures, a blowing cylinder pipe, a trip-hammer and fixtures. The facts of the case [**17]  are, that Pond, on the 24th of May 1836, made a mortgage to the defendants of a lot of ground in Hawley street, which contained the following language: "With all and singular the machinery, tools, goods, chattels, and other property therein contained, together also with all the machinery, engines, tools, apparatus and other property, whether fixtures or otherwise, now being and remaining on the premises, and all such other machinery, engines, tools, and other property, as is now contemplated to be in said building," with a covenant to mortgage any other goods that might be placed therein. On the 18th October 1837, Pond gave the plaintiffs a mortgage, in which the mortgaged property was thus described: "All and singular the goods, wares, stock, iron, tools, manufactured articles and property of every description, being situated in or about the shop or building now occupied by me in Hawley street, in the city of Boston." Some of the goods which were taken by the defendants were placed in the house after the execution of the first, and before the execution of the second mortgage, and which were owned by the mortgagor at the time of making the first mortgage. The opinion of the court was [**18]  delivered by Shaw, C. J. At page 316, he says: "Articles contemplated to be placed therein, without any schedule, enumeration or specification whatever, is a description far too indefinite and uncertain to constitute a lien on the articles afterwards to be placed in the building." And again the court says: "The stipulation of the mortgagor to execute other instruments of hypothecation when the articles should be put in and made certain, was a good executory contract, binding on the contractor personally, and for a breach of which he might have been liable in damages, but not an executed contract constituting a lien, de facto, upon articles not then bound by the mortgage." The same question came before the court again, at October term 1845, in the case of Jones vs. Richardson, 10 Met., 481. Action of assumpsit on an award. The plaintiff was deputy sheriff, and levied on certain goods as those of Addison Richardson, at the suit of several of his creditors, and delivered the goods so levied on the defendant for safe keeping; on demand the defendant refused to return them, but claimed them under a mortgage from Richardson, dated September 7th, 1842, in which the goods mortgaged were described [**19]  as: "The whole stock in trade of said Addison, as well as each and every of the merchandise which the said Addison this day bought of Timothy Walker, constituting said Addison's stock in trade, in the shape the same is and may become in the usual course of the said Addison's trade and business as a trader." In October term 1846, Wilde, C. J., delivered the opinion of the court, and, at page 487, says: "Only a part of the goods was owned by the mortgagor until after he made the mortgage." At page 488, the court says: "That a person cannot grant or mortgage property of which he is not possessed, and to which he has no title, is a maxim of the law too plain to need illustration: a man cannot grant or charge that which he hath not." At page 493, the court says: "That by the Rev. Stat., ch. 74, sec. 5, it is enacted," &c. This act is almost verbatim with our act of 1729, ch. 8, sec. 5, and then says: "Now it is clear, we think, that the record of the mortgage is no sufficient notice of a legal incumbrance as to subsequently acquired property, because, by law, no such property could be sold or conveyed thereby; and it could furnish no notice that any property would be afterwards purchased,  [**20]  or if purchased, that any act would be done to ratify the grant in that respect; as to such property, therefore, the mortgage could not be valid."

This point came before the same court for adjudication in October term 1848, in the case of Barnard vs. Eaton, 2 Cushing, 294. This was a case of the mortgagee against the assignee of the insolvent, on a petition praying that the mortgaged property might be sold, and the proceeds applied to the payment of his debt, and that he might be admitted as a creditor for the deficiency. The mortgage describes the property mortgaged as, "All and singular the goods, wares and merchandise, consisting of dry goods, crockery, hardware, groceries, provisions, &c., then in the store occupied by the mortgagor in South Reading, and also, all the goods which then were, or might be afterward, substituted for those the mortgagor then possessed." The opinion of the court is delivered by Shaw, C. J. At page 303, he says: "A mortgage is a present transfer of title, although conditioned and defeasible; it can therefore only bind the property capable of being identified at the time it is made, and whatever may be the agreement of the parties, it cannot bind [**21]  property afterwards to be acquired by the mortgagor." Again the court says: "If therefore at the time when this claim was made none of the goods were capable of being identified, the mortgage must fail, not because it was void in its origin, but because there is no subject to which it can now apply."

There can be no parol ratification of an instrument under seal. Stetson vs. Patten, 2 Greenlf., 359. An execution creditor stands in the same position as a purchaser. Divver, et al., vs. McLaughlin, 2 Wend., 596. In 2 Kent, 468, it is laid down that the thing sold must have an actual or potential existence, and be specific or identified, and capable of being delivered. See also Story on Sales, sec. 184. In 2 Story Eq., sec. 1040, it is said: "To make an assignment valid at law, the thing which is the subject of it must have an actual or potential existence at the time of the grant or assignment." See also McCarty vs. Blevins, 5 Yerger, 195. Forman vs. Proctor, 9 B. Monroe, 124.

The learned judge who decided this case in the Court of Common Pleas, referred to several authorities which he supposed supported the view of the law of the case as taken by him, upon which we desire to [**22]  remark, that the case in 9 Gill, 440, was decided upon the view of the peculiar position in which parties to the deed stood to each other. The reasoning of the court, at page 444, would lead to the conclusion, that the deed in that case would not be sustained, situated as this is. The question as to the effect of the mortgage on property to be acquired in future, did not rise in the case in 6 Man. & Gran., 248. In the case in 14 Pick., 502, the mortgagor owned the clay from which the brick were to be made, therefore it differs entirely from the case at bar, and is within the rule laid down in Bacon's Abr. and Com. Digest. The case referred to in Cross on Liens, is a case in bankruptcy, as is also the case in 2 Story's Rep. The case in 20 Maine would appear to support the judge's view, but there is a case, in 21 Maine, 86, Goodenow vs. Dunn, in direct opposition to the view taken by the judge, of the law laid down in 20 Maine. The case referred to, of the offspring of the slave, was decided on the principle, that the natural increase of property, mortgaged or sold, belongs to the mortgagee or vendee, and is foreign to this question. The case in 9 Gill, 201, merely decides the familiar [**23]  principle, that a party against whom a tort has been committed, in the taking and selling of his goods, may waive the tort, and sue for the proceeds of the sale.

Coleman Yellott for the appellee, argued, that the mortgage was valid and operative to pass the subsequently acquired goods. He cited the cases and relied upon the argument of the court below as presenting the true view of the authorities, and insisted that the rigid rules of the common law upon this point must yield to commercial usage and convenience of modern times.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*314]  LE GRAND, C. J., delivered the opinion of this court.
This is an action of trespass vi et armis, and involves a question of very great importance. It arises in the following manner:--one Joseph D. Worley of Baltimore city, purchased of Charles Rogers, the appellee, a stock of goods for $ 5314.80, and on the same day executed a mortgage bill of sale on said stock to secure payment of the purchase money in ten days. The mortgage, in addition to the usual provisions, contained also the following: "together with all renewals and substitutions [**24]  for the same, or any part or parts thereof: the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley's business."
Worley remained in possession until July 22nd, 1853, when he applied for the benefit of the insolvent laws, the mortgage to Rogers remaining due and unpaid. On the 8th of July 1854, the appellant, Hamilton, having a judgment against Worley, caused a fi. fa. to be levied upon the stock of goods then in Worley's possession; and Robinson, the other appellant, by virtue of this fi. fa., as constable, seized and removed a portion of said stock. On the 18th of July, the appellee instituted his action of trespass vi et armis against the appellants to recover damages for the seizure of said goods.
Worley was examined as a witness, and on cross-examination testified--when speaking of the goods in the store at the time of the seizure by Robinson--"that all the goods were manufactured and placed in the store within six months previous to the time on which they were so taken; that the most of the materials from which they were manufactured were purchased by [**25]  him after the making of said deed; that the materials thus manufactured were nearly all purchased with the proceeds of the sales of goods in the store at the time of making said deed." It was also proved by another witness, named Dempsey, "that the said goods so levied on were all manufactured within six months previous to the making of the 

 [*315]  levy; that the materials from which they were made, except the buckles, were purchased since the 6th of June 1851."
The important and practical question suggested by this state of case is, does such a clause, in a mortgage of goods and chattels, as that recited, give, at law, a right of action to the mortgagee against any one interfering with the goods acquired by the mortgagor subsequently to the execution of the mortgage? The question was considered but not decided by the Court of Appeals in Hudson vs. Warner & Vance, 2 Harr. & Gill 428, and in Preston & Hepburn vs. Leighton, 6 Md. 88. It is evident, however, from his opinion, to be found in the record, that the learned judge who decided it below, in this case, gave to it the attention which its importance demanded. Differing from him in opinion, it [**26]  is proper we should indicate the grounds of that difference, as well by a reference to the authorities on which he relied as to others.
It is laid down in Comyn's Digest, tit. Grant D, that "a man cannot grant a thing which he has not." So in Bacon's Abr., tit. Grant D, "a man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards, for there he hath it not actually or potentially." The thing sold must have an actual or potential existence. 2 Kent 468.
And Story in 2 Equity Jurisprudence, section 1040, says, "to make an assignment valid at law, the thing which is the subject of it, must have an actual or potential existence at the time of the grant or assignment." The learned judge concedes that the cases in 4th Metcalf, 306; 10th Metcalf, 488; 2 Cushing 300; 7th Adolphus & Ellis N. S., 850; 1st Manning, Granger & Scott, 385, assert this to be the common law principle, but they do not, in his opinion, apply the principle to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement by a re-investment of the proceeds of the original property.  [**27]  
It should be observed, that there is not any evidence in the record that the proceeds of the property in the store, at the date of the mortgage, were invested in the goods levied upon by the appellants, by the mortgagor with the avowed object of benefitting the mortgagee.

 [*316]  This fact, in a certain aspect of the case in view of some of the decisions, might have some influence. The rights of the appellee depend entirely upon the language of his deed.
It is suggested, that two of the judges in the case of Tapfield vs. Hillman, et al., 6 Manning & Granger 245, intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. That was the case of an assignment, by way of mortgage, (to secure the payment of a sum of money loaned,) from a lessee to his lessor, of furniture and stock in trade, in, about, upon and belonging to an inn, with a power, upon non-payment, to enter into, possess, hold and enjoy, the inn for the residue of the assignor's term therein, and "to take, possess, hold and enjoy, all the goods, chattels, effects and premises." On the [**28]  day before the expiration of the plaintiff's tenancy the mortgagees entered upon the premises, under color of the mortgage deed, and seized the whole of the effects, including stock in trade and other property which were not on the premises at the date of the deed.
As we understand the language of the judges, their purpose in the particular case was to interpret the words actually used in the mortgage, and in the view they had of it, it was wholly unimportant to inquire whether or not, at law, goods subsequently acquired by the mortgagor could be made liable by any words which might have been inserted in the deed. It is true, Tindall, Ch. J., says, that "if the intention of the parties was, that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed;" and also, "that it would have been very easy to have so framed the power of entry as to make it extend to all effects upon the premises at the time that such power should be enforced, had such been the intention of the parties." The court were of the opinion that the language of the deed only covered the effects upon the premises at the time of its date, and it was not [**29]  therefore required of them to deal with the question involved in the case before us. Indeed the counsel engaged did not press it, the only allusion in the argument to 

 [*317]  it was, that "it was far from being clear, that an assignment can be made to comprise property which is not in existence at the time." "But that point" did "not arise," for the deed did not profess, neither did "it convey the slightest intimation, that the parties meant to include property which might be subsequently acquired." Looking at the facts of the case as presented by the report, we incline to ascribe the language which we have quoted, from Tindall, Ch. J., to a desire to show that the words of the deed did not, nor was it intended they should, cover subsequently acquired property. If this were so there was no necessity to inquire into the law applicable to the other question. The case was decided in 1843. At Hilary term 1845, the case of Lunn vs. Thornton, 1 Manning, Granger & Scott, 379, was decided. In the course of the argument the expressions we have cited from the case of Tapfield vs. Hillman, were declared to be extra-judicial. The deed in Lunn vs. Thornton not only covered [**30]  the effects on the premises at the time of its execution, but also all "which should at any time thereafter remain and be" thereon. The case was very fully and ably argued by counsel, and decided by Tindall, Ch. J., after a thorough review of the cases and principles applicable to it. He distinctly holds, that subsequently acquired goods are not covered by such a deed. He thus plainly states the facts and the question arising out of them:--"the goods," says he, "in dispute, were not goods 'remaining and being on the premises' at the time of the execution of the deed of bargain and sale, but were goods which had become the property of the plaintiff, and had also been brought upon the premises subsequently to the execution of that instrument, and were remaining thereon at the time of the seizure under the bill of sale. Under these circumstances, it was contended by the defendant's counsel, that the bill of sale covered these goods as being goods remaining and being in or upon the dwelling-house at the time of the seizure; and the question is, whether the property in these goods passed under this bill of sale. It is not a question whether a deed might not have been so framed as to [**31]  have given the defendant a power of seizing the future personal goods of the plaintiff as they should 

 [*318]  be acquired by him, and brought on the premises in satisfaction of the debt; but the question before us arises on a plea which puts in issue the property in the goods and nothing else; and it amounts to this, whether, by law, a deed of bargain sale of goods can pass the property in goods which are not in existence, or at all events which are not belonging to the grantor at the time of executing the deed." This he resolves in the negative, especially where nothing has been done by the grantor other than the acquisition of goods. He quotes from Bacon's Maxims, Reg. 14: "Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio praecedens, quae sortiatur effectum, interveniente novo actu;" (although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act;) and then says, that Lord Bacon adopts the first branch of the maxim, namely, that a disposition of after-acquired property is altogether inoperative, a proposition of law that is to be considered [**32]  as beyond dispute; and only labors to establish the second branch of the maxim, namely, that such disposition may be considered as a declaration precedent, which derives its effect from some new act of the party after the property is acquired. The defendant contended, that the facts of the case brought it within the exception in Lord Bacon's rule; that the bringing of the goods on the premises of the plaintiff, where they were seized, was the new act done by the plaintiff, which gave the declaration contained in the previous bill of sale, its effect. In reply to this view the court say, "the new act which Bacon relies upon appears, in all the instances which he puts, to be an act done by the grantor for the avowed object and with the view of carrying the former grant or disposition into effect." He quotes Lord Bacon thus: "there must be some new act or conveyance, to give life and vigor to the declaration precedent;" and then adds, "which evidently imports more than the simple acquisition of the property at a subsequent time, which, if sufficient, would render the rule itself altogether inoperative; but points at some new act to be done by the grantor in furtherance of the [**33]  original disposition." After this decision, and that of Gale vs. Burnell, 7 Adolphus & Ellis, N.S., 862, 

 [*319]  which is in strict conformity with it, the dictum in the case of Tapfield vs. Hillman, if supposed to be in conflict, ought, on the point now before us, to have but little influence.
It is supposed, however, that Justice Story, in two cases to be found in 2 Story's Rep., that of Fletcher vs. Morey, at 555, and that of Mitchell vs. Winslow, at 630, intimates, if he does not in fact distinctly hold, that such deeds are good and valid both at law and in equity. We do not so understand him. Both those cases were in equity, and the whole reasoning of the judge was to show, that whatever might be the rule at law, nevertheless equity will attach its jurisdiction wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon personal property, whether then owned by the assignor or contractor, or not; or if personal property, whether it is in esse or not; that it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against [**34]  the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy. With this doctrine we have nothing to do in the present instance. This is a case at law, and if we correctly comprehend the distinguished jurist, he plainly announces his concurrence with the views we have already expressed. At page 638 of the report of the case of Mitchell vs. Winslow, et al., 2 Story's Rep., he says, "it may be admitted to be true, what, indeed, seems to be the result of the authorities cited at the bar, as well as of others equally entitled to respect, that to make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment, and that a mere possibility is not assignable." Again, in drawing the distinction between law and equity he remarks, "courts of equity do not, like courts of law, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and [**35]  also of things which have no present actual or potential existence, but rest in mere possibility only."

 [*320]  The case of Macomber vs. Parker, 14 Pickering 497, was decided on a principle in no manner involved in this case. The plaintiffs there were the owners of the yard and clay of which the bricks were made. So soon as the bricks were manufactured they were placed in the kilns of the plaintiffs, in other words, delivered to them, and in pursuance of the terms of the contract between the parties, eo instanti, their lien attached. The court say: "Now we hold it to be clear, that the plaintiffs had a right to retain Evans' part of the bricks under this contract. It was expressly agreed by Evans that they should have such a right. **** Every brick, as it was formed, may well be considered as delivered to the plaintiffs in part execution of the contract."
Looking to the maxims of the common law and the decisions of courts, both in this country and in England, we are clearly of the opinion, that this action cannot be maintained for the taking of the subsequently acquired goods. If, for the convenience of the community, or for the benefit of [**36]  trade and commerce, it be deemed important that the rules of law in this particular should be altered, the legislature is the proper branch of the government to which application should be made for that purpose. As the law now is, there can scarcely be a doubt that in some instances loss and injury are suffered by those who are least deserving of it. Courts cannot prevent it, for the rules of law are, and have been from the earliest times, inexorable.
The views we have expressed, it is supposed, are apparently in conflict with some of those announced in the opinion of the court in the case of Hannon's Exc'rs vs. The State, use of Robey, 9 Gill 440. That case may be maintained without disturbing the doctrine we have laid down. The part of the opinion which relates to the question supposed to be involved in this case is very brief indeed; but it is not unreasonable to suppose, that it was decided on a principle of analogy to the doctrine of estoppel, which makes the act of the ancestor conclusive upon the heir. We do not consider the case as going any farther, or as intended to overrule the decisions to which we have referred.
The second prayer was well rejected,  [**37]  because there was 

 [*321]  no evidence from which the jury could have found the facts averred as the ground-work of that instruction. More than three years had elapsed between the date of the deed and the time of Worley's application; and he states expressly,--which is all the evidence on the question,--that he then expected to pay all his debts from his business, which was large and profitable, and that he did pay a large portion of them.
For the reasons already stated, we think the court erred in rejecting the third, fourth and fifth prayers of the defendants. It was essential to the right of recovery of the plaintiff, that he should prove the goods seized were on the premises at the time of the execution of the mortgage. The only evidence applicable to this view of the case relates to the "buckles" used in the manufacture of trunks, &c. On the proof in this record, the recovery of the plaintiff would be limited to their value; and to enable him to recover even to that extent, it was incumbent upon him to show that they were known to the defendants to have been on the premises at the date of the mortgage, or were, as such, pointed out by him to the officer.  Shumway, et al., vs. Rutter, 8 Pick. 443. [**38]  No such evidence was offered at the trial. Besides, if the property of the plaintiff was commingled with that of Worley, it must be taken as having been done with his permission, for he allowed the goods to remain in the possession of Worley and under his control, with the knowledge that it was his purpose to use it in the manufacture of other articles.
The officer was bound to take the property of the debtor, and if, by the permissive act of the mortgagee, the property of the latter was so intermixed with that of Worley as to prevent separation or identification, the rights of third parties ought not to be affected thereby, whatever might be the influence of such commingling as between the original owners.
In what we have said, we are, of course, to be understood as speaking only of cases similar to the one now before us. Where personal property, animate in its nature--such as a female slave--is disposed of, the fate of the mother determines that of the child--partus sequitur ventrem.

 [*322]  These views dispose of the case, and it is not, therefore, necessary to consider the sufficiency of the releases offered in evidence.
Judgment reversed and procedendo refused.  [**39]   

17 of 44 DOCUMENTS 

CATHARINE BINNERMAN, (formerly CATHARINE WEAVER,) Adm'x c. t. a. of CASPAR WEAVER, vs. WM. H. WEAVER and GOTLIEB THATER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 517; 1855 Md. LEXIS 76 

DECEMBER, 1855, Decided 

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

This appeal was taken from an order of the orphans court revoking the grant of letters to the appellant and granting letters d. b. n. to the appellees, and directing the appellant to pass another administration account recharging herself with $ 2415.58, which, in her first account, was retained by her as the widow of the testator, and to distribute the same among those legally entitled. The facts of the case are fully stated in the opinion of this court.  

DISPOSITION:
Order reversed and petition dismissed.  

HEADNOTES:

A devise, that "my wife shall keep possession of all my property during the continuance of her life, provided she doth stay unmarried," without a bequest over in the event of marriage, will not defeat the life estate of the wife, it being against the policy of the law and in restraint of marriage.

Under the laws of this State, a married woman may act as executrix or administratrix.

A testator directed that his wife should "keep possession of all his estate" during her life, "provided she doth stay unmarried, to take care of the younger children and raise them up until the youngest child is eighteen years of age; but if she should die or get permanently diseased, or in any other way unable to attend to the duties of the will," then he appointed two other persons "as administrators and guardians of his estate and personal property." HELD:

1st. That the widow was entitled to a life estate in the property embraced in the will, subject to the trusts engrafted upon it in favor of the children.

2nd. Having settled her accounts fully in the orphans court, the jurisdiction of that court ceases, and a court of equity alone can enforce the trusts created by the will.  

COUNSEL:
Geo. H. Williams and Cornelius McLean for the appellant, argued:

1st. That by the true construction of the will of the testator, the appellant, his widow, is entitled, as tenant for life, subject to the obligation to support the testator's children until they arrive at the age specified; that the condition in restraint of marriage is null and void, and there being no limitation over it, in terrorem only, in any aspect of the case. Story's Eq., secs. 287, 289. 6 Mass., 169, Parsons vs. Winslow.

2nd. That the time prescribed by our testamentary system having arrived, she distributed to herself, by her first and final account,  [**2]  all the estate of the deceased, which account was ratified by the orphans court; that that court, therefore, has no longer any jurisdiction over the property, and that parties entitled in remainder must seek another forum in which to enforce their rights, if any they have; that after a lapse of almost two years, the orphans court had no power to direct the appellant to recharge herself with property, the distribution of which they had ratified, and that the proceedings were coram non judice; the property could not be said to be unadministered.

3rd. Even if by marriage the appellant forfeited her tenancy for life, she did not forfeit her right to remain administratrix; that marriage is not only not a legal disability for such an office, but our testamentary laws recognise and provide for the appointment of married women. And that neither as matter of fact or law did the appellant's marriage render her unable to attend to the duties of the testator's will. And the orphans court, therefore, had no right to revoke her letters. Act of 1798, ch. 101, sub-ch. 4, sec. 8, and sub-ch. 14, sec. 7.

4th. That the estate of the testator having been fully administered, the administratrix [**3]  still living and there being no evidence of any other assets, the orphans court had no power to appoint an administrator de bonis non; no case existed for such an appointment; no act of Assembly specifies marriage as a reason for revocation. Act of 1798, ch. 101, sub-ch. 5, sec. 6, and sub-ch. 14, sec. 14.

5th. That no party is entitled to any relief beyond that he prays for. Here is no prayer for revocation of letters nor for general relief, but only "that she may pass a distributive account, that petitioners may take charge of that portion of the estate to which the children were entitled." The court's decree goes far beyond the relief asked for in the petition.

6th. That as a married woman, the appellant's husband should have been cited and made a co-defendant.

John J. Snyder and Charles F. Mayer for the appellees, argued:

1st. The right of the appellant to represent the personal estate is made, by the will, coordinate with the right to possess the estate for the benefit of herself and of her children, who are thence to have their support. When that bequest to her ends her correlative administrative privileges cease. But apart from this, is it not clear that [**4]  by her marriage she became, in the words of the will, "unable to attend to the duties of the will?" How could she, whilst under the restraints and embarrassments of a husband's control, carry out the will in its essential purpose of sustaining the children, when the very marriage cut off the resources which were, by the will, to be used for the support of the children? Her incompetency to perform the duties of the will was thus established by her marriage, and in such an event what was to supervene? The succession of new administrators in the present appellees. It was manifest then to the court, upon the allegations of the petition confessed by the answer, that the powers that had been conferred under a limitation affixed to them by the will had ceased. The court had, therefore, a right, and were even under an ex-officio duty, to revoke the administration or declare that the powers of the widow to act as such had ceased. To do this, which was an incumbent duty on the court, needed no prayer in the petition. But there is here what is equivalent to a prayer for such action, for not only does the petition begin with averring the rights of the appellees, but in asking for a distribution [**5]  account, the object is stated to be, "that the petitioners may take charge of the portions of the estate to which the children are entitled under the will." How could such an investiture of the petitioners be had, unless by superseding the powers of the appellant as administratrix? The administration of the widow was a conditional or temporary one. The terms of the will so make it, and executorships of that character are recognised at law, and are, while they endure, not the less potential, because they may, by supervening circumstances or by efflux of time, come to an end. 2 Shep. Touch., 401. Co. Litt., 209, 960, 40. 8 Coke, 135, Sir John Nedham's case. The administration or virtual executorship of the appellant was here dealt with by the court as thus provisional or transitory.

2nd. If such was the character of the administration to be attached to it in obedience to the will it was to subserve, the jurisdiction of the court to act on the administration seems to follow as an incontestable result. It is not true, that because an account is passed which implies that debts are paid, the orphans court's control over the estate ceases. The act of 1798, ch. 101, sub-ch. 10, secs.  [**6]  6, 10, 11, which speak of accounts showing all debts paid and presenting the estate ripe for distribution, reserves the continuous administrative power for ulterior assets. Whenever, in short, there can arise ground for the court's action within the scope of its ordinary jurisdiction, or for any step concerning its past exercise of jurisdiction, the orphans court may act. 8 G. & J., 226, Alexander vs. Stewart. If once administration ceases, let the cause be what it may, what is to debar the court from constituting another for any possible assets or objects in future to accrue? See also the act of 1798, ch. 101, sub-ch. 10, sec. 11.

3rd. The husband was no necessary party to the petition. Even where administration issues to a married woman, it regularly goes to her alone and not to her husband conjointly. Toller's Exc'rs, 92. Comyn's Digest, Administrators D. 3 Salk., 21. Being concerned only jure alieno, she is treated as sole in reference to the administration, and her husband is consequently no necessary party to any procedure for enforcing from her an account, or otherwise bearing on her administrative capacity.

4th. But it is said, this devise is, so far as it limits [**7]  her benefit until she marries again, void as in restraint of marriage. It might suffice to say:--1st. That she is debarred any such objection to the bequest, as she has made her election to abide by the will. 2nd. That the bequest is not merely to the widow, but effectively is to her and the children, especially the younger children. 3rd. That the children being thus the principal objects of the provision and their interests trenched on only so far as the unmarried state of the widow continues, this is the case of a bequest over upon the marriage, and it is well settled, that where there is a bequest over, conditions in restraint of marriage are valid. 1 Roper on Leg., 555. 3 Atk., 367, Wheeler vs. Bingham. Bac. Abr., Legacies F. 2 Vernon, 357, Stratton vs. Grymes. But it is well settled, that a husband's devise or bequest to his widow, durante viduitate, is good as a limitation. 1 Story's Eq., sec. 285. 2 Vernon., 308, Barton vs. Barton. 2 Greenlf's Cruise, 22, 47. 2 Wms. Exc'rs, 914, 918. 2 Brown's Ch. Rep., 488, Scott vs. Tyler. 3 H. & McH., 93, O'Neale vs. Ward. There is no case contravening this position except that cited from 6 Mass., 169; but that decision is of no weight, and [**8]  as thus insignificant against the established principle it is treated by Story and Greenleaf. Again, in any case the bequest ceases on marriage when that is assigned as the terminating event, whenever the terms so confining the bequest are to be construed a limitation, and not a condition, and no precise words are required for such an operation. The limitation, "until" or "so long as," or any words curtailing the enjoyment and looking to duration, make a limitation. 1 Roper on Leg., 525, 558, 758, 759, and notes. 2 Wms. on Exc'rs, 914, 918. 2 Atk., 321, Richards vs. Baker. What words could be suggested more directly creating a limitation than the words here used, "provided she shall stay unmarried;" pointing to the continuance of an existing state--to a termination by an event of a benefit at once entered into? The doctrine of limitation, as contradistinguished from condition, under this title of conditions in restraint of marriage, is not peculiar to real estate or devises. It is the rule as to bequests and the cases cited are of personalty. It is consequently clear, that so far as the interest of the widow, as legatee, is made the measure of determining the scope of her power as [**9]  administratrix, her authority ceased by her marriage. Upon these considerations we submit, that in form and in substance we are entitled to an affirmance of the decree of the orphans court.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*522]  LE GRAND, C. J., delivered the opinion of this court.
The appellees filed in the orphans court for Baltimore city a petition stating, that a certain Caspar Weaver, by his last will and testament, appointed his wife, Catharine, his executrix, with power to take charge of his entire estate, collect rents, &c., until his youngest child should become eighteen years of age, provided she remained unmarried; but that in the event of her marriage, and for other causes mentioned in the will, then the petitioners should act as executors and guardian's of his estate. It further represented that the said Catharine had contracted marriage with one John H. Binnerman; and prayed that the court pass an order "directing her to pass a distributive account, so that the petitioners might take charge 

 [*523]  of that portion of such estate to which the children might be entitled."
The appellant replied to this application,  [**10]  stating that letters of administration had been duly granted to her, and that she had fully settled said estate so far as the orphans court is concerned; and claiming also, that by a proper construction of the will of her testator, she is entitled to the entire estate during her life.
At the hearing of the cause the court revoked the letters of administration granted to the appellant, and granted letters de bonis non to the appellees. The court also directed that the appellant should state another account, in which she should recharge herself with the sum of $ 2415.50, which was in her first administration account retained by her as the widow of the said Caspar Weaver, deceased.
The clause in the will which gives rise to this controversy is in these words:
"Baltimore, June the eleventh, in the year of our Lord, one thousand, eight hundred and fifty-one, I, Caspar Weaver, I know all men by these presents, and make this instrument of writing my last will a testament, as follows: That my wife, (Catharine Weaver,) shall keep possession of all my property during the continuance of her life, proviting she doths stay unmarried to take care of the younger children and raise [**11]  them up untill the youngest child is eighteen years of age, and that she shall draw the rents of said property and settle all incumbrances thereon to the best advantage; but if said wife should depart this life or should get permanently deseased, or in any other way unable to attend to the duties of my will, I then select my son, William Henry Weaver, and my son-in-law, Gotlieb Thater, as administrators and as gardiens of my estate and personal property."
On the part of the appellees it is contended, that the true construction of this very singular paper is, that on the marriage of the appellant the letters granted to her ought to be revoked and letters de bonis non granted to the appellees.
Under the laws of this State a married woman may act as executrix or administratrix. There is nothing then to disqualify 

 [*524]  her except it be found in the language of the will. To say the least of it, it is very doubtful whether it was not the intention of the testator only to appoint the appellees in case his wife "should depart this life, or should get permanently diseased, or in any other way unable to attend to the duties" of the will. But be this as it may, it is [**12]  clear, that the bequest to the wife, during life, without a bequest over in the event of marriage, is not such a bequest as will defeat the life-estate, it being against the policy of the law and in restraint of marriage. It may be said here, as it was in the case of Evans, et al., vs. Iglehart, 6 Gill & John. 171, "a life-estate in a chattel may be granted for life to one person, and the same with its issue or increase be limited over to another; but this cannot be done but by express words or necessary implication. Here no such express words are used; no such necessary implication arises."
In any event the appellant would be entitled to her interest, jure mariti, and as she has settled her accounts fully the jurisdiction of the orphans court ceases, and a court of equity alone can enforce the trust created by the will, if any such be raised by it.
We are of opinion, however, that the appellant is entitled to a life-estate in the property embraced in the will of her testator, subject to the trusts engrafted upon it. She cannot be required to recharge herself as directed by the order of the orphans court. The settlement already made by her discharges her [**13]  bond, and if she fails to perform her duty as enjoined in the will the remedy is in a court of equity.
Order reversed and petition dismissed. 

18 of 44 DOCUMENTS 

THE AMERICAN EXCHANGE BANK vs. FRANCIS H. INLOES, Garnishee of TURNBULL & Co.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 380; 1855 Md. LEXIS 5 

JUNE, 1855, Decided 

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

Attachment on judgment sued out by the appellant, to affect the property and credits of Turnbull & Co., and laid in the hands of the appellee as garnishee, who appeared and pleaded nulla bona.

Exception. The judgment on which the attachment issued, was for $ 30,000, recovered on the 10th of May 1852, and it was admitted, that the garnishee, at the time of attachment laid and plea pleaded, had and continues to have in his hands, upwards of $ 37,000, the proceeds of sales and collections of claims as trustee under a deed of trust from Turnbull & Co., dated the 22nd of September 1851, conveying to him all their stock of goods in their store in Baltimore, (their business being the carpet and oil-cloth business, both by wholesale and retail, but mostly by retail,) and all notes and evidences of debt, in trust, to sell the goods and collect the claims in the manner thereinafter mentioned, with power "to arbitrate and compound at his discretion as that might appear most expedient for the advantage of those concerned in these trusts." And to apply the proceeds--1st, to pay the expenses of the trust, including a reasonable commission [**2]  to the trustee. 2nd. to pay two notes due by the firm, particularly described, and then to apply the residue to pay in full, or ratably and proportionably, so far as it extends, certain scheduled claims, and after that, to apply the surplus, if any, to pay all other claims against the firm, ratably and proportionably. The deed then contains the provisions set out in the opinion of this court.

The garnishee then proved, that the trustee filed his bond under the act of 1845, ch. 166, which was duly recorded, and then offered in evidence certain proceedings on the equity side of Baltimore county court, showing that on the 4th of November 1851, the owners of the two notes mentioned in the first trust, filed their bill, setting forth the deed, and praying that these notes might be paid out of the proceeds of the trust property in the hands of the trustee, who answered the bill admitting the facts, and submitting himself to such decree as the court might pass. The court, on the same day, passed an order that these notes should be paid out of the fund, which was done, and the case entered "satisfied." On the 17th of March 1852, the trustee filed a petition, stating that he desired to [**3]  distribute the fund under direction of the court, and asking for an order giving notice to all the creditors to file their claims, and such order was passed, and afterwards, upon petition of the trustee, the time of filing claims was extended to the 15th of July 1852. He further proved, that the whole of the goods sold amounted to $ 40,265.79, of which only $ 190 remained unpaid. The plaintiff then offered two prayers:

1st. That the said deed of trust is void on the following grounds: 1st, because it authorises the trustee to arbitrate and compound at his discretion, as may appear most for the advantage of those concerned in the trusts. 2nd, because it authorises him to dispose of the property gradually, and in the manner and on the terms in which, in the course of their business, Turnbull & Co. had, before the deed, sold and disposed of their merchandise. 3rd, because it authorises the trustee to sell the property by retail or in parcels, as might by him be deemed eligible. 4th, because, by the terms of the deed, the trustee is not to be liable for any violation of the trust, or any omission or neglect, save only for personal and actual, and wilful wrong or default.

The [**4]  second prayer need not be stated, as no decision was made upon it. The court (FRICK, J.,) rejected both these prayers, and to this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Proceedings in a court of equity, under a deed of trust not assailing the deed, but assuming its validity, and asking the aid of equity to carry out and enforce its trusts, do not oust the jurisdiction of a court of law, to set the deed aside.

The party assailing the deed at law, not having been a party to the proceedings in equity, would not be bound by them, even if they had contemplated the same object as the suit at law.

Where a prayer assigns a number of distinct reasons why a deed of trust is void, each of these reasons is to be treated as a distinct and separate prayer, and if any one presents a valid objection to the deed, it is error to reject it.

Preferences in a deed of trust, securing one creditor to the exclusion of others, are only permitted by a court of equity, and when such preferences are followed by other provisions equally suspicious in their character, the court will have little difficulty in discovering such a fraudulent design on the part of the grantor, as to vacate the deed.

A power to the trustee, in an assignment in favor of creditors, to sell the property "gradually, in the manner and on the terms in which, in the course of their business, the grantors had sold and disposed of their merchandise," renders the deed void as to creditors.

Where a deed appears to be void upon its face, it is the duty of the court so to pronounce it, and there is nothing, in such case, to be left for the jury to find. 

COUNSEL:
Wm. Schley for the appellant, stated, that if any one of the grounds assigned in the first prayer is a good one for setting aside the deed, the prayer is not defective, because it contains a bad one, and that the several reasons assigned in the prayer are to be treated as so many separate prayers, if any one of which presented a valid objection to the deed it was error to reject it. He then argued, in support of this prayer, that the deed was void upon its face:

1st. Because of the power given to the trustee to arbitrate and compound at his discretion. Independent of the authority in the deed he would have no such powers, and if so, can the deed be good which gives him such powers? If such power had been reserved to the grantors, could there be a doubt the deed would be void?--if they cannot reserve this power to themselves, how can they confer it upon the trustee of their own selection? The terms of [**5]  the trust are binding upon the trustee, and a court of equity cannot interpolate a new trust upon it. 2 Selden, 520, Nicholson vs. Leavitt. The fact, therefore, that equity would interfere and restrain the trustee from doing wrong, cannot render the deed good if its terms are otherwise bad. In Wakeman vs. Grover, 4 Paige, 41, and on appeal in 11 Wend., 201, it was held, that a power to compound with creditors renders the deed void. In my opinion, the deed is thrice as objectionable where the power is to compound with debtors. By such a deed, the grantor in principle holds on to his property, and cannot be said to devote it to his creditors when he gives this power. The power is a dangerous one and would produce great mischief, and is contrary to the authorities, which decide, that the grantor must part with the entire dominion over the property. 9 Barbour, 257, Woodburn vs. Mosher.

2nd. Because of the power to the trustee to dispose of the property gradually, in the manner and on the terms in which, in the course of their business, the grantees had sold and disposed of their merchandise. This position is sustained by the following cases: 9 Paige, 405, Meacham vs. Sternes. 7 Paige,  [**6]  37, Hart vs. Crane. 2 Comstock, 371, Barney vs. Griffin. 9 Barbour, 357, Woodburn vs. Mosher. 4 Sandf., 279, Nicholson vs. Leavitt; and on appeal, in 2 Selden, 510. 11 Barbour, 198, Whitney vs. Krows. 12 Do., 168, Burdick vs. Post. 31 Eng. C. L. Rep., 254, Owen vs. Body. There is no Maryland decision to the contrary of this view. The question here has always been, whether there could be a preference, and whether the stipulation for releases from the asserting creditors avoided the deed or not? The point has, I admit, been passed sub silentio, but it is now raised and argued for the first time. The party must devote his property bona fide to the payment of his debts without any delay, (1 Iredell, 499, Hafner vs. Irwin; 9 Sme. & Mar., 433, Arthur vs. Bank of Vicksburg;) and here the power is not simply to sell on credit, but gradually, as the grantors, in the course of their business, had been accustomed to sell.

3rd. Because of the power to the trustee to sell the property by retail, or in parcels, at his discretion.

4th. Because of the power to the trustee to employ agents in the execution of the trusts of the deed. Whenever there is discretion and judgment placed in the [**7]  trustee, the authority is personal and cannot be delegated. 26 Wend., 485, Lyon vs. Jerome. 11 How., 223, Warner vs. Martin. There is no privity between the agent appointed by the trustee and the creditors. 3 Sandf., 545, Litchfield vs. White. The deed moreover declares, whilst giving this power to the trustee to appoint agents, that he shall be liable only for personal, and actual and wilful wrong or default.

5th. The prayer is not objectionable, because it does not put the question of fraud in fact to the jury. The statute of Elizabeth says, that any deed made to hinder, delay or defraud creditors, is void; it is in the distributive; and if the effect is to delay creditors, the statute speaks and denounces the deed, no matter how pure the motives of the parties to it may have been. 3 Md. Rep., 39, Green & Trammel, vs. Trieber.

6th. But it is said a court of law has no jurisdiction to declare this deed void:--1st, because the proceedings under the act of 1845, ch. 166, gave a court of equity jurisdiction of the case. But this act is but a revenue law, and gives the court no jurisdiction. It merely says, the trustee must perform his trust according to the deed. 2nd, because [**8]  the funds were in the hands of a court of equity by virtue of the proceedings set out in the record, and therefore not liable to attachment. But this objection is likewise unavailing. A voluntary application to a court of equity by a trustee will not prevent a party from pursuing his legal remedies. It can only be done by a bill regularly filed, making all persons interested parties, and then not until a decree or some decisive action by the court. 2 Md. Rep., 17, Glenn vs. Gill. Again, the validity of the deed was not in issue in the proceedings in equity, but they assumed its validity. Besides this, the appellee did not plead the pendency of this suit, which he should have done if it was a good defence, or obtained an injunction to restrain the case at law. Instead of doing this, he pleads simply nulla bona.

Frederick W. Brune and Chas. F. Mayer for the appellee, argued:

1st. That even if the deed be regarded as void, the funds are not liable to attachment in this case:--1st, because the filing of the bond under the act of 1845, ch. 166, and the operation of that act draw jurisdiction of courts of equity to such deeds as the present. 2nd, because by the proceedings in equity,  [**9]  the jurisdiction of that court attached to the funds, and is exclusive of that of any other court, especially as all the creditors of the grantees are, by these proceedings, invoked into that court, which alone could do full justice to the parties in case the deed should be held invalid. That funds under the control of a court of equity cannot be attached, is decided in Glenn vs. Gill, 2 Md. Rep., 1. See also on this point 4 Johns. Ch. Rep., 640, Thompson vs. Brown.

2nd. That the first prayer of the appellant is bad for several reasons:--1st. It submits several propositions, if any one of which is bad there was no error in rejecting the prayer in its entirety, because if granted, it would have affirmed that the deed was void on each of all the grounds set forth in it. If, then, any one of the reasons assigned is not a legal ground for declaring the deed void, it was the duty of the court to reject the prayer. 12 G. & J., 236, Gray vs. Crook. Ibid., 484, Doyle vs. Commissioners of Balto. County. 5 G. & J., 102, Sasscer vs. Walker. Ibid., 489, Grahame vs. Harris. 4 G. & J., 407, Charlotte Hall School vs. Greenwell. 3 Do., 435, Sothoron vs. Weems. 3 Gill, 198, Budd vs. Brooke. 4 [**10]  Md. Rep., 305, Greenway vs. Turner. 5 Do., 448, Stewart vs. Spedden. 2nd. It does not put it to the jury to find that the deed was fraudulent; the fraud is left out of the prayer, though it includes the delay, which is but evidence of the intent to defraud, and this intent must be found by the jury. Delay is not, per se, fraud, or a fraudulent act. If the deed be bona fide, there may be delay and ultimate defeat of the claims of creditors. 1 Iredell, 496, Hafner vs. Irwin. 5 Eng. Law & Eq. Rep., 430, Janes vs. Whitbread. 3 Maule & Selw., 374, Pickstock vs. Lyster. 15 Eng. Law & Eq. Rep., 529, Smith vs. Hurst.

3rd. But the deed is not void for any of the reasons assigned in the prayer.

1st. The authority given to the trustee to arbitrate and compound at his discretion, is a reasonable, usual and proper power, not tending to hinder, delay or defraud creditors, but advantageous to creditors, as tending to the proper and speedy settlement of the trust, although it may not always be necessary to exercise it. In this case the power to compound has never been exercised, nor does it appear that the power to arbitrate has been exercised. A court of equity authorises compromises and [**11]  arbitrations in cases of such trusts, where even no express nor implied provision for them exists in the deed. Such a proceeding on behalf of trust interests cannot be regarded as evidence of fraud, and so the provision toward such action cannot in this deed be considered as frudulent, the trustee being necessarily subject to the control of a court of equity in the use of that and every power conferred by the deed. This provision, and all others objected to by the prayers, relate merely to the administration of the trust and are purely modal, (to use a civil law phrase,) and cannot vitiate the trust itself, essentially considered. A similar provision was contained in all the deeds so much litigated in this court. 4 Gill, 130, McCall vs. Hinkley. 7 Gill, 446, Albert & Wife vs. Winn & Ross. A stipulation for releases does not invalidate the deed. 8 Gill, 472, Kettlewell vs. Stewart. 3 Md. Rep., 46, Sangston vs. Gaither. Lewin on Trustees, 417. Edwards on Receivers, 354. Hill on Trustees, 344. Angel on Assignments, 210, 219. Oliver's Conveyancing, 154. Curtis' Conveyancing, 42. 21 Alabama Rep., 382, Rankin vs. Lodor.

2nd. The authority to the trustee to dispose of said property gradually,  [**12]  in the manner and on the terms in which, in the course of their business, the said firm had, before the making of the said deed, sold and disposed of their merchandise, does not render the deed void. This is a permission given to the trustee for the benefit of the trust, which he might exercise or not as he deemed eligible. It could not be required, certainly, that all the property should be sold at the same time or in one mass, and any other mode of selling is necessarily gradual. As the prayer does not state or submit to the jury the manner in which Turnbull & Co. had been in the habit of selling their merchandise, the court, before it could declare the deed void on this ground, would have to assume, that the mode of selling goods practised by Turnbull & Co. was such as was calculated to hinder, delay, or defraud the creditors.

3rd. The authority to sell by retail or in parcels, as the trustee might deem eligible, is also a reasonable and proper power, because there are many things which cannot be sold to advantage in any other way. Such a discretion would be conferred in a judicial trust, as also would, and is habitually, a right to sell on credit. The privilege cannot, in [**13]  se, therefore, be regarded as fraudulent or as evidence of fraud.

4th. The provision that the trustee is not to be answerable but for personal and actual and wilful wrong and default, is a common provision, intended to protect the trustee and not to injure creditors. It is one that equity sanctions; and a court of equity regulates a trustee's liability according to the principle that that provision implies. A similar provision was in the deeds in 4 Gill, 133; 8 Gill, 472. See also 2 Stewart, 86, Robinson vs. Kaflege. 9 Porter, 566, Ashurst vs. Martin. 21 Ala. Rep., 390, Rankin vs. Lodor. 6 Watts & Seargt., 312, Hennessy vs. The Western Bank. Curtis on Conveyancing, 42.

5th. The power to sell on credit does not vitiate the deed as announced in the second prayer of the appellant. Burrill on Assignments, 196, 197. 21 Pick., 185, Neally vs. Ambrose. 1 Metcalf, 79, Hopkins vs. Ray. 8 Leigh, 273, Skipwith vs. Cunningham. 5 Eng. Law & Eq. Rep., 431, Janes vs. Whitbread. 9 Gill, 211, Beatty vs. Davis. 7 Paige, 37, Hart vs. Crane. 4 Sandf., 252, Nicholson vs. Leavitt.  

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

OPINIONBY:
MASON 

OPINION:

 [*387]  MASON, J., delivered [**14]  the opinion of this court.
We are of opinion that the question of the validity of the deed of trust from the Messrs. Turnbull to Inloes, is properly presented on this appeal.
The objection raised by the appellees to the present proceeding, namely, that the court of equity having assumed jurisdiction over the subject, has thereby ousted the court of law of the jurisdiction which it now seeks to exercise, cannot be sustained. The equity proceeding which has been set up as a bar to the present action, does not propose to assail the deed of trust, but on the contrary, it rests upon the assumption that the deed is valid, and was intended merely to invoke the aid of a court of equity to carry out and enforce the trusts 

 [*388]  contemplated by said deed. The present proceeding is based upon the contrary assumption, namely, that the deed is null and void; the objects, therefore, of the two proceedings being entirely opposite in their character and purposes, cannot be said to conflict with each other. And further, to this chancery proceeding the plaintiffs in this action were no parties, and therefore they should not be bound by it, even if it had contemplated in its range the exigencies [**15]  of their case.
The appellants in the court below offered two prayers, each designed to present to the mind of the court the invalidity of the deed of trust. Both were rejected. The first prayer assigns a number of reasons why the deed should be vacated, and it is now urged by the appellee that if any of those several reasons should not constitute a legal ground for declaring the deed void, it was the duty of the court to reject the prayer in its entirety, notwithstanding it should appear that the deed was void for some one, or more, of the reasons assigned. In this view we do not concur. These several legal propositions should be treated as so many separate prayers, and if one presented a valid objection to the deed, it was error in the court to reject it. It was not proposed by the prayer that all the several objections urged to the validity of the deed should concur, in order to make the deed void; and the prayer would have sufficiently raised the point of the viciousness of the deed upon any ground, if no particular reasons at all had been assigned in the prayer itself for vacating it.
Is the deed of trust void or not, is the question to be determined on this appeal. If void for [**16]  any reason, it interposes no impediment to the appellants' right to recover in this action, but, on the contrary, if valid, the plaintiffs have no case in court.
Although it has been more than once decided in Maryland that a debtor, by the common law, and apart from our insolvent system, may, by assignment of his property, or by payment, secure one creditor to the exclusion of others; yet such a provision in a deed of trust is only permitted by a court of equity, but so far from commending the transaction to the 

 [*389]  court as one of honesty and fair dealing, should rather throw a cloud of distrust upon it, and where such a preference is followed up by other provisions, equally suspicious in their character, the court will have little difficulty in discovering such a fraudulent design on the part of the debtor, as to render it imperative upon them to vacate the deed. The present deed creates preferences in favor of particular creditors, to the exclusion of others, and in addition provides as follows, viz:
Third. That said "Inloes, his executors or administrators, shall, at his discretion, sell as aforesaid, all or any part, or parts, of said goods, wares, merchandise, [**17]  chattels and effects, by public or private sale, and by wholesale or retail, or in parcels, as may by him, as to all or any portions of said property, be deemed eligible, and it being understood that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise.
"Fourth. It is further as aforesaid declared, that said Francis H. Inloes, his executors or administrators, may, at their best discretion, appoint and employ any agent, agents and clerks, for selling as above provided, at such compensations as the said trustees may deem proper, and causing such sales to be made in any store or warehouse that from time to time, as he may see fit, he may rent and have occupied.
"Fifth. It is further declared as part of the trust of these presents, that the said Inloes, or his executors or administrators, shall not, as trustees aforesaid, or in any matter of or relating to this trust, be deemed in any wise liable as for any violation of said trust, or as for any omission or neglect, save only for their own personal, and actual and wilful wrong or default."
There is no express  [**18]   provision in this deed that the trustee shall sell on credit. The right to do so, however, might undoubtedly be exercised under the power conferred by the deed, "that said property may be gradually sold in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise." 

 [*390]  We do not wish to be understood as pronouncing the present deed void upon the isolated ground alone of its empowering the trustee to sell upon credit. We do not deem it necessary to pass expressly upon that point. Until latterly deeds of assignment containing such a provision have been held generally not to be thereby vitiated, on the ground of hindering and delaying creditors. But very recently a different doctrine has been established by the Court of Appeals of New York, and so far as that State is concerned it may now be said to be settled, that a deed of trust containing a clause conferring upon the trustee or assignee power to sell on credit, will not be sustained. For this principle the very cogent reason may be assigned, that a debtor cannot, by the creation of a trust, avoid the obligation of immediate payment, or extend [**19]  the period of credit, without the assent of the creditor.  Nicholson vs. Leavitt, 2 Selden 510. Barney vs. Griffin, 2 Comstock 365.
We are not aware that this question has ever been expressly brought to the mind of our own Court of Appeals, and passed upon by them. In the case of Beatty vs. Davis, 9 Gill 211, the deed of trust, the validity of which was the question involved on the appeal, contained the provision that the trustee should have power "to sell the said real and personal property, either at public or private sale, and upon such terms and notice as he may deem most expedient, &c., and in case he shall deem it necessary for the purposes of this trust to mortgage the said real estate or any part thereof, he is hereby invested with full power so to do." This deed was sustained.
It might appear, at first view, that the power to sell upon such terms as the trustee might think proper, was equivalent to an authority to sell upon credit, and therefore our Court of Appeals may be regarded as having sanctioned such a provision in deeds of trust. But in the case of Macham vs. Stearns, 9 Paige 398, [**20]  the trustee was directed by the deed to sell the trust property at such reasonable times as should seem proper to him; and in that case, though the deed was sustained, yet it was held that this did not authorise him to sell at retail and on credit: and it is by no means impossible that our own 

 [*391]  court, in Beatty vs. Davis, might have said, if the question had been directly brought to their view, that they did not regard the deed in the case as conferring the power to sell on credit.
But omitting the further consideration of this point, (which we repeat we do not wish to be understood as deciding,) we regard the deed now before us as void upon another ground. It expressly empowers the trustee at his discretion to sell the property covered by the deed, gradually, in the manner and on the terms in which, in course of their business, said Turnbull & Co. have sold and disposed of their merchandise.
Without adverting to other objectionable, if not fatal, provisions in this deed, the one to which we have just referred is sufficient, in the judgment of this court, to render the deed null and void as against creditors. It simply seeks, through the instrumentality [**21]  of a trustee, to provide for carrying on the business of the concern in the same manner in which it had been before conducted, and for an indefinite period, free of all control or interference on the part of creditors. Surely, if such a provision in a deed is not calculated to hinder and delay creditors, we are at a loss to know what could have such an effect, short of a conveyance in trust for the benefit of the grantor himself. A debtor cannot thus postpone his creditors to an indefinite period, without their assent. A conveyance which thus attempts to deprive creditors of their just rights to enforce their claims against the property of their debtor, by placing it beyond their control, for an uncertain and indefinite period, must be regarded, in conscience and law, as a fraud. This subject has been very fully considered by this court in the case of Green & Trammell, vs. Trieber, 3 Md. 11, and the general principle distinctly announced, that the law will not tolerate any hinderance in assignments for the benefit of creditors, beyond what may be necessary for the purposes of the trust.
There are cases, it is true, in which deeds of trust for the benefit of [**22]  creditors, have been sustained as valid, which contain provisions for the continuance of the business of the 

 [*392]  debtor or grantor, either by himself or by his assignee or trustee. Janes vs. Whitbread, 5 Eng. Law & Eq. Rep. 431.  Nunn vs. Wilsmore, 8 Term Rep. 521. Cunningham vs. Freeborn, 11 Wend. 240. De Forest vs. Bacon, 2 Conn. 633. Kendall vs. Carpet Company, 13 Conn. 383. Hitchcock vs. Cadmus, 2 Barb. S. C. Rep. 381.  Foster vs. Saco Company, 12 Pick. 451. Woodward vs. Marshall, 22 Pick. 468. Ravisies vs. Alston, 5 Ala. 297. But it will be found, on examination of those cases, that most, if not all of them, rest upon the important principle, not applicable to the present case, that the stipulation in question was designed more effectually to promote the interests of the creditors, and not intended for the benefit of the debtor; or, where it was intended to be ancillary to the winding up of the debtor's business, as where he had on hand at the time of the assignment unmanufactured material in the way of his business,  [**23]  or the like. In the case of Janes vs. Whitbread, 5 Eng. Law & Eq. 431, the deed which was of this character, was sustained expressly upon the ground, that the carrying on the trade being ancillary to winding up the affairs of the debtor, did not avoid the deed. And in the present case, if the grantors had been manufacturers of oil-cloths, carpets, and the like, we would not be prepared to say that a deed containing a provision authorising the assignee, or the debtors themselves even, to work up any unmanufactured or raw material on hand at the time of the assignment, would vitiate the assignment. But such is not the fact, and as this case at present stands, we can regard it in no other light than an attempt to place the assignee in the place of the debtors, for the purpose of carrying on the latter's business as it had been previously conducted by them before the deed of trust, without any special benefit to be derived thereby by the creditors, and without limitation or restriction upon the trustee.
We will not attempt a review of the numerous authorities which would bear upon the questions involved in this case. As far as cases have gone in sustaining voluntary [**24]  deeds of trust, few, if any, can be found, which have advanced principles 

 [*393]  sufficiently comprehensive or flexible to embrace a case like the present.
The appellant's first prayer asks the court to pronounce the deed void, and to instruct the jury so to find. This prayer was improperly rejected. The deed appearing to be void upon its face, it was the duty of the court so to pronounce it, and there was nothing left for the jury to find.
Having, as we suppose, disposed of the whole case, by declaring the deed void, we deem it unnecessary to pass upon the appellant's second prayer, or upon any other of the questions raised in the course of the argument.
Judgment reversed and procedendo awarded. 

19 of 44 DOCUMENTS 

THE MAYOR AND CITY COUNCIL OF BALTIMORE, vs. THE PROPRIETORS OF GREEN MOUNT CEMETERY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 517; 1855 Md. LEXIS 17 

JUNE, 1855, Decided 

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

Assumpsit by the appellant against the appellees, for the recovery of a paving tax imposed by the corporate authorities of Baltimore, upon the appellees, as owners of land fronting on a part of York avenue, in the city of Baltimore. Plea non assumpsit. The case was submitted to the court below, (FRICK, J.,) upon a case stated, which is sufficiently set out in the opinion of this court, and a pro forma judgment rendered in favor of the defendants, from which the plaintiff appealed.  

DISPOSITION:
Judgment reversed, and judgment for appellants for amount mentioned in the case stated.  

HEADNOTES:

The charter of a cemetery company within the limits of the city of Baltimore, provided that a certain number of acres of land "shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever." HELD:

That a paving tax, for paving a street in front of this property, is not embraced in this exemption; the intent of the Legislature was to exempt the property from all taxes or impositions imposed for the purpose of revenue, but not to relieve it from such charges as are inseparably incident to its location in regard to other property.

The word "tax" means a burden, charge, or imposition put or set upon persons or property for public uses, but to pay for opening a street in a ratio to the benefit derived from it, is not a "tax" within the meaning of an exemption that certain property shall not "be taxed by any law of the State."

The meaning of the words "tax" and "assessment," is the same in our laws, and there is no difference between them, whether applied to the opening or paving of a street; in either case they are synonymous.

The imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain. 

COUNSEL:
Geo. M. Gill and John Nelson for the appellant, argued the following points:

1st. That if the defendants are liable for their proportional part of this paving tax, they may be sued in assumpsit therefor. 6 H. & J., 393, Mayor & City Council of Baltimore vs. Howard.

2nd. The exemption in the charter of the appellee (act of 1837, ch. 164,) from any tax or public imposition, relates to charges or impositions put or set upon persons or property for public uses. It does not relate to a paving tax, which is not general or public, but confined to those who [**2]  own property fronting on the street paved.

What is a paving tax, and what is the process by which a public street is paved in the city of Baltimore? The authority is first given by the act of 1797, ch. 54, sec. 2, which gave the power to the city authorities to tax particular localities for the purpose of paving streets therein. This was the rule until the act of 1817, ch. 148, sec. 18, which took from the city authorities the power to pave, except upon the assent of a majority of the proprietors of the ground in front of which the paving was to be done. Still further restrictions are imposed by the acts of 1832, ch. 57, and 1833, ch. 40. The power to tax for paving is then a limited one, dependent upon the action of the owners of property fronting upon the streets. Under the act of 1797, the inquiry in regard to the validity of any such tax was, whether it was for the benefit of the particular locality or not? and the courts decided that the ordinance directing the improvement was evidence that it was a benefit, and therefore the tax was sustainable. The act of 1817, and the subsequent laws, substitute the assent of the proprietors for the judgment of the city authorities.

The [**3]  tax, then, is a special one, and contradistinguishable from a public tax, because it enures as a special benefit to the parties who are to pay it. If there be no benefit, there can be no tax laid, but it matters not whether, in point of fact, benefit has been conferred in particular cases, but whether, in the assumption of the law, the case has arisen for the application of the power, the exercise of the authority. The law prescribes the standard of imposition, and fixes the rule of benefit. 6 H. & J., 392, Mayor & City Council of Baltimore vs. Howard.

The language of the charter of the appellees is, that they shall be exempt from "any tax or public imposition whatever." This means exemption from the operation of a charge operating as a burthen, not from a benefit. The Legislature never meant that they should take the benefits and not pay the equivalent therefor. The design clearly was, to exempt them from the general public taxes which all proprietors and citizens are bound to respond to for the general purposes of government, and not to enable them to enjoy benefits at the expense of their neighbors. There is no hardship in this case; it is said this construction would render [**4]  the property of the appellees, which was consecrated for the purpose of a burial ground, liable to be sold for the purpose of paying this charge, but so would it be liable to be sold for any other debt contracted by the corporation. When their charter was granted, the York road was actually opened, and the bed of the road had been laid down on Poppleton's plat as one of the streets or avenues of the city, and this street was therefore liable to be opened and condemned as a public street, upon the application of not less than two-thirds of the proprietors of ground fronting thereon. Act of 1817, ch. 148, sec. 16. The third section of their charter, while it forbids the opening of streets through their property, appropriated for the purposes of a cemetery, expressly says, that the exemption shall be confined to the area east of the York road. It was then in contemplation that the York avenue might be condemned and opened as a public street. The Legislature had no power to pass a law which would make adjoining proprietors pay the taxes due by the appellees. 4 Gill, 425, Mayor & City Council vs. Lefferman.

But the very questions involved in this case have been repeatedly decided,  [**5]  and are no longer open questions. In our own courts, it has been decided by the cases of Alexander, et al., vs. Mayor & City Council of Baltimore, 5 Gill, 390. Dolan & Foy, vs. The Mayor & City Council, 4 Gill, 394. (Opinions of Justices Le Grand and Dorsey.) Moale vs. The Mayor & City Council of Baltimore, 5 Md. Rep., 314. See also Matter of the Mayor of New York, 11 Johns., 80. Canal Trustees vs. City of Chicago, 12 Illinois Rep., 403. Northern Liberties vs. St. John's Church, 13 Penn. State Rep., 104. Bonsall vs. Lebanon, 19 Ohio Rep., 418. Gardner vs. The State, 1 Zabriskie, 557. Shortwater vs. Armstrong, 9 Humph., 217. Reed vs. Toledo, 18 Ohio Rep., 161.

John H. B. Latrobe and John V. L. McMahon for the appellees.

The charter of the appellee, (act of 1837, ch. 164,) reciting in its preamble that its object is the establishment of a burial ground, which will assure perpetual protection to the remains of deceased friends, as well as the proper preservation of the grounds as a burial place, by its fourth section requires to that end, that at least fifty contiguous acres of the purchase "shall be forever appropriated and set apart as a cemetery:" and it then enacts, "that [**6]  the ground thus set apart as a cemetery, so long as used as such, shall not be liable to any tax, or public imposition whatever." And it being conceded in this case that the ground in respect of which the tax in question was imposed, is a part of the fifty acres so set apart and ever since exclusively used as a cemetery, and therefore covered by this exemption, the question is, whether a paying tax imposed by the city of Baltimore is not embraced by that exemption, looking to its terms as well as its declared objects?

In construing the words of that exemption, it must be manifest, that they are entitled to and ought to receive their fullest signification: and that there is nothing, either in the objects of the charter, or in the context of the exemption, which indicates that the words were used in a limited sense, or were only intended to apply to a particular kind or class of taxes or public impositions. On the contrary, there is a clear design to make the words of the exemption comprehend every thing, without exception, which can be justly denominated either a tax or public imposition: as is manifest from the words "any tax or imposition whatever." So that it is not any particular [**7]  kind of tax or public imposition which the exemption aims at, but every tax and every such imposition, in whatever form it may come. And when we consider that this exemption is granted and continues, only because and so long as the ground exempt is devoted to and used exclusively for the purpose of a cemetery, and is thus rendered unavailable for all other uses, the reasons for the generality of the exemption are at once manifest. In this respect, therefore, the present case is distinguished from some of the decided cases on exemptions, contained in statutes, or in covenants between landlord and tenant, where the general objects of the statute or covenant having relation to taxes of a particular kind, the courts have considered the exemption as having the same relation: or where the statute or covenant has specified for exemption certain taxes, and exempted from others by general words of exemption following such specification, and the court has construed such general words with reference to the specific taxes previously mentioned, and therefore held such general words to relate only to taxes of the same kind or class with those specified. The cases of this description will be seen [**8]  in the references in the argument of the Mayor of New York's case, 11 Johns., 78. But in this case, there is nothing in any way to qualify or restrict the full meaning of the words used, but on the contrary a clear design to comprehend every thing which the words "tax" or "public imposition" can reach.

As to the construction of statutes by their words, and the object manifested by the act itself, and the force of general words in a statute, see 5 Md. Rep., 485, Alexander vs. Worthington. Ibid., 529, 530, 532, 533, Carman vs. Carman. 2 Md. Rep., 120, 121, Allen vs. The Mutual Ins. Co. 20 Wendell, 561, 562, Waller vs. Harris. 50 Law Lib., 169. 9 Law Lib., 48. 18 Maine Rep., 313, Jones vs. Jones. 12 Pick., 226, Doane vs. Phillips. 11 Clark & Finnelly, 86, 143, The Sussex Peerage case. 6 Gill, 296, 297, Mayor & City Council of Balto., vs. Balto. & Ohio Rail Road Co.

Nor is there any thing in the exemption in this case to require or warrant the construction that it was only intended to apply to taxes and impositions already imposed by then existing laws, or only such as were regularly or annually recurring--such as the ordinary State and city taxes: and that it was not intended [**9]  to reach future or extraordinary taxes and impositions, the imposition of which depended on contingencies. Future taxation or imposition was that against which the exemption especially intended to guard: for if nothing more had been designed than to exempt from the then well known and ordinary State and city taxation, very different words would have been used. The exemption from any tax or imposition whatever shows most clearly that they aimed at future as well as present, and extraordinary as well as ordinary taxes and impositions. It will also be remembered that in this case the property thus exempted was, at the period when the charter of the appellee was granted, within the limits of the city of Baltimore, and the acts of Assembly and ordinances of the city, which gave and regulated the power to pave streets and tax for the paving, were then in existence, and subjected this property (without the exemption) to the contingent liability to taxation under that power. There was, therefore, a liability to such a tax by force of then existing laws: and this property was then so situated as to be subject to that liability. And surely, with reference to liabilities for public impositions [**10]  or taxes, existing and known to the law when it makes such an exemption as the present, it cannot be doubted that they are presumed to have been in the contemplation of the Legislature when it made the exemption, and to have been intended to be reached, if the words of the exemption are comprehensive enough to embrace them, and there be no specified exemption. The decided cases fully support these views, and it will suffice to refer for this to the opinion of the court, in Bleecker vs. Ballou, 3 Wendell, 266, and Mayor, &c., of New York, vs. Cashman.

To determine the extent of this exemption, it is then only necessary to enquire what is the true import of these words "tax" or "public imposition?" as every thing that is such is embraced and intended to be embraced. And the first branch of this enquiry is, is this exemption by the State confined to State taxes, or does it not also extend to such taxation or imposition by the city of Baltimore, as one of the municipal governments of the State? And since the decision of this court in the case of the State, use of Washington county, vs. The Rail Road Company, 12 G. & J., 400; 3 Howard, 550, as well as in the various tax cases arising [**11]  under charter exemptions, and especially under the charter of the Baltimore and Ohio Rail Road Company, it cannot be necessary to offer any argument upon this question. These cases certainly establish, that the power of taxation for city purposes, is held by the city as a branch of the State government, and is a public power subject to State control; that where the State, having certainly full control over the taxing power both of State and city, exempts from taxation generally, or public imposition generally, without any thing in the words or context of the exemption to show that she thereby only referred to State taxation, such a general inhibition of taxation, will reach the city as well as the State power of taxation, and alike restrain both; and that a tax or imposition by the city, in the exercise of the municipal power, is properly speaking "a public tax or imposition." And it will not, we presume, be denied that this property is exempt, by the provision of the charter, from the ordinary city tax. 6 Gill, 296, 297. 2 Do., 358, The Phil., Wil. & Balto. Rail Road Co. vs. Bayless. 1 Zabriskie, 557, Gardner vs. The State. 2 Harrison, 80, State vs. Berry. 3 Do., 11, Camden & Amboy [**12]  Rail Road Co. vs. Hillegas.

As then city taxes, and impositions under the municipal authority of the city, are, in their nature, "taxes or public impositions," and therefore falling within the words as well as object of the exemption: the question is narrowed down to the enquiry, "What is there to preclude the application of the exemption to a paving tax?" The source from which the tax or imposition proceeds (the city government,) makes it public; and therefore it is only necessary to ascertain if it is not also a tax or imposition. And to this end, it may be proper to consider briefly the origin and nature of the paving tax in the city of Baltimore, and the manner in which it operates. Before the grant of the city charter, the paving of the streets of Baltimore was regulated by State legislation, and provided for by State taxation, under the acts of 1782, ch. 17, 1789, ch. 45, 1791, ch. 59, and 1792, ch. 21; and by these acts, which placed the paving under the control and direction of the special, or as they were sometimes called, "the street commissioners," the fund to defray the expenses of paving was raised by various specified taxes imposed by the acts themselves, to which [**13]  was added a limited power in the commissioners to tax for that object, as also to raise money by lottery for same purpose. Upon the incorporation of the city, the State, by the charter of 1796, and the supplement of 1797, confided to the city government the power of determining as to the location and opening of streets, and of making, paving and regulating them, and also the power to pass all ordinances necessary for that purpose. Under these the city government could direct the paving of any unpaved street, with or without the consent of the owners of the adjacent property; nor was there any restriction upon that power until the act of 1817, ch. 148, (see also act of 1832, ch. 57,) which, in its 18th section, prohibits the city from forcing the paving of such a street, "without the written assent of the proprietors of a majority of the ground fronting on such street, or the part thereof to be paved." But still this is a mere restriction, and does not require the city to order the paving, even where such assent is given. The power of deciding that the street shall be paved still resides in the city alone, or the officers appointed under its authority to decide that question. She cannot [**14]  order it if a majority do not assent; but even with that assent she has still the right to exercise this power or not, according to the judgment of her commissioners appointed for that purpose. The city government is not therefore, under the law of the State, a mere instrument or agent appointed by the law to carry out the will of the proprietors of a majority of the fronting ground: or in other words, the law does not make the paving of such streets, and the taxation consequent on it, the mere result of the will of the fronting proprietors of a majority of the ground, but leaves it still as the imposition of a duty upon the citizen by the city government.

In order to the exercise of these powers by the city government, the charter has also vested in the city a two-fold power of taxation, the nature of which is fully considered and determined by this court, in the cases of the City vs. Moore & Johnson, 6 H. & J., 380, 386, and also Same vs. Hughes, 1 G. & J., 480. These cases show that the city might, if she pleased, provide for the paving by a general tax on the citizens of the city, as well as by the particular or special power under the charter, of taxing any particular part [**15]  of the city for paving streets which may appear to be for the benefit of that part. And in reference to this power of taxing a particular part of the city, they, every where in their decisions, style the imposition on such part of the city "a tax," sometimes calling it "a special tax," (6 H. & J., 380,) and at other times "a local tax," (1 G. & J., 494;) and in reference to this special power of taxation they decide, that the power to tax the particular district, and the legality of the tax imposed under it, "do not depend, (to use their own words,) upon whether the paving does or does not in fact benefit the particular district that is taxed, but upon the object, the motive of the city, in causing the paving to be done," (1 G. & J., 492.) Under these powers the city, having adopted the particular mode of taxation, as to the paving of unpaved streets, has provided a uniform mode of exercising it by its ordinances, (see Rev. Ord. of 1828, 121, 122; and same in Rev. Ord. of 1825, 121:) and a reference to the general regulations there will show, that the expenses of paving any such street, are those provided for by what is not only there called "a tax," but is also in its nature "a tax,  [**16]  " and not "a mere assessment of ascertained benefits resulting from the improvement." The provisions are, "that a tax shall be levied upon the owner or owners of the property fronting," so as to make the proprietors of the ground on the two sides of the street pay the whole expense of the paving in front of their respective lots. Instead therefore of being an assessment of benefits ascertained by the judgment of commissioners, (as is the case in assessing the expenses of opening streets,) it is a direct imposition of a tax on each front proprietor, of the whole expense of the paving in front of his own lot to the middle of the street: and the city commissioners, instead of assessing the benefits, do nothing more than ascertain the amount of that expense. And it may here be remarked, as showing the distinction between the paving tax, and an assessment of benefits, that the Court of Appeals, speaking of this tax, say: "That it is not a tax imposed by the commissioners, nor could the corporation confer on them such a power, but it is imposed by the ordinance itself; and the assessing and levying of it was only an apportionment of it, a mere matter of figures and calculation, a ministerial [**17]  act to carry the law into effect, which it was the duty of the commissioners to perform," (6 H. & J., 391.) We have therefore the authority of this court for saying, that notwithstanding the intervention of the commissioners to aacertain the amount, it is still a tax or imposition imposed by the city itself.

The tax in question being, then, clearly a city tax, or imposition flowing from the exercise of its municipal or public authority, is there any thing in the uses to which the money raised by it is applied, or in the fact that the tax goes to defray the expense of an improvement in front of the payer's own lot, which strips it of its character as a city tax or imposition? Is there any thing in such an use or application inconsistent with the character of a tax or public imposition? If it be said, that a tax is a pecuniary burden imposed on persons or property for some public object, then surely a pecuniary imposition, imposed by public authority, for the paving of the street of a city, ordered and directed by public authority, is for a public object, whatever the incidental result of that improvement to individuals. If it were conceded not to be for such an object, it would [**18]  be difficult to find the authority of the corporation to impose it: and the fact that the corporation is authorized, under its charter, if it so pleases, to impose a general tax on all the citizens, for the paving of any particular street, or part of a street, of itself demonstrates the object to be a public one, for the accomplishment of which a tax may be properly imposed on the whole community within the city. We are aware that there are cases which hold, with reference to what are called street assessments, that the valuation and assessment of benefits by commissioners acting under public authority, are not, strictly speaking, "taxes:" but there is a marked distinction between those cases and the present, which we will briefly advert to. The leading case on that subject is, the Mayor of New York's case, 11 Johns., 80, to which, and the cases in 3 Wendell, 452, 254, 19 Wendell, 681, and the cases stated by the court in 6 Barbour's S. C. Rep., 224, we refer, as showing the character of the assessments, which are there spoken of. By reference to these it will be seen, that the improvement there is made by an assessment of the entire cost of it, and of the actual benefits which any [**19]  and every individual would derive from it: that if the aggregate of the actual benefits thus assessed to each individual is not equal to the entire cost, then the court will not confirm the report, and the improvement must stop: and that under this assessment of benefits, the commissioners assess upon each individual what, in their judgment, is the actual amount of the benefit he will derive from the improvement, and thus make him pay only what, in their judgment, is thus actually added to the value of his property. And of such an assessment the court say, (11 Johns., 80,) "But to pay for the opening of a street in a ratio to the benefit or advantage derived from it, is no burden. It is no talliage or tax within the meaning of the exemption, and has no claim to public benevolence; why should not the real estate of a minister, as well as of other persons, pay for such an improvement in proportion as it is benefited." And if that were the kind of imposition in this case, this cemetery company, instead of paying this large assessment upon the property, being the whole expense of the paving in front of its one thousand four hundred and forty-three feet, to the middle of the street, would,  [**20]  in all probability, have paid nothing, or, at least, but a small proportion of the cost of the improvement; inasmuch as the property being, by the charter, forever dedicated to the uses of a cemetery, is necessarily valueless for other purposes, and can, therefore, derive but little, if any benefit, when compared with that of those who own lots which may be built upon, or applied to any other profitable uses. The very cases referred to, strikingly illustrate this distinction. In the case from 11 Johns., 80, where the question was as to the assessment of church property, the court say, that such property, being devoted exclusively to religious purposes, the benefit must be small, in comparison with that of other property; and after speaking of some benefits which might be derived to it by giving more convenient access to it, &c., they say that these are small and remote benefits, and that to charge the churches equally with adjoining property, is unreasonable and extravagant, and the report was, therefore, set aside. And we also invite the court's attention to the cases in 11 Wendell, 149, 153, (the case of a cemetery,) as presenting the same views. Here, however, is a case in which [**21]  the cemetery company, by what is unquestionably a city tax or imposition, are required to pay for the cost of the paving in precisely the same ratio as all other owners of property along the street, and without regard to the comparative benefit they may derive from it; and, therefore, the reasoning, which would strip the assessment of the character of tax or imposition, upon the ground that it only makes them pay for the benefits or value actually added to their property, is entirely inapplicable. And yet, even these cases from New York, so far as they would seem to affirm, that even such an assessment of the actual benefits is not properly a tax, are greatly shaken as to this point, if not entirely overthrown, by the recent decision of the Court of Appeals of that State, in the Mayor of Brooklyn's case, 4 Comstock, 419. Misled by the decision above referred to, the lower court, in that case, had determined that such mere local assessments of benefits were not properly taxes, or acts done in the proper exercise of the taxing power; that they could only be justified under the authority to take private property for public uses; and that the assessment in question in that case could not [**22]  be sustained under the latter power. 6 Barbour's S. C. Rep., 209, 224. But the Court of Appeals, reversing this decision, affirm that even such an assessment is a tax properly so called; and that in the cases in which it had been said that they were not taxes, all that was intended to be said, or could properly be said, was, not that they were not taxes, but that they were not such taxes as were intended to be embraced by the particular exemption under consideration. And we refer the court particularly to their review of the anterior cases in 4 Comstock, 433 to 437.

With regard to these cases from New York, it is further to be observed, (as will appear from the court's review of them in 4 Comstock,) that the main point decided was, not that the assessment by public authority was not a tax, but that looking at the manner in which the exemption claimed was given, the place in which it was found, and the matter with which it was connected, the exemption in question was not intended to embrace all taxes, but only particular kinds of tax. Hence, in the case in 11 Johns., the exemption was found, in a general tax act, relative solely to the public taxes to be collected for the uses [**23]  of State, county, or town; and the exemption was, therefore, held to refer only to the taxes to which that act related. And we may add here, that such too was the character of the exemption in Dolan's case, 4 Gill, 394, which went off in this court upon another ground. There, too, the exemption was contained in the State tax act of 1841, ch. 23, which related only to the imposition of direct taxes by the State or city, for State or city uses; and in which the exemptions of that act clearly have reference only to the taxes to be imposed under that act. The mere fact of the exemption being found only in such an act, might be, of itself, sufficient to make it but an exemption from the taxes to which that act related; but the words make this obvious. The 1st section of this act of 1841, which contains the exemption relied on in Dolan's case, enacts, "that nothing herein contained shall be construed to authorize the assessment or levy of any tax upon," &c., and then specifies the exempt property, so that it is clearly nothing more than an exemption from the taxes provided for by that act. But, in this case, there are no such considerations to control the construction of the words of the [**24]  exemption, or to deny them their ordinary and proper import. The exemption is not found in a tax act, or any other act which, by its subject matter, or in any other mode, shows that any particular taxes were in the contemplation of the Legislature, or that, in making this exemption, it had reference only to a particular kind or class of taxes, and so far from there being any intention to use the words in a qualified or restricted sense, they are as comprehensive as language can make them, and expressly intended to reach "any tax or public imposition whatever," no matter what its kind or class. And it is found, too, in the charter of a company, the declared objects of which, as well as the words of the exemption, manifest that it was intended to have this comprehensive and all-embracing operation. On this subject we refer the court to the case of The King vs. Scot, 3 Term Rep., 602, where, in a charter for charitable purposes, there was a somewhat similar exemption, and where, it being contended that the exemption from any manner of public tax, assessment, or charge, only exempted them from the general public taxes, and not from the assessment from the poor's rate, which was a particular [**25]  local tax, the court affirm that the exemption embraces every imposition which can be called a public tax, and that the poor's rate, although particular and local, was such. This case clearly shows that such an exemption as the present, found in such a charter as ours, is to have its fullest signification.

Such being the comprehensive character of the exemption, it brings us back again to the simple enquiry, "Is this a tax or not?--and to what has been said above on that subject, we may add, that every act and ordinance, relative to such an imposition as this, speak of it as a tax, and nothing but a tax. In the opinions of this court, above referred to, not only is it every where called a tax, but, in fact, it is imposed, and can only be imposed, under the charter power to tax the particular district, which expressly gives it as a power to tax--and as the only power to impose it is expressly given as a power to tax, it would be singular, indeed, if the imposition under the power is not a tax, and especially where the very ordinances imposing it call it a tax, and impose it as such. And, if the purpose of the tax have any bearing on this question, it cannot surely be maintained,  [**26]  that any tax which public authority imposes to accomplish an object determined upon and directed by itself, is less a tax because the individual taxed may derive some benefit from its application. But there is another view of this question which, as it seems to us, conclusively demonstrates that such an assessment is a tax, and nothing but a tax. By the act of 1840, ch. 63, power is given to the Mayor and City Council to provide, by ordinance or otherwise, "for the prompt collection of taxes due to the city of Baltimore;" and under this authority, alone, was the ordinance of the city passed, which directs the sale of property assessed for paving taxes, (ordinances of 1843, No. 44.) The only power here given, is with reference to taxes due the city, and unless the paving tax be a tax due the city, then the ordinance directing the sale for paving taxes was unauthorized. It so happens, however, that the validity of that ordinance has been fully affirmed by a decision of this court at its present term, which, therefore, settles that paving taxes are embraced under the general denomination of taxes due the city. Eschbach vs. Pitts, 6 Md. Rep., 71, 76.

But if it were even conceded that [**27]  the word "tax," in the exemption, did not include such an assessment, there is surely enough in the remaining words to embrace it. These lands are, by it, exempt from any tax whatever, or any public imposition whatever, and it is a well settled rule in the construction of statutes, that where words are thus used disjunctively, it is not to be presumed that they mean the same thing and no more, as they would impute to the Legislature the absurdity of using the latter words only to repeat what was fully expressed by the first. Hence, in the case in 3 Wendell, 263, 266, where the tenant had covenanted with the landlord to pay "all taxes, charges, and impositions," and the question came up as to the liability of the tenant, under this covenant, to pay an assessment of benefits under the New York statute, (such as we have described above,) the court say, "these are not words without meaning, nor can we suppose that they are used as synonymous;" and then, after saying that such a mere assessment of actual benefits was not a tax, on the authority of the case above, from 11 Johns., they yet held it to be embraced by the other words of the covenant. In this case there is nothing but a flat [**28]  imposition, by the ordinances of the city, of one-half of the cost of paving in front of the lot, the commissioners merely ascertaining that cost; and it surely cannot be successfully maintained that such an assessment is not a public imposition, and especially within the meaning of an exemption, which is expressly against any public imposition whatever.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*532]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on an appeal from a pro forma judgment, rendered by the Superior Court of Baltimore city on a case stated. The statement of the facts may be thus abbreviated: By the act of 1837, ch. 164, the appellees were incorporated. As a corporation they are seized and possessed, for the purposes mentioned in the charter, of a quantity of land whose western boundary is the York avenue, within the limits of the city of Baltimore. In the year 1851, an application was made by the proprietors of a majority of the feet of ground binding and fronting on the York avenue, in the city of Baltimore, between the north side of Oliver street and the north side of North avenue,  [**29]  in the said city, to have the aforesaid part of the York avenue paved, in conformity with the ordinances of the Mayor and City Council of Baltimore. After notice by advertisement, the proper authorities determined that the avenue, as asked, should be paved, which was accordingly 

 [*533]  done in the year 1852; and, in pursuance of the ordinances of the city, a tax was imposed upon the owners of property fronting on the said part of York avenue, equal in amount to the whole expense thereof, excluding the cross-streets, the amount assessed on the appellees being $ 3790.12. There is no question in the case in regard to the regularity of the proceedings of the corporate authorities of the city; the appellees resting their defence to the claim set up against them exclusively upon the language of their charter, the third section of which provides, that at least fifty contiguous acres of the land of the appellees "shall be forever appropriated and set apart as a cemetery, which, so long as used as such, shall not be liable to any tax or public imposition whatever."
The appellees insist, under this clause of their charter, they are exempt from all liability to pay for the paving in [**30]  front of their property, alleging that the demand is a "tax" and a "public imposition," and being such, they are expressly relieved from all responsibility for the same by the words of the grant to them from the State. The decision, therefore, of the case, depends entirely on the true interpretation of the words which we have quoted from the act of incorporation.
The ordinances of the Mayor and City Council expressly designate, and the Court of Appeals, in the case of Eschbach vs. Pitts, 6 Md. 71, recognize, the levy for paving as a "tax." There is, therefore, no question in regard to the fact of its being such: the only question being, is it such a tax as is within the meaning of the act of 1837, ch. 164?
The words, "any tax or public imposition whatever," most certainly are very comprehensive, and would, if strictly construed, apply to every possible form of taxation or imposition, and, as a consequence, necessarily include a paving tax. But, on the fullest consideration, we are unable to satisfy our minds that the statute in question should receive such an exposition. We think the legislature intended nothing more than to exempt the property of [**31]  the proprietors from all taxes or impositions levied or imposed for the purpose of revenue, and not to relieve it from such charges as are inseparably incident to its location in regard to other property. At the time of the passage of the 

 [*534]  act of 1837, the York avenue was designated as a public street, and as such, was liable to be paved within the discretion of the city authorities, on the application of the proprietors of a majority of the feet of the land fronting on it. The effect of words of exemption from taxation has never been decisively settled by the Court of Appeals, although the question was presented in the case of Dolan & Foy, vs. The Mayor & City Council, 4 Gill 394. In that, as in this case, the claim was for paving in front of a grave-yard. The appellants there claimed exemption under the 2nd sec. of the act of 1841, ch. 23, which provided, that nothing contained in it should be "construed to authorize the assessment of, or levy of any tax upon, the property belonging to the United States, to this State, or to any county or city within this State, or to any incorporated literary or charitable institution, county schools, houses of public [**32]  worship, burying-grounds," &c. Baltimore county court, sitting in equity, held that the exemption only extended to public taxes, and not to a release of all liability for benefits conferred; such as might result from the opening or paving of streets. And this view was not only taken in connection with the category in which "burying-grounds" was found in the act, but independently of it and in view of the nature of the thing itself. When the case on appeal came before this court, the decree was, by a majority of the court, affirmed on grounds having no bearing on this question; one of the judges, however, did pronounce on the question, concurring in opinion with the court below. The county court recognized the authority of the case of The Mayor, &c., of New York, 11 Johnson 80, as also did this court in the subsequent case of Alexander & Wilson, vs. The Mayor & City Council, 5 Gill 383. In the case reported in 11 Johnson, the commissioners appointed by the court for the enlarging of Nassau street made a report of the estimate and assessment of the damage and benefit to the parties interested in enlarging the street, by which it appeared [**33]  that they assessed the benefit of the proposed improvement to certain churches in the city of New York. The churches objected to the assessment, on the ground that they were not liable because of a general law, which provided, "that no real 

 [*535]  estate belonging to any church or place of public worship, &c., shall be taxed by any law of the State." But the court unanimously decided otherwise, and held that the word "taxes" meant burdens, charges or impositions, put or set upon persons or property for public uses; and that to pay for the opening of a street, in a ratio to the benefit or advantage derived from it, is no burden--is "no talliage or tax within the meaning of the exemption." The doctrine of that case has been fully sustained by a number of decisions. See Bleecker vs. Ballou, 3 Wendell 263. The Northern Liberties vs. St. John's Church, 13 Pa. 104.
But it is said there is a difference between the case reported in 11 Johnson and the one now before us; that there it was an assessment, whilst here it is a tax. That was the case of the opening of a street; this is for paving of a street. The language [**34]  of exemption in the New York statute would include just as well the paving as the opening of the street; and if it did not, as was decided, include the latter, it surely did not the other. The language of the New York statute was quite as comprehensive as the act of incorporation of the appellees. It exempted churches, &c., from all taxes imposed by "any law." The distinction, if any, between a tax and an assessment is not very palpable. The meaning of the words is the same in our laws. When a man is assessed to pay a certain sum, it is equivalent to, and nothing more than, the imposition of a tax on him to that amount. This is the popular understanding of the signification of the terms, as well as that of philologists. Thus, Webster: Tax--"a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State." So, also, "an assessment is a valuation made by authorized persons, according to their discretion, as opposed to a sum certain or determined by law. It may be a direct charge of the tax to be paid." In principle, we are unable to discover any difference between the meaning of the words, whether applied [**35]  to the opening or to the paving of a street. In either case they ought to receive the same exposition; and they are regarded as synonymous by the court in The People vs. Mayor, &c., of Brooklyn, 4 Comstock 429, 

 [*536]  a case which, it was argued by one of the learned counsel for the appellees, overrules the cases we have cited from 11 Johnson and 3 Wendell. We do not, however, so understand that decision. For the most part, it deals with matters in no way involved in this case. Its consideration of the provisions of the constitution of New York, of the right to apportion taxes, or of the distinction between the sovereign powers of eminent domain and of taxation, do not concern the question before us. That the imposition of a paving tax is an exercise of the taxing power, and not of the right of eminent domain, we entertain no doubt, nor did we understand the counsel for the appellants to suggest any. There was no question of exemption in the case last referred to. The question there was, whether it was competent to assess on the lands benefited by the grading and paving of a particular avenue the cost of the same? It was contended that the statute [**36]  authorizing such assessment was unconstitutional, because it confined the assessment to those supposed to be benefited by the improvement. The Supreme Court sustained this objection, but it was reversed by the Court of Appeals, which held the act of the legislature authorizing such assessment to be perfectly constitutional.
Looking to the principles of the cases we have cited, and which have been recognized heretofore by this court, and to the nature of the thing itself, we do not consider this paving tax such a tax as is embraced in the exemption contained in the charter of the appellees. The property of the United States, of the city and county of Baltimore, are all exempted from taxes, and yet it has never, so far as we are informed, been contended that it was not liable for the paving done in front of it, and we can see no reason why that of the appellees should be. If the latter be not responsible, then, it is evident, the street must forever remain unpaved, or the expense of it be borne wholly and entirely by the proprietors of the lots opposite. Surely this never could have been the intention of the Legislature, nor can it be imagined it was its purpose to compel the city generally [**37]  to do it. It must be viewed practically as a benefit conferred on the property of the appellees, and the mere fact that they were indifferent to it, ought not to 

 [*537]  avail in their favor any more than the like indifference of an individual proprietor would shield him from liability to pay his quota when paving is done in front of his ground.
To the objection, that to subject the property of the appellees to liability for paving, would endanger its perpetuity as a cemetery--an object certainly very desirable, and of evident solicitude on the part of the Legislature--it may be replied, that however we may deal in words, there is nothing in this terrestrial sphere which is not liable to shocks and decay, and at some day, sooner or later, to final dissolution. However, its force, whatever it may be, equally applies to all the engagements and liabilities of the corporation. The building of a wall, of a church, or the improvement of the grounds, may superinduce debt, and, with it, disastrous consequences. Although fully sympathizing with the laudable spirit which, with pious zeal and watchfulness, seeks to preserve the undisturbed repose of the dead, we, nevertheless, feel ourselves [**38]  bound to declare, that we see nothing in the legislation of the State, nor in the nature of the demand itself, to exempt the appellees from liability.
Judgment reversed, and judgment for appellants for amount mentioned in the case stated.
TUCK, J., dissented.  

20 of 44 DOCUMENTS 

FRANCIS H. EDELIN vs. EDWARD J. SANDERS, Exc'r of WILLIAM SANDERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 118; 1855 Md. LEXIS 37 

DECEMBER, 1855, Decided 

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

Debt, brought by the appellant, on the 30th of October 1849, upon an alleged bond of the appellee's testator in favor of the plaintiff for $ 2000, dated the 11th of December 1838 and payable on or before the 1st of July 1840, without interest until that time. The defendant, as executor, under leave of the court, pleaded non est factum without oath, upon which issue was joined.

1st Exception. The plaintiff gave in evidence the bond sued on, (which appears in the record as perfect on its face, without any appearance of erasure,) and his possession thereof at the bringing of this suit; and then proved by William B. Stone and other witnesses the facts stated in the opinion of this court, and also that there was a controversy between defendant's testator and the plaintiff about the negroes referred to, as the plaintiff claimed them to be in the same secret trust, which trust the testator always denied; that a proposition was made by some of the parties, that a bond should be executed by the testator and left in the hands of a third party, as an escrow, as security that the testator would not sell the negroes or dispose of them;  [**2]  but this proposition failed, and witness does not know whether any paper was prepared to carry out such proposition. Also, that said testator was the brother of said Rebecca Boarman and uncle to the plaintiff's wife, and that both the bond to the plaintiff and that to Rebecca Boarman correspond with the time, as regards their payment, when the purchaser of said real estate was to begin to pay interest to the testator. Also, that the testator suffered the plaintiff and Mrs. Rebecca Boarman to remain in possession and use of the negroes mentioned up to the time he replevied them from the plaintiff. The defendant then offered in evidence a record of a replevin suit, in Charles county court, by the defendant's testator against the plaintiff, for certain negroes therein specified, begun on the 13th of January 1844, and setting out the recovery of said negroes by the plaintiff in that suit; and also, a record of an action of debt in Charles county court by the defendant in this case, as executor of William Sanders, against the plaintiff, begun on the 30th of May 1850, upon a sealed note of the plaintiff in favor of said William Sanders for $ 500, dated the 3rd of April 1840, and payable [**3]  on demand, upon which judgment was rendered in favor of the plaintiff in that case for the full amount of the note. To the admissibility of each of these records as evidence in this case, the plaintiff excepted, but the court, (FRICK, J.,) overruled this objection and permitted the records to go to the jury as evidence. To this ruling the plaintiff excepted.

2nd Exception. In addition to the testimony in the first exception the defendant proved, that a short time after the death of Sanders witness had a conversation with the plaintiff, in which he spoke of his note to Sanders for $ 500, saying he did not intend to pay it as it was not Sander's money, but was a portion of the money for the sale of land which his (plaintiff's) wife was entitled to, but he said nothing to witness about the bond in suit. The plaintiff then offered proof of his general character for integrity. The defendant then offered to read the will of William Sanders, his testator, in which he devises to the plaintiff's wife and Rebecca Boarman the negroes recovered by him in the replevin suit mentioned in the first exception. To the admissibility of this will the plaintiff objected, which objection the court [**4]  overruled, and admitted the will in evidence. To this ruling the plaintiff excepted.

3rd Exception. The plaintiff then offered the following prayers:

1st. It is not competent for the defendant in this case to impeach or question the consideration of the note sued on, and the only matter for the jury to consider under the pleadings is, whether the defendant's testator executed and delivered the note as claimed by the plaintiff, and if the jury find such execution and delivery the plaintiff is entitled to recover, unless the jury further find, that said note has been altered by the plaintiff or by his procurement in some material particular after such execution and delivery.

2nd. If the jury shall believe from the evidence, that the single bill in suit was made by William Sanders, the defendant's testator, payable in blank, and was so delivered to the plaintiff, then the plaintiff is entitled to recover in this action.

3rd. If the jury believe from the evidence, that the single bill in suit was executed by the defendant's testator, payable to some other obligee than the plaintiff, and the name of such obligee was subsequently erased and the name of the plaintiff was [**5]  substituted as payee with the knowledge of the defendant's testator, the plaintiff is entitled to recover in this case.

4th. If the jury believe that the note in suit was delivered to the plaintiff by the defendant's testator, and that the name of the payee was left blank at the time of such delivery, but the same was intended by said testator to be filled up with the name of the plaintiff and for his benefit, then no alteration or erasure in the name of the payee would vitiate it, even if the same was made by the plaintiff, provided the jury believe that as altered it contains the name of the plaintiff as payee.

5th. That the possession of the single bill in suit by the plaintiff is prima facie evidence of the sealing and delivery of the same by the obligor to the plaintiff, provided the jury find that the said single bill is subscribed with the signature of the defendant's testator in his own proper handwriting.

6th. If the jury find from the evidence, the execution and delivery of the single bill in suit by the defendant's testator as and for the obligation of the testator, then the plaintiff is entitled to recover, notwithstanding the other facts offered in evidence [**6]  by the defendant.

The defendant then asked the following prayer:

If the jury shall find from the evidence, that the single bill, upon which suit is brought, was drawn by William B. Stone, the witness, payable to some other person than the plaintiff, and was executed and delivered, (if the jury shall find the same was ever delivered,) in that form by William Sanders, the obligor; or that the same, when so executed and delivered, was in blank, and shall find in the one case the same was afterwards altered by the insertion of a new payee, or in the other filled up with the name of the plaintiff, that then the plaintiff is not entitled to recover, unless the jury shall further find from the evidence, the subsequent adoption or recognition of said single bill by Sanders, the obligor.

The court rejected the defendant's prayer, and also the first, second and sixth prayers of the plaintiff, and granted the plaintiff's third and fourth prayers. The plaintiff's fifth prayer the court refused as it was offered, but granted and accepted it with this further explanation, that if the jury shall find that the said note was in blank as regards the payee when it came to the possession [**7]  of the plaintiff, and that it was afterwards filled up, or altered, or erased in regard to the name of the payee after being filled up, without its being so intended by the obligor at the time, or afterwards adopted or assented to by him, that then the said prima facie evidence is rebutted and the defendant is not bound by such delivery.

Both parties excepted to each of these several rulings which was against him, and the verdict and judgment being in favor of the defendant the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

The general plea of non est factum imposes on the plaintiff the onus of proving both the execution and delivery of the bond.

Proof of execution and possession is prima facie evidence of delivery, and in the absence of all proof on the other side will entitle the obligee to a verdict.

The seal imports a consideration and the latter as such cannot be inquired into under the plea of non est factum, but the obligee may give in evidence anything which goes to show the bond was originally void at common law, as lunacy, fraud, coverture; or that it has become void subsequent to execution and before suit, as by erasure, alteration, &c.

When there is nothing in the record to show it this court cannot assume that a bond was erased or altered after delivery, and can have no judicial knowledge of the fact if it existed.

If upon inspection the bond appeared to have been altered the fact should be noticed in the exception either by agreement or by asking the opinion of an expert in handwriting his opinion as to its appearance.

Where there is proof that a bond has been altered facts tending to show fraud on the part of the obligee, by showing his relations and dealings with the obligor, are admissible under the plea of non est factum.

The will of a testator is not admissible in evidence for the executor in an action against such executor, because to allow it to be given in evidence would be to permit a party to testify in his own case and in his own behalf.

Where there is no evidence on which the hypothesis of a prayer could be based it must be rejected.

The name of the obligee is a material part of a bond, and as a general principle delivery in blank is an insufficient delivery, unless recognized after the blank is filled up.

Where a prayer on the part of the plaintiff requires the jury to find all that is essential to the plaintiff's right to recover the addition of mere surplusage will not vitiate it.  

COUNSEL:
Vivian Brent and R. T. Merrick for the appellant, argued:

1st. That records from Charles county court, in the first exception, were not admissible in evidence. There was no attempt to prove a connection between the bond in suit and the particular slaves for which the replevin suit was instituted; and if the bond was given for the slaves which were subsequently recovered as against the bond and the contract out of which it grew, yet to admit the judgment of another court upon the validity of that contract and bond, virtually declaring both fraudulent and invalid, to go to the jury, is to allow the adjudication of that other court to [**8]  determine the particular matter litigated in the court before which the parties are and to whose judgment they are entitled, independent of the judgment of any other tribunal. If the bond was given for the slaves in dispute in the replevin suit, and these slaves were returned by the party's own will or under the judgment of the court, and by virtue of such return paid and liquidated the bond or any part of it, that return cannot be given in evidence in this case. 9 G. & J., 361, Key vs. Knott & Wife. The consideration of a bond cannot be inquired into except on the ground of fraud, and then only when the fraud alleged is in the consideration. 1 Chitty's Pl., 483, 484, (a.) Again, there is no proof to show that the negroes recovered in the replevin suit were the same as those conveyed by the bill of sale spoken of by the witnesses. We therefore say, that the record in that suit was irrelevant to this case and inadmissible. The second record is of a suit for a debt in Charles county court, instituted since the present suit in Baltimore county court, and no connection is pretended between the two. The fact that the defendant recovered a judgment against the plaintiff in another court,  [**9]  cannot be admitted to show that the plaintiff has no claim on the defendant. It can establish nothing further than that such a judgment was rendered and is entirely irrelevant to the issues joined in this action. If one debt could be set off against the other, it was the defendant's duty to plead the set-off, because the present suit was instituted prior to the suit in Charles county.

2nd. That the will of the testator, admitted in evidence in the second exception, is not competent evidence for his executor in an action against that executor. The will is but the declarations of the party himself as to his title and possession of the negroes, which are clearly inadmissible. There is no conceivable ground upon which it could be admitted, unless it should have been supposed that will was necessarily a dying declaration. If the testator were living, he would be the defendant in this action and certainly would not be a competent witness in his own case, and yet justice would be more surely answered by allowing him, in that event, to testify in his own behalf, for the plaintiff would then have the benefit of a cross-examination and the security given by the sanction of an oath, both [**10]  of which he is now denied but to which he is entitled, and both of which are tests of truth designed to exclude all evidence not warranted by them. 1 Starkie on Ev., 14. This evidence was admitted to go to the jury under the judicial sanction of the court below, and this court cannot say it did the plaintiff no harm, for they cannot determine what weight or influence it had with the jury.

3rd. As to the prayers contained in the third exception: We say:--1st. That in an action on a single bill of which the plaintiff is in possession, proof of the defendant's signature is prima facie evidence of its due execution and delivery, though the validity of the instrument is disputed by a general non est factum. The seal imports consideration, and possession is prima facie evidence of delivery. 9 G. & J., 361, Key vs. Knott & Wife. 1 H. & J., 323, Clarke vs. Ray. 4 H. & J., 241, Miller vs. Honey. 8 G. & J., 511, Pannell vs. Williams. 6 Pet., 137, Sicard, et al., vs. Davis. 1 H. & G., 419, Union Bank vs. Ridgely. But it is said there is an erasure or an alteration of this bond, which throws the onus of proof upon the plaintiff to show that it was properly made; that the bond has suspicious [**11]  marks about it. But where is this erasure, this alteration, these suspicious marks? There is no such proof in the record, nothing to bring them to the notice of this court, if they exist. The materiality of an alteration is a question for the court, and conceding there was an alteration, there is no proof that it was in a material matter. But even if there is an alteration, the burthen is not on us to show that it was properly made, but upon the party seeking to avoid the sealed instrument to show that it was improperly made. An interlineation in a deed, without any thing against it, will be presumed to have been done before delivery. 1 Kebble, 22, Trowel vs. Castle. Fitzgibbons, 214, Fitzgerald vs. Fauconberge. 2 Starkie on Ev., note 377. 16 Sergt. & Rawle, 44, Heffelfinger vs. Shutz. 5 H. & J., 41, Wickes vs. Caulk. The basis of this presumption is, that the law always presumes in favor of innocence, for an alteration of a bond is a criminal offence, rendering the party liable to indictment. And if it appears that certain blanks in the bond have been filled up in a handwriting other than that in which the bond is written and other than that of the obligor, such blanks will be presumed [**12]  to have been filled up before delivery or with the consent of the obligor since delivery, in the absence of proof to show the fraudulent intent of the plaintiff. 6 G. & J., 255, Byers vs. McClanahan. 1 Maine Rep., 338, Hale vs. Russ. 13 Do., 386, Gooch vs. Bryant. 12 Viner's Abr., 58. 9 Cranch, 36, Speake vs. United States. 3 Gill, 337, Fiery vs. Miller. But under any theory of this case, the plaintiff was entitled to his sixth prayer. There were no facts offered by the defendant to rebut the prima facie case of the plaintiff; and whatever facts may have been offered, they could not justify the rejection of this prayer, which simply asks, that the plaintiff may recover if the jury shall believe that the single bill in dispute was delivered by the obligor to the obligee as and for the obligation of such obligor. This necessarily implies a delivery in its present shape and as it is offered in evidence, and the plaintiff had a right to have this question submitted in a clear and unembarrassed shape to the jury.

T. Parkin Scott and Wm. Schley for the appellee, argued:

1st. That issue having been joined upon the plea of non est factum, and delivery being essential to constitute [**13]  the writing sued on the bond of the defendant's testator, if the plaintiff relies on the presumption of delivery from the fact of possession, then to rebut that presumption the defendant may offer in evidence any facts or circumstances from which a rational well constructed mind can infer that the writing was not delivered by the testator as his bond. 7 G. & J., 29, 42, Cole vs. Hebb. 1 Md. Rep., 11, 15, Milburn vs. The State. Ibid., 474, Waters vs. Dashiell.

2nd. That though want of consideration is no defence to an action of debt on a bond under any form of pleading which admits the writing sued on to be the defendant's bond, yet under the plea of non est factum the want of consideration is a circumstance admissible in evidence to rebut the presumption of delivery from mere possession, and more especially where the plaintiff attempted and failed to prove any consideration, either valid or valuable, to induce the belief that defendant in fact executed and delivered the writing as his bond to the plaintiff. 1 H. & G., 416, 418, 419, Union Bank vs. Ridgely. 5 G. & J., 303, 304, Davis vs. Calvert. 9 Cranch, 37, Speake, et al., vs. The United States. Under this plea the question [**14]  is not upon the dry execution, but upon the valid execution of the deed.

3rd. That in the absence of positive proof of delivery of the writing as his bond, any facts tending to show that there was no probable cause or good reason for its delivery are admissible, under the plea of non est factum, to rebut the presumption of delivery from mere possession. This suit was not brought until the bond was more than nine years due, and not until after the death of the alleged obligor. Whether the record in the replevin suit was admissible depends not only on the issue, but upon the preliminary proof of Stone and the other witnesses. Stone speaks of a bill of sale and of the proposition to give a note to be deposited as an escrow, as security that the testator would not sell the negroes. Now it was important for the defendant to disprove the secret trust as to the negroes, to rebut the inference attempted to be set up of such trust as a consideration for the bond. To do this the record in the replevin suit shows that Sanders asserted his title to the negroes and maintained it. Again, the plaintiff himself went into proof of the consideration of the bond. Any fact therefore rebutting this [**15]  proof on the part of the plaintiff was admissible. If any attempt was made to use the record for an improper purpose, the court would have restrained it upon a prayer framed for that object. As to the other record, it shows that Edelin was indebted to Sanders and that he might have set off this bond against that action. This non action on the part of the plaintiff in not thus setting off this bond in bar of that suit in his own county where the suit was instituted, is a circumstance which is entitled to weight. We say therefore that these records tend to show a want of probable cause, or any good consideration or reason for the delivery of the writing sued on as the bond of the testator; that they are circumstances from which the presumption of fraud may arise, and were admissible also as rebutting evidence. 13 Pick., 75, Powers vs. Russell. 6 Md. Rep., 295, Townshend vs. Townshend. 7 Do., 601, 608, Pegg vs. Warford.

4th. The question presented by the second exception as to the admissibility of the will of the testator is one of some difficulty. The question however is, whether the will was admissible for any purpose. It shows that the testator disposed of the negroes in a manner [**16]  inconsistent with the idea of a secret trust, and that no one contested this disposition. Again, it was admissible to explain the theory of the escrow. But we say this exception is disposed of by the point that the will, if inadmissible, did no harm to the plaintiff, and the judgment therefore will not be reversed for the error of admitting it. The plaintiff had the full benefit of all the evidence in the case from his third and fourth prayers which were granted by the court. The admission of irrelevant testimony will not authorise a reversal, unless it appears it did or might have done the appellant harm. 1 Gill, 60, Mulliken vs. Boyce. 9 Gill, 1, Dakin vs. Pomeroy. Ibid., 56, Ramsay vs. Glass. Ibid., 120, Anderson vs. Garrett. Ibid., 156, Clements vs. Smith. 12 G. & J., 484, Doyle vs. The Commissioners of Balto. County. 5 Do., 159, Md. & Phenix Ins. Co. vs. Bathurst.

5th. As to the several prayers embraced in the third exception: The first prayer of the plaintiff is defective for various reasons. You may question the consideration of the bond. If there was a total failure of consideration mingled with fraud, it may be given in evidence under the plea of non est factum. Any fact [**17]  which shows that the deed is not the deed of the party is admissible as a circumstance to go to the jury. Again, the prayer says the only question for the jury is to consider whether the testator executed and delivered the note "as claimed by the plaintiff." What does this mean? Does it mean as alleged in pleading or as proven in evidence? In this particular the prayer is uncertain and calculated to mislead the jury. Again, the bond was altered and erased, and it bore evidence of this on its face. The prayers of the plaintiff himself all concede this fact, and this court therefore must treat it as appearing on the record. This erasure and alteration was a suspicious circumstance, which throws the burthen of accounting for it on the plaintiff. Buller's N. P., 267. 2 Croke, 626, Markham vs. Gonaston. 14 East, 568, Weeks vs. Maillardet. 11 Coke's Rep., 27, Pigot's case. The prayer requires the alteration to be made by the plaintiff, whereas the cases just cited show that if it be made by a stranger and is material, it equally avoids the deed. In this particular also the prayer is defective. Where there is an alteration apparent on the face of the note, the onus is thrown on the plaintiff [**18]  to show that it was made with consent of the parties, and that it was not improperly made. 25 Eng. C. L. Rep., 395, Taylor vs. Mosely. 5 Bing., 183, Henman vs. Dickinson. 1 How., 111, United States vs. Linn, et al. 1 Metcalf, 224, Davis vs. Jenney. 9 Cranch, 28, Speake, et al., vs. The United States. 1 Pet., 561, Steele vs. Spencer. 2 Brock., 64, United States vs. Nelson & Myers. 6 G. & J., 254, Byers vs. McClanahan. The second prayer excludes all other questions from the jury except the delivery in blank, and asserts that such delivery is good, but this proposition is contrary to the whole current of decisions. This and all the other prayers on the part of the plaintiff, rejected by the court below, utterly ignore the fact of alteration and erasure apparent on the face of the bond, and for this reason were properly rejected.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*128]  LE GRAND, C. J., delivered the opinion of this court.
This was an action of debt, brought by the appellant, in Baltimore county court, against the appellee, as executor, upon an alleged bond of his testator for $ 2000, dated the 11th of December 1838,  [**19]  and payable on or before the 1st of July 1840. The suit was not brought until more than nine years after the bond became due and payable. On leave of court the defendant pleaded non est factum without oath.
In this state of the pleadings the plaintiff proved by a witness that the cause of action, with the exception of the date, name of the payee and the signature of the maker, was in his handwriting; that the signature was in the proper handwriting of the testator of the defendant, but he was unacquainted with that in which the name of the payee was written. He had no recollection whatever of having prepared the paper, and only knew the fact at the time of the trial from his recognition of his handwriting. The plaintiff further proved by the same 

 [*129]  witness, that about the date of the single bill sued upon, it was agreed between the plaintiff and defendant's testator, and Mrs. Rebecca Boarman, that the purchase money of certain real estate, sold by said testator for $ 2000, should be divided between plaintiff and Mrs. Boarman, so as to give her one-third part thereof; that the reason of said agreement was, that the land had been deeded many years before by Benedict L.  [**20]  Boarman to said testator, and the plaintiff claimed that it was so deeded in secret trust for the benefit of the grantor's wife, and of his only child, the wife of the plaintiff, but said testator denied said trust and declared that he so agreed as an act of generosity, so far as plaintiff's wife was concerned. The note payable to Mrs. Boarman for $ 666.66 2/3, bearing date the same day, and in the same form as that sued upon, was also offered in evidence. It was also given in evidence that Benedict L. Boarman was largely indebted at the time of the execution of the deed to the testator; that there was also a bill of sale executed by the said Benedict, (about the same time as his deed for his lands,) to said testator, for certain of Boarman's negroes. Defendant's testator denied all secret trusts both in regard to the land and negroes. The defendant then offered in evidence the records of two suits in Charles county court, brought by the defendant's testator against the plaintiff. To the admissibility of these records the plaintiff objected, and the reception of them constitutes his first bill of exceptions.
The second exception of the plaintiff was to the admission on the part of [**21]  the defendant of his testator's will, whereby it appeared that he claimed the right to dispose, as of his own, the property alleged by the plaintiff to have been conveyed to him in secret trust.
The third exception applies to the prayers granted and refused both on the part of the plaintiff and defendant.
Before noticing each of the exceptions, we deem it proper to state some of the principles of law, which, in our judgment, must control the decision of this case.
The plea on which issue was joined was that of a general non est factum. Whatever the law may be elsewhere, in Maryland it imposes on the plaintiff the onus of proving both 

 [*130]  the execution and delivery of the bond. Proof of execution and possession is sufficient evidence, prima facie, of delivery, and in the absence of all proof on the part of the obligor, would entitle the obligee to a verdict. The seal importing a consideration, the latter, as such, cannot be inquired into under this plea; but notwithstanding this, the obligee may give in evidence "any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, &c., or that it has become [**22]  void subsequent to the execution and before the bringing of the suit, as by erasure, alteration," &c.  Union Bank of Md. vs. Ridgely, 1 Har. & Gill 324.
In the case now before us, the plaintiff, by the witness Stone, proved the execution of the instrument sued upon, and having it in his possession, was entitled to recover on it in this action, unless it could be assailed on some of the grounds to which we have alluded. This we did not understand the counsel for the appellee to question; but they contended, that inasmuch as the paper bore on its face evident marks of erasure and alteration, they were entitled to introduce the testimony admitted in the court below and to which the appellant excepted. Judging from the frame of the prayers and the course of argument of counsel, we infer the cause was tried in the court below on the allegation, that the bill exhibited on its face marks of erasure and alteration; and it was in reference to this hypothesis, doubtless, that the testimony contained in the first and second exceptions was introduced. But unfortunately for the appellee, there is nothing appearing in the record going to show in the slightest [**23]  particular the instrument had been subjected to any alteration, and therefore, so far as this court is concerned, it would be entirely gratuitous to assume it had undergone any change after its delivery. Whatever may have been the appearance of the paper at the trial, when, no doubt, it was submitted to the inspection of the jury and by them pronounced upon, there clearly is nothing before us to show it was not perfectly fair on its face. We can only decide the case according to the record, and if the party failed to have it put in a proper form, he must abide the consequences. If, in 

 [*131]  point of fact, it was obvious on inspection that the paper had been altered, it was easy to have it noticed in the exception, either by an agreement to that effect or by calling to the stand an expert in handwriting, and asking his opinion as to its appearance. Had this been done, and had the witness testified that the paper appeared to have been altered or any portion of it erased, we are of opinion the testimony in the first bill of exceptions, which was excepted to on the part of the plaintiff, would have been admissible as tending to show it had not been delivered in its then state.  [**24]  This evidence, however, it is proper to say, can only be admissible on the supposition, that it tends to show fraud on the part of the appellant, by showing his relations and dealings with the testator of the appellee. A witness on the stand could as readily give his opinion on the subject of alteration or erasure as could a juror in the jury box. We are of opinion, however, that under no state of circumstances was the will of William Sanders competent testimony. To allow it to be given in evidence, would be but to permit a party to testify in his own case and in his own behalf. As the case is presented to us on this record, we must reverse the ruling of the court both on the first and second exceptions.
As to the third exception: We think the court properly rejected the prayer offered on the part of the defendant. So far as this record shows, there is nothing in the case from which the jury could infer the hypothesis of the prayer. There is nothing from which they could infer, either that the single bill was delivered in blank or that it was delivered when payable to some other person than the plaintiff. As we have before stated, we have no judicial knowledge of the suspicious [**25]  appearance of the paper, if such in fact existed. We are also of opinion, that the court properly rejected the second prayer of the plaintiff. Independently of the question of law involved in it, there was no evidence of which to predicate it. The name of the obligee is a material part of the deed, and delivery in blank is an insufficient delivery unless recognised after the blank is filled. This is the general principle. There are some exceptions to it, but none of them applicable to a case like the one before us. We also think the court erred in 

 [*132]  granting the third and fourth prayers of the plaintiff. There was no testimony to support them; nothing to show the single bill was delivered in blank, nor that there had been any erasure of the name of the original obligee and the substitution of that of the plaintiff, with the consent of the testator of the defendant.
We are of opinion, that the first, fifth and sixth prayers of the plaintiff, as offered by his counsel, ought to have been granted. Although there is nothing in the testimony to support the latter part of the first prayer, this circumstance does not vitiate it. It requires the jury to find all that is essential [**26]  to the plaintiff's right of recovery. All that part of the prayer which follows the word "unless" is mere surplusage.
The other three prayers merely assert propositions which are recognized in all the cases, and which we did not understand counsel for the appellee to dispute. Their objection to them rested upon the theory, that they ignored the fact of alteration or erasure after the execution and delivery of the paper. Viewing this case as it is exhibited to us in the record, the qualification of these prayers, as insisted upon by counsel for the appellee, cannot be maintained for the reasons which we have already assigned.
Judgment reversed and procedendo awarded. 

21 of 44 DOCUMENTS 

JOHN H. ING and JOHN J. MILLS, Adm'r of WILLIAM P. MILLS, vs. THE STATE, use of MARTIN LEWIS and CHARLES MCCOY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 287; 1855 Md. LEXIS 52 

DECEMBER, 1855, Decided 

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

Debt, in the name of the State, for the use of the appellees against the appellants upon an appeal bond. The condition of the bond and the pleadings in the case are fully stated in the opinion of this court. While the cause was under rule rejoinder to the replication assigning breaches, the record states that upon motion, and in pursuance of the act of Assembly in such case made and provided, and by consent of parties, "the whole matter in variance between the said parties was referred to William A. Talbott," who made the award, which is also fully stated in the opinion of this court. To this award the defendants filed various exceptions, of which the following only were relied upon in argument in this court:

1st. That the award does not set forth what was the nature of the decree mentioned in the condition of the appeal bond, nor adjudge and show the damages in nature and extent sustained by reason of a breach of that condition, and does not state the amount payable in discharge of the penalty of the bond is for such damages.

2nd. That if any amount could be awarded in the case against the defendants, there could, at [**2]  the utmost, be but the amount stated in the replication as the amount of damages and costs ($ 37.71) adjudged by the Court of Appeals, which amount should be the sum to be stated in the award, as that on payment of which the judgment for the penalty of the bond should be released.

3rd. That it does not appear by the award, nor by any of the pleadings in the cause, that Lewis and McCoy, for whose use the bond is sued, had any interest whatever in the decree appealed from, or had suffered, or could have suffered, any damage by the appeal, or how they were damaged in the premises or how connected with the decree, but the contrary appearing, inasmuch as the only parties named in the condition as interested therein are others than said Lewis and McCoy.

4th. That there is no sufficient replication whereon any award could be made or any judgment of the court be rendered.

All these exceptions the court below, (FRICK, J.,) overruled, and gave judgment in conformity with the award, from which the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a case is referred under the act of 1778, ch. 21, and an award made by the referee, no reasons are good on caveat to such an award except those specified in the 9th section of that act, or those apparent on the face of the award.

In case of bonds given to the State the uniform practice in this State has been to institute the suit in the name of the State, and to endorse on the writ and declaration the names of the parties for whose use and benefit it is prosecuted.

In such cases, though the judgment is always entered up for the amount of the damages laid in the declaration, yet it is accompanied by a release, (which constitutes a part of it,) on payment of the sum awarded by the jury, court or referee, as the case may be.

The party for whose use the suit on such a bond is instituted is in fact regarded as the real plaintiff, though the State, technically speaking, is so.

It is incumbent on the party suing on such a bond to show that he has an interest in it before he can recover in a regular trial prosecuted to verdict.

Where a cause is referred under the act of Assembly, all matters are within the submission which could be introduced by amendment of the pleadings, and the reference waives the necessity for averring such matters in the declaration or other pleadings.

The referee has nothing to do with the particular issue joined in court, nor is it of any importance whether any issue be joined previous to the reference; the reference is a reference of the whole case to be tried on its merits. 

COUNSEL:
Thos. W. Hall, Jr., and Chas. F. Mayer for the appellants, argued:

1st. That this suit is to be treated as if brought directly in the [**3]  name of Lewis and McCoy, and they must show themselves interested in the bond and damaged by the appeal, and that the averments of the pleadings must thus connect them with the bond to authorise any award in their favor, which has not been done in this case. Act of 1835, ch. 380, sec. 7. 1 G. & J., 231, Kiersted vs. The State. 2 H. & G., 71, Wood vs. Fulton, et al. Ibid., 277, Laidler vs. The State. 6 H. & J., 336, Beall vs. Lynn. Ibid., 95, Heuitt vs. The State. 1 H. & J., 361, Goldsmith vs. Tilly. 8 G. & J., 359, Boteler, et al., vs. The State. Only the parties to the suit recited in the condition of the bond as that on which the appeal was taken are entitled to the benefit of the bond, and Lewis and McCoy are not there recognised as parties.

2nd. At least the award should have introduced Lewis and McCoy as beneficially entitled under the bond, and should have shown how they became interested in it and to what extent damaged by the appeal. But the award gives the recovery for damage to the State, if the party damaged can be interpreted to have been at all provided for by the award, and if the award can be considered in effect as determining any thing more than that the obligors [**4]  became indebted to the State by the bond, and that the indebtment being debitum in presenti, judgment for the debt must pass for the State. Certainly no more is affirmed by the declaration, and the award by its terms used responds to merely the declaration and grants only what the declaration claims. It is unquestionable, however, that the State cannot, under the condition of the bond, be the damaged party, and it is only with the damage and the sufferers that the suit or the award had to deal. 3 H. & McH., 357, Whetcroft vs. Dorsey.

3rd. The replication for the ground-work of a breach recites a different case, as affirmed by the Court of Appeals, from that to which the condition of the bond limits itself, while it still omits any reference to the present plaintiffs, Lewis and McCoy, as the actually interested parties. Without a due replication there was no basis for an award, and in such suits as this the replication is an expansion of the declaration, or effectively a new declaration. If there be pleadings they must be resorted to for describing the claim. 5 H. & J., 61, Morgan vs. Blackiston. 6 Do., 10, Cromwell vs. Owings. 2 H. & G., 82, Birckhead vs. Saunders. 6 H. & J.,  [**5]  138, Karthaus vs. Owings. 5 G. & J., 65, Mackall vs. Jones. 11 Do., 160, State vs. Gaither. 3 Do., 377, 388, Turner vs. Walker. 11 Do., 470, Newcomer, et al., vs. Kline 8 Gill, 74, Merrick vs. The Trustees of the Bank of Metropolis.

4th. If the replication be deemed of any avail to warrant an award for Lewis and McCoy, (as which this award seeks to operate,) no larger damages than the $ 37.71, specified in the replication as the damages and costs, could, at the utmost, have been legally awarded by the referee. 6 H. & J., 134, Karthaus vs. Owings. 7 Do., 339, Laurenson vs. The State. But it is said this award is a verdict, and as such cures the defect in the pleadings. But the rule is that a verdict cures a title defectively stated, but not a defective title, (2 Tidd, 950; 1 Pet., 67, Minor vs. The Mechanics Bank,) and no recovery whatsoever, as has already been urged, was under any circumstances practicable under the peculiar condition of the bond, which precludes liability where indemnification has not been made. 11 G. & J., 457, Newcomer, et al., vs. Kline. Hurlstone on Bonds, 9 Law Lib., 108.

F. K. Howard and S. T. Wallis for the appellees, argued, that the court properly [**6]  refused to set aside the award:

1st. Because there was no allegation or proof of any such fact as invalidated the award, nor was there any error in law apparent on the face thereof. The act of 1798, ch. 21, sec. 8, specifies the reasons for which an award made upon a reference by order of court under that act, and no reasons can be relied on except such as are there specified, and errors apparent upon the face of the award. 3 H. & McH., 121, Dorsey vs. Jeoffray. See also upon this point 10 G. & J., 192, Caton vs. McTavish. 1 H. & J., 364, Goldsmith vs. Tilley. 6 Do., 10, Cromwell vs. Owings. Ibid., 95, Heuitt vs. The State. Ibid., 403, Rigden vs. Martin. 5 Md. Rep., 361, Ebert vs. Ebert. Act of 1826, ch. 200, sec. 17. The form of the award is that prescribed in the books of forms, are in the case of Fisher vs. The State, 1 H. & J., 416.

2nd. Because there was no such defect in the pleadings as prevented the court from rendering a valid judgment thereon. Judgment might have been properly entered against the defendants by default prior to the reference, they never having rejoined to the replication. After the reference and award it is too late to object to errors of pleading,  [**7]  and judgment was properly entered on the award, as it might have been had a verdict been rendered instead of an award, or a default actually entered prior to the reference. For these positions see 1 Chitty's Pl., 673. 3 H. & McH., 388, Dorsey vs. The State. 3 H. & J., 115, Tyson vs. Rickard. 1 H. & G., 6, Vandersmith vs. Washmein. 11 G. & J., 487, Ragan vs. Gaither. 8 Gill, 75, Merrick vs. Bank of Metropolis. 4 Md. Rep., 521, Price & Martin, vs. Thomas & George. 10 Mass., 263, Forseth vs. Shaw. 4 Pick., 454, Coffin vs. Cottle. 9 Gill, 281, Clammer vs. The State. 2 G. & J., 441, Karthaus vs. Owings. 5 Gill, 280, Frantz vs. Smith. 7 Md. Rep., 195, Burgess vs. Lloyd. 1 Cushing, 457, Merrill vs. Gold. 16 Maine, 219, Adams vs. Hill. 2 Aiken, 325, Batchelder vs. Hanson. 10 Verm., 216, Eddy vs. Sprague. 2 Green. N. J. Rep., 334, Hazen vs. Addis. 5 Munf., 14, Ligon vs. Ford. 15 Penn. State Rep., 22, Ward vs. Stevenson. 1 Pet., 67, Minor vs. Mechanics Bank. A submission to arbitration is a waiver of all errors in pleading. 2 H. & G., 281, Laidler vs. The State.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*292]  LE GRAND, C. J., delivered [**8]  the opinion of this court.
This was an action on a bond, instituted in December 1852, in the name of the State of Maryland, for the use of Lewis and McCoy, against Ing and William P. Mills, on an appeal bond, dated April 8th, 1852, a certified copy of which was filed with the declaration. The bond was given in a certain cause depending in Baltimore county court, sitting in equity, wherein William D. Miller was complainant, and John Colfer, Samuel Ortlip and Jacob Dorsey were defendants, and was conditioned thus: "if the said John H. Ing shall hold all parties to the proceeding (the said cause in equity) harmless from all loss sustained by said appeal in case the same be not prosecuted with effect, or if the decree should be affirmed, then the said bond to be and remain in full force and virtue, otherwise of no effect."
There are no breaches set out in the declaration. It was replied to by the plea of general performance. The replication sets out, as the only breach of the condition, that before the institution of this suit, it was on the decree and the appeal "in the said writing obligatory mentioned, in such manner proceeded between the said John H. Ing and the said parties to the [**9]  said cause in equity, in the Court of Appeals for the western shore of Maryland, held at Annapolis, the 12th of June 1852, by the said Court of Appeals, that the said decree of said county court was in all things affirmed and ratified, 

 [*293]  and it was considered and adjudged by the said Court of Appeals, that the said appellees to the said suit should recover against the said John H. Ing the sum of thirty-seven dollars and seventy-one cents, for costs and damages in that behalf laid out and expended, by pretence of prosecuting the said writ of appeal and upon the premises, as by the record thereof in said Court of Appeals remaining, more fully appears; and the said plaintiff avers that the said John H. Ing did not prosecute the said writ of appeal with effect, and that the said decree was affirmed, and that the said John H. Ing did not hold all the parties to the proceeding harmless from all loss sustained by the said appeal, and that the said John H. Ing hath not paid the damages and costs awarded by the Court of Appeals aforesaid."
While the case was under rule rejoinder, it was, "according to the act of Assembly," referred by order of court to William A. Talbot, Esq., who,  [**10]  upon the 26th of October 1854, returned into court his award, which is as follows, (omitting the titling of the cause:) "I, William A. Talbott, appointed referee by the Superior Court of Baltimore city in this case, having given due notice to the parties of the time and place of hearing their respective allegations and proofs, and having heard and duly considered their said allegations and proofs, do award and determine that the said defendants are indebted to the said plaintiff in manner and form as the said plaintiff hath declared against them. And I do further award and determine, that the judgment for the plaintiff be entered in the said cause for the debt and damages in the declaration and costs, to be released on payment of the sum of nine hundred and seventeen dollars, and thirty-two cents, with interest from this date, and costs."
To this award several exceptions were filed on behalf of the appellants, which were overruled by the court. Most of these exceptions were abandoned in this court and others relied upon in argument.
The form of the award of the referee is in strict conformity with that given in the 1st Vol. of Evans' Harris, 20. The reference was under the act [**11]  of 1778, chapter 21, the 8th section of which authorizes the court to enter up judgments 

 [*294]  upon awards; and the 9th section of the same act declares: "That such award shall remain seven days in the General Court during their sitting, if returned to the General Court, or four days in the respective county courts during their sitting, if returned to any county court, after the return thereof, before any such judgment shall be entered up; and if it shall appear to the justices of the court to which any such award shall be returned, within the respective times aforesaid, that the same was obtained by fraud or malpractice in, or by surprise, imposition, or deception of, the arbitrators, or without due notice to the parties, or their attorney or attorneys, it shall and may be lawful for the said court to set aside such award and refuse to give judgment thereon."
In the case of Dorsey vs. Jeoffray, 3 H. & McH. 121, it was determined by the Court of Appeals, that no reason was good on caveat but those mentioned in the act of Assembly, or which were apparent on the face of the award.
In the case now before us it is not pretended the award [**12]  is assailable on any of the grounds enumerated in the act of Assembly; and, therefore, if it be invalid, it must be so because of something apparent on its face. If the award alone be examined then there is, clearly, nothing irregular or defective in it. This we did not understand the counsel for the appellants to question. The point of their argument was, that the award should be taken in connection with the pleadings in the cause, and that if it were so regarded it would appear:
1st. That the persons for whose use the judgment was entered had no interest; and--
2nd. That in any event there could be no award or judgment beyond the amount of costs mentioned in the replication to the plea of the appellants.
In reply to the first objection it is but necessary to observe, that for a great length of time it has been the uniform practice in this State, in cases like and similar to the present, to institute the suit in the name of the State, causing the names of the parties for whose benefit it is prosecuted to be endorsed on the writ and declaration. Although the judgment is always entered up for the amount of damages laid in the declaration, 

 [*295]  yet it is accompanied by [**13]  a statement, which, in fact, constitutes a part of it, that it is to be released on the payment of the sum awarded by the jury, court or referee, as the case may be.
Such a practice enables the party, for whose use the suit is instituted, by a proper assignment of breaches of the bond and proof, to recover the amount of damage he has sustained by the breach. He is, in fact, regarded as the real plaintiff, although the State, technically speaking, is so. The 7th section of the act of 1835, chapter 380, provides, that when any county court, as a court of equity, shall require bond, with or without security, to be given in any case, and the parties concerned therein shall be numerous, or it shall for other reasons appear proper to the court to take bond in such form, such bond may be taken in the name of the State as obligee, and be sued by any person interested as public bonds may; and even prior to the passage of the act of 1835, the Court of Appeals held, in 1 Gill & Johnson 231, that the uniform practice for twenty years allowed persons interested to bring suits on bonds taken in the name of the State, although the acts of Assembly, under which they are required [**14]  to be executed, contain no specific provision for making them to the State, or give to the party, in language, the right to sue. These references are sufficient to show the suit was properly brought. There is no doubt that it is incumbent on the party suing on the bond to show he has an interest in it before he could recover in a regular trial prosecuted to verdict.
Whether, in the present aspect of the case, it is important the interest of the cestui que use should have been distinctly set out in the replication, and whether, if not, the referee was limited by the submission to the amount of costs mentioned in the replication, are questions to be disposed of on the authority of adjudged cases.
There is no doubt a verdict will cure many defects in the pleading, and so will an award under rule of court.  Vandersmith vs. Washmein, 1 H. & G. 4. Dorsey vs. State, use of Ann Dorsey, 3 Harris & McHenry 388. In this last case the record showed that the writ issued in debt; that the cause 

 [*296]  was referred and an award returned by the arbitrators; upon which award judgment was entered for the sum awarded. It did not appear that any declaration  [**15]   was filed in the case. On writ of error the General Court affirmed the judgment of the county court. In Merrick vs. The Trustees of the Bank of Metropolis, 8 Gill 59, the court, adopting the language of authorities, say, "cured by verdict means, that the court will, after verdict, presume or intend that the particular thing required to sustain it was proved at the trial;" again, "after verdict, a defective allegation in the declaration cannot be taken advantage of, though it might furnish good cause of demurrer." In the case of Merrill vs. Gold, 1 Cushing 460, Shaw, C. J., says, "the court are inclined to the opinion, according to the argument of the plaintiff, that, by the reference of a cause by a rule of court, in the usual form, all technical exceptions to the form of the declaration, and the strict rules of proceeding, are waived by the mutual consent of the parties on which the rule is founded, and by which the case or cause of action is referred and embraced in the submission." The Judge continues, "and perhaps the question, whether any matter is or is not within the submission, is well tested by another, to wit, whether the  [**16]   same matter could be introduced by way of amendment, either by varying an existing count or filing a new one, because if it is simply another mode of stating the same cause of action it is admissible, otherwise not." Now regarding the replication in this case, as it undoubtedly is, but a practicable continuation of the original declaration, there certainly cannot be a doubt on the mind of any one that it would have been competent to the plaintiff to have amended it by the averring of the facts which are deemed necessary to have been in it by the counsel for the appellants; and if this could have been done under the decision last referred to, the submission waived, or did away with all necessity for the averments insisted upon. And in the case of Eddy vs. Sprague, 10 Vt. 216, the Supreme Court say: "It has never been considered, under the English statute or at common law, that the arbitrator had anything to do with the particular issue joined in court, or that it was of any importance whether any 

 [*297]  issue was joined previous to the reference. It is customary there to enter up a verdict for the plaintiff for the full amount of the damages claimed [**17]  in the declaration, subject to the award of the arbitrators, to whom the case is referred." In the same decision it is said: "If the declaration or other pleadings are defective the defendant cannot, on that account, move in arrest of judgment. If the case is referred, standing on the plea of a release, it is competent for the arbitrator to try 'the case' on any other issue. The declaration is important only in order to determine the extent of the submission, and with this view, a copy of it is, in practice, usually attached to the rule issued by the clerk. But it was never known that any other part of the pleadings was copied into the rule, which is the authority for the referees to proceed. It is clear then that the reference of a cause, by rule of court, is not, with us, considered a reference of the particular issue joined in court. It is a reference of the whole cause to be tried on the merits."
In a very careful examination of all the cases referred to by counsel, and due consideration of the arguments addressed to us, we have been unable to discover aught in conflict with the doctrine which we have stated from the authorities referred to. We consider the referee, under [**18]  the submission, had the right to decide the case on its merits, and that whatever defect there may have been in the pleadings, if any, was waived by that reference. There appearing no error on the face of the award, nor any allegation of misconduct on the part of the referee, as specified in the act of 1778, there is nothing left to us but to affirm the judgment.
Judgment affirmed. 

22 of 44 DOCUMENTS 

DAVID U. BROWN vs. REBECCA SOMERVILLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 444; 1855 Md. LEXIS 71 

DECEMBER, 1855, Decided 

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

This is the second appeal in this case, the first being reported in 5 Gill, 399. The action was assumpsit by the appellant against the appellee, docketed by consent, at November term 1844, upon a promissory note for $ 822.19, drawn by the appellee in favor of W. T. Somerville or order, dated the 1st of November 1841, and payable in two years and six months, and endorsed by the payee to the appellant. Plea, non assumpsit.

Exception. The facts of the case necessary to be stated are briefly these: In October 1841, the defendant, Rebecca Somerville, being indebted in her own name, and as executrix of her husband, to Charles Tiernan, surviving partner of Luke Tiernan & Sons, in a debt of $ 5000, gave him her five notes for $ 1000 each, payable, respectively, in one, two, three, four and five years, all drawn to the order of W. T. Somerville and by him endorsed. A few days after these notes were given an attachment on a judgment for $ 10,000, against Charles Tiernan, was sued out of Baltimore county court by the Bank of New Orleans, the plaintiff therein, against the goods, chattels and credits of said Charles Tiernan, and the same was accordingly,  [**2]  on the 2nd of November 1841, laid in the hands of Rebecca Somerville and W. T. Somerville, the drawer and endorser of these notes. Charles Tiernan continued the holder and owner of these notes until May or June 1842, when he transferred the note of $ 1000 first due to William H. Tiernan to pay certain of his creditors, and the other three to Thomas Penny, also his creditor, and shortly thereafter applied for the benefit of the insolvent laws.

In June or July 1842, William H. Tiernan presented the note of $ 1000 so transferred to him to Mrs. Somerville, who refused to pay it on the ground of the attachment; and on the 20th of October 1842, when the note was about to mature, she paid, through her agent, William T. Somerville, $ 100, and for the balance gave two other notes, one at sixty days for $ 150 to Mr. Nelson, and the other, (being the note sued on,) for $ 822.19, dated back November 1st, 1841, to correspond with the original note of $ 1000, and by agreement with William H. Tiernan and the said agent of Mrs. Somerville made subject to the original attachment.

On the 27th of January 1843, as appears by the docket entries, judgment of condemnation was rendered in the attachment [**3]  case on verdict against the garnishees for $ 10,000, with interest, "subject to agreement filed," viz: "This judgment to be released on payment of $ 500 on the 1st of May, 1843, of $ 500 on the 1st of November 1843, of $ 822.19 on the 1st of May 1844, of $ 1000 on the first days of November 1844, 1845, 1846, respectively, and of $ 2000 on the 1st of November 1847, with a stay on the several amounts as they become due." It was also proved that Charles Tiernan, the attachment debtor, employed counsel to defend this attachment suit, and that the verdict therein was taken and rendered by consent of parties to the suit and in pursuance of the agreement set forth in the judgment.

On the 11th of November 1843, the note of $ 822.19 having thus been in the possession of William H. Tiernan, came to the hands of the plaintiff in this case, David U. Brown, through one Smith, bona fide and for value. In December 1847, the Bank of New Orleans having failed, the judgment in attachment was sold in New Orleans and bought by the defendant, Mrs. Somerville, for $ 2300, and paid for by her, and the bank thereupon handed back to her three notes, one for $ 1000, and two for $ 500 each, which had been [**4]  originally given by her to Charles Tiernan in 1841, and after the attachment passed by him to Penny. The bank came into possession of these notes by intervening and claiming them of Penny; who attempted to sue the endorser thereof, the bank claiming them as having been bound by the attachment in Baltimore, and that claim being sustained by the court in New Orleans. Upon these facts the plaintiff asked instructions in substance, as follows:

1st. If the jury find the note was made by the defendant, endorsed by the payee, and passed to the plaintiff bona fide and for value, and that it was made and delivered by defendant to or for the benefit of William H. Tiernan after the attachment offered in evidence was laid in her hands, and that the original note of $ 1000 had been passed to said William, as stated in the testimony, then the plaintiff is entitled to recover, notwithstanding the jury may find, that William H. Tiernan agreed with the endorser, William T. Somerville, that said note should be subject to said attachment; provided they also find that the note for $ 1000, mentioned in the testimony, was passed away to William H. Tiernan for the consideration mentioned in the testimony,  [**5]  before Charles Tiernan applied for the benefit of the insolvent laws.

2nd. If the jury believe the judgment in the attachment was rendered on an agreement for a judgment, or admitting an amount as due by the garnishee in the terms of the agreement, made part of the attachment proceedings, and that thereupon the verdict by consent was taken upon which the said judgment was rendered, and all the facts put in the preceding prayer, then the plaintiff is entitled to recover.

3rd. If the jury find all the facts set forth in the preceding prayers, and that the attachment judgment was bought by the defendant for $ 2300, in December 1847, and that in consideration of that payment, the plaintiff in attachment surrendered to her three of the notes attached in her hands, two of $ 500 each and one of $ 1000, and that these notes were of those mentioned in the testimony as passed to Penny, and shall believe they were so passed, then the plaintiff is entitled to recover, if the jury find that said notes, with interest to the period of the purchase of the judgment, amounted to $ 2300.

The defendant then asked an instruction, that if the jury find that Mrs. Somerville, in October 1841,  [**6]  settled with Charles Tiernan for all liabilities of herself and of her deceased husband, by giving to him the notes specified in his receipt; and that in November, immediately thereafter, the attachment of the bank given in evidence was laid in her hands as garnishee; and that Charles Tiernan, being still the holder of the original note for $ 1000, employed the counsel who appeared to defend the attachment cause, in January 1842; and that he, in May 1842, gave said note to William H. Tiernan, to collect and apply its proceeds to certain of his creditors; and that in October 1842, the note sued on in this case was made and given by defendant, through her agent, William T. Somerville, to William H. Tiernan, in part renewal of said $ 1000 note and expressly subject to the attachment cause, which was then undecided; and that judgment was given on the 27th of January 1843, in said attachment cause, against defendant, as garnishee, for the amount therein stated, then the plaintiff is not entitled to recover.

The court (FRICK, C. J., and LE GRAND, A. J.,) refused the plaintiff's prayers and granted that of the defendant. To this ruling the plaintiff excepted, and the verdict and judgment [**7]  being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

On the second appeal in a case whatever principles were settled on the first appeal must govern the appellate court, unless the record shows a materially different case.

A pending attachment may be pleaded in abatement to a suit against the garnishee by the defendant in the attachment, but to constitute a bar to such a suit there must be judgment of condemnation followed by execution executed, or payment or satisfaction.

The act of 1715, ch. 40, sec. 7, places credits upon the same footing as goods and chattels, and permits the garnishee to plead the attachment in bar only when it has proceeded to judgment and execution had and made.

The words of an act may be disregarded where that is necessary to arrive at the intention of the law-makers, but not where the act admits of only one interpretation.

The defendant in the attachment may sue the garnishee on the attached chose at any time before payment of the judgment of condemnation, or execution executed thereon, and recover, unless the garnishee pleads the pending attachment in abatement.

The judgment in attachment does not extinguish the garnishee's debt to the defendant; the debt is attached as something belonging to the defendant and not as a debt due by the garnishee to the plaintiff, and the defendant has an interest in having that credit applied to the payment in whole or pro tanto of his debt to the plaintiff.

An attachment without satisfaction will not, of itself, prevent the plaintiff in the attachment from resorting to his original debtor.

A judgment of condemnation was rendered against a garnishee for $ 10,000, and before execution issued thereon he was sued by the holder of a promissory note for $ 822.19, which was one of the attached choses, he being the maker thereof. Pending this suit he purchased the judgment from the plaintiff in the attachment for $ 2300. HELD:

That this purchase was no defeuce to the suit, because the whole debt was not paid; as between the plaintiff in the attachment and the garnishee the judgment was closed, but the defendant in the attachment had an interest in having the whole debt paid, and the garnishee occupies no better position than if any other person had purchased the judgment who could have compelled the garnishee to pay the whole debt, or after exhausting his remedy on the judgment have resorted to the defendant in the attachment for the balance.

The attachment process has always been strictly construed, and required to be pursued according to the statute.  

COUNSEL:
Isaac N. Steele and Chas. F. Mayer for the appellant, argued:

1st. Even if this court shall adhere to the decision given in the former hearing of this case, the appellant is entitled to judgment on the note shown to have been passed from Tiernan before he applied for the benefit of the insolvent laws, and as a new note (cleared of all possible bearing of the attachment) issued by the appellee after the attachment was laid. Drake on Attach., sec. 219. 5 Gill, 399. Story on Prom. Notes, secs. 91, 181. 1 Md. Rep., 516, Hunter vs. Van Bomhorst & Co.

2nd. The agreement, (even if it existed,) that the new note should be subjected to the attachment, cannot affect the rights of the appellant, an innocent holder, without notice of any such equity attending the note. Besides which, that pretended stipulation, being merely oral, cannot control the written terms of the note and is incompetent testimony, or ought not to have any effect given to it by the court. Chitty on Bills, 162. 3 Camp., 57, Hoare vs. Graham. 1 Starkie's Rep., 361, Rawson vs. Walker.

3rd. The attachment judgment has no effect, because [**8]  it was, as is now shown, obtained on a verdict by consent. The only operative effect of a judgment rests upon its coercive and involuntary character. It can bind only parties and privies. The plaintiff in this case was not a privy with Charles Tiernan, and did not even obtain this note from William H. Tiernan. There must be nothing of the volunteer on the part of the garnishee in obtaining the judgment of condemnation, if he wishes it to be a protection to him against a suit by the defendant in the attachment. For these positions, see Act of 1715, ch. 40, sec. 3. 5 Gill, 399. 1 H. & G., 492, Taylor vs. Phelps. 4 G. & J., 414, Charlotte Hall School vs. Green-well. 4 Rawle, 100, Coates vs. Roberts. 2 Kent's Com., 109. 22 Ala., 767, Winston vs. Westfeldt. 1 Greenlf. on Ev., secs. 529, 530, 536. 10 Eng. C. L. Rep., 345, Barough vs. White. 16 Do., 220, Shaw vs. Broom. 20 Do., 351, Beauchamp vs. Parry.

4th. The settlement by Mrs. Somerville of the attachment judgment, by an amount which left her exonerated from the amount of this claim, debars her all benefit of the attachment condemnation, whether the defence on that ground be an equitable or legal one. A garnishee is a trustee, and [**9]  when any party, acting in a fiduciary capacity, compromises a claim, he does so for the benefit of the estate, the cestui que trust, and not for his own benefit. 3 H. & J., 99, Turner vs. Bouchell. 12 G. & J., 36, Hall vs. Creswell.

5th. The attachment judgment is not of any effect, and (even putting out of view all the grounds now on the new testimony presented) cannot avail as a bar to this claim, because not followed by execution and satisfaction thereon. A pending attachment may be pleaded by the garnishee in abatement of a suit against him by the defendant in the attachment, but to constitute a bar, there must be judgment and payment or satisfaction thereof, or execution executed. Act of 1715, ch. 40, sec. 3. 13 Pick., 511, Meriam vs. Rundlett. 8 Georgin, 549, Brannon vs. Noble. 3 H. & McH., 594, Davidson vs. Beatty. 2 H. & J., 96, Owings vs. Norwood. 1 Saund. Rep., 67, Turbill's case, and note. 5 Eng. C. L. Rep., 160, Wetter vs. Rucker. 2 Watts & Sergt., 210, Lowry vs. Lumbermens Bank. 1 Greenlf. on Ev., secs. 531, 533. 2 Kent's Com., 388.

6th. The decision of the Court of Appeals in the former case will be very strictly construed, and limited to the facts literally [**10]  as the case then exhibited them. Such a construction is but just of positions that so oppressively affect commercial interests, and so contravene the negotiableness of promissory notes. And we claim that this decision will be reconsidered by the court if it shall be necessary to do so in order to the justice of this case, and to restore our law to the consistency with the faith of the doctrine, which allows a negotiable promissory note to be negotiated. Drake on Attach., secs. 577, 599. 1 H. & J., 536, Steuart vs. West. 5 New Hamp., 502, Stone vs. Dean. 11 Verm., 309, Hinsdill vs. Safford. 13 Do., 341, Hutchinson vs. Evans. 4 Dallas, 47, Ludlow vs. Bingham. 2 Bailey, 441, Gaffney vs. Bradford. 14 La. Rep., 449, Sheets vs. Culver Ibid., 511, Kimball vs. Plant, et al. 9 Iredell, 116, Myers vs. Beeman. 11 Do., 564, Ormond vs. Moye. 3 Conn., 27, Enos vs. Tuttle. 12 Ala., 96, Mills vs. Stewart. 22 Do., 760, Winston vs. Westfeldt.

William B. Perine and William H. Norris for the appellee, argued:

1st. That no error can be imputed to an inferior tribunal in having obeyed the principles established by the Court of Appeals on a preceding appeal in the same case. 1 Md. Rep., 324, Thomas [**11]  vs. Doub. Ibid., 394, Young vs. Frost. 3 Do., 188, Emory vs. Owings. 4 Do., 164, Hammond vs. Inloes. 6 Do., 97, Preston vs. Leighton. Ibid., 231, Mitchell vs. Mitchell.

2nd. The Court of Appeals on the former appeal, 5 Gill, 399, established two principles, either of which entirely sustains the defendant's prayer. 1st. That a promissory note is a credit in view of our attachment laws, and its negotiability is, by force of the attachment, arrested, if the defendant in the attachment is the holder and owner of note at the time the attachment is laid in the hands of the maker, and no action can be maintained on the note or the debt it represents by a subsequent endorsee or transferee, though he receive it bona fide for value and without actual notice of the attachment, provided a judgment is fairly obtained in the attachment suit to the extent of the debt or credit attached. And this principle was properly ruled. The case has been treated throughout as if it was an attachment to compel appearance, whereas it is an attachment by way of execution on final judgment. In England money due on a bond or contract may be attached before the day of payment. Bac. Abr., title, Customs of London,  [**12]  letter (H.) 2 Comyn's Digest, title, Attachment, letter (C.) The court in the former case said negotiable notes were attachable upon the ground that a subsequent statute could modify a prior one, and the statute of Anne could be and was modified by our attachment laws. The case of Steuart vs. West, 1 H. & J., 536, is the very case at bar. The county court in that case was divided as to the question, whether a promissory note was attachable at all, and the General Court upon appeal decided that it was attachable. Settling this principle the court, in 5 Gill, say, it settles the principle of this case, because the law of executions is superinduced upon this attachment on judgment. It gives a lien, and the moment this is done there can be no transfer to defeat the claim of the execution creditor. Act of 1715, ch. 40, sec. 7. In an attachment by way of execution no capias clause is inserted as in an attachment to compel appearance, but it is in itself an execution, and is to be governed by all the laws relating to executions. 7 Md. Rep., 102, Griffith vs. Etna Fire Ins. Co. Ibid., 404, Boyd vs. Talbott. 3 Gill, 241, Baldwin vs. Wright, et al. See also on this point the Acts of 1824, ch.  [**13]  74, sec. 1, and 1834, ch. 189. 7 Md. Rep., 368, Martin vs. Martin. 16 Verm., 594, Chase vs. Haughton. 13 Mass., 153, Hull vs. Blake. 16 Do., 304, Parker, et al., vs. Danforth. 4 Md. Rep., 280, Peacock vs. Pembroke. But it is said this doctrine interferes with the commercial law respecting the negotiability of promissory notes. But this commercial law is made for makers as well as takers of notes. An alteration in a note protects the maker or acceptor, (25 Eng. Law & Eq. Rep., 125, Burchfield vs. Moore,) and the law visits the consequence of notice in cases where the parties could have no actual notice. 2 Rand., 93, Newman vs. Chapman. 1 Story's Eq., secs. 405, 406.

3rd. The other principle decided on the former appeal is, that if no objections are interposed by the parties owning the note or debt during the progress of the attachment suit, having notice of the attachment and defending it, and the garnishee has had judgment given against him by a court of competent jurisdiction, because the garnishee could not deny the debt of the defendant in the attachment, nor the fact of the garnishee's indebtedness to the defendant in the attachment, then such judgment of condemnation is a [**14]  perfect bar and protection to the garnishee against any suit by a party on any part of the debt attached, deriving title under the attachment debtor subsequently to the levy of the attachment. And this principle was properly ruled. 13 Mass. 153, Hull vs. Blake. The first objection to this judgment is, that it was rendered by consent. But how does this affect the case? Mrs. Somerville could not deny that she owed the money and there was nothing left for her to do except to give judgment. She was not bound to resist the judgment to the last. But besides this the same proof and the same judgment, the docket of entries of which showed it was given by consent upon terms filed, was in the former record, and the only new proof is now the oral declaration of the same fact which was apparent from the docket entries which were before the court on the former appeal. Another objection is, that the judgment is not a bar unless followed by payment or execution executed. The English decisions upon the Custom of London are cited to sustain this position. The earlier English cases show that the judges of the common law courts treated with contempt and constantly endeavored to get rid of these attachments,  [**15]  these judgments of the Lord Mayor's Court. They would not permit this Pie Poudre court to interfere with the higher courts of common law, and they even went so far as to deny that a pending attachment could be even pleaded in abatement. 1 Saund. Rep., 67, Turbill's case, note 1. 1 Eng. C. L. Rep., 311, Smidt vs. Ogle. 5 Do., 164, Wetter vs. Rucker. These were decisions in Lord Holt's time. The modern English decisions, however, have more favored these attachments. Drake on Attach., sec. 729. But the answer to all these cases is, that our attachment laws have modified and enlarged the English law upon this subject. The custom of London was exclusively a system to compel appearance. They had no such thing as an attachment by way of execution. Our State never intended, by its various attachment laws, merely to incorporate the narrow system of the custom of London, but these various laws have made an attachment on final judgment an execution of itself, the writ by which the fruits of his judgment are secured to the plaintiff in the attachment. Such a system is not to be watched, and scanned, and defeated wherever it can be, but should receive a liberal construction from the courts. Now [**16]  as to the consequences: The guiding principle that pervades our attachment system is, that the garnishee ought not to be placed in any worse position than if the defendant in the attachment had himself recovered the judgment against him. Drake on Attach., sec. 415. They make an assignment in law to the plaintiff in the attachment of the debt due by the garnishee to the defendant. The attachment is a proceeding in rem or in the nature of one, and fixes the debt in favor of the attaching creditor. 13 Pet., 151, Wallace vs. McConnell. 6 H. & J., 23, Tongue vs. Morton. 2 Md. Rep., 451, Wright vs. Wright. 2 How., 338, Grignon vs. Astor. 9 Do., 348, Boswell vs. Otis. 3 Wheat., 312, Gelston vs. Hoyt. Our attachment laws permit an attachment to be laid in the plaintiff's own hands, and how is an execution to be got in such a case as that? For these reasons we insist that no execution upon the attachment judgment was necessary to render it a bar to a suit against the garnishee by the defendant in the attachment.

4th. The proof now shows, that the attachment judgment has been purchased by Mrs. Somerville, the garnishee in the attachment case. But how does this affect the case? She bought [**17]  the judgment and of course is entitled to the benefit of her purchase. It is said the garnishee is a trustee. But who is the cestui que trust? It must be Charles Tiernan, or his permanent trustee in insolvency, or the bank, surely not this appellant. It is error to suppose, that if a party debtor pays his judgment debt by a less sum than the whole, he thereby gives to the holder of an improperly transferred security, which belonged of right to the judgment creditor, a title and claim which such holder would not have if the debtor had paid the judgment in full.

(The argument in regard to the effect of Charles Tiernan's application for the benefit of the insolvent laws, and as to the form of the prayers in the case, need not be stated.) 

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

OPINIONBY:
TUCK 

OPINION:

 [*454]  TUCK, J., delivered the opinion of this court.
Whatever principles were settled on the former appeal must govern this court on the present, unless the record shows a materially different case. This is the established doctrine, as shown by the authorities on the appellee's brief.
After a careful examination we can discover no such difference, except that it [**18]  now appears that the note was passed by Charles Tiernan before his application under the insolvent laws, whereas the decision of one of the points on the former trial was placed on the ground that such transfer could not be made after his application; and it is now proved that the judgment of condemnation against the defendant has never been fully paid, but that, since the former trial, she has become the purchaser thereof for $ 2300, the debt being largely more than that amount, and the sum now claimed by the appellant.
It is supposed that this record shows, as an additional fact not proved in the other case, that the judgment of condemnation was entered by agreement of the parties. But we think it manifest that this fact was known to the court on the first appeal. The same copy of the docket entries is set out in both records, and the parol proof now offered, that the agreement was made, does not make a new matter of that which 

 [*455]  was before established. The point is, was the same fact proved, not whether the evidence of the fact is the same or different. The court unquestionably dealt with the judgment, as we must, as a valid proceeding.
There being no question raised [**19]  as to the validity of the transfer of the note by Charles Tiernan, in view of the insolvent laws, the additional evidence in that behalf need not be noticed. The only subjects, therefore, for our consideration are, whether it was necessary for Mrs. Somerville to have shown that the judgment in attachment had been followed by execution executed, or satisfaction, as a complete defence to this action; and whether the part payment of the judgment, by the purchase thereof, can enure to her benefit, she having, by that purchase, gotten rid of a larger portion of her judgment debt to the bank than will pay the amount claimed in this suit.
The first of these propositions was not decided on the former appeal. It does not appear by the statements and points filed by the counsel, or by the reporter's notes of the argument, to have been adverted to, or in any manner brought to the notice of the court. The reported case shows very clearly that, with the exception of a point arising under the insolvent laws, the only question discussed in the opinions filed was, whether the note in suit could be attached, which did not necessarily involve the point now made on this appeal. We consider ourselves,  [**20]  therefore, at liberty to treat it as a case of first impression in this State, depending upon the attachment laws, and the decisions in England and in this country.
The words of the act of 1715, ch. 40, sec. 7, admit of no controversy as we think. They provide that the "condemnation and execution of such goods, chattels and credits, of the said garnishee, had and made, shall be sufficient and pleadable in bar by the garnishee in any action against him, by the defendant, for the same." It is not pretended that the judgment of condemnation of lands or goods, without execution, would bar the defendant's suit against the garnishee; but it is said, that in a case of attachment against credits in the hands of the garnishee, the judgment operates as a general judgment against him, binds his property like any judgment in personam, 

 [*456]  and may be made by execution levied on any of his property. It must be conceded that this view applies to attachments such as the one relied upon here, and has no force whatever where property is taken under the writ; and that, therefore, the two kinds of process might well have been placed on a different footing, by making the condemnation, [**21]  where credits only are attached, a bar to the other suit. But if the legislature has employed language embracing goods, chattels and credits, in the same sentence, dealing with each by a proceeding in rem, from the writ of attachment to the judgment of condemnation, which of itself implies that the thing attached, whether chattel or credit, is the subject of the judgment, and protects the garnishee only when the attachment case has proceeded to judgment and execution, had and made, we cannot give the language a construction different from its plain meaning. The words of an act may be disregarded when that is necessary to arrive at the intention of the law makers, but not where the act admits of only one interpretation. Our attachment system was derived from that of England, and the words now under consideration, as they stand in the act, are in conformity with the decisions there, before and since its passage. We must suppose that the act was framed with reference to that system, and when the operation and effect of this process are considered, it will appear, we think, to be in conformity with the distinction between judgments in rem and in personam. If the judgment [**22]  operated as an extinguishment of the garnishee's indebtment to the defendant in the attachment suit, it might be relied upon in bar as a former recovery. But this is not so. The credit is attached as something belonging to the defendant, not as a debt due by the garnishee to the plaintiff, and the defendant has an interest in that credit being applied to the payment in whole, or pro tanto, of his debt to the plaintiff. No distinction appears to have been recognised between credits and specific property. All alike are made the subject of condemnation, and are dealt with in the same manner. The condemnation of the thing attached to the purposes of that suit, and its application to the payment of the defendant's debt to the plaintiff, is considered as made when an execution has 

 [*457]  issued and been executed, according to the law of England, or by either payment or execution executed, according to the decisions in the States in which the law of attachment has been introduced, execution being considered only as a mode of enforcing payment. At any time before such application has been made the defendant may sue his debtor, the garnishee, on the attached chose, and recover,  [**23]  unless he pleads the pending attachment in abatement. If it has progressed to judgment and payment, or execution executed, this constitutes a defence in bar.
It will be seen that this view of the law does no injustice to any of the parties, if they adopt the proper mode of proceeding. The plaintiff in the attachment cannot complain if, having neglected to prosecute the remedy of his choice, according to the exigency of that process, he ultimately loses its benefit, and the garnishee incurs no risk of a payment to both his own creditor and the plaintiff in the attachment, because, as we have seen, he may, in one condition of the attachment case, make it the ground of abating the defendant's suit against him, and in the other aspect may defeat it altogether. For the law of England on this subject, see 1 Saund. Rep. 67, Turbill's case. Comyn's Digest, Attach. H. Locke on Attach., (79 Law Lib.) Margrath vs. Hardy, 4 Bing. N.C. 782. Wetter vs. Rucker, 1 Brod. & Bing. 491.
In Maryland we have no reported adjudications on this part of the law; nor are we aware that any cases have occurred at nisi prius from which we can learn the construction [**24]  of the act of Assembly by our courts. In Hinkley on Attachment, it is said, that it is not the custom to take execution merely for the purpose of arming the garnishee with a defence; but he asks, "if the garnishee pays the judgment without execution, may he not plead the judgment and satisfaction, with the like benefit, as he might the judgment and execution?" We agree with the author that "it is reasonable that he should, inasmuch as execution is only a means of obtaining satisfaction." Those views are in accordance with the New York and Pennsylvania cases, where the point has been adjudicated.  Embree vs. Hanna, 5 Johns. 101. Irvine vs. Lumbermens Bank, 2 Watts & Sergt. 190. Ib., 210. 

 [*458]  In the latter of these cases, (2 Watts & Sergt. 214,) where a judgment of condemnation had been entered, but no satisfaction or execution, the court said: "To entitle a garnishee to a plea in bar, it must appear that he has been compelled to pay the money attached in his hands, or, what is the same thing, that an execution has been executed by seizure and levy on his property." And in 2 Watts & Sergt. 208, the law is very clearly stated, as [**25]  follows: "If after a foreign attachment has been issued, and been executed in the hands of the garnishee, the original debtor sues the garnishee for the debt, he may plead the attachment in abatement. But if the plaintiff in the attachment has obtained judgment against the garnishee, and received the money, or execution has been executed, and the original creditor shall afterwards sue the garnishee for the debt, he may plead the condemnation in the foreign attachment, and this will be an effectual bar for the amount. If the judgment in the attachment is equal to, or exceeds the amount demanded from the garnishee on the original debt, it is a flat bar; if for less, it is a bar pro tanto only. And the distinction between pleas in abatement and in bar is not technical, but necessary to prevent injustice. When pleaded in abatement, after the disability is removed by disproving the debt, as may be the case, the plaintiff may renew his suit; but if pleadable in bar this cannot be, and the plaintiff may be exposed to have the claim of the attaching creditors defalked, although it may be afterwards disproved, and the garnishee may be allowed for a debt which he may fail to pay. The plaintiff [**26]  may be defalked and afterwards compelled to pay the attaching creditors the amount of their debts; for an attachment without satisfaction would not, of itself, prevent them from resorting to their original debtor." It is scarcely necessary to observe that the same principles apply to cases of attachment on judgment, authorised by the act of 1715, ch. 40, as to foreign attachments. This doctrine has been sanctioned by the Supreme Court, in the case of Wallace vs. McConnell, 13 Peters 136, where the maker of a note, in an action by the payee, pleaded that after the commencement of the suit on the note, the debt 

 [*459]  had been attached by a creditor of the payee, and a judgment of condemnation entered, with a stay of execution, and the court ruled, on demurrer to the plea, that it was not a defence, because the attachment case was commenced after the suit was brought on the note; that if the attachment had been conducted to a conclusion, and the money recovered of the defendant, before the commencement of the suit, there could be no doubt that it might have been set up as a payment upon the note in question; and if the attachment was pending when suit was [**27]  instituted on the note, it might have been pleaded in abatement, as necessary to the protection of the garnishee, the defendant in the suit on the note.
We are not aware of any case in which the judgment of condemnation has been held sufficient, of itself, to bar the action against the garnishee, except Hull vs. Blake, 13 Mass. 153. But there the judgment of condemnation in the court of Georgia, relied on by the defendant, stated that the proceedings would, according to the law of that State, discharge the garnishee when sued by his original creditor.
In the case before us it appears that the debt was not paid, nor had an execution been issued and levied before this action was commenced. As we understand the law, and not one case to the contrary has been shown, the attachment cause was a pending proceeding and might have been pleaded in abatement, but could not be relied on in bar of the action, which brings us to consider the effect of the purchase, by the defendant, of the judgment against herself in 1847, after the suit was commenced.
If the defendant relies on this fact as a payment it cannot have the effect of barring the action, because she has not paid [**28]  the whole debt, though, as between the bank and herself, the judgment is closed. The owner of the chose, however, has an interest in having the whole debt paid, because "an attachment without satisfaction would not, of itself, prevent the plaintiff from resorting to his original debtor." 2 Watts & Sergt. 209. And for all the purposes of this case we must consider the present appellant as occupying the situation of Tiernan, whose debt was attached in Mrs. Somerville's hands, 

 [*460]  because she can make no defence on this record that she could not have set up against Tiernan. But then it is said, that the judgment is satisfied by the purchase. As between the parties to the purchase it is. But, as to the appellant or Tiernan, does the defendant occupy any better situation than if any other person had become the purchaser of the judgment and taken an assignment? We suppose not. It would enable garnishees to defeat the just rights of their creditors, holders of the credit attached, if by any arrangement of this kind the law could be turned from its course. According to the doctrines of the authorities referred to, any other purchaser of that judgment might have compelled her [**29]  to pay the whole amount, or have proceeded against the Tiernans for the deficiency or balance due, after exhausting his remedy on the judgment of condemnation. It would be material in that state of case, to the Tiernans, that the claim of the bank, or its assignee, against them should be reduced by as much as could be recovered from Mrs. Somerville, and no arrangement by purchase or part payment, without their consent, could defeat that right; and we must bear in mind, that as Mrs. Somerville, by interposing the proceedings on the attachment, has subjected Brown to the predicament of the Tiernans, as if they were the now plaintiffs suing on the note, she cannot deny to him the benefit of any objection which they themselves could urge against her defence if they occupied his place as plaintiff against her.
The argument that this view of the question deprives the garnishee of the right to compromise with his creditor, the plaintiff in the attachment, which other debtors possess, proceeds, as we think, incorrectly, on the supposition that these judgments, before execution levied, have all the incidents of judgments in personam. If there be any hardship it is the fault of the statute [**30]  by which, as was said in Wetter vs. Rucker, 5 Eng. C. L. Rep. 165, "we are penned in." But when considered with reference to all its bearings it is not unreasonable that the law should be so. This attachment process seeks to dispose of a man's property without his consent, and in many cases without his knowledge, to the payment of his debts. It has always been strictly construed and required 

 [*461]  to be pursued according to the statute. The garnishee is expected to pay all he owes his own creditor as far as may be ascertained by the judgment of condemnation. He is dealing with the property or funds of another whom he owes, from which he has no right to take any thing for his own or the plaintiff's benefit, to the prejudice of the defendant in the attachment. If payment be made bona fide, or if an execution be issued and levied on the garnishee's property, it repels all idea or presumption of collusion between the plaintiff and the garnishee, and the whole effect of the recovery against the garnishee enures to the benefit of his original creditor by having it applied to that creditor's own debt to the plaintiff. If this result be accomplished he cannot [**31]  complain, but he has ground to object to any arrangement by which he may obtain a credit for less than the whole amount of the chose which his creditor has condemned to his use.
According to these views of the case, we are of opinion that the court properly refused the first and second prayers offered by the plaintiff; but erred in rejecting his third prayer, and also in granting the defendant's prayer.
Judgment reversed and procedendo ordered. 

23 of 44 DOCUMENTS 

JAMES C. GUYTON vs. THOMAS J. FLACK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 398; 1855 Md. LEXIS 7 

JUNE, 1855, Decided 

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

The bill in this case, filed by the appellee against the appellant and Frances Guyton, the administratrix of William C. Guyton, deceased, alleges, that William C. Guyton, carrying on business under the firm of Wm. Guyton & Co., became indebted to the complainant. It then contains the allegation as to the partnership between the appellant and the said William C. Guyton, which is set out in the opinion of this court. It then alleges, that the appellant has possession of the books and assets of said Guyton & Co., and declares his intention to sell them, and is unable or unwilling to pay complainant's claim, and that he has reason to fear that the appellant is insolvent, and prays for a receiver and an injunction.

On this bill an order was passed, on the 7th of September 1854, by St. George W. Teackle, a solicitor of the court, directing the injunction to issue, with leave to defendant to move for dissolution at any time after filing his answer, and giving five days notice. The injunction was issued, and on the 8th of September, Frances Guyton appeared, and on the 11th, filed a consent to the appointment of a receiver, and on the [**2]  same day the court (KREBS, J.,) passed an order appointing a receiver, and the defendant filed his answer, and appealed both from the order granting the injunction, and that appointing the receiver.  

DISPOSITION:
Reversed and bill dismissed.  

HEADNOTES:

Upon an appeal from two orders, one granting an injunction and the other appointing a receiver, the answer, though filed and appearing in the record, is not to be considered by this court.

Creditors have but a quasi lien upon the partnership effects, which as a derivative and subordinate right through the lien and equity of the partners may be enforced in equity.

Equity will not grant relief to a creditor of a deceased debtor against a party for improperly interfering with or retaining and using the assets of the deceased; his remedy is at law.

An allegation in a bill that the defendant claims to have been a partner of his deceased brother, whose widow denies it, and that complainant does not know whether the brothers were partners or not, is not a sufficient averment of a partnership. 

COUNSEL:
J. M. Harris and T. Yates Walsh for the appellant, argued:

1st. That the solicitor who granted the injunction had no authority to issue such an order. There is no power given to the judge of the circuit court to delegate the power to issue an injunction. That power is vested exclusively in the judge. The 4th article of the constitution disposes of the entire judicial power of the State, and says it shall reside in the judges and courts there specified. The 22nd section of this article, and the act of 1852, ch. 68, provide for all contingencies arising from the disqualification of the judges, and prescribe the governing rule in all cases, and the act of 1853, ch. 122, creating the circuit court for Baltimore city, contains nothing enlarging the powers of its judge. The act of 1852, ch. 173, gives the clerks of the several courts certain powers, but not that of issuing injunctions. But it is said, that the circuit court has the same power as was conferred [**3]  by law upon the county courts as courts of equity, and the chancellor, and therefore it has this power. Now the powers conferred by law upon the chancellor and the equity courts, will be found in various acts of Assembly, none of which contain such a grant of power as this. The only dictum in which the practice has been recognised, is found in 1 Bland, 191, Stewart vs. Barry, where the chancellor does not claim it as a power conferred by law, but says that it is done in pursuance of long established usage.

2nd. That the only reservation of the order for the injunction, was the liberty to the defendants to move for a dissolution at any time after filing their answer, and giving five days' notice, and that, notwithstanding, before the time had arrived when defendants were called upon to answer, the order appointing a receiver was passed by Judge Krebs, which order was illegal and void. That there being no reservation in this order than that above stated, there was no right or authority in the judge of the circuit court to appoint a receiver under the bill.

3rd. That the alleged consent of the co-defendant, Frances Guyton, could give no basis for the appointment of a receiver,  [**4]  and that if it could do so, such alleged assent is utterly informal and void.

4th. That the allegations of the bill of the complainant did not justify the issue of an injunction, or the appointment of a receiver. There is no evidence of indebtedness filed with the bill. 1 Md. Ch. Dec., 489, Thompson vs. Diffenderfer. The allegations as to the indebtedness and insolvency, are not special enough. 1 Bland, 213, Hannah K. Chase's case. 9 G. & J., 474, Amelung vs. Seekamp. 1 Md. Rep., 547, White vs. Flannagan. Again, if there is a sufficient allegation as to the partnership, and the appellant stands in the attitude of a partner, he is entitled to keep possession of the books, and wind up the business of the firm. 16 Ves., 59, Lloyd vs. Passingham. 9 Gill, 476, Speights vs. Peters. 3 Md. Rep., 112, Furlong & Miller, vs. Edwards. 4 Md. Ch. Dec., 41, Walker vs. House.

5th. But creditors have no lien upon the partnership effects, except that which is derived through the partners, (2 Md. Rep., 1, Glenn vs. Gill. 2 Story's Eq., sec. 1243,) and there is in this bill no sufficient allegation of a partnership.

T. Parkin Scott for the appellee, argued:

1st. That the answer of [**5]  the appellant is not to be considered by this court, because it was not filed until after the orders appealed from had been passed, and consequently was not considered by the court below. But even if it could be considered, it does not deny the allegations of the bill, upon which the orders appealed from were passed.

2nd. That the order granting the injunction was properly issued by the solicitor in the absence of the judge. This is the first time that any objection has ever been made to such a practice. The chancellor, in 1 Bland, 191, treats it as the invariable practice of his court. In the case of Albert & Wife, vs. Winn & Ross, 7 Gill, 446, so much litigated in the court below, and in this court, the injunction was granted by a solicitor, and no question was raised as to the propriety of the practice.

3rd. That whether or not there had been a partnership between the appellant and his deceased brother, the facts presented by the bill shows a proper case for the relief prayed for and granted. 1 Bland, 213, Hannah K. Chase's case. Ibid., 419, Williamson vs. Wilson. 6 Gill, 424, Kerr vs. Potter. 9 Gill, 476, Speights vs. Peters. 2 Md. Rep., 15, 16, Glenn vs. Gill. 3 Md.  [**6]  Rep., 99, 112, Furlong & Miller, vs. Edwards. 4 Md. Ch. Dec., 46, 49, Walker vs. House.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*402]  ECCLESTON, J., delivered the opinion of this court.
This appeal is upon two orders, one granting an injunction and the other appointing a receiver. Although an answer has been filed and appears in the record, still it is not to be considered by us in deciding the questions arising on this appeal, but we are confined to the case as made by the bill. This principle was established in Wagner & Marshall, vs. Cohen, 6 Gill 97. There the chancellor granted an injunction upon a petition; the answer was filed and the appeal was taken from the order granting the injunction. After an argument insisting it was the duty of the court to examine the answer, they refused to do so, holding that under the third section of the act of 1835, ch. 380, they could not look to the answer, in reviewing the order of the chancellor; and confined themselves to the petition in ascertaining whether the injunction had been properly granted.
The section of the act referred to relates only to injunctions, [**7]  but the second section of chapter 346, passed the same year, makes provision in reference to the appointment of receivers as well as the granting of injunctions; and the two sections correspond with each other in providing for appeals and the filing of answers. The correspondence is so perfect that we consider the case of Wagner & Marshall, vs. Cohen, as fully settling the question in regard to the present answer. In that case the answer was filed after the injunction had been granted, and here it was filed after the order directing the injunction and subsequent to the appointment of the receiver.
The next inquiry is, does the bill state such a case as authorized the orders appealed from. To do that it must aver that a partnership existed between the brothers, William 

 [*403]  and James Guyton. For if there was no such partnership, the complainant is not entitled to the relief sought by him.
Partners themselves have a lien upon partnership effects for the discharge of the debits of the firm, (where they have not parted with it,) which lien may be made available for the benefit of the creditors. But the equities of the creditors are to be worked out through the medium of the [**8]  partners. The creditors have not a lien, but a quasi lien upon the partnership effects, which, as a derivative subordinate right, through the lien and equity of the partners, may be enforced in a court of equity. Story on Partnership, secs. 360 to 362, inclusive. In Ex-parte Kendall, 17 Ves. 526, Lord Eldon said: "In all these cases of distribution of joint effects, it is by force of the equities of the partners among themselves that the creditors are paid, and not by force of their own claim upon the assets, for they have none." See also Glenn vs. Gill, 2 Md. 1, 16.
If there was no partnership between William and James, and the assets of the estate of the former were held and used by the latter, he might have been sued as executor de son tort in a court of law by the complainant. James was likewise responsible in a court of law, to the administratrix of William, for improperly withholding from her the assets. We have been furnished with no case which shows that a court of equity will grant relief to a creditor of his deceased debtor, against a party, for improperly interfering with, or retaining and using, the assets of the debtor.  [**9]  
If the brothers were not partners the complainant had no right to an injunction, or to have a receiver appointed. And as we are to look to the bill only, if that does not aver a partnership it is the same as if none existed in fact.
The bill alleges that William Guyton was carrying on trade and commerce in the city of Baltimore, under the name and style of William Guyton & Co.; that he departed this life intestate on or about the 2nd day of September 1854; that since his death James C. Guyton, his brother, and who was employed in his store in his lifetime, claims to have been a 

 [*404]  partner with William in the said commercial house of William Guyton & Co., but that Frances Guyton, widow of the deceased, and who has obtained letters of administration on his estate, denies the said partnership, and that the complainant does not know whether or not William and James were co-partners.
Thus it appears James asserts there was a partnership; the administratrix denies it; and the complainant neither asserts or denies it, but says he does not know whether there was or not. Surely it cannot be said there is an averment by the complainant of a partnership, when his statement is that [**10]  he does not know whether there was one or not, and the assertion by one defendant of its existence is denied by the other.
Upon such a bill we think the injunction should not have been issued, or the receiver appointed. And the consent of the administratrix to the appointment of the receiver did not cure the defect of the bill, in not asserting the existence of the partnership.
These views relieve us from any necessity to decide the other questions presented in argument.
Both orders will be reversed, and the bill dismissed without prejudice, and without costs.
Reversed and bill dismissed. 

24 of 44 DOCUMENTS 

HENRY P. BROOKS, Permanent Trustee of HENRY P. THOMAS, vs. HENRY P. THOMAS and JOHN H. T. JEROME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 367; 1855 Md. LEXIS 62 

DECEMBER, 1855, Decided 

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

The bill in this case was filed on the 15th of October 1850, by Brooks, as permanent trustee of Thomas, an insolvent debtor, to set aside certain alleged preferences made by the insolvent to Jerome.

The proceedings show that Thomas and one Childress commenced business as grocers in the city of Baltimore, in September 1847, and carried it on till March 1848, when they dissolved, and Childress retired, taking with him the capital which he put in, about $ 600, and his share of a small estimated profit. No cash capital was furnished by Thomas, but he brought into the concern about $ 600 worth of groceries which he had purchased from Jerome, (in whose employment he had previously been,) upon credit, who charged them to the firm. After the dissolution in March 1848, Thomas continued to carry on the business by himself until some time in September or early in October following. when he failed, and proposed to make an assignment of all his assets for the benefit of his creditors, provided they would release him. Jerome, to whom he was then indebted to the amount of $ 2130, agreed to do this, but some of the other creditors refusing, the assignment [**2]  was not made. On the 12th of October, Thomas sold his entire stock of goods to one Evans for $ 604.38. The negotiation for this sale was communicated to Jerome by Evans, and before it was finally completed Evans required, and Jerome gave him, a guaranty that the sale should not be disturbed. The whole, or the greater part of, the proceeds of sale he paid over to Jerome, which, with some other money, amounted to $ 900 in cash, and about the same time transferred to him all his credits and assets of every description, including his furniture, amounting to $ 1,010. During this whole time it was proved that Jerome and Thomas were on the most intimate terms, the latter having been in the employment of the former, both previous to his going into business and since his failure; very soon after this transfer Thomas left the city and remained away until the following February, when he returned, and on the 5th of that month applied for the benefit of the insolvent laws.

The bill assails this payment of money and transfer of property to Jerome:--1st, because it was made by Thomas with a view and under the expectation of taking the benefit of the insolvent laws, and with intent thereby to [**3]  give an undue and improper preference; and 2nd, because it was void under the act of 1834, ch. 293.

The allegations of the answer and the proof in the case are sufficiently stated in the opinion of this court, and in that of the chancellor, (JOHNSON,) which is reported in 4 Md. Ch. Dec., 15. The chancellor dismissed the bill, and from this decree the complainant appealed.  

DISPOSITION:
Decree reversed, with costs, and case ordered to the circuit court of Baltimore city.  

HEADNOTES:

To overthrow the positive denials in an answer to the allegations of the bill they must be disproved by the testimony of two witnesses, or by one witness accompanied with pregnant circumstances.

A knowledge that a party is negotiating or compromising with his creditors, accompanied with the actual information that he was generally considered insolvent in his neighborhood, is, in contemplation of the act of 1834, ch. 293, notice of insolvency.

Though a proposition from a debtor for a composition with his creditors is not conclusive evidence of insolvency, yet it is one of the most pregnant circumstances from which to infer insolvency.

To avoid a transfer, under the act of 1834, ch. 293, the debtor must, at the time, have "no reasonable expectation of being exempted from liability or execution for or on account of his debts without applying for the benefit of the insolvent laws," and the preferred creditor must have notice of such condition of insolvency. 

COUNSEL:
Henry P. Brooks and Levin Gale for the appellant, argued:

1st. That the evidence is sufficient to establish the fact, that at the time of making the transfer to Jerome, Thomas contemplated applying for the benefit of the insolvent laws. The facts upon which we rely to show this intent and overthrow the answers are, that in September 1848 he proposed to his creditors to make an assignment for their benefit. In October of the same year, he makes this transfer of all his property to Jerome. He then left the city until the following February, when he returned, and immediately applied for the benefit of those laws, and returned no assets. In his answer he swears, that he did not believe himself insolvent, and that he [**4]  could pay all his debts, yet the proof shows, that by his own declarations, he admitted that he could only pay a certain per cent. of his debts. He says he expects the mercy of his creditors, and that he did not think they would force him to take advantage of the insolvent laws, and yet by this transfer he stripped himself of all means to pay them, and had thereby so exasperated them as to leave resort to the insolvent laws as his only means of relief. Acts of 1812, ch. 77, sec. 1. 1816, ch. 221, sec. 6. 1845, ch. 139, sec. 2. 3 G. & J., 188, Kolb vs. Whitely. 1 H. & G., 81, Ringgold vs. Ringgold. 3 Story's Rep., 446, Everett vs. Stone.

2nd. That if the evidence does not sufficiently establish an actual intention to apply, yet it shows that Thomas had, at the time, no reasonable expectation of being exempted from liability otherwise than by an application for the benefit of the insolvent laws, and that Jerome had notice of his insolvent condition, so as to render the transfer void under the act of 1834, ch. 293. The main question under this point is, whether Jerome had notice of the insolvent condition of Thomas? What is notice? Whatever is sufficient to put a party upon inquiry [**5]  is good notice in equity. 11 G. & J., 243, Magruder vs. Peter. 3 Md. Ch. Dec., 493, Ringgold vs. Bryan. 3 Metcalf, 405, Curtis vs. Mundy. The case last cited establishes the true test, viz., that the "notice is sufficient if it be such as men usually act upon in the ordinary affairs of life." See also, 1 Gill, 412, Cole vs. Albers & Runge. Now what are the facts proved in this case. Evans swears that he stated "to Jerome," that he wanted indemnity, because "Thomas was generally considered insolvent, this was the general opinion in the neighborhood." Jerome and Thomas had been upon the most intimate business relations, both prior and subsequent to the latter's failure. In September 1848, Thomas proposed to Jerome to give up his assets for the benefit of his creditors. This in effect is a proposition of insolvency. He then conveyed to Jerome book-accounts, notes, credits, and all his property and effects, including household furniture; and Jerome says in his answer, that he offered to sign a release to Thomas upon conveyance of all his property for the benefit of his credtors. It is impossible to reconcile these facts with the answer of Jerome denying knowledge of Thomas' insolvent condition;  [**6]  and they clearly satisfy the rule by which an answer is to be overthrown, even if this case does not come within the exception to the rule laid down in 2 Gill, 106, Jones vs. Belt. As to what is the insolvent condition, of which the preferred creditor is to have notice, see 2 Kent, 189, 469. 16 Eng. C. L. Rep., 166, Shone vs. Lucas. 4 Cushing, 134, Thompson vs. Thompson. 1 Maule & Selw., 338, Bayly vs. Schofield. 3 Story's Rep., 446, Everett vs. Stone. Insolvency, according to these authorities, means an inability to pay debts in the usual and ordinary course of business.

Charles H. Pitts for the appellees, argued, that the bill was properly dismissed:

1st. Because Thomas, by his answer, expressly denies that he made the payments and transfers to Jerome with a view and under the expectation of being and becoming an insolvent debtor, and that there is no sufficient evidence in the record to rebut this denial. To be an insolvent debtor under our laws, means to be in such a state as to contemplate taking the benefit of the insolvent laws. Mere inability to pay debts in the usual course of business will not suffice; there must also be an intent to take the benefit of the insolvent [**7]  laws. This is legal insolvency in this State. 5 G. & J., 377, Hickley vs. Farmers & Merchants Bank. 7 G. & J., 170, Dulaney vs. Hoffman. The answer in regard to such intent must stand, and is conclusive unless contradicted by two witnesses, or by one with pregnant circumstances. 9 Gill, 211, Beatty vs. Davis. 3 Md. Rep., 229, Glenn vs. Grover & McColm. There is not here a solitary witness to contradict the answer of Thomas upon this point, and however strong the circumstances may be, they alone will not do. 7 Md. Rep., 537, Feigley vs. Feigley.

2nd. Because there is no sufficient evidence in the record to establish the fact, that Jerome had knowledge of Thomas' insolvency at the time he received the money, choses in action and property from him. He expressly denies in his answer that he had such knowledge. Inquiry into obligations, and the condition of assets alone, could be the basis of such knowledge. 1 Gill, 412, Cole vs. Albers & Range. Jerome says he did not know the amount of assets or the amount of obligations. "Knowledge of insolvency as aforesaid," in the act of 1834, means knowledge that the party was in such a condition as left him no reasonable expectation of relief [**8]  except by resort to the benefit of the insolvent laws. 7 Gill, 439, Stewart vs. The Union Bank. 6 G. & J., 323, Crawfords & Sellman, vs. Taylor. Jerome says he did not know that Thomas was insolvent, and that when the proposition was made to transfer his property for the benefit of his creditors, Thomas assured him that he was solvent, and from that time to the time of his application, there is no fact brought home to Jerome's knowledge from which notice of a different condition could be inferred. The answer, therefore, must stand.

3rd. Because there was an adequate remedy at law. 9 Metcalf, 470, Thayer, et al., vs. Smith. 7 Cushing, 181, Woodman vs. Saltonstall. 8 Ala., 743, Knotts vs. Tarver. 1 Story's Eq., sec. 76.  

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

OPINIONBY:
MASON 

OPINION:

 [*371]  MASON, J., delivered the opinion of this court.
The questions presented on this appeal arise under the act of 1834, ch. 293, sec. 1, and are, first, whether, when Thomas 

 [*372]  made the transfer to Jerome, the defendant, he did so in contemplation of insolvency, or that at the time he "had no reasonable expectation of being exempted from liability or execution for [**9]  or on account of his debts, without applying for the benefit of the insolvent laws?" and secondly, if so, whether Jerome "had notice of the condition of insolvency as aforesaid of said debtor?" Unless these two circumstances are established, the deed in question, as to the party claiming under it, cannot be avoided.
The defendant, Jerome, denies flatly, in his answer, that he knew of the insolvency of Thomas, and unless the force of this answer be broken by independent proof, in accordance with the rules of evidence adopted in such cases, his statement on this point must be sustained. A positive denial in an answer to the allegations of the bill must be disproved by the testimony of two witnesses, or by one witness with pregnant circumstances. We will not pause to inquire whether this case falls within the exception to this general rule, which is laid down in the case of Jones vs. Belt, 2 Gill 106, because we think that under the rule itself, the answer of the defendant, Jerome, has been sufficiently disproved so as to destroy its force as a ground of defence against the claim of the complainant.
Evans, a competent witness, expressly states, that he "stated to [**10]  Jerome that he wanted indemnity, as Thomas was generally considered insolvent--this was the general opinion in the neighborhood. Mr. Jerome did not seem surprised at witness' remark." Jerome, in reply, "informed witness that Thomas sold the goods by consent of the creditors," and that "Jerome did give the guaranty."
If this is not notice or information of the insolvency of the defendant, Thomas, we are at a loss to conjecture what other kind of notice could be furnished of such a fact. From the nature and character of insolvency, the knowledge of its existence in third parties must of necessity be to some extent conjectural or inferential, unless the information should be derived directly from the insolvent himself; and in a majority of cases, even the party is often deceived as to his own condition, and other persons are often as well, if not better, informed of his 

 [*373]  pecuniary circumstances than he is himself. A knowledge that a party is negotiating or compromising with his creditors, accompanied with the actual information that he was generally considered insolvent in his neighborhood, is, in contemplation of the act of 1834, "notice of the condition of insolvency [**11]  of said debtor." Nor do we consider this as such "technical or constructive notice," as is referred to in the case of Cole vs. Albers & Runge, 1 Gill 412, but we regard it as an actual notice, as much so, as such a fact ordinarily is susceptible of being the subject of actual notice.
The facts just mentioned were established by the evidence of Evans, and thus we have the positive testimony of one witness. But under the rule this is not sufficient, unless it be accompanied with pregnant circumstances. These are to be found, we think, in the close and intimate relations, both business and social, which existed between Thomas and Jerome, and in the fact, still more pregnant with an inference of the knowledge of insolvency on the part of Jerome, that Thomas proposed, previous to the preference complained of, to make an assignment of all his property for the benefit of his creditors, upon condition that they would release him from further responsibility, and the appellee admits that the proposition was made to him and agreed to. While we are willing to admit that a proposition from a debtor for a composition with his creditors is not conclusive evidence [**12]  of insolvency, yet it is still one of the most pregnant circumstances imaginable from which insolvency can be inferred. Indeed it may not be too much to say, that it is an unheard of circumstance for a debtor to propose a composition with his creditors, unless he be in a state of insolvency.
From all the facts in the case the conclusion is irresistible to our minds, that at the time of the transfer of money and property to Jerome by Thomas, the latter was insolvent, or that he had no reasonable expectation of being exempted from liability or execution for or on account of his debts, without applying for the benefit of the insolvent laws, and that the former had knowledge of the fact.

 [*374]  The transfer or assignment is therefore void, and the property which it embraced vested in the trustee, and a decree will be passed accordingly.
Decree reversed, with costs, and case ordered to the circuit court of Baltimore city. 

DISSENTBY:
LE GRAND 

DISSENT:

LE GRAND, C. J., dissented, and delivered the following opinion:
I have carefully examined this case and concur in the correctness of the decree of the chancellor, and for the reasons assigned by him. I feel bound to say, however, that it [**13]  is a case--apart from the stern rules prescribed by the law of evidence for the interpretation of the motives of parties--entitling the appellant to the relief sought by him; for it is impossible to suppose--when his close and intimate relation to Thomas is considered and the taking of all his property--that he was not aware of his insolvent condition; a fact which, according to the testimony of Mr. Evans, seems to have been generally believed. But Mr. Jerome denies such knowledge, and he is not contradicted as fully and in the way required by the law, and as a consequence, his denial prevails.  

25 of 44 DOCUMENTS 

JACOB STOKELEY vs. WILLIAM J. M. GORDON, and ANNA MARIA GORDON, his wife's Lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 496; 1855 Md. LEXIS 75 

DECEMBER, 1855, Decided 

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

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

1st Exception. The property in question belonged to Mrs. Ann Craig, who died in August 1843, leaving a will, executed on the 10th of May 1843, by which she devised the house and lot, now in controversy, "unto Anna Maria German, (wife of Jonathan German,) to her, the said Anna Maria German, her heirs and assigns, in fee-simple." The will, also, contains a bequest of railroad stock, and another of specific articles of silver to "Anna Maria German, (wife of Jonathan German.") It was admitted that Anna Maria German was born on the 27th of November 1829, and was the daughter, not wife, of Jonathan German, and that she intermarried with William J. M. Gordon after the death of Mrs. Ann Craig, and before the institution of this suit. It was also admitted that the wife of Jonathan German was named Catharine German, and that Jonathan German died after Mrs. Ann Craig. (The plaintiffs in this suit are, Gordon and wife, claiming in right of his wife, who was Anna Maria German, the daughter of Jonathan German; and the defendant Stokely,  [**2]  is the tenant of Catharine German the wife of Jonathan German.)

The plaintiffs then offered a competent witness, and proposed to prove by him that Anna Maria German, (now Gordon,) was the great niece of the testatrix, Mrs. Ann Craig; that her first name, Anna, was given to her after the testatrix; that the testatrix took her to live with her when a small child, about six or seven years of age, and that she lived with her from that time up to the death of the testatrix, a period of seven or eight years, and that the testatrix uniformly treated her with great affection; that she gave her her board, caused her to be educated at her own expense, and conducted her religious training and education; and that the testatrix was an aged widow who had never had children. To the admissibility of which testimony, and of all parol testimony to show or explain an ambiguity in the will of the testatrix, Ann Craig, the defendant objected, upon the ground that the devise of the property in suit is to and in favor of the wife of Jonathan German, and that the will is free from ambiguity. The court, (FRICK, J.,) overruled this objection and allowed the witness to be sworn on the part of the plaintiffs.  [**3]  To this ruling the defendant excepted.

2nd Exception. The plaintiffs then proceeded to offer evidence to the jury, the admission of which it was agreed should not be held an abandonment by defendant of the question of law and objection raised in the first exception. The plaintiffs then, in addition to the evidence set forth in the first exception, proved by witnesses, substantially, as follows:

Miss Linthicum testified that she knew Jonathan German, and his wife Mrs. Catharine German, who was familiarly called Kitty; that she knew Mrs. Ann Craig, and Anna Maria German the daughter of Jonathan and Catharine German, who was called Anna after Mrs. Craig, and was a great-niece of Mrs. Craig; that Mrs. Craig had a brother and some sisters, but never had any children, and was a widow twenty years or more previous to her death, on the 28th of August 1843; that Anna Maria was living with Mrs. Craig in August 1836, being then very small, and continued to live with her from that time till her death; Mrs. Craig was very kind to Anna Maria, though witness does not think she was treated as an adopted child. Isabella Stansbury, another great-niece of Mrs. Craig, was also taken to live [**4]  with her, and did live with her till her death. Mrs. Craig gave them their board, and said she educated them, and that she occasionally gave them presents. Witness heard Mrs. Craig say she intended giving the piano to Anna Maria German, and a silver cake basket or baskets, and the rest of her silver to Mary Ann Craggs; and also heard her say, that if Anna Maria German behaved herself she would not forget her when she died. Anna Maria always went with Mrs. Craig to the Baptist church, (her family were Episcopalians,) and was sent to the Baptist sunday school by Mrs. Craig. Witness thinks Anna Maria slept in the same bed with Mrs. Craig, and accompanied her to the springs in 1843, shortly before Mrs. Craig's death, being then about fourteen years of age.

Mrs. Trott was slightly acquainted with Mrs. Ann Craig; saw her at Jonathan German's house, and heard her say, in the midst of the family, and in the presence of Anna Maria German, that if Anna Maria would be a good girl, and mind her, she would never want for any thing at her death: this was a year before Mrs. Craig's death.

Benjamin German, a brother of Jonathan German, deceased, proved that Mrs. Craig had been a widow twenty [**5]  years, and had never had children; that she had a brother who had several children, and a sister, and that Mrs. Catharine German was the daughter of a deceased sister; that Mrs. Craig lived with Jonathan German for some years, and until Anna Maria German was from five to seven years old, when she went to her own house and took Anna Maria with her. That she manifested as much devotion to Anna Maria as if she was her own child; that she went with her to church, and assumed her religious training and education. Also, that Mrs. German and Mrs. Craig were upon affectionate terms, and that the former visited Mrs. Craig frequently; that Mrs. German, when a child, and going to school, staid part of her time with Mrs. Craig, and part with her uncle; that Jonathan and Catharine German had other children besides Anna Maria, but all of them except one, a son, were small, and were not very often at Mrs. Craig's.

Miss Blatchley was, for five or six years, intimate with Mrs. Craig, and visited her often; that Mrs. Craig took Anna Maria as her own daughter, and told witness that she so considered her; that she was very fond and affectionate to her, and had the religious training and education [**6]  of her; that Mrs. Craig often told witness she intended to leave Anna Maria enough to live on; that she intended to leave her a house in York or East Baltimore street, a watch and chain, a silver basket, and a piano; that she said this frequently; that this was about two or three years before her death.

John Hanan, offered on the part of the defendant, testified, that he was sent for to go to the house of Jonathan German to draw the will of Mrs. Craig; that he went to her room, and asked her to give him the bequests; that she did so and he put them down rough, and then read them to her slowly, and asked if it was right? and she said it was; that he then took the papers home, and drew the will from the memoranda he had made; that he took it the next day to Mrs. Craig and read it to her, and asked her if it was what she wanted? and she replied that it was; he then sent for witnesses and caused it to be executed, and handed it to her; that he was always under the impression that Mrs. German's name was Anna Maria, and thought she was named after Mrs. Craig; that he inserted the words, "wife of Jonathan German," after the name, that there might be no mistake about the person intended.  [**7]  He has no recollection that the name, Anna Maria, was mentioned; that he put it down of his own accord, and then read it to her; that Mrs. Craig was in good health at the time, which was three or four months before she died.

On cross-examination this witness stated, that he took down the names of devisees from Mrs. Craig's lips; that he varied from the plan, because he thought Mrs. German was intended; that he took the names, and put down the relations of his own caution. He thought Mrs. German's name was Anna Maria; that he wrote the words, "Ann Maria German, (wife of Jonathan German,)" in the rough draft; that he put the word "wife," himself, and that Mrs. Craig did not tell him.

The defendant then prayed the court to instruct the jury, that if they should believe that the testatrix, Ann Craig, executed the will given in evidence, and all the other testimony given in the case, then notwithstanding all the parol testimony, and notwithstanding the jury shall believe the christian name of Jonathan German's wife is Catharine and not Anna Maria, and that Anna Maria is the christian name of said Jonathan's daughter, and that she was in being, and so named, at the date of the [**8]  will of the testatrix, and that she is now Anna Maria Gordon, and the wife of William J. M. Gordon, and was married to said Gordon after the death of the testatrix, the plaintiff is not entitled to recover, the true construction of said will being, notwithstanding the error in the said wife's christian name, to pass to the wife of said Jonathan German, the property in the several devises and bequests therein set forth, as made to "Anna Maria German, wife of Jonathan German." This instruction the court refused to give, and to this ruling the defendant excepted. The verdict and judgment were in favor of the plaintiffs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A testatrix devised a house and lot to "Anna Maria German, wife of Jonathan German." Anna Maria was not the wife but the daughter of Jonathan German, and his wife was named Catharine. The daughter and wife both claimed the devise. HELD:

Per Mason, J., That parol testimony was inadmissible to show, whether the testatrix intended to devise the property to the daughter or the wife; that the question was one of construction from the face of the will, and the wife was entitled to the devise.

Per Tuck, J., That the devise was void, for uncertainty; and that the property descends to the heir at law as if the party had died intestate.

Per Eccleston, J., That upon a proper construction of the will, in connection with such evidence as was legally applicable to the case, the daughter is entitled to the property.  

COUNSEL:
Charles F. Mayer for the appellant, argued:

1st. That although it is admitted that Anna Maria is not the christian name of Mrs. German, yet that the effect of the dispositions in the will is to make the "wife of Jonathan German" the devisee and legatee; and that only one who fulfilled that relation and answered that description can take under the will the particular property now in dispute; and that therefore no case of latent ambiguity is presented which authorises any parol testimony, or is required, for determining [**9]  the testatrix's intent; and that that is emphatically true, as there can be but one person, as the wife, pointed to; just as (in the position in Coke Litt., 3. a,) where a grant is made to Robert, Earl of Pembroke, avails, although the earl's name is not Robert, but Henry. In designation of parties who are to take interests, or are in the view of stipulations, the particular relation or capacity mentioned, for the purpose of identifying them, is imperative as one of the terms of designation, and is much more to be regarded than the name, as the relation or capacity is more surely and obviously to be known and considered than is a name. Who can doubt, that if the devise had been "to the wife of Jonathan German, Anna Maria German," or "named Anna Maria," the construction must have been that the "wife" alone is meant? How does the present phraseology differ from that thus supposed? Anna Maria is used, and to obviate chances of error and make the meaning certain, the identification, as "the wife of Jonathan German," is superadded. The parenthesis for the words "wife of Jonathan German," indicates that pointedly. It is so the law appreciates this definition of the party meant to be benefited,  [**10]  and explains the occasion and purpose of it: De nomine proprio non est currandum quum in substantia non erretur. 6 Coke, 66. Branch's Principia, 38. Fonb. Eq., 427, book 1, ch. 6, sec. 11. 1 Greenlf. on Ev., secs. 299, 287, 289, 301, 290. 10 Johns., 137, Jackson vs. Stanley. 3 Ves., 321, Campbell vs. French. 4 Do., 680, Price vs. Page. 6 Do., 42, Smith vs. Coney. 19 Do., 382, Stockdale vs. Bushby. Hobart, 170, 171, Stukeley vs. Butler. 5 Mees. & Wels., 363, Hiscocks vs. Hiscocks. 2 Younge & Collyer, 72, Bradshaw vs. Bradshaw. 11 Simons, 467, Blundell vs. Gladstone. 9 Eng. Law & Eq. Rep., 269, Adams vs. Jones. 11 Do., 191, The General Lying-in Hospital vs. Knight. 21 Do., 66, In re. Rickit's Trust. 23 Do., 207, Bernasconi vs. Atkinson. Ibid., 239, Douglas vs. Fellows. 5 Md. Rep., 304, Walston vs. White. 7 Do., 22, Douglas vs. Blackford.

2nd. Description is said to be inferior, as means of designation, to name, when appended to the name and when false. But that principle does not govern where there is truth in the description as being applicable to another person, and where, under that description, this other person may claim. This relative grade of description is marked by the [**11]  maxim of "falsa demonstratio non nocet," and no other position than this maxim is meant by it. It is applied only where the named party "is certain;" that is, is certainly the person meant. Such is the language of the doctrine. As, suppose, a devise "to my brother A, Judge in Calcutta," when although the brother is truly named A, yet he is not a judge nor resides in Calcutta. There the description yields as a falsity, and the name prevails. Broom's Legal Maxims, 269 to 274. 6 Tcrm Rep., 671, Thomas vs. Thomas. 1 Lord Raymond, 304, King vs. Bishop of Chester. 1 Greenlf. on Ev., sec. 301. Fonb., 427. 2 Kent, 271.

3rd. Latent ambiguity arises, and parol evidence is admissible, only where extra the instrument more than one are shown to exist, answering the description or designation of the party named as for the benefit of the instrument, or where two or more parties are shown fulfilling each in part the description annexed to the name. The cases of 3 Barn. & Ald., 632, LeChevelier vs. Huthwaite, and of 1 Ed. Ch. Rep., 189, and 4 Paige, 272, Smith vs. Smith, are instances of the last branch of the position just advanced in regard to the latent ambiguity. In the first case the party [**12]  named fulfilled the description as being a son, thought not a second son, as he was characterised, and he who was truly the second son was in competition with him, as within the testator's bounty. In the other case, (Smith vs. Smith,) the party named fulfilled, as being a wife, the annexed description in part, but did not, in name, correspond to the testator's words. If Anna Maria had been a wife at all, and (as "German" is affixed to "Anna Maria,") a wife of one German, not a Jonathan, then a case of latent ambiguity would have arisen and such a case as is exhibited in the two authorities just adverted to, relied on by the appellees. These cases, however, disprove one position of our adversaries; that is, that the name is to prevail over all descriptions, as preeminently signifying the person in view of the testator. Were that so, why was not Mary Smith declared legatee, without the introduction of parol proof to test the testator's meaning between her and Sarah, in Smith vs. Smith? And in LeChevelier vs. Huthwaite, why was not Stokeham Huthwaite construed the devisee, without making his claim dependent on parol proof for explaining the testator's intent? 8 Bing., 244, Miller vs.  [**13]  Travers. 1 Greenlf. on Ev., sec. 299. 5 Mees. & Wels., 363, Hiscocks vs. Hiscocks. 23 Eng. Law & Eq. Rep., 239, Douglas vs. Fellows.

John H. Handy and Levin Gale for the appellees, argued:

1st. That it being shown by the parol evidence that Anna Maria German was the daughter of Jonathan German, and that Jonathan German's wife was named Catharine, a latent ambiguity is shown, and that parol testimony is admissible to aid in the construction of the will, particularly evidence of the situation and condition of the testatrix, and the relationship and intimacy existing between her and the person claiming the devise, which was the substance of the evidence excepted to. The cases of Smith vs. Smith, 1 Edw. Ch. Rep., 189, affirmed on appeal in 4 Paige, 272, and Doe on Demise of LeChevelier vs. Huthwaite, 3 Barn. & Ald., 632, are almost identical in their circumstances with this case, and in both cases parol evidence was held admissible. The general rule on the subject is announced in the case of Miller vs. Travers, 8 Bing., 244, and was adopted by the Supreme Court in Atkinson's Lessee vs. Cummins, 9 How., 479. Parol evidence was also held admissible in the following cases, and in [**14]  many others too numerous to cite: 8 Iredell, 39, Eringhaus vs. Cartwright. 1 Iredell's Eq. Rep., 11, Simpson vs. King. 15 Conn., 274, Brewster vs. McCall's Devisees. 4 Johns. Ch. Rep., 607, Thomas vs. Stevens. 1 Paige, 291, Connolly vs. Pardon. 2 Dana, 47, Tudor vs. Terrel. 1 Ves., Jr., 266, Parsons vs. Parsons. Ambler, 175, Dowset vs. Sweet. 19 Ves., 601, Careless vs. Careless. 10 Leigh, 199, Maund's Adm'r vs. McPhail. 1 Wend., 541, Doe vs. Roe. 1 B. Monroe, 111, Haydon vs. Ewing's Devisees. 1 H. & J., 192, Dorsey vs. Hammond. 3 Watts, 385, Vernor vs. Henry. 12 Penn. State Rep., 136, Brownfield vs. Brownfield. 2 Mees. & Wels., 129, Gord vs. Needs. 12 Adol. & Ellis, 451, Allen vs. Allen. 4 Ves., 680, Price vs. Page. 1 Wm. Black., 60, Jones vs. Newman. 4 Md. Rep., 506, Marshall vs. Haney. 5 Do., 303, Walston vs. White. 7 Do., 22, Douglas vs. Blackford. 1 House of Lord's Cases, 778, Lord Camoys vs. Blundell, and the same case in 11 Simons, 467, 6 Term Rep., 671, Thomas vs. Thomas. 2 Younge & Collyer, 72, Bradshaw vs. Bradshaw. 23 Eng. Law & Eq. Rep., 207, Bernasconi vs. Atkinson. Ibid., 238, Douglas vs. Fellows. There is no case in England or in this country which has dared to question [**15]  a single point decided in Miller vs. Travers; but on the contrary, that case has been affirmed by every court in which the question has been raised.

2nd. That if the will is free from ambiguity, and either the name or the designation is to be preferred, that the name is entitled to the preference, and that therefore Catharine German, the wife, is not entitled before Anna Maria, the daughter, who bears the name. On this point, see Bacon's Maxims of the Law, rule 25: "Presentia corporis tollet errorem nominis et veritas nominis tollet errorem demonstrationis." Under which rule Lord Bacon says: "There be three degrees of certainty: 1st. Presence. 2nd. Name. 3rd. Demonstration." And again: "The proper name of every one is in certainty worthiest; next are such appellations as are fixed to his person, or at least of continuance, as "son of such a man," "wife of such a husband," &c. See also 1 House of Lord's Cases, 778, Lord Camoys vs. Blundell.  

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

OPINIONBY:
MASON 

OPINION:

 [*504]  MASON, J., delivered the following opinion:
In what cases, and to what extent, parol testimony is admissible to explain ambiguities in wills, or to ascertain [**16]  the intention of the testator dehors the will itself, are questions, the determination of which has ever been attended with the greatest difficulty. To this class of questions does the one presented upon this appeal belong.
On the trial below it was admitted that Mrs. Craig, the testatrix, was seized of the real estate in controversy, and that 

 [*505]  by her will, duly executed, she devised the same "to Anna Maria German, wife of Jonathan German," and that Anna Maria was not in fact the wife, but the daughter of Jonathan German, but that his wife was named Catharine.
In this condition of the case the question arose, whether parol testimony was admissible to enable a jury to ascertain whether the testatrix intended to devise the property to the daughter, or the wife, or whether such parol evidence was to be excluded, and, from the will itself, arrive at the intention of the testatrix? Parol evidence was received, and the question of intention submitted to the jury, who found in favor of the daughter, and hence this appeal.
In all cases it is necessary, in construing wills, that the court should be placed, by parol evidence, in possession of all the surrounding facts [**17]  and circumstances connected with the testator, and which tend to show his situation in his relations to the persons and things to which his devise may refer. Therefore it would have been proper in this case to have shown, if the fact had not been admitted, that the name and description of the devisee did not concur. Properly speaking this is not that kind of evidence which is intended to explain written instruments, but is proof necessary to enable the court to understand the situation of the testatrix, and thus reach the meaning and application of the words employed in the will. But the evidence which is sought here to be introduced, to show the intention of the testatrix, independent of the words of the will itself, and of such surrounding circumstances as have been alluded to, is a question of a very different nature. The inquiry then arises, in what cases extrinsic evidence of intention on the part of the testator is admissible: or, in other words, in what cases can ambiguities in written instruments be explained by parol proof?
Patent ambiguities are those which appear upon the face of the writing itself: as for example, a will with the name of the devisee left in blank.  [**18]  As a general rule such ambiguities cannot be explained, but if settled at all, must be from the face of the paper itself.
On the other hand a latent ambiguity is, where a writing is 

 [*506]  perfect and intelligible upon its face, but from some circumstance admitted in proof, a doubt arises as to the applicability of the language employed to a particular person or thing; but it is by no means an universal rule that general parol evidence is admissible to explain even latent ambiguities, or that such questions, in every instance, are questions of fact for the jury. The present case presents an example of a latent ambiguity.
Cases of latent ambiguity may be classed under three heads. The first is, when the description contained in a written instrument, of the person, thing or place intended, is applicable with equal certainty to each of several subjects, as a devise to "my cousin John," when the testator has two cousins John. In cases belonging to this class, and in none other, (it would seem from the later authorities,) is general parol evidence of the intention admissible, such as the declarations of the testator at the time and before executing the will, the nature and character [**19]  of his intercourse and relations with the different parties, and things intended to be described, and the like. This principle, in the broad language in which we have laid it down, has been recognised in a number of cases, but the rule upon the subject is perhaps no where so well and fully defined, as in the recent case of Hiscocks vs. Hiscocks, 5 Mees. & Wels. 363, by Lord Abinger. He says: "Now, there is but one case in which it appears to us that this sort of evidence (the testator's declarations, the instructions given for his will, and other circumstances of the like nature,) of intention can properly be admitted, and that is where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible, but from some of the circumstances admitted in proof, an ambiguity arises, as to which of the two or more things, or which of the two or more persons, (each answering the words of the will,) the testator intended to express. Thus if the testator devise his manor of S to A, B, and has two manors of S," &c. "It appears to us, that in all other cases parol evidence of what was the testator's intention [**20]  ought to be excluded, upon this plain ground, that the will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will."

 [*507]  In a still later case, (1853,) Bernasconi vs. Atkinson, 23 Eng. Law & Eq. Rep. 207, the same principle is thus broadly announced: "Now, I think it is quite plain, upon looking through the authorities, that there is only one case in which any evidence can be introduced to show the intention of a testator, namely, where the description in the will is equally applicable to two different subject matters of devise, or to two different persons."
Again, in Wigram on Wills, (2 Lib. of Law & Eq.,) Prop. 7, page 101, it is said, "that courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, when the description in the will is insufficient for the purpose. These cases may be thus defined:--when the object of a testator's bounty, or the subject of disposition, (i. e., the person or thing intended,) is described in terms which are applicable indifferently to more than one person or thing, evidence [**21]  is admissible to prove which of the persons or things so described was intended by the testator."
To this class of cases belong those of Cheney, 5 Rep., 68; Couden vs. Clerke, Hobart, 32; Jones vs. Newman, 1 Wm. Black 60; Doe vs. Westlake, 4 Barn. & Ald. 57; Fox vs. Collins, 2 Eden 107; Brownfield vs. Brownfield, 12 Pa. 136, and others. In all those cases general parol evidence was properly admitted, including the declarations of the testator, to show his intention, or explain his meaning. And the reason of the rule is obvious, and it is because it would be impossible to form any general, sensible rule of interpretation, by which courts could settle such questions from the face of the will itself, and they would remain undetermined, if parol proof of intention were not permitted to go to the jury. In the case of Vernor vs. Henry, 3 Watts 385, Chief Justice Gibson says: "When the designation is by a name common to two or more, and without reference to circumstances of description, the question of identity is one purely of fact."
The second class of cases of ambiguity is, where the name, or description,  [**22]  or both, of the person or thing intended to be referred to, is in some respect so far incomplete or erroneous, as not to refer with precision to any particular person or thing, 

 [*508]  and therefore the defect or omission has to be supplied by implication, as, for example, a devise was to "Catharine Earnly," while no person of that name claimed the legacy, but one Gertrude Yardly did.  Beaumont vs. Fell, 2 Peere Wms. 140. The cases of Thomas vs. Thomas, 6 Term Rep. 671; Vansant vs. Roberts, 3 Md.  119, and others, are also examples of cases of this character. It may be added that out of such cases have arisen the greatest difficulties and conflict of authorities, as to whether such questions were to be determined by the court or by the jury, and to what extent, if at all, extrinsic evidence was admissible to ascertain the testator's intention. In many instances the same rule has been adopted as in cases falling under the first head, and the widest latitude has been allowed to the introduction of evidence to the jury, and the two English cases last cited are examples of the great extent to which courts have gone upon [**23]  this point. We have referred to them, not as authorities, (for they have not been sustained by later cases,) but as illustrations merely of our meaning. The case also of Camoys vs. Blundell, 1 House of Lords' Cases, 778, is one of this class, and the same case is also reported in 11 Simons 467, and is more fully referred to hereafter. In modern decisions much less latitude is allowed in the admission of testimony of intention than was warranted by the earlier cases, and, if what we have said upon the first head be correct, the practice of submitting such questions as those which belong to cases arising under our second head to the jury at all, and especially upon the declarations of the testator, and other similar evidence, is not warranted by sound general principles, or by cases of later adjudication. All such questions are questions of construction for the court, and must be determined from the face of the will itself, in connection only with such facts and circumstances as, in the language of Lord Coke, "stand well with the will."
In the case of Blundell vs. Gladstone, as reported in 11 Simon 467, and which we have before said belongs to this class, the vice-chancellor [**24]  says: "The sole question is, who was the person described as 'Edward Weld, of Lulworth, in the county of Dorset, Esquire?' That is the sole question, 

 [*509]  and for the purpose of determining it I shall only advert to the evidence which has been given, and very properly given, of the state of the Weld family, entirely rejecting from my consideration every thing else dehors the will, that can be at all said to bear upon what the testator's intention was. I look only at the facts of the case, namely, at those facts which show the state of the Weld family at the date of the will, and what the testator has said in his will." See also 5 Pick. 512, and particularly the case of Douglas vs. Fellows, 23 Eng. Law & Eq. Rep. 240. The case of Vansant vs. Roberts, 3 Md. 119, was a case of this class, and there this court rejected parol evidence and decided the case from the face of the will, and the surrounding circumstances.
Then comes the third class of cases, as where the name used applies perfectly to one person or thing, while a description employed applies as perfectly to another. To this class belongs the case we are now considering.  [**25]  Such also were the cases of Doe vs. Huthwaite, 3 Barn. & Ald. 632; Smith vs. Smith, 1 Edwards Chan. Rep. 189; Adams vs. Jones, 9 Eng. Law & Eq. Rep. 269; Bradshaw vs. Bradshaw, 2 Younge & Col. 72; Vernor vs. Henry, 3 Watts 385; Douglas vs. Blackford, 7 Md. 8, and others.
The first matter to be determined, in a case like the present, is, whether the question is one of fact for the jury, or whether it is one of construction for the court? Upon principle it seems plain, that it must be one of construction, and should be settled by the court from the face of the will, in connection with the surrounding circumstances attending the transaction, although it is to be admitted, which it is to be regretted, that the authorities are very conflicting upon the subject, and any attempt to reconcile or harmonise them, would be a work of impossibility. In speaking of wills being the subjects of construction for the court, of course it is only meant to embrace such cases where the facts, which would be properly admissible in evidence, are admitted. In every instance when facts are denied, they must be found by the [**26]  jury upon a hypothetical instruction from the court. Ch. J. Gibson, in Vernor vs. Henry, says, "that the ascertainment of intention from the will itself falls within the province of the court."

 [*510]  Here it may be remarked, if the principle laid down under our first head, upon the authority of Lord Abinger and others, be correct, then the present case is not one for the jury, or for the admissibility of parol evidence, because it does not fall within the rule there prescribed for the admission of such testimony. Where, from the face of the will, in connection with the surrounding circumstances, a case is disclosed, upon which the judicial mind can take hold, and upon principles of reason or logic, arrive at a conclusion in regard to the testator's intention, then the case is one of construction for the court, and not one of intention depending upon extrinsic evidence and to be found by a jury. The case before us is one of this character, while cases falling under our first head could never be determined upon any such principle, and must therefore be submitted to a jury upon general evidence of intention. And it may be added, that this question is a matter of construction [**27]  for the court appears manifest from the circumstance, that as far back as Lord Bacon's time, a rule of interpretation was adopted by which cases of this kind were to be determined, and that that rule, with certain qualifications, has been repeated and recognised down to the present period. If this therefore be a question purely of intention, to be governed by the peculiar facts of each case, as understood by different juries, does it not follow that the result would work a complete abrogation of the rule? In other words, where is the office of this or any other rule, if each case is to turn upon the intention of the testator independent of all rules?
Lord Bacon states the maxim of law to be, "veritas nominis tollit errorem demonstrationis;" which is, the truth of the name takes away, or controls, the error of the description. As recently as 1849, Chief Justice Gibson, in the case of Brownfield vs. Brownfield, already cited, adopts precisely the same rule, in this language: "Where a concurrent designation by name and description disagree, the rule is, that the former shall be taken to be more worthy in certainty." And the same rule is commented upon in the still more recent [**28]  English case of Camoys vs. Blundell, 1 House of Lords' Cases, 778. Of the rule Lord Brougham says, "I admit its authority as a general principle."

 [*511]  If, therefore, this rule comes to us well sanctioned, as it certainly does, then we are to conclude, that all questions falling within the purview of the rule, are to be governed by the rule, and that we have no more right to disregard rules of interpretation in arriving at the purpose of the testator, by submitting the question of intention to the jury, than we would have to disregard the long and well established rule adopted in Shelly's case, and to make all the questions so long controlled by that rule, depend entirely upon the capricious conclusions of juries, based upon facts outside of the instrument. All wills, it is true, depend upon the intention of the testator, but in every case, except the one already referred to, namely, where the designation is by a name, common, with equal certainty, to two or more persons or things, that intention must be ascertained by the court from the face of the will itself, and the surrounding circumstances which are connected with, or relate to, the parties, or the subject [**29]  matter of the devise, and upon established rules of interpretation.
The error in the present case consists, in having submitted to the jury the question of intention, and in having received testimony other than that which was simply sufficient to bring the case within the operation of the rule, by showing that the name designated one person, while the description pointed to another. At this point of the case the rules of interpretation ought to have been invoked, and from them the intention ascertained.
As has before been remarked, the authorities do not sustain with unanimity the principles herein announced: on the contrary, many cases, especially those of earlier date, have admitted parol evidence, in its widest range, to go to the jury in cases in all respects like the present. But we repeat that such cases do not rest upon sound principle, and are not sustained by the more recent decisions. The case of Vernor vs. Henry, was a case like this, and although parol evidence was admitted to ascertain the intention of the testator, yet in the subsequent case of Brownfield vs. Brownfield, Judge Gibson in referring to his previous decision in Vernor vs. Henry, places the decision [**30]  upon the express ground, that it was in pursuance of the 

 [*512]  rule of Bacon. He says, "I can, at present, recall but one case in which a legal conclusion has been drawn from modes of designation. Where, as in the case of Vernor vs. Henry, 3 Watts 385; a concurrent designation by name and by description, disagree, the rule is that the former shall be taken to be the more worthy in certainty." The late cases of Hiscocks vs. Hiscocks, already cited, and Miller vs. Travers, 8 Bing. 244, assail many of the earlier cases upon this question, as unsound. The court, in the first of those cases, say, "it must be owned, however, that there are decided cases which are not to be reconciled with this distinction in a manner altogether satisfactory." And again, "these cases, (Thomas vs. Thomas and Beaumont vs. Fell,) seem to us at variance with the decision in Miller vs. Travers, which is a decision entitled to great weight." By authority of the case of Miller vs. Travers, as well as that of Hiscocks vs. Hiscocks, the earlier cases of Thomas vs. Thomas, 6 Term Rep. 671; and that of Beaumont vs. Fell, 2 Peere Wms. 140, [**31]  are expressly overruled, and we think properly. The case of Douglas vs. Blackford, 7 Md. 8, fully supports the position, that in cases like the present, the question is one of construction for the court, and not a question of intention to be found by a jury.
This then brings us to the consideration of the last point suggested by this record, and that is, as a question of interpretation for the court, who takes under this will, the daughter, or the wife, of Jonathan German?
If the principle laid down by Bacon is to prevail as the unbending rule of law, upon the subject, without qualification, then the daughter would undoubtedly take. But Baron Parke in Camoys vs. Blundell, expressly says, that the rule "is not inflexible." and Lord Brougham in the same case adds, "I admit its authority as a general principle; but still, so far from its being an inflexible rule, I find the learned judges have held that it is not inflexible;" and a number of other cases to the same effect, might be cited.
The reason assigned for this principle, as a general rule of interpretation, is, that the name being more certain than the description, should therefore prevail.  [**32]  It would seem to follow 

 [*513]  as a necessary consequence, that the converse of the proposition would be true, if the description was more certain than the name. It would undoubtedly strike every one as reasonable, that the best and surest way to designate persons would be by the name they bear, yet, at the same time it must also be admitted that title or description, in many cases, would be a paramount and superior designation to the name itself even. What could be a more commanding or certain designation of any woman, than that of "wife of" such a man? How many females do we know, well, and even intimately, as the wives of particular individuals, without even knowing their christian names? The title, in such a case, is so unerring and complete as to absorb the name almost entirely:--in other words, it becomes the substitute for the name itself. Indeed, it is a very common practice at present, to convert the name of the husband into that of the wife, by simply affixing to the former the letters, "Mrs.," thus dispensing with the real christian female name almost entirely.
So with the titles, for example, of president, or governor, or the like. In such cases the designation [**33]  points so unerringly to a particular individual, that the name becomes, comparatively, of small moment.
The precise point involved in the present appeal has been twice adjudicated and reported,--so far as we have been able to discover. The case of Smith vs. Smith, 1 Edwards' N. Y. Chan. Rep., 189, it must be admitted is, in all respects, in direct conflict with the positions we have taken in this opinion. In the first place parol evidence was admitted, for the purpose of reaching the intention of the testator. One of the chief authorities relied on for such a proceeding, was the case of Thomas vs. Thomas, which we have shown has been overruled by the later and better cases. In the next place the old rule of Lord Bacon was recognised without qualification, and the description of "wife of N. S." was made to yield to the name, which pointed to another person. This case was decided in 1831.
On the other hand, the case of Adams vs. Jones, 9 Eng. Law & Eq. Rep. 269, and which was decided as late as 1852, is a case directly in point to support the positions 

 [*514]  herein taken. In that case the devise was "to Clare Hannah Adams, the wife of Thomas Adams." A [**34]  daughter of Thomas Adams was named Clare Hannah, but the name of his wife was simply Hannah. The daughter and wife, as in this case, both claimed the legacy. The court held that the question was one of construction by the court, from the face of the will, and decided in favor of the claim of the wife. The court say, "But, in the present case, the testatrix must have known who was the wife of Thomas Adams, and probably made a mistake in the name." The same theory would determine the present case in the same way. See, also, 1 Coke Lit. 3 a, (Ed. of 1853.)
It is averred with confidence, that if this devise were submitted to the correct thinking and sound judging men of any or all professions, unembarrassed by the extrinsic evidence which has been made to surround and confuse the case, that ninety-nine out of every hundred of them would say the testatrix meant the wife and not the daughter of German.
In the view taken of this case, it would perhaps be unnecessary to express any opinion in regard to the first exception, which related to the admissibility of testimony. Some of the facts proposed to be proved, may have been (but I express no opinion) of that class which [**35]  "stand well with the will," and were therefore admissible, and as the objection to the testimony was general, the court was probably right in overruling it. But if all the legal evidence applicable to the case and none other, had been received, the prayer of the appellant, which adopts the interpretation already suggested, ought to have been granted. But not having been granted, the judgment ought to be reversed.
This opinion has rested, throughout, upon the well settled and almost universally recognised principle of more modern times, that in no case is the bequest to be deemed void for uncertainty, as to the person or thing referred to, by the testator, if, with any degree of reasonable certainty, it can be ascertained upon legal rules of interpretation. I am in favor, therefore, of a reversal of the judgment.
But in the conclusions to which I have come in the foregoing 

 [*515]  opinion, my brother judges do not concur. Judge Eccleston thinks, that upon a proper construction of the will, in connection with such evidence as was legally applicable to the case, the daughter of German is entitled to the property, and that the judgment ought to be affirmed. On the [**36]  other hand, Judge Tuck is of the opinion, that the devise is void for uncertainty, and that the property embraced in it descends to the legal heir, as if the party had died intestate. Without approving of the result of the trial below, he nevertheless thinks, that the ruling of the court upon the first exception was correct, because the objection of the appellant to the admissibility of the testimony, having been general to the whole evidence, and as some of it was legal and proper, the objection was properly overruled under a well established rule frequently adopted by this court. Judge Tuck thinks, also, the prayer of the appellant was properly refused, because it asked the court to say that the property passed to German's wife, while he thinks it descends to the heir or heirs at law.
As between the heirs at law, and Anna Maria German, the daughter, I express no opinion.
The anomalous position of the court upon the questions involved in this case, leads inevitably to an affirmance of the judgment.
Judgment affirmed.
TUCK, J., delivered the following separate opinion:
Although the law, in some cases, admits evidence of surrounding facts, for the purpose of ascertaining [**37]  the meaning a testator may have applied to certain words used in his will, it nowhere countenances the idea, that speculation or conjecture may be indulged in. The facts when received must satisfy the mind, at least beyond a reasonable doubt, that the exposition they are designed to support is the correct one. We must resort to the words of the will, (aided in those cases in which parol evidence is received,) free from conjecture. Ram. on Wills, 31. Lord Mansfield said, "Guesses may be formed, but that is not enough. Perhaps quod voluit non dixit. We cannot make a will for the testator. Conjectures 

 [*516]  may be made both ways." Dougles, 78. The intention must be gathered from the whole will so as to leave the mind quite satisfied about what the testator meant.  3 Burr. 1531. We cannot proceed on loose conjectural interpretations, or by considering what a man may be imagined to do in the testator's circumstances. 1 Eden 43.  3 Term Rep. 85.
It is much to be regretted, I think, that parol evidence was ever admitted except in cases of undoubted latent ambiguity, such as where there are two persons of the same name, or two estates [**38]  or other pieces of property known by the same designation, each answering the words in the will. Here, however, there are not two persons answering fully the name and description in the will. On its face it shows a plain intent, provided the person named is the wife of Jonathan German, but she is not; and hence the property cannot pass to either, according to the words of the will as they are written. If the claim of either be allowed so much of the will as would give the estate to the other must be overlooked or explained. The name applies to one and the description to another, and we are called upon to say which was intended as devisee of the property.
After carefully considering the case, with every disposition to avoid an intestacy, which the books tell us is our duty, I cannot, with any degree of confidence, satisfactory to my own mind, declare, that the exposition of either side is well founded. Part of the evidence taken alone would show one view to be correct, but that is fully met, if not overcome, by other portions of the proof, and when the whole evidence is considered in connection with the will the uncertainty is very much increased. The doctrines of the law applicable [**39]  to these questions are fully discussed by Mr. Wigram under his sixth and seventh propositions, according to which, and the cases there cited, I am of opinion that a prayer affirming the right of either party, claiming as devisee, could not be granted. It is to be remembered that the law pays respect to the rights of the heir at law, and that he is not to be disinherited by slight implication or vague conjecture as to the intent of the testator, gathered from evidence of facts, of which, in the present case, 

 [*517]  it may be safely averred, there is much on both sides. The only safe test, if indeed any can be so called, where the door to parol evidence is once opened, is, as stated by Wigram, 99: "Do the words of the will, when all the circumstances of the case are known, express the intention which is ascribed to the testator? The court which interprets the will must be satisfied that they do so, and no other rule can, in the abstract, be laid down." I am not satisfied from the evidence offered, that either of these parties is entitled as devisee of the property in dispute, when the proof is applied to the language of the will. I consider the devise as inoperative from uncertainty,  [**40]  occasioned by a mistake which we have no power to correct. The prayer, which was refused, having asked the court to affirm the title of the defendant, it was properly refused, as should have been one offered on the hypothesis of the plaintiff's right as devisee. As was said in Hiscocks vs. Hiscocks, 5 Mees. & Wels. 363, the plaintiffs must, for the present, succeed, but the claims of the heirs at law may ultimately prevail.  

26 of 44 DOCUMENTS 

HENRY WEIGHORST vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 442; 1855 Md. LEXIS 12 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore city.

The plaintiff in error was indicted for the murder of his wife, and upon this indictment he was tried, and the jury rendered their verdict, as appears by the docket entry thereof, "guilty of murder in the second degree." This entry appears in the record amplified as follows, "that the said Henry Weighorst is guilty of the felony and murder aforesaid above charged and imposed upon him, and that the said felony and murder is murder of the second degree."

The prisoner then moved for a new trial, upon the grounds that the verdict was contrary to law, to the evidence and to the weight of evidence, and also because the court erred, 1st, in admitting the dying declarations of the wife as to threats made by the prisoner on the 15th of July, the killing having occurred on the 16th of that month, and 2nd, in admitting the confessions or admissions of the prisoner, alleged to have been made at the watch-house, the State having closed its case, and these alleged confessions not being properly rebutting testimony. This motion the court (STUMP, J.,) overruled.

The prisoner then moved in arrest of judgment, because the jury have not found [**2]  and answered all the issues confided to them. They have simply found the prisoner guilty of murder in the second degree, and have not negatived murder in the first degree, and manslaughter. This motion the court also overruled, and passed judgment sentencing the prisoner to the penitentiary until the 4th of June 1868, being thirteen years and six months. To correct this judgment the prisoner sued out a writ of error from the Circuit Court for Baltimore city.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Upon an indictment for murder, a verdict "guilty of murder in the second degree," without negativing murder in the first degree, is sufficient.

A docket entry, "guilty of murder in the second degree," was set out in the record "guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree." HELD:

That both are substantially the same, the latter being but the technical extension of the former, according to the long established practice of the courts.

In legal contemplation, docket entries are made under the eye of the court, and by its authority, and when not properly entered or extended, the error may be corrected.

Where there is but one count, and the party is found guilty of the higher grade of the offence, the inferior grade need not be passed upon by the jury.

The rule by which the sufficiency of a verdict is to be determined, is to ascertain whether it covers the indictment.

The act of 1809, ch. 138, does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment.

Manslaughter and murder are different crimes, and not different degrees of the same offence, and hence, on an indictment for murder, and a conviction of manslaughter, the verdict must negative the murder, otherwise the crime charged in the indictment would be left wholly unnoticed.

But, in the case of a conviction of "murder in the second degree," the crime for which the party is indicted is fully covered by the verdict.

Such a verdict is in the form required by the act of 1809, ch. 138, because it finds the party guilty of the crime charged against him, and ascertains the degree of that crime for the guidance of the court in awarding punishment.

This form of taking the verdict in such cases, has been the almost universal practice for nearly a half century, in all the courts in the State, and such practice is to be recognized as evidence of what the law has been supposed to be from the earliest times.  

COUNSEL:
Chas. H. Pitts and T. Yates Walsh for the plaintiff in error:

1st. The act of 1809, ch. 138, speaks of murder in the first degree, and of the crime of murder in the second degree, as separate and distinct offences. The 4th section says, that "the offences" thereinafter named shall be punished as therein prescribed--"1st, every person convicted of murder in the first degree" shall suffer death, &c.; "2nd, every person duly convicted of the crime of murder in the second degree," shall be confined in the penitentiary, &c.; and "3rd, every person duly convicted of the crime of manslaughter," shall also be confined in the penitentiary.

Manslaughter, murder in the second degree, and murder in the first [**3]  degree, are all degrees of homicide. In every such indictment, therefore, homicide is the subject charged, and murder, or murder in the second degree, or manslaughter, is the result. Every such indictment, therefore, presents for the consideration of the jury three separate issues or charges--1st, of murder in the first degree; 2nd, of murder in the second degree; and 3rd, of manslaughter. A verdict which finds the party guilty of any one of these inferior degrees, is a verdict which partially convicts and partially acquits, and to be valid, must find specifically not guilty of the higher and guilty of the inferior charge; and if it merely finds the party guilty of the inferior offence, it will be of no avail. This is the language of Chitty, in 1 Chitty's Cr. Law, 641, quoted and approved by the Court of Appeals in State vs. Sutton, 4 Gill, 494, and acted upon in the case of State vs. Flannigan, 6 Md. Rep., 167, where a verdict finding the party guilty of manslaughter, without negativing the murder, was held invalid. Manslaughter is just as much, and no more, an inferior grade of homicide than murder in the second degree, and if it be necessary to negative the higher grade in the one [**4]  case, it must be equally imperative to do so in the other. The opinion of the court in Flannigan's case, places the case of a conviction of murder in the second degree, without negativing murder in the first degree, as precisely parallel with that of a conviction of manslaughter, without negativing murder. The court say, that each of such convictions necessarily, in their opinion, implies a finding of not guilty of the higher offence, but inasmuch as the practice in England, as stated by Chitty, was so clearly recognized by the court in the case of State vs. Sutton, they felt themselves bound by it, and pronounced a verdict of guilty of manslaughter, which did not in terms negative the murder, as invalid. We, therefore, consider the very point presented in this case as settled by that decision. In addition to the authorities already cited, we refer to 2 Wheat., 221, Patterson vs. United States, and 1 Mason, 169, Stearns vs. Barrett, for the principle that a verdict cannot be aided by inferences, and for our construction of the act of 1809, ch. 138, we refer to 3 G. & J., 10, State vs. Dent, and 20 Ohio Rep., 26, Wilson vs. The State.

2nd. The question whether the verdict actually [**5]  given by the jury is properly set out in the record, arises under the agreement for the amendment of the record. We say the clerk had no right to put into the mouths of the jury language they never used; this record seems to have been made up to meet the point made in Flannigain's case, and is not the form in which the verdict should appear. The true form is set forth in 2 Ev. Harris, 297. See also 8 Geo. Rep., 208, Settle vs. Alison. We say, then, that it is clear, if there is any difference between the verdict rendered and that set out, neither the clerk nor the court had the right to make it, and if there be no difference, the point is not material.

Charles J. M. Gwinn, State's Attorney for Baltimore city, for the State, argued the following points:

1st. That the act of 1809, ch. 138, sec. 3, does not alter the crime of murder, as it is known at the common law, State vs. Dowd, 19 Conn., 391, Wharton on Homicide, 360. Under that act, the proper form for an indictment is for murder, as at the common law. The degrees of murder recognized by the act, are to be found by the jury, if the party is convicted, as a guide to court in the infliction of the punishment only; for without [**6]  such finding, the court would be uncertain which of the two punishments prescribed for murder it ought to inflict. The language of the act is clear upon this point. It says, "the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree." By this it is clearly shown, that the prisoner is indicted and tried for murder, as at the common law, and that the finding of the degree by the jury is but their designation of the greater or less atrocity of the act for which the prisoner is convicted, and is intended as a guide to the court in the punishment. State vs. Dowd.

2nd. That this is the true construction of the act, appears from the latter part of the third section of the same act. For it says, "if such person be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly." If the prisoner pleads guilty, the clerk must enter this general plea on his docket. The court cannot amend it so as to make the prisoner plead differently from his answer. It must proceed to [**7]  ascertain, not his crime, for that he has confessed, but the circumstances of his crime, in order to ascertain the measure of his punishment.

3rd. In an indictment containing one or more counts charging the same offence, but which offence is by its nature divisible into two charges, the criminal law requires, if the party be convicted of the less offence, that the greater should be negatived; because otherwise the jury does not respond to the whole charge of the indictment, whether it contain one count or many, expressive of the higher charge. For instance, in an indictment for robbery, the jury cannot find the prisoner guilty of larceny, without negativing the force which constitutes the robbery. The reason is, that robbery and larceny are different crimes, and the technical language which describes the former, does not apply to the latter; and vice versa. If the jury, in an indictment for robbery, find the prisoner guilty of larceny, but say nothing as to the robbery, the verdict is defective, because it does not respond to the allegation of force contained in the charge of robbery.

4th. But the verdict can only negative one part of a count, or one part of a set of similar [**8]  counts, when there are words in the count or counts which are applicable to the offence negatived by the verdict, but inapplicable to the offence which the verdict finds. The verdict cannot negative what the indictment does not charge, any more than it can affirm what the indictment does not state. The indictment in murder does not charge murder in the first degree, or murder in the second degree, but only murder; nor is there any part of an indictment containing a single count for murder, which the jury could negative, if their verdict was for murder in the second degree. All the words describing an offence which may be declared to be murder in the first degree, are necessary to the description of an offence which may be declared to be murder in the second degree. And as the verdict of a jury must respond to the whole indictment, if they said that they found the party not guilty of murder in the first degree, but guilty of murder in the second degree, the first part of their verdict would be an impertinence, because they would have proposed to negative what was not set forth in the indictment itself, and which did not need other negation than was supplied by their finding. See Le [**9]  Grand's opinion in State vs. Sutton, 4 Gill, 495.

5th. There is but one view in which this question can be regarded. The degree of the murder which the jury are directed to find, is intended as a direction to the court as to the punishment. If they find the degree, the duty of the jury is performed, not only according to the intent, but according to the very language of the act.

6th. It is proper to argue on behalf of the appellee, that a careful search in the records of the court has demonstrated that it has been the invariable practice of the courts in Baltimore city, since 1809, to take the verdict as it was taken in Weighorst's case.

7th. Nor is the practice confined to the State of Maryland. The law of 1809, in Maryland, in so far as it relates to murder, is a copy of the Pennsylvania statute of 22nd April 1794, secs. 1 and 2. In this last named State the indictments are drawn as for murder at common law, (Wharton on Homicide, 387,) and that the form of verdict recorded in this case is the form used in Pennsylvania, is shown by certified copies of the docket entries produced to this court from the records of the Court of Oyer and Terminer for the city and county [**10]  of Philadelphia. They were the cases of Andrew McBride, in 1852, of Felix Burns, in 1852, of James O'Neill, in 1853, of John Martin Rudolph, in 1855, and of Joseph P. McKinney, in 1855. Indeed, no case can be produced from the records of that court, indicating that any other form of verdict has been there known. In addition, the certificate of Chief Justice Lewis, of the State of Pennsylvania, in affirmance of the general practice of the State, is offered as authority higher than that of any text book of practice that could be shown to the court. The practice in Alabama, where the same statute obtains, is also shown by the certificate of the judge of a Criminal Court of that State. The practice in New Hampshire is also shown.

8th. The rationale of the law of murder, in reference to those distinctions, is well set out in Wharton on Homicide, 355, 359, 360, 361, and in the case of State vs. Dowd, 19 Conn., 391, opinion of Waite, justice. The Connecticut statute being the same with that of Pennsylvania and Maryland.

9th. There is no reason for requiring that a jury should negative manslaughter, when they find a prisoner guilty on an indictment which charges murder. Their duty [**11]  is to respond to the indictment. If their verdict covers the charge, it is good. Starkie on Crim. Plead., 347. Manslaughter is but unlawful killing--murder is this unlawful killing with a circumstance of aggravation. How would it be possible for a jury to find that the killing was unlawful, and was attended by the circumstance of malice, but that it was not an unlawful killing alone? Do they not find that it was not an unlawful killing alone, when they find the circumstance of aggravation by declaring that the offence is murder? What more could be required?

10th. Nor is there any lack of adjudications in England, upon points of practice, which are identical with those presented by the case under consideration. Prior to the Stats. 7 and 8, Geo. 4, ch. 29, sec. 2, which abolished the distinction between grand and petty larceny, if the value of the article stolen was uncertain, it was laid as above twelve pence, which was the point of value dividing grand and petty larceny. The indictment was precisely the same in form in either case, except as to the value laid. 2 Starkie's Crim. Plead., 451, note a. The punishments for the two offences were different. Grand larceny at the common [**12]  law being punishable with death, and petty larceny by whipping. 2 East's P. C., 736, sec. 134. Yet a party indicted for grand larceny could be convicted of petty larceny; and in case of such conviction, the jury did not negative the grand larceny, but they found the prisoner guilty of petty larceny, by saying in response to the indictment, "guilty, but that the goods are but of the value of ten pence." 2 Hawk. P. C., 620, sec. 6. See as to this form of verdict in petty larceny: 2 Hale's P. C., 302. 2 East's P. C., 741, sec. 137. Foster's Cr. Law, 73. It being a felony, and so charged, whether the value was above twelve pence, or under it, the jury so found by their verdict of guilty, but they proceeded to ascertain the degree of the felony as a guide to the court in its punishment.

11th. There is no substantial difference between the finding of the jury, as recorded by the clerk on the docket, and the record as before the court, which would be ground for a diminution, or which would justify the court in correcting the record. The entry of the verdict on the docket, is a minute only made by the clerk for his guidance in making up the record. 2 East's Pleas of the Crown, 518. 1 [**13]  Chitty's Cr. Law, 642. If the record is but the true legal amplification of that minute, it is formal, and the court below, or above, cannot interfere with it. The record before the Court of Appeals is that minute in its true legal and technical amplification.

12th. The alleged defect cannot, at all events, be taken advantage of since the act of 1852, ch. 63, sec. 2.  

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

OPINIONBY:
TUCK 

OPINION:

 [*450]  TUCK, J., delivered the opinion of this court.
The plaintiff in error was indicted and tried for murder. The record, as originally transmitted to this court, shows, that the jury found him "guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree." It appears, however, by an amendment of the record, that the verdict as rendered and entered on the docket was in these words: "Guilty of murder in the second degree;" and it is contended that this docket entry must be considered as the verdict of the jury, and that the clerk had no authority to amplify their finding, as set out in the record.
It has always been the habit of clerks to take [**14]  minutes and docket entries of the court's proceedings, and, subsequently, to enter them at length in technical language, according to established forms. This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not impracticable, labor, of making correct full records of proceedings as they transpire. In legal contemplation they are made under the eye of the court, and by its authority, and, when not properly entered or extended, the error may be corrected. But, in the present case, we do not perceive that there is any substantial difference between the docket entries, and the verdict as set out in the record. One is but the technical extension of the other, according to the long established practice of the courts, and, in disposing of the chief question in the cause--the legal sufficiency of the finding of the jury--we shall not ascribe to the record, as originally transmitted to this court, a greater effect than, by legal intendment, belongs to the verdict as entered on the docket.
The motion in arrest of judgment is founded on the supposition, that the verdict should have acquitted the party of murder in the first degree, and of manslaughter; [**15]  but we do not understand the latter feature of this motion to be relied on. Where there is but one count the inferior grade of the offence need not be passed upon by the jury. It is sufficient if the finding cover the indictment, and we agree that the 

 [*451]  present case must be decided according to this rule. Weighorst was indicted for the crime of murder, not for having committed a homicide. Upon this charge he was convicted, and the jury, in obedience to the act of 1809, ch. 138, ascertained the degree of that crime. This verdict, though not subjecting him to the severest penalty, found him guilty of murder, the crime alleged against him. The act of Assembly does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment. The supposed analogy between a conviction of manslaughter and of murder in the second degree does not exist. Manslaughter is a different crime from murder. Although both are within the general term homicide, yet, legally speaking, they are not different degrees of the same offence, because one is not murder at all, and, hence, a verdict merely convicting the accused of [**16]  that grade of homicide would leave the crime charged in the indictment wholly unnoticed, in disregard of the nature and end of pleading, and of the duty of the jury to pass upon the issues as framed. Besides, if the act of Assembly created a new offence, it would be necessary, where a party is convicted of manslaughter under a count for murder, to acquit of both degrees of murder, but this is never done. It is sufficient in such cases to say not guilty of the murder, without negativing each degree of that crime. Again, the act does not authorize the accused to plead guilty of murder of the second degree. If he confesses at all he must plead to the indictment for murder, and it is then made the duty of the court, "by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly." It is true the act does, in awarding punishments, speak of the crime of murder in the second degree, as if creating an offence before unknown to our laws; but we think this single expression must yield to the object and design of the act as indicated by its other sections.
It is supposed that the present question was settled by this court, in 6 Md. 167. We [**17]  certainly did not intend to 

 [*452]  carry the principle recognized by the Court of Appeals in 4 Gill 494, beyond the case then before us for judgment. It is manifest that we yielded to the force of authority in the particular case, not recognizing the soundness of the reason on which the rule was said to have been adopted in England and followed here. We then said, that "where an issue is joined on a single count, involving different grades of homicide, a conviction of manslaughter, or of murder in the second degree, necessarily implies a finding of not guilty of the higher offence," and so we think now. In that case, where the indictment charged one crime, and the party was convicted of another, we held that the practice of taking verdicts in such cases, because sanctioned in Sutton vs. The State, should be observed. But where the reason fails the rule is not applicable. The difference between the cases is this. Here the party was convicted of the crime for which he was indicted, though of an inferior degree, and the charge was fully covered by the verdict, whereas Flannigan was indicted for one crime and convicted of another, without any finding as to the [**18]  offence charged.
But, apart from this view, and conceding that the cases are the same in principle, we think this question is settled by the act of Assembly. A verdict we take to be correctly found when rendered as required by the act. The statute speaks of two degrees of murder, distinguished by the circumstances attending the commission of the crime, according to which the party is to be punished. It first declares what shall be deemed murder of the first degree; and then says: "all other kind of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, (that is of murder,) ascertain, in their verdict, whether it be murder in the first or second degree." The party was convicted of the crime charged against him, and its degree was ascertained for the guidance of the court in awarding the punishment. The act makes no such requirement as to convictions of manslaughter under indictments for murder. These 

 [*453]  are left to be rendered as at common law, it having been deemed important, as we may suppose, only in cases of murder to prescribe the form of the verdict.  [**19]  
In conformity with this view of the subject we find, after a careful examination of the criminal records of nearly all the counties, and of the city of Baltimore, made since the argument of this cause, that, with the exception of a few instances, the practice has been to receive, and pass judgment upon, verdicts, after the manner observed in the trial of this party. We recognize the value of precedents and practice, when applicable, not as making the law, but as evidence of what it has been supposed to be since the earliest times.  4 Taunt. 611, (Ram. on Legal Judgments, 62.) And, indeed, in Sutton's and Flannigan's cases, the point was ruled on no higher authority than the practice in the courts of England, as stated by Chitty and others. When, for all the time elapsed since the passage of the act under which this party was tried--nearly half a century--we know, that, in trials presided over and conducted by eminent jurists, the same form has obtained, regardless of any supposed similarity between such cases and convictions for manslaughter, why may we not respect their construction of the law as safely as, in other cases, we adhere to the common law practice?  [**20]  If we doubted as to the propriety of the ruling of the court below, according to the principles of law applicable to the point, we should feel great reluctance to disturb or call in question a form of proceeding sanctioned by the practice of our courts for so many years.
Judgment affirmed. 

27 of 44 DOCUMENTS 

ST. GEO. W. TEACKLE, Permanent Trustee of GEO. CAREY, GEO. T. WETHERED and JOHN H. O'DONNELL, vs. GEORGE S. GIBSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 70; 1855 Md. LEXIS 33 

DECEMBER, 1855, Decided 

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

The bill in this case was filed on the 8th of December 1850, by Teackle, permanent trustee in insolvency of Carey, Wethered and O'Donnell, to set aside an alleged fraudulent transfer and preference made by the insolvents, in 1840, in favor of the defendant, Gibson. The allegations of the bill and the facts of the case are fully stated in the opinion of this court. The court below, (FRICK, J.,) sustained one of the pleas of limitations filed by the defendant and overruled the other and dismissed the bill. From this decree both parties appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Since the act of 1841, ch. 163, the defendant cannot rely in this court upon any objection to the jurisdiction of the court below, unless it appears by the record that such objection was made below.

Where a defendant pleads two pleas, one of which is overruled and the other sustained and the bill dismissed, and the complainant appeals, this court will consider both pleas, and if either is a good defence, will affirm the decree dismissing the bill.

In all cases of concurrent jurisdiction between courts of law and equity, the statute of limitations is equally obligatory in each court.

Where an insolvent debtor makes a fraudulent transfer of money and personal property to a favored creditor, the trustee in insolvency may maintain an action at law therefor against the preferred creditor.

Under the act of 1829, ch. 208, sec. 3, the provisional trustee has as full power to sue for and recover property fraudulently conveyed by the insolvent as the permanent trustee has.

Limitations will begin to run against such provisional trustee from the time of his appointment and qualification, and when once commenced, continues to run against the permanent trustee also.  

COUNSEL:
Henry Winter Davis for the trustee:--1st, moved to dismiss the appeal of Gibson, because the decree dismissing the bill is in his favor and there is no decree or order against him from which any appeal lies. 2 Md. Rep., 271, Mitchell vs. Smith. 9 Gill, 56, Ramsay vs. Glass. 5 Md. Rep., 186, Ringgold vs. Barley. 8 Gill, 370, Winter vs. Donovan. 4 G. & J., 407, Charlotte Hall School vs. Greenwell. 1 Gill, 32, O'Reiley vs. Murdoch. But if this motion should be overruled, the complainant then insists that the first plea was properly overruled by [**2]  the court below, because the provisional trustee could not file a bill to set aside this fraudulent transfer and preference, nor has he any right to call a mortgagee to settle an account, nor has he any right to the possession of the mortgaged property; but this can be done only by the permanent trustee. Under the act of 1816, ch. 221, the provisional trustee is simply made the custodiary, for the time being, of the property which was in the possession of the insolvent, and he cannot sue for it unless it has been taken out of his possession, in which case he may maintain an action as special bailee. 5 H. & J., 403, Kennedy vs. Boggs. Where the statutes refer to the provisional trustee, they speak only of property in the possession of the insolvent or choses in action, which the insolvent himself could sue for and collect; but in the case of fraudulent deeds and preferences, the insolvent himself has no right to sue, for they are good as against him, though fraudulent as to creditors. The act of 1819, ch. 84, sec. 8, only requires the provisional trustee to give bond for the delivery over to the permanent trustee of the property and estate of the insolvent in his hands, and does not [**3]  vary or enlarge the powers conferred upon him by the act of 1816. The 10th section of the act of 1825, ch. 205, simply requires the provisional trustee to execute a deed conveying to the permanent trustee that property only which had come into his hands under the previous laws. The act of 1829, ch. 208, sec. 3, dispenses with the necessity of a deed from the insolvent to the provisional trustee, and, according to my construction of it, vests in him all the property, effects and claims of the insolvent debtor; that is, such as the debtor himself could sue for and recover. But property fraudulently conveyed by the insolvent is not that to which the insolvent himself has any title or claim. This act therefore refers only to the powers conferred upon the provisional trustee by previous laws, and invests him with no new powers. There is a very good reason why the provisional trustee should not have the power to sue in such a case as this. The law nowhere provides that the permanent trustee may carry on a suit instituted by the provisional trustee, and the suit so instituted must therefore fail. See also on this point 2 H. & G., 24, Brown vs. Brice. 4 G. & J., 385, Glenn vs. Karthaus. 5 [**4]  Gill, 138, Alexander vs. Ghiselin.

2nd. The appeal of the complainant presents the two general questions:--1st, whether the plea of limitations allowed by the court below is a defence to the claim made by the bill? and 2nd, whether in the form in which it is pleaded it is a good defence?

The bill by its allegations and prayers seeks two measures of relief which are perfectly consistent with each other, and to neither of them is the plea of limitations of three years either applicable or a bar:--1st. So far as the bill charges a transfer of assets by way of security against liabilities, and prays an account of the assets transferred, and of the liabilities actually existing or discharged, and for payment and delivery to the trustee of the assets not collected or not actually applied, the limitation of three years has and can have no application. The plea confesses the mortgage. It does not aver an adverse possession, but leaves it where the bill leaves it,--a possession as mortgagee. And on that fact alone the case of Alexander vs. Ghiselin vests the right of the insolvent trustee to the possession of the assets so mortgaged, and when they get into his hands he administers [**5]  them according to the liens and priorities recognised by the law. No court has ever held the plea of possession of a mortgaged chattel, note or money, for three or six years any bar to a suit for an account and payment of the residue. A fortiori, can such plea be no bar to a bill for an account of a general transfer, of notes, open accounts and bonds, which must be collected, and of goods which must be sold, where the time assigned to sell and collect must be of uncertain duration, and where the liabilities which they are to meet and protect are not specified and may not be due for months or years, or may be matter of dispute and litigation? yet such is the exact case made by the bill, and the consequence of sustaining the plea is to give the whole assets transferred to the defendant without account, though on the face of the bill, and admitted by the plea, they are twice or three times the liabilities alleged but not admitted to exist. These propositions cover so much of the bill as relates to the assets unliquidated and unapplied to the discharge of liabilities actually incurred and paid. It is simply the claim of a mortgagor to an account and payment of the balance, which entitles [**6]  him to the balance on a final settlement of the whole matter, united with the claim of the insolvent trustee under our acts to receive possession of the unapplied assets, and to administer them himself under his responsibility as representative of the creditor and debtor. As to limitation to a mortgage, see 3 H. & McH., 328, Lamar vs. Jones. 3 G. & J., 389, Green vs. Johnson. 6 Do., 80, Callis vs. Tolson. Ibid., 275, Dougherty vs. McColgan. 7 Do., 20, Cole vs. Hebb. 10 Do., 217, Tiernan vs. Rescaniere. 6 Gill, 445, Griffith, et al., vs. Reigart & Wife. 4 Wash. C. C. Rep., 631, Wisner vs. Barnet. 4 Cranch, 415, Higginson vs. Mein. 6 Wheat., 481, Prevost vs. Gratz. 5 How., 233, Taylor vs. Benham. 1 Hare., 594, Portlock vs. Gardner. 4 Younge & Collyer, 42, Denys vs. Shuckburgh. 4 Mylne & Cr., 1, Attorney Gen. vs. Fishmongers Co.

2nd. But the bill, after praying that relief, asks the additional relief that the assignment may be declared fraudulent and void against creditors. The result of obtaining this relief, in addition to that above mentioned, is, that if the defendant has actually received any money from the things transferred, over and above his dividend under the insolvent [**7]  assignment, he will under this prayer be obliged to pay such difference to the trustee for the benefit of the other creditors. It is therefore plain that this relief is not inconsistent with the former, but in addition to it and of the same nature, and that the former may be granted and this fail. Albert & Wife, vs. Winn & Ross, 7 Gill, 446, and 5 Md. Rep., 66, and 2 Md. Ch. Dec., 42, 169. Thomas vs. Doub, 8 Gill, 1. Any relief consistent with the allegations of the bill may be granted if it contains a general prayer. 10 G. & J., 108, Gibson vs. McCormick. 6 H. & J., 29, 30, Chalmers vs. Chambers. Ibid., 292, Drury vs. Conner. Therefore, even if the plea be a bar to this part and purpose of the bill, it was erroneous to hold it good as to the other relief for being a good plea as to part only, and yet pleaded to the whole bill it was too wide, and for that reason alone should have been overruled.

3rd. But the plea, if intended to apply to this bill, considered as a bill, to avoid a fraudulent assignment, is entirely misconceived. A conveyance giving an improper preference against the insolvent laws is fraudulent and void, because a fraud on the rights of creditors to have the [**8]  property equally distributed among them. It is not merely an implied and constructive fraud, but an actual, intentional and dishonest fraud, which knowingly attempts to take from the other creditors the difference between the dividend and the property conveyed. It is a worse fraud than taking property by a voluntary conveyance. Act of 1816, ch. 221, sec. 6. 7 G. & J., 170, Dulaney vs. Hoffman. 1 Md. Rep., 455, Waters vs. Dashiell. 1 Am. Lead. Cases, 50. 5 H. & J., 403, Kennedy vs. Boggs. The question then is, when does the statute begin to run in cases of such fraudulent preferences. If the fraud exists and be not known, the rule of equity is clear that the statute only begins to run from the discovery of the fraud. 2 Story's Eq., sec. 1521, (a.) 6 Wheat., 497, Prevost vs. Gratz. The bill here alleges that this discovery was made within three years before filing the bill, and the plea admits this allegation, not being accompanied with an answer denying the fraud or the time of its discovery. Now the plea, if available at all, must go either:--1st, to the possession of the property, or, 2nd, to the debts of the creditors represented by the complainant.

1st. A fraudulent assignee [**9]  stands exactly in the place of the fraudulent assignor as against a suing creditor of the assignor. He can take all the defences which would be available for the assignor at the same time and under the same circumstances, but he can take no other. The insolvent trustee in this suit represents as well the creditor as the assignor, and has the right of both free from the disabilities of the assignor. The first principle of the statute against conveyances to hinder, delay and defraud creditors, is, that as respects the claim of the creditor the property is considered as never having been out of the hands of the debtor, entirely irrespective of the length of time during which it may have been held by the fraudulent donee. No instance exists of a plea of limitations based on the possession of the property by a fraudulent donee in the English courts, and there is none in the Maryland courts. This court has never decided that a fraudulent grantee can plead that he has held the property for more than three years, and thus interpose the plea of limitations. They have only decided that he may plead limitations to the debts of the suing creditors. The reason is that the fraudulent donee stands [**10]  in the place of the donor; the property is regarded as in the donor's possession, and a plea by him of limitations based on possession would be an absurdity. The only mode in which limitations ever did, or ever could apply, in England, was on the ground of laches, in failing to prosecute the fraudulent donee after obtaining judgment and a right to execution against the donor, which was the condition precedent to a right to sue the donee. On these points see 5 Gill, 449, Worthington vs. Shipley. 1 Md. Rep., 455, 470, 472, Waters vs. Dashiell. 2 Brock., 285, 288, 289, Gallego vs. Gallego. 5 G. & J., 432, Birely & Holtz, vs. Staley. 2 H. & G., 191, Strike vs. McDonald. 7 How., 220, McLaughlin vs. Bank of Potomac. 11 Wheat., 213, Hinde vs. Longworth. 2 Dessa., 215, Buist vs. Smyth. 4 How., 503, 560, Michoud vs. Girod. 11 Wheat., 78, Brooks vs. Marbury. 6 Wheat., 481, Prevost vs. Gratz. 8 Pet., 244, Gregg vs. Sayre. 2 Bland, 26, Kipp vs. Hanna. 10 Pet., 177, Boone vs. Chiles. Story's Eq., secs. 437, 439, 1265, 1520, (a.) 7 G. & J., 170, Dulaney vs. Hoffman. 11 Mees. & Wels., 530, Grimsby vs. Ball.

2nd. The only other aspect in which a plea of limitations can be considered in such a [**11]  suit is as applicable to the debt of the creditor. Here again the right of the donee is the right of the donor. He has all his rights, but he has no more than his rights; for the principle of the law is, that it does not regard the property as at all, for any purpose, altered by the fraudulent conveyance. How far then is the plea of limitations applicable to the creditor's debt? As far in the mouth of the donee as it was in that of the donor, and no farther. In England there was no limitation to a judgment, and therefore there was none to a suit to enforce the judgment against the fraudulent donee, but the presumption of satisfaction from the lapse of twenty years. So long as execution can be obtained the right to levy it on the property fraudulently conveyed exists. This was available to the donee just as a plea of payment, accord and satisfaction or release would have been. In Maryland the plea of twelve years' limitation to a judgment would protect the donee if not sued until after judgment against the donor. If the donee be sued before judgment, under our act, then also he has open all the defences of the donor and none other. He may plead accord and satisfaction or release, or [**12]  he may deny the debt by non-assumpsit; as to a judgment, he may plead nul tiel record if the proceeding were after judgment; or he may plead limitations of three years to the debt if simple contract, or twelve years if under seal. And so this court have held in McDowell vs. Goldsmith, 6 Md. Rep., 319, and 2 Md. Ch. Dec., 370. But in no case has he ever been allowed to go behind a judgment and plead limitations to the original claim, because the judgment concludes him as well as the donor, unless rendered by fraud. 2 Pet., 107, Venable vs. Bank of U. S. 4 Wheat., 503, Wheaton vs. Sexton. It is therefore plain, that the plea of limitations in this case is utterly untenable, for there is no plea that all debts are barred by any limitation, and there may be debts by judgment or specialty which would not be barred for twelve years, while three years is the limitation here relied on. And there is no plea at all going to this point, but it rests exclusively on the accrual of the trustee's right against the donee, and has no relation to the debts he represents. The two points are totally distinct:--1st. If possession of the assets by the donee be the point, then it is immaterial whether the [**13]  debt accrued yesterday or ten years ago. 2nd. If the plea goes to the debt then the possession may have been only of yesterday, and yet the debt being barred cannot be enforced against the donee, because it could not against the donor. The plea in this case involves the additional absurdity, that but for the fraud the mortgagee could be compelled to account, but because of the fraud his possession is argued to have been adverse, and not as mortgagee, and so barred by lapse of three years. The complainant had no remedy at law which he could enforce and which he is now seeking to enforce in equity, and it is therefore absurd to say that there is any analogy in such a case between law and equity.

3rd. But if applicable the plea is badly pleaded; for, 1st it goes to the whole relief when it should be confined to so much of it as prays a decree avoiding the assignment; 2nd, it does not meet the averments of a discovery of the fund within three years; nor of the other fact, of the time consumed in vacating a fraudulent assignment of the equity of redemption of these assets to Hinkley and Woodward within three years from which this suit was brought; 3d, nor is the plea accompanied with [**14]  an answer going to the denial of these particular facts of avoidance by anticipation of the plea of limitations; nor is there any answer denying the fund in the assignment alleged in the bill. Story's Eq. Pl., secs. 674, 754, 815. 2 Daniel's Ch. Pr., 7, 13, 716, 720, 721, 762, 763. 3 G. & J., 491, 503, Carroll vs. Waring. 8 Gill, 322, 331, Negro Franklin vs. Waters. 3 Leigh, 729, Shields vs. Anderson. 2 Younge & Collyer, 58, Booksbank vs. Smith. 2 Sch. & Lef., 634, Hovenden vs. Lord Annesley. 2 Ball & Beatt., 118, Blennerhassett vs. Day.

William H. Norris for the defendant, argued:

1st. That as the appeal is from the decree dismissing the bill every point which will sustain the action of the court below is open upon the complainant's appeal, whether decided in favor of the defendant or against, or which are in fact presented by the record. Upon appeal from such a decree the simple question is, did the court below do right in dismissing the bill? This court has nothing to do with the reasons upon which the bill was dismissed. This is the result of the general principles of chancery law. 15 How., 465, 466. Corning vs. Troy Iron & Nail Factory. 1 Md. Rep., 395, Young vs. Frost.  [**15]  1 Cowen, 702, Atkinson vs. Manks. 16 How., 105, Piquignot vs. Penn. Rail Road Co. 6 G. & J., 46, Ellicott vs. Ellicott. 1 Gill, 248, Berry vs. Pierson. But this is additionally so by force of the acts of 1830, ch. 185, and 1832, ch. 302, sec. 6, the former of which declares, that upon appeal from the final decree all previous interlocutory orders are open for review. 11 G. & J., 364, Lee vs. Pindle. 3 Gill, 152, 153, Dugan vs. Gittings. 3 Md. Rep., 210, Boehme vs. Carr. Act of 1831, ch. 319. 6 How., 205, Forgay vs. Conrad. 7 Gill, 244, Mong vs. Bell. Acts of 1785, ch. 72, sec. 27; 1826, ch. 200, sec. 14, and 1818, ch. 193, sec. 1. Even at law such questions as arise on this appeal in favor of the appellee are examined on the appeal of the plaintiff when the judgment is against him and he alone appeals. This court has frequently said in common law cases, that if they see a plea of limitations which will bar the plaintiff's claim they will not send the case back even if they reverse. 1 Md. Rep., 115, Mudd vs. Harper. Ibid, 208, Dorsey vs. Dashiell. 4 G. & J., 470, Berry vs. Harper. 6 H. & J., 61, Turnpike Co. vs. Barnes. 6 Gill, 191, 200, Emory & Gault vs. Owings. This question therefore [**16]  being open the defendant insists:

2nd. That the special plea of limitations by the defendant is a complete bar to the suit, and completely bars the complainant until he avers that the provisional trustee had been kept in ignorance of his right of action by the concealment and fraud of the defendant, and such averment could not in truth be made, because Hinkley, the provisional trustee, was himself one of the grantees in the deed of trust from which the complainant alleges that he first discovered the transfer assailed by the bill. The complainant is the permanent trustee and he has no independent right to sue, but a derivative one only, through the provisional trustee. The act of 1816, ch. 221, undoubtedly intended that the title to sue should be vested in the provisional trustee, but the legislature omitted to make him a bonded officer. This defect was remedied by the act of 1819, ch. 84, secs. 7 & 8. Then came the act of 1825, ch. 205, sec. 8, which requires a deed from the insolvent to the provisional trustee of all his estate, both real and personal. Then the act of 1829, ch. 208, sec. 3, which vests in the provisional trustee, when he has filed his bond, "all the estate,  [**17]  property, effects, rights and claims of the insolvent debtor," and enacts that his appointment and bonding "shall operate as an authority to such trustee or trustees to take possession, for the benefit of the creditors of such insolvent, of all property, estate and effects, books, papers, accounts, bonds, notes and evidences of debt of such insolvent, without the necessity of such insolvent's executing a deed thereof, and to entitle such trustee or trustees to use all legal means for the recovery thereof." These various acts are all to be construed together, and they clearly intended to give the provisional trustee as full and ample powers to sue for and recover property fraudulently conveyed away by the insolvent, as to the permanent trustee. On this point see 5 H. & J., 408, Kennedy vs. Boggs. 2 Daniel's Ch. Pr., 739. 7 G. & J., 20, 43, Cole vs. Hebb. 9 Pick., 212, 246, 247, Farnam vs. Brooks. 9 Greenlf., 131, Cole vs. McGlathry. 1 Md. Rep., 471, 472, Waters vs. Dashiell. 2 H. & G., 26, 27, 28, Brown vs. Brice, and Act of 1834, ch. 293, sec. 5. We therefore insist, that the first plea was a complete bar to the complainant's bill.

3rd. The questions arising upon the second plea,  [**18]  which was sustained by the court below, relate, 1st, to the form of the bill and its allegations. As to this the defendant insists, that the bill is simply one to vacate a transaction void by the insolvent laws, and only asking for an account and delivery of the balance as subordinate to that design. The case of Alexander vs. Ghiselin only decides, that all the property to which the insolvent had the right of possession was transferred to his trustee, but it never decided that property deposited as security, apart from all fraud, could be taken possession of by the trustee. The bill therefore does not properly seek relief upon this transfer as a valid mortgage. It asks that the preference may be set aside as fraudulent, and because it calls for an account it is said to be a bill to redeem a mortgage. In such a bill as that there would be a tender of the debts due, and a bill which sets up a fraud as the ground of relief cannot be tortured into a bill for the redemption of a valid mortgage. 22 Eng. Ch. Rep., 257, 258, Ferraby vs. Hobson. Ibid., 322, Glascott vs. Lang. 7 Eng. Law & Eq. Rep., 259, 260, Price vs. Berrington. 2 Rhode Island Rep., 129, 132, Mt. Vernon Bank vs. Stone. Story's [**19]  Eq. Pl., secs. 27, 36, 251, and note 2. 16 Pet., 195, Hobson vs. McArthur. 6 H. & J., 29, Chalmers vs. Chambers. 1 Daniel's Ch. Pr., 412, (note 11,) 425, 426, 437, 438. This bill then is nothing but a bill to set aside an undue and improper preference under the act of 1834. All its allegations are to this point and it cannot, because it asks for an account, be treated as a bill for an account simply. The bill contains no charge that the transfer was fraudulent at common law. 2nd. But suppose the bill distinctly stated the three propositions:--1st, that the preference was fraudulent and ought to be set aside; 2nd, that the trustee was entitled to the funds in order for distribution, subject to liens and agreements to pay the defendant, and 3rd, that he was entitled to the surplus, treating the case as a mortgage, how then would the case stand? In such case the bill must advise the party of the alternative aspect of the case, so that he may answer, reply or plead. But no such case is presented by this bill, and if it was, the bill would still have been properly dismissed, because the purposes are wholly inconsistent and the double aspect would not help the case. 4 G. & J., 444, Burch [**20]  vs. The State. 6 G. & J., 231, State vs. Bank of Maryland. Ibid., 188, Evans vs. Iglehart. Story's Eq. Pl., secs. 245, 246, 249, 251, 254. 2 Md. Rep., 37, McElderry vs. Shipley. 2 H. & G., 41, Lowry vs. Tiernan. 17 How., 143, 144, Shields vs. Barrow. 1 Daniel's Ch. Pr., 463. Acts of 1816, ch. 221, sec. 6; 1812, ch. 77, sec. 1, and 1834, ch. 293. 7 Gill, 404, 405, Gardner vs. Lewis. 4 Md. Rep., 360, 361, Mayor & C. C. of Balto. vs. Norman. If the assignee of a bankrupt deals with a party who has intermeddled with the assets, he waives the fraud and cannot treat him as a wrongdoer. 7 Md. Rep., 272, Lanahan vs. Latrobe. 14 Eng. C. L. Rep., 50, Brewer vs. Sparrow. 28 Do., 29, Campbell vs. Fleming. See also on this point 6 H. & J., 266, Harding vs. Stevenson. 12 How., 83, Harris vs. Runnels. 1 Pet., 43, 44, Gaither vs. Farmers & Mechanics Bank. Chitty on Bills, 82, 91. 2 Pet., 539, Bank of U. S. vs. Owens. 7 Gill, 481, Albert & Wife, vs. Winn & Ross. 2 Starkie on Ev., 478.

4th. There was adequate remedy at law, and therefore the bill was properly dismissed. The violation of a statute is no fraud. The act of 1834 merely says, that such transfers as were before its enactment valid shall [**21]  be void. The trustee could clearly have maintained trover for the bonds, notes and goods transferred. Equity had therefore no jurisdiction in the case. 7 G. & J., 170, Dulaney vs. Hoffman. 3 Md. Rep., 383, Hertle vs. McDonald. 11 G. & J., 443, 444, Oliver vs. Palmer. 7 G. & J., 117, 120, Adair vs. Winchester. 1 Story's Eq., secs. 76, 79. 12 Georgia Rep., 9, Bowen vs. Johnson. 9 Metcalf, 470, Thayer vs. Smith. 7 Cushing, 181, Woodman vs. Saltonstall. 8 Ala. Rep., 743, Knotts vs. Tarver. 1 Kelly, 376, McLaren vs. Steapp. 12 G. & J., 480, Richardson vs. Stillinger. 4 H. & J., 46, Taylor vs. Ferguson. 1 H. & G., 221, Drury vs. Conner. 2 H. & G., 41, Lowery vs. Tiernan. 5 Sandford, 205, 207, N. A. Fire Ins. Co. vs. Graham. Act of 1801, ch. 74, sec. 6. The act of 1841, ch. 163, applies only to appeals by defendants, and therefore does not prevent this point from being considered in this case upon this appeal by the complainant.

5th. As to the question of limitations, the defendant insists that the general plea of limitations is a good bar. The creditors cannot pursue the property thus fraudulently as is alleged transferred. The trustee alone can do it. The plea of limitations then must [**22]  be directed against him alone, and the question then is, when did the right of action accrue to him? The transfer being fraudulent it accrued immediately and the statute began to run from that time. The trustee's right to sue vested immediately upon his bonding, and the possession of the defendant from that moment as against him was tortious. As against this right of the trustee we plead the statute of limitations, and we say it is a flat bar. At law there are no exceptions to be engrafted upon the statute except those found in the act itself, of 1715, ch. 23. Nor is there any difference between a court of equity and a court of law in this respect. In cases of concurrent remedy equity follows and obeys the law. 3 Md. Rep., 383, Hertle vs. McDonald. 6 Md. Rep., 336, McDowell vs. Goldsmith. 3 Gill, 161, 164, Dugan vs. Gittings. 11 G. & J., 372, Abell vs. Harris. 7 Gill, 76, Sindall vs. Campbell. 8 Yerg., 241, Walker vs. Smith. 9 Pick., 212, 246, 247, Farnam vs. Brooks. 5 Barbour, 393, Bucklin vs. Ford. 1 Law Lib., 28, Wilkinson on Limitations. 1 Gill, 248, Berry vs. Pierson. 2 G. & J., 310, Watkins vs. Harwood. 8 G. & J., 468, Planters Bank vs. Farmers Bank. 2 Daniel's Ch. Pr., 735,  [**23]  736, 739. Story's Eq. Pl., secs. 753, 754. Chitty on Cont., 817. 24 Wend., 602, 603, 606, 607, 608, Humbert vs. Trinity Church. 8 Gill, 331, Negro Franklin vs. Waters. 10 G. & J., 225, Tiernan vs. Rescaniere. 5 Mason, 152, 153, 155, Sherwood vs. Sutton. 17 Wend., 202, Allen vs. Mille. Douglas, 655, Bree vs. Holbech. 2 Younge & Col., 58, Brooksbank vs. Smith. 1 Story's Eq., sec. 78. 5 Mees. & Wels., 117, Browning vs. Paris. 22 Ala. Rep., 631, Newcombe vs. Leavitt. 26 Eng. Law & Eq. Rep., 428, Imperial Gas-light Co. vs. London Gas-light Co.

6th. The next question is, has the amended bill made any difference in the case? We say it has not, because fraud or ignorance makes no defence in cases where the remedy is concurrent at law and in equity. The question simply is, did a right of action accrue or exist for three years before the filing of the bill. If the amendment avails any thing, it changes the case to one of exclusive jurisdiction in equity, and this cannot be done by amendment, for it in effect makes a new case. 17 How., 144, Shields vs. Barrow. 10 Pick., 128, Pratt vs. Bacon. 1 Eng. Cond. Ch. Rep., 323, Taylor vs. Shaw. 22 Do., 408, 409, 410, Watts vs. Hyde. 7 How., 828,  [**24]  Stearns vs. Paige. 4 Paige, 538, Lloyd vs. Brewster. 1 Johns. Ch. Rep., 187, Lyon vs. Talmadge. 3 Do., 423, Shephard vs. Merrill. 14 Pet., 160, Walden vs. Bodley. 16 Wend., 476, 477, McCrea vs. Purmort. 5 Mason, 112, 113, Pratt vs. Northam. But the amendment at last brings the case to a simple one of ignorance of rights, which is no bar to the running of the statute. It is simply a sheer case of igno rance on the part of the complainant, without any fraud or concealment on the part of the defendant. In such cases ignorance is no bar to the plea of limitations. 11 G. & J., 372, Abell vs. Harris. 24 Wend., 605, 606, Humbert vs. Trinity Church. 2 Jac. & Walk., 139, 142, Cholmondeley vs. Clinton. 1 Eng. Law & Eq. Rep., 48, 49, East India Co. vs. Paul. In those States where fraud is held a good reply to the plea of limitations, it is held that the fraud must be the fraud of the defendant. 3 Greenlf's Rep., 405, Bishop vs. Little. 9 Do., 131, Cole vs. McGlathry. If this be so the statute will run down to the time of the filing of the amendment introducing new matter. 3 Iredell's Ch. Rep., 535, 542, 543, Christmas vs. Mitchell. 1 McLean, 85, 86, Miller vs. McIntire. 1 Daniel Ch. Pr., 455,  [**25]  and notes. Douglas, 655, Bree vs. Holbech. 2 Md. Ch. Dec., 391, McDowell vs. Goldsmith. We therefore insist:--1st, that the complainant should not have been allowed to amend his bill as he did after hearing of the pleas of the defendant; 2nd, that the amendment was not sufficient in law after the pleas filed by the defendant; and 3rd, that, at all events, the amendment extended the limitation down to the time of applying therefor, on the 14th of February 1853.

7th. That the pleas were not too wide and did not need the support of an answer, see Story's Eq. Pl., secs. 751, 753, 754. 1 Daniel's Ch. Pr., 598, note 2. 6 Pet., 326, New Jersey vs. New York. 8 How., 222, Maxwell vs. Kennedy.  

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

OPINIONBY:
MASON 

OPINION:

 [*84]  MASON, J., delivered the opinion of this court.
Many grave and important questions have been discussed with much ability by counsel in the progress of their argument, which we think the exigencies of this case do not require us to determine upon the present appeal.
Whatever force there would have been in the suggestion, if made at the proper time, that a court of equity had no original jurisdiction over [**26]  this case, it is now too late for us to entertain such an objection, inasmuch as none was taken, as required by the act of 1841, chap. 163, in the court below. By that act it is provided, that the defendant shall not, in the Court of Appeals, rely upon any objection to the jurisdiction of the court below, unless it appear by the record, that such objection was raised below.
The appellant as permanent trustee in insolvency of Carey, Wethered and O'Donnell, on the 8th of December 1850, filed his bill in equity, making substantially the following case: that the firm above named became embarrassed in 1839; and being absolutely insolvent in the following year, with full knowledge of their condition, transferred large sums of money and other property, constituting nearly the whole assets of the firm, to several preferred creditors. That Gibson, the defendant, received of such assets more than $ 18,000, which sum exceeded his claim against the firm, and his liabilities for them; that at the time of the said transfer the firm was utterly insolvent, and Gibson knew of such condition; that the several members of the firm applied for the benefit of the insolvent laws in 1841, and that the appellant [**27]  became permanent trustee for all the parties, on the 23rd of October 1846; that Gibson 

 [*85]  has never accounted for any of the assets which came into his hands, &c.
Subsequently, by an amended bill, it was further alleged, that after the assignment to Gibson the insolvents made a deed to Hinkley and Woodward, dated September 24th, 1840, embracing the balance of their assets and property, and under which deed the grantees took possession of the books and papers of the firm. Upon a bill filed in equity by the permanent trustee to vacate this deed, a decree was passed 12th of July 1848, vacating the deed and transferring the property, books and papers of the insolvent, embraced by said deed, to the trustee. From these books he discovered, for the first time, the transfers above mentioned to the present defendant, and that he had no other means of ascertaining the fact. The prayers of the bill were for a discovery, an account, and for a delivery of the assets in the defendant's possession to the complainant, and for general relief, &c.
The defendant pleaded two pleas of limitation, namely:
1. That Hinkley was appointed provisional trustee of Carey on the 12th of January 1841;  [**28]  and of Wethered on the 13th of August 1841; and Horsey became provisional trustee of O'Donnell on the 13th of July 1841; and that the cause of action accrued to Hinkley, as provisional trustee of Carey, Wethered & Co.; and to Horsey, as provisional trustee of O'Donnell, more than three years before bill filed, or before serving or suing out process, and also more than three years before the appointment of complainant as permanent trustee; nor did the defendant promise within three years before bill filed, or process served or issued, nor either when or since the provisional trustees were in office, to account or make satisfaction for any matters in the bill.
2. That the cause of action accrued to the complainant more than three years before bill filed, or before serving or suing out process; and defendant did not promise complainant to account for, or pay any thing for any matter charged in the bill.
The court overruled the first and sustained the second plea, and dismissed the bill. Both parties it seems appealed from this decision.

 [*86]  Without inquiring into the regularity of the appeal of the defendant, because of the circumstance that the decree [**29]  was in his favor, the court is nevertheless of opinion, that all the advantages which he seeks under his appeal can be attained under the complainant's appeal. The question presented upon the appeal regularly before us is, whether the decree dismissing the bill was properly passed? and if either of the defendant's pleas presents a good ground of defence to the case as made by the complainant's bill, the decree must be affirmed, and it matters not upon which plea the court below based the dismissal of the bill.
The second plea, in its connection with the amended bill, raises the question, in addition to the question of the general inapplicability of either plea to this particular transaction, whether the three years' limitation began to run from the appointment and qualification of the permanent trustee, or from the time the fact of the alleged fraudulent transfer to Gibson came to his knowledge? This is a most important question, and one by no means free from difficulty, but as it does not enter into the first plea, and as the court have no difficulty in determining that that plea was improperly overruled, we are relieved from the necessity of deciding the question upon this appeal.  [**30]  
It is not charged in the bill that the provisional trustees had no knowledge of this alleged fraudulent transaction. Indeed such a theory is expressly negatived by the fact that Hinkley, who was the provisional trustee of two of the three insolvents, was also one of the grantees of the deed, under which the possession of the books and papers of the insolvent firm passed to him, and from which knowledge of the transfer was to be acquired.
The two remaining questions presented by the first plea, which we are required to determine, are, first, does the present proceeding disclose such a transaction or trust to which the plea of limitations would be inapplicable? and if not, then, secondly, does the insolvent system of Baltimore city confer power upon the provisional trustee to sue in such a case as the present, and thereby bring him and the creditors he represents 

 [*87]  within the operation of the statute of limitations, which statute begins to run from the time the cause of action accrued, provided there is no disability existing at the time in the party entitled to sue?
It is certain upon the facts disclosed by the bill, that an action or actions at law would have been maintained [**31]  by which the relief now sought could have been fully secured, whether equity possesses concurrent jurisdiction or not. This being conceded, it has been settled by this court, that in all cases of concurrent jurisdiction, between courts of law and equity, the statute of limitations is equally obligatory in each court.  Watkins vs. Harwood, 2 G. & J. 307. Dugan vs. Gittings, 3 Gill 138. Hertle vs. Schwartze, 3 Md. 366.
We think this principle disposes of the first objection taken to this plea of limitations.
Next, as to the second point, namely, the right of the provisional trustee to sue. True it is, that the case of Kennedy vs. Boggs, 5 H. & G. 403, expressly decided, that the act of 1816, chap. 221, the act under which the local system of insolvency for Baltimore city was created, did not confer any power upon the provisional trustee to sue for the recovery of the property of the insolvent from third parties, and if the legislation upon this subject had rested here, we would have had no difficulty in sustaining the views of the appellant upon this point. But to meet a case like the present it would [**32]  seem that the act of 1829, chap. 208, was enacted. By the third section of that act, in express terms, the right to the possession of all the property, &c., of the insolvent, is conferred upon the provisional trustee, with power "to use all legal means for the recovery thereof." Under this act there is no room to doubt that there was full power in the provisional trustees to sue in this case as fully as the permanent trustee, and that limitations began to run against them from the time of their appointment and qualification as such, and when once commenced limitations continued to run against, also, the permanent trustee.
For the reasons assigned we regard the plea of limitations as a flat bar to a recovery in this proceeding, and therefore affirm the decree.
Decree affirmed. 

28 of 44 DOCUMENTS 

JOSEPH BLIMLINE vs. DAVID COHEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 147; 1855 Md. LEXIS 39 

DECEMBER, 1855, Decided 

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

Replevin by the appellant, to recover certain goods, merchandise and chattels contained in a store in Baltimore city, which had been mortgaged by the appellant to the appellee, to secure the sum of $ 500. The damages claimed in the declaration were $ 500. The property as appraised in the schedule annexed to the return of the writ amounted to $ 538.05. Pleas, non cepit and property in defendant.

The verdict and judgment were in favor of the defendant upon an instruction granted by the court, (MARSHALL, J.,) that the plaintiff was not entitled to recover, if the jury believe that the goods actually taken and delivered to the plaintiff were then of the value of more than $ 500, to which ruling, as well as to the refusal to grant several prayers offered by him, the plaintiff excepted and appealed. The ground upon which this court based its decision renders it unnecessary to state the questions which were presented by the prayers or the arguments of counsel thereon.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The 10th sec. of the 4th art. of the constitution giving to the Court of Common Pleas "jurisdiction in all cases where the debt or damage claimed shall be over $ 100, and shall not exceed $ 500," does not confer upon that court any original jurisdiction in actions of replevin. 

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.; by Wilson N. Carr and Wm. Pinkney Whyte for the appellant, and [**2]  Geo. Wm. Brown for the appellee.  

OPINIONBY:
LE GRAND 

OPINION:

 [*147]  LE GRAND, C. J., delivered the opinion of this court.
In the view we have of this case it is not necessary we should examine the various points raised and discussed by counsel. We are of the opinion that the Court of Common Pleas has not any original jurisdiction in actions of replevin. Its jurisdiction is limited and defined by the 10th section of the 4th article of the constitution. That section declares the Court of Common Pleas "shall have jurisdiction in all suits 

 [*148]  where the debt or damage claimed shall be over one hundred dollars, and shall not exceed five hundred dollars." Language similar to this in the old acts of Assembly, giving jurisdiction to justices of the peace, was never considered as conferring on them jurisdiction in actions of replevin, and it was therefore found necessary to pass other acts conferring it in direct terms.
Judgment affirmed. 

29 of 44 DOCUMENTS 

ROBERT PURVIANCE, JR., Permanent Trustee of WILLIAM BOSLEY, vs. WILLIAM W. GLENN and others, Exc'rs of JOHN GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 202; 1855 Md. LEXIS 45 

DECEMBER, 1855, Decided 

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

This is an appeal from an order of the court below, sitting in insolvency, passed under the following circumstances:

Bosley petitioned for the benefit of the insolvent laws and John Glenn was appointed his permanent trustee in March 1828. In July 1853 Glenn died, and in October of that year Purviance, the appellant, was appointed permanent trustee in his place, and shortly thereafter filed his petition in the court below against Glenn's executors, in which he states substantially, that Glenn received large sums of money and property belonging to the insolvent's estate, but died without having settled the trust or in any way accounted for the property so received by him. The petition then prays that the executors may render an account of all moneys and property received by their testator as such trustee, and that the same with interest may be paid and delivered to the petitioner.

The answer of the executors admits that considerable property of Bosley passed into the hands of their testator as his trustee, but alleges that said Glenn was the attorney and representative of the largest portion of Bosley's creditors,  [**2]  and was able and willing at all times to meet their demands, and that if any balance remained in his hands it was because in his multiplied engagements the trust remained unadjusted, he having never been required by the parties interested to close it; and because, as petitioner well knew, their testator claimed a large portion of the fund as his own, by virtue of an agreement between him and the creditors. The answer further alleges the willingness of respondents to account for the fund and pay over whatever may be due the petitioner if the court should assume jurisdiction of the matter, but it insists that though the court has power to control and direct trustees of insolvents it has no summary jurisdiction over the representatives of trustees; and that inasmuch as respondents have defences and claims upon the trust fund which can only be properly heard and determined in a court of equity, they except to and deny the jurisdiction of the Court of Common Pleas, and ask that the petition be dismissed.

To this answer the petitioner excepted as insufficient for various reasons, which need not be stated. The court, (MARSHALL, J.,) ordered the petition to be dismissed; "the court thinking [**3]  that they have no jurisdiction over the executor in this case, but that he must be proceeded with as other debtors of the insolvent estate, at law or equity." From this order the petitioner appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

The insolvent courts have no jurisdiction to compel the executors or administrators of deceased trustees to account in these courts for the trust estate.

These courts have exclusive jurisdiction in the distribution of insolvents' estates and may proceed in a summary way against the trustees for default or neglect of duty.

In regard to the particular classes of trusts confided to them, these courts, in the exercise of a special authority, proceed upon principles of equity without being courts of equity.

The trustee of an insolvent may proceed to collect the property of the insolvent in courts having jurisdiction of the subject matter, as in other controversies, but when collected he must account for and distribute it in the insolvent court.

These courts proceed under special powers conferred by acts of Assembly, and the authority invoked must be shown to be within the limited jurisdiction.  

COUNSEL:
T. Parkin Scott for the appellant, argued:

1st. That the county court, under the late, and the Court of Common Pleas under the present constitution, has the sole and exclusive authority and jurisdiction to appoint trustees of insolvent debtors; and also the sole and exclusive authority and jurisdiction to administer and distribute the assets of an insolvent's estate. 4 G. & J., 394, Glenn vs. Karthaus. 5 Gill, 179, Alexander vs. Ghiselin. 7 Do., 170, Carter vs. Dennison. Ibid, 398, Gardner vs. Lewis. 9 Do., 240, Powles vs. Dilley. 1 Md. Rep., 143, Pierson vs. Trail. Ibid, 471, Waters vs. Dashiell. 2 Do., 17, Glenn vs. Gill. 3 Do., 463, Manahan vs. Sammon. To enable the courts to exercise the authority and jurisdiction thus given they must have power over trustees appointed by them, and also over their assignees in fact and in law. Acts of 1805, ch. 110, secs. 4, 10. 1819, ch. 84, sec. 8. 9 Gill, 240. The Court of Common Pleas is limited in jurisdiction [**4]  as to subjects, but has exclusive and unlimited jurisdiction in regard to the matters confided to it. Cons., art. 4, sec. 10. We therefore say the order appealed from must be reversed and the case sent back for an account and delivery of assets as prayed in the petition.

2nd. But it is objected that the appellees have defences and claims upon the trust fund which can only be properly heard and determined in a court of equity, and that they have a claim in virtue of an agreement between Glenn and the creditors. But the court of chancery, as the cases cited show, has no jurisdiction to settle the claims of creditors, and that must be done before Glenn's proportion of those claims can be ascertained. And assuming for the argument, that he has a claim, a court of equity could not adjust it without assuming jurisdiction of the insolvent's estate, which it is forbidden to do. 1 Md. Rep., 143, 471. 2 Do., 17. 3 Do., 463. Again, conceding that the account between the estate of the insolvent and the executors of the deceased trustee ought to be adjusted according to the practice and principles of courts of equity, it is settled law that the courts to which jurisdiction in insolvency is [**5]  exclusively given must proceed and determine according to equity. They must surrender the property to the present trustee and then come in with their claim. 7 Gill, 172. Ibid., 398. Until the present trustee knows what property was sold by the late trustee, and what claims were collected by him in his lifetime, and until he has possession of the title-papers, books and accounts of the insolvent, he cannot reasonably proceed to execute and complete the trust.

F. K. Howard and S. T. Wallis for the appellees, argued:

1st. That the Court of Common Pleas, sitting in insolvency, is a court of limited jurisdiction, clothed with no powers except those specially given by acts of Assembly; which acts have not in any case extended the summary jurisdiction of the court beyond the person of a delinquent trustee, leaving the remedies of his successor and of creditors to be exercised against his representatives after his decease through the ordinary courts of law and equity. The 10th sec. of the act of 1805, ch. 110, giving summary powers to the court, confines itself exclusively to existing trustees. The act of 1819, ch. 84, sec. 8, is confined to provisional trustees failing to comply.  [**6]  4 G. & J., 394, was the case of a provisional acting trustee refusing to give up the assets, and was clearly a case for summary proceedings. See also acts of 1832, ch. 203, sec. 3; 1833, ch. 173, secs. 5, 6, and 1835, ch. 235. The concession that suit may be brought at law on the trustee's bond yields, the point that the jurisdiction of the insolvent court is not exclusive.

2nd. That the jurisdiction contended for by the appellant would involve the settlement of the deceased trustee's estate in the insolvents' court, and the exercise of the powers of the orphans court, as well as the general jurisdiction of equity over the estates of decedents. No such extraordinary jurisdiction was ever contemplated by the legislature in giving the insolvents' court the right of making distribution according to equity. Acts of 1836, ch. 133, sec. 2. 1798, ch. 101, sub-ch. 14. 1820, ch. 174, sec. 3. 1831, ch. 315, sec. 7. 1 H. & G., 96, McCulloh vs. Dashiell. 7 Gill, 172. 4 Md. Rep., 529, Dent vs. Maddox. 6 Do., 347, Lowe vs. Lowe. All the authorities cited on the other side to this point are cases of distribution, and in that particular the insolvents' courts follow the courts of equity.  

JUDGES:
The [**7]  cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.  

OPINIONBY:
TUCK 

OPINION:

 [*205]  TUCK, J., delivered the opinion of this court.
We are of opinion that the petition of the appellant was properly dismissed, for the reason stated by the Court of Common Pleas.
It is very clear, as shown by the appellant's counsel, that 

 [*206]  the Court of Common Pleas has exclusive jurisdiction in the distribution of insolvents' estates in the city of Baltimore, and that it may proceed in a summary way against trustees, under the circumstances mentioned in the acts of Assembly referred to on this point. But it does not follow, that these powers may be exerted against their executors or administrators for the purpose of compelling them to account in that court for the trust estate. This action of the court against the trustee is based on some alleged default or neglect of duty in his capacity as such, which cannot be imputed to his executor or administrator. The latter derives no authority from the insolvents' court, is not under its control nor accountable to it, any more than the trustee is to the orphans court.
Although trusts are peculiarly the subject of equity jurisdiction, this [**8]  particular class of trusts has been confided to courts of common law, in regard to which, in the exercise of a special authority, they proceed upon principles of equity without being courts of equity.  Carter vs. Dennison, 7 Gill 157. We must not mistake this control of the court over the trust funds, for the power of the trustee to institute proceedings in the proper tribunals for the purpose of collecting them together. Property belonging to the insolvent may be in different places, or suits in equity may be necessary to vacate assignments; in all which cases it is manifest, that the trustee can proceed only in the courts having jurisdiction over the subject matter, as in other controversies. But when the suits are terminated, the funds must be accounted for in the court from which the trustee derives his authority. So exclusive is this jurisdiction, that where a bill was filed in equity to vacate a fraudulent deed and the deed avoided, that court was not allowed to retain the case and grant complete relief by distributing the proceeds, nor even to the extent of making sale of the property by a trustee of its own appointment, but the case was left to the power [**9]  and action of the trustee in insolvency. Jamison vs. Chesnut, Ante, 34. The prevention of confusion and possible conflict of jurisdictions is one of the reasons assigned for confining the settlement of these trusts to one and the same tribunal. 5 Gill 138. Waters vs. Dashiell, 1 Md. 455. This consideration 

 [*207]  applies with equal force in restraining these courts from drawing within their special jurisdiction matters more properly cognizable in other courts, and thereby, as incident to the duty of making distribution of the insolvent's estate, possessing themselves of the power to marshall the assets of deceased trustees, when the laws have appointed different tribunals for the settlement of their estates.
If the estate be insolvent, (and we do not think the principle is affected by the admission of assets in this case,) the common law court, sitting in insolvency, cannot ascertain the amount due by it on account of the trust without investigating the whole personal estate, determining questions of priority and making a ratable dividend among the creditors. This, it is argued, can be done as readily as a plaintiff's proportion of assets [**10]  is ascertained in suits at law. Probably, looking to the different manner of taking the account, it may be accomplished with greater justice to the parties than in a suit at law; but we must pay regard to judicial systems as we find them established. At law, relief is granted in the exercise of common law powers by courts of general jurisdiction, in which administrators have always been impleaded; whereas, these courts, in matters of insolvency, proceed under special powers conferred by acts of Assembly, and the authority invoked must be shown to be within the limited jurisdiction.  Bowie vs. Jones, 1 Gill 208. Besides, if this proportion of assets can be determined by the court, sitting in insolvency, as in cases at law against the executor or administrator, why may not the proceeds of the real estate be made applicable there also, as in suits in equity when the personal estate is insufficient? Indeed, if the appellant's present pretensions be acknowledged as within the purview of the exclusive jurisdiction of the Common Pleas, as a court of equity, pro hac vice, it would seem to be quite as appropriate that it should determine the claimant's dividend of the [**11]  proceeds of the realty as to call for an account of the personal assets. Executors and administrators are liable only in respect of their relation to the personal estate, and on the same principle the heirs and devisees would be responsible as representing the real assets, and therefore subject to be called on to make good 

 [*208]  thereout any deficiency of the fund primarily liable for the payment of debts. But it is manifest, that these courts have no such jurisdiction over the real estate of a deceased debtor.
It may be, as urged on the part of the appellant, that defences will be relied on by the appellees, if sued elsewhere, by which the claim may be defeated altogether. On this point we intimate no opinion. But if the remedy is gone by lapse of time, the fault is not with the present trustee. The creditors had ample redress under the acts of Assembly against the former trustee for any supposed default, and cannot now offer this suggestion as a ground for clothing the Common Pleas with powers not granted by the constitution and laws.
Order affirmed, with costs. 

30 of 44 DOCUMENTS 

HENRY CLINE and ROBERT FRANCIS, vs. WILLIAM D. MILLER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 274; 1855 Md. LEXIS 51 

DECEMBER, 1855, Decided 

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

Assumpsit, by the appellants against the appellee, on an acceptance of defendant on a draft drawn by one Andrew Birmingham in favor of plaintiffs. The declaration contains the common counts only. Plea, non assumpsit.

Exception. The facts of the case are fully stated in the opinion of this court. After the evidence was closed, the defendant asked the court to instruct the jury, that by the terms of the acceptance offered in evidence, defendant was only bound when the houses, referred to in the order accepted, were plastered, to give to plaintiffs his or his firm's note, at six months, for the balance then due the plaintiffs, not exceeding the amount of bricks specified in the order, as an accommodation note to be provided for by the plaintiffs at maturity, unless, in the mean time, whilst said note was running to maturity, the said houses be completed by said Birmingham, in which event said accommodation note was to become a real one; and if the jury shall find from the evidence that he tendered such accommodation note to the plaintiffs, or either of them, on condition they would sign the receipt given in evidence, and that [**2]  they declined receiving the same on that condition, and that the houses were not completed by Birmingham before the institution of this suit, then the plaintiffs are not entitled to recover upon any of the counts in their declaration. This prayer the court, (FRICK, J.,) granted, and the plaintiffs excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A contractor mortgaged the lots, on which he was about to erect certain houses, to defendant, to secure advances for the purchase of materials for their erection, to be made by the latter in instalments as the houses progressed to completion. He then gave an order upon defendant, in favor of plaintiffs, for bricks to be furnished by them, payable out of these advances in four instalments, the third of which was payable when the houses were plastered, and the balance when they were completed by the contractor. Defendant accepted this order on condition, that when the houses were plastered he was to give his note for the balance then due the plaintiffs, at six months, "for their accommodation." The bricks were furnished to the contractor upon the basis of this order and acceptance. The two first instalments were duly paid, and when the houses were plastered, the instalment then due, instead of being paid by a note at six months, was paid in cash, deducting five per cent. Defendant then for the balance tendered his note at six months, provided plaintiffs would sign a receipt that it was given for their accommodation, and that they were to pay it unless the houses were completed by the contractor. This they refused to do and sued upon the acceptance. The contractor never did complete the houses. HELD:

That by this acceptance the note to be given was a note for the accommodation of the plaintiffs, in the legal and technical sense of that word, to become the real note of defendant only in case the houses were completed by the contractor, and this contingency never having occurred, the plaintiffs could not recover.

A payee may refuse a conditional or qualified acceptance, yet if he takes such an one when offered, he can only claim payment according to the condition or qualification.

As between the original parties to a bill or note, the total or partial want or failure of consideration may be relied on as a defence, and a partial failure avoids the note only pro tanto.

Where this court can see from the admitted facts of the case that the appellants have no cause of action, a procedendo will not be ordered, though the prayer excepted to may be wrong.  

COUNSEL:
Orville Horwitz for the appellants, argued:

1st. That the words, "for their accommodation," in the acceptance, mean for the convenience of all parties, including Miller, and not simply that Miller was to give an accommodation note, in the legal, technical sense of that term. The circumstances of the case fully justify this construction. The original order was to pay $ 250 in cash when the houses were plastered. This condition was varied by the acceptance, and instead of this cash payment, he pays by a note at six months. This was for Miller's accommodation and was the consideration upon which he was to give a note for value, and not an accommodation note.

2nd. The fact that when the houses were plastered Miller paid Cline & Francis, instead of $ 250 in cash, the sum of $ 237.50, equivalent to a note at six months, at a discount of [**3]  five per cent., clearly shows that Miller himself construed these words of the acceptance to mean a note for value for the accommodation of all parties, and not simply an accommodation note.

3rd. The materials furnished by Cline & Francis were bricks, which went into the houses to secure Miller for his advances, and this enhancement of his security was the consideration for his giving his note. It cannot be said, therefore, that there was no consideration for this note, for both the fact that the materials furnished went into the houses and thus enhanced Miller's security for the advances and the extension of six months on the cash payment when the houses were plastered, furnished ample consideration for a note for value.

4th. Again, this was an order drawn upon a fund in the hands of Miller. He had then in his hands, due Birmingham, more than $ 3000 when this order was drawn and accepted. His obligation to pay it is, therefore, upon this ground alone, clear. Again, the acceptance was good for the amount due when the houses were plastered, and being good for part, is good for the whole. Byles on Bills, 224, 226.

John H. Ing and Thomas W. Hall, Jr., for the appellee,  [**4]  argued:

1st. That the words, "for their accommodation," in this acceptance, have a well defined and settled meaning when used with reference to bills of exchange and promissory notes, in accordance with which established signification in commercial usage they must be taken to have been used by Miller, and to have been understood by the parties.

2nd. That an accommodation note is one drawn or endorsed, without consideration, by the accommodation drawer or endorser, to enable the party accommodated to raise money on it or otherwise to make use of it. Byles on Bills, 100, 323. In this case Miller had contracted with Birmingham to advance on certain houses certain sums, at stated periods, in the progress of the buildings, the last advance to be made when the houses "were fully completed and finished." His liability to make these advances was therefore dependent and conditional. The houses never having been completed by Birmingham Miller was released from all liability to make the fourth advance, which, under his contract, was payable only in the event and at the date of their completion. The order accepted by Miller was to pay the appellants certain sums in instalments "out of [**5]  the above named advances." If, therefore, in consequence of the non-completion of the houses no liability of Miller ever accrued to pay the last advance, neither was there any liability on his part to pay the appellants the balance claimed in this action, payment thereof, by the terms of the order, being expressly made dependent on the same contingency as that of the advance out of which it was to be made. Any note therefore drawn by Miller in favor of the appellants, before the completion of the houses, would have been wholly without consideration on his part, and as between the parties an accommodation note. A fortiori must such be the case where it was expressly stipulated that the note so to be given to the appellants should be "for their accommodation." The materials furnished do not constitute any consideration as between the parties to this suit so as to make a note, given by Miller on account of a balance due for such materials, for that reason a note for value and not an accommodation note, because in fact the materials were furnished, not to Miller but to Birmingham, and the liability of the former to pay for them grows out of the fact of his acceptance of Birmingham's order,  [**6]  and must be expressly limited by the terms and conditions of that order and acceptance.

3rd. That the obvious intention of Miller, to be inferred, as well from all the circumstances of the case as the use of the words, "for their accommodation," was to accommodate the appellants; that is by substituting for a future and uncertain cash payment, contingent on the future completion of the houses by Birmingham, a present loan of the name and credit of Miller, to enable the appellants, for their accommodation, to raise money thereon, necessarily with the implied understanding, that if the houses never were finished the note should be provided for at maturity by the parties accommodated. The receipt demanded by Miller and the prayer granted by the court below were therefore equally justified by a proper view of the rights of the parties and the facts of the case. The words "for their accommodation" do not signify for the convenience of all parties, Miller included, but for the accommodation or convenience of the appellants exclusively. The words of the the acceptance, (which must be construed together,) are, "I will give my note or my firm's note for the balance then due Cline & Francis [**7]  at six months for their accommodation," and can by no construction be understood to imply a note for Miller's accommodation. The fact that when the houses were plastered, Miller, instead of paying $ 250 in cash, (then actually due,) paid $ 237.50, equivalent to a note at six months, at a discount of five per cent., affords no foundation for the inference that thereby Miller has himself construed the words in the acceptance in favor of the appellants, but on the contrary their acceptance of this $ 237.50 in satisfaction of their demand at that time, and their omission, (the houses being then plastered,) to claim a similar liquidation of "the balance then due them," affords a strong inference that they did not consider themselves entitled to any other than an accommodation note for such balance, and that they then acquiesced in the construction evidently insisted on by Miller, that they were entitled to a "note for value" only for the third instalment of $ 250 and not for the balance, the payment of which was made dependent on the completion of the houses.

4th. That upon a fair construction of the terms of the order of Birmingham and the acceptance of Miller, considered as it properly [**8]  and necessarily must be, in connection with the terms and conditions of Miller's contract with Birmingham, set forth in the mortgage, independently of the use of the words, "for their accommodation," and on the theory of a general and unqualified acceptance of the order by Miller, the non-completion of the houses by Birmingham, operated as a complete release of all and every liability on the part of Miller to pay the appellants the balance sued for in this action. It cannot be said that the money to pay this balance is in the hands of Miller by virtue of his contract with Birmingham, contained in the mortgage, because by the express limitation of Birmingham's order, as accepted by Miller, this balance was payable exclusively out of the fourth instalment to be due "when the said houses are completed by me," (Birmingham.) In fact the houses never were so completed. Birmingham never became entitled to the fourth instalment out of which this balance was to be paid; and even if Miller had in his hands, (which cannot be inferred,) any balance of the first three instalments he had no right, under the order, to appropriate it to Cline & Francis beyond $ 750 as against Birmingham or his assigns.  [**9]  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*279]  ECCLESTON, J., delivered the opinion of this court.
On the 26th of November 1851, Andrew Birmingham executed a mortgage to William D. Miller to secure certain advances agreed to be made by Miller for the purpose of aiding and assisting Birmingham in the erection of ten houses, on certain lots of ground in Baltimore, the same day leased by Miller to Birmingham. Those advances were to be $ 400 on each house, provided they were completely finished by Birmingham. The security intended by the mortgage being dependent upon the progress of the houses to completion, it was stipulated that $ 75 on each should be paid by Miller when the second story of joists should be laid, $ 100 when the roofs should be put on, $ 125 when the houses should be plastered, and $ 100 when the same should be fully completed and finished. The whole sum of $ 4000 thus to be advanced was to be expended in the purchase of materials for, and in defraying other expenses necessarily incurred by Birmingham in, the erection and construction of the buildings. The appellants, Cline & Francis, (who were brick-makers,  [**10]  ) received an order 

 [*280]  from Birmingham on Miller, dated the 29th of November 1851, in the following words:
"Mr. William D. Miller,--Please pay Messrs. Cline & Francis for two hundred and fifty thousand bricks, more or less, to say, for the run of kiln six dollars and fifty cents per thousand, and fifteen dollars for front brick per thousand, to be paid out of advances made to me on ten houses to be built in Gay street, between Caroline and Dallas, that is to say, twenty-five dollars on each house when the second floor of joists are laid, and the same amount on each when roofed in, and the same amount on each when plastered, and the balance to be paid when the said houses are completed by me. It is also understood they are to furnish me the paving brick at $ 6.50 per thousand.
ANDREW BIRMINGHAM."
On which order was endorsed the following acceptance: "December 10th, 1851. Accepted with the condition, that when said houses are plastered I will give my note or my firm's note for the balance then due Cline & Francis, not exceeding the amount of bricks specified herein, at 6 months, for their accommodation.
WILLIAM D. MILLER."
On the basis of this order and acceptance the [**11]  appellants furnished to Birmingham, prior to the 1st of August 1852, bricks to the amount of $ 1751.37. On the 13th of March 1852, the first instalment of $ 250, or $ 25 on each house, was paid under the order; and the second instalment of the same amount was paid on the 23rd of April in the same year. On the 21st of July following, and after the ten houses were all under roof and plastered, payment of the third instalment was made under the following circumstances: It was suggested that the sum of $ 250 was not then payable in cash, but that Cline & Francis were only entitled to a note for the same at 6 months, whereupon they made an abatement of 5 per cent. or $ 12.50. The receipt given for this payment is, as follows:
"Received, July 23rd, 1852, amount of 3rd instalment of $ 250.00, of W. D. Miller, on the within order.
"$ 250.00
"500. 12.50
"237.50
CLINE & FRANCIS."

 [*281]  On the 24th of August 1852, the note of the defendant, at six months, dated the 13th of the same month, for the balance then due the plaintiffs for bricks, was tendered to them by the defendant. Which note was offered on the condition that the plaintiffs, or one of them, would sign a receipt acknowledging [**12]  the note was given for their accommodation; and that if at its maturity the houses should not be completed by Birmingham, then they, the plaintiffs, were to take up and pay the note, they having no claim on Miller for the payment of the note, until the houses should be completed by Birmingham, but that when so completed then the note was to be paid by Miller, and not otherwise. The plaintiffs refused to sign the receipt, and instituted this suit on the 6th of January 1853. The houses never were finished by Birmingham, and the defendant denies that he is responsible to the plaintiffs.
The original contract for the bricks having been made between the plaintiffs and Birmingham, and it being admitted that they were supplied by the former to the latter, "on the basis of said order and acceptance," the liability of Miller, if any exists, must rest upon the order and acceptance; and the words "for their accommodation," at the conclusion of the acceptance, have given rise to the controversy.
The terms on which the defendant proposed giving his note not having been acceded to by the plaintiffs, none was given; and this suit is based upon the acceptance alone, the nar containing no special [**13]  count but the common counts in assumpsit. The dispute is whether the plaintiffs can recover the fourth or last instalment mentioned in the order; the other three, it is admitted, have been paid, and no claim is made for either of them.
The plaintiffs insist there was such consideration for the acceptance as shows it not to be what the law considers accommodation paper, that an accommodation note in its legal sense was not designed, but the word accommodation simply meant for the convenience of the parties. In support of this view it is said, that by the contract between Miller and Birmingham, and by the terms of the order, when the houses should be plastered the former was to pay two hundred and 

 [*282]  fifty dollars in cash, whereas by the acceptance he was to give a note at six months, when the houses were plastered, for both the last instalments. By this he gained a credit of six months instead of paying cash, and that was a consideration for promising to give an absolute note, including the last or contingent instalment, depending upon the completion of the houses. But it must be recollected, that at the date of the acceptance all the payments were contingent, none absolutely [**14]  due, and might never become so. If the order had been accepted in its own terms the defendant would never have been responsible for the last instalment, as the houses never were finished by Birmingham.
And it does not seem to be a reasonable supposition, that the credit of six months upon $ 250 induced the defendant to agree to bind himself, unconditionally, to pay nearly $ 1000, when, previously, his only responsibility rested upon a contingency which might never happen, and when in the instrument, by which he bound himself to the plaintiffs, it is expressly said, he did so "for their accommodation." As the original agreement was, that the advances should be made to Birmingham, the defendant was under no legal obligation to the plaintiffs until he accepted the order.
Although a payee may refuse to take a conditional or qualified acceptance, yet, if such an acceptance is offered and he takes it, he can only claim payment according to the condition or qualification. Chitty on Bills, 287, 288, 301, 302, 303, (Ed. of 1842.) Byles on Bills, 149, marginal page. Story on Bills, 240. The plaintiffs agreed to the terms proposed in this instance by taking the acceptance, which [**15]  stipulated that the note to be given to the plaintiffs should be "for their accommodation. In proper grammatical construction the word "their" relates to "Cline & Francis." The defendant having given such an acceptance, and the plaintiffs having consented to receive it, by the express agreement of the parties, the note to be given was to be a note for the accommodation of the plaintiffs. In view of the language employed, and especially when considered in connection with the order and circumstances in the cause, it would require a very forced construction 

 [*283]  to say that the word "accommodation" was not designed to be used in its legal or technical sense, but that inasmuch as the defendant was to get six months' credit on $ 250, he was to bind himself, unconditionally, to pay nearly four times that sum, instead of remaining only responsible upon a contingency, and therefore the acceptance only meant the note was to be given for the convenience of all the parties. It would seem to be rather a singular mode of providing for the convenience of the defendant, whilst the accommodation of the plaintiffs would be very evident, as they were to get a note at six months for the $ 250,  [**16]  and the larger sum previously depending upon an uncertain contingency.
The mortgage shows that Birmingham was lessee of the lots and designed erecting the buildings as his own. For the purpose of aiding him in doing so, Miller agreed to advance or lend him $ 4000, to be paid in four instalments. To secure the repayment of the loan the mortgage was executed, and the efficacy of the mortgage as a security for the money depended upon the erection and completion of the houses. For that reason the advances, from time to time, were made to depend upon the progress of the buildings, and the last was not to be made until the houses were completed by Birmingham. Until that was done, he had no right to demand the last instalment. The order shows it was drawn in reference to the contract disclosed in the mortgage. Instead of the order being accepted, payable in its own terms, the acceptance was as already stated. Now under these circumstances it would seem reasonable to suppose, that in saying the note which was to be given should be for the accommodation of Cline & Francis, it was intended they should be accommodated with the name and credit of Miller, or of his firm, by a note at six months,  [**17]  which might be discounted in the market, thereby obtaining the use of the money at once instead of waiting for the houses being finished; but designing at the same time, that as between the parties the note should be accommodation paper for the purpose of preventing Miller's contingent liability from being converted into an absolute responsibility. If such was not the meaning of the words, "for their accommodation," and so intended by the 

 [*284]  parties, those words were perfectly useless, meaning nothing but what would have been effected by the acceptance without them. But by giving them the construction we have indicated they have their usual legal signification, and whilst giving them effect in accordance with their legal import, they will be so interpreted as to be consistent with what may very fairly be considered as designed by the parties, especially in regard to the last instalment, which is now the only one in contest.
The result shows, in dollars and cents, what was the value of the six months' credit on the third instalment of $ 250. Miller cashed it for $ 12.50. If then the plaintiff's interpretation of the acceptance be correct, the defendant was induced to convert [**18]  his uncertain liability for the last instalment into a positive obligation to pay it in six months, for the very moderate consideration of $ 12.50. And this is not all, because by such an arrangement, the payment ceasing to depend upon the completion of the houses, the motive on the part of Birmingham to finish them, so carefully provided for in the original contract and also recognised in the order, would no longer exist. And if Miller, by his acceptance, was bound to pay the last instalment to the plaintiffs whilst the houses were unfinished by Birmingham, the security for the repayment of the money under the mortgage would not be equivalent in value to what was originally designed, by making this advance to depend upon the completion of the buildings. No doubt money will produce very strange effects sometimes, but it is scarcely possible that a man of even ordinary business intelligence, much less one of large experience and shrewdness, would, for five per cent. on $ 250, make a surrender of such important rights, so securely protected, as we are asked to believe was done by this defendant.
But the plaintiffs insist, that as the third instalment was no longer contingent after the [**19]  houses were plastered, for the note which was to be given, so far at least as that was concerned, there was a consideration, and to that extent the note could not be accommodation paper, and if not, it could not be so for any portion of it. In other words, they say that a note or bill of exchange, which, as between the original parties, is 

 [*285]  binding in part on account of consideration to that extent, cannot be accommodation paper for the residue. But if binding in part, it is likewise so in toto. This we understand to be the view of the plaintiffs' counsel, whilst relying upon the authority of Byles on Bills, 226, in 16 Law Lib. 141, who, in giving a definition of an accommodation note, described it as being without consideration. But the writer was not considering the precise point now before us, and his definition in its general application is correct. We think, however, an examination of the authorities will show they do not sustain the doctrine contended for by the plaintiffs' counsel.
Barber vs. Backhouse & others, Peake's Nisi Prius Cases, 61, was an action on a bill of exchange. Brown, one of the defendants, had suffered judgment by default, the other [**20]  defendant had paid £  5, 9 s., into court. For the residue of the bill they contended they were not liable. The £  5, 9 s., paid into court was the amount of the plaintiff's bill for business done as an attorney for all the defendants; the remainder of the claim was for business done for Brown only, who had drawn the bill on the partnership and accepted it unknown to the other defendants.
Law for the plaintiff contended, that the payment of the money into court admitted the bill was good for part, and if good in part it was good in toto; but Lord Kenyon thought otherwise, and the jury found a verdict according to the opinion of the court. At the next term, Mr. Law said he was perfectly satisfied with the decision.
In Darnell vs. Williams, 2 Stark. Rep. 166, the payee sued the acceptor on a bill of exchange for £  19, 5 s. It was proved, that after the bill became due the defendant paid £  10 upon it and took the bill away with him. The defendant proved, that when the bill was tendered to him for acceptance he said he had agreed to accept a bill for £  10 only, but that the plaintiff having urged him to do it as an accommodation to him, the plaintiff, he had accepted [**21]  the bill. The sum of £  10 had been paid into court. Lord Ellenborough held: "That although with respect to third persons the amount of the bill might be £  19, 5 s., yet as between these parties it was an 

 [*286]  acceptance to the amount of £  10 only, and the plaintiff was nonsuited."
In Story on Prom. Notes, sec. 190, it is said, that the total or partial want or failure of consideration may be insisted upon as a defence or a bar between any of the immediate or original parties to the contract. And in the same section the author says: "If there be a partial want or failure of consideration, it avoids the note only pro tanto." See also Story on Bills, secs. 184, 187, and the notes, and Byles on Bills, 98, 99.
In Chitty on Bills, 70, it is said: "The defendant may show that he received no consideration, or none that was in point of law adequate, and thus may entirely defeat the action or reduce the claim." See also Mulliken vs. Boyce, 1 Gill 60.
According to the principles recognised in these authorities, although it may be, that after the houses were plastered the acceptance would have bound the defendant to the extent of $ 250, because [**22]  there was consideration to that amount, and if that sum had not been paid it might have been recovered from him, still it does not follow, that he could not have defended himself successfully against the fourth instalment in consequence of the houses not being completed.
Even supposing that in consequence of the contingent liability of Miller for the last instalment there was not a want of consideration, yet as it is admitted the houses never were finished by Birmingham, there is a failure of consideration, and that is a good defence against the present claim under the acceptance.
The bricks furnished by the plaintiffs were sold and delivered to Birmingham, not to Miller, consequently that transaction did not, originally, constitute any consideration as between the parties to this suit. Nor do we see that the evidence shows any responsibility at any time from the defendant to the plaintiffs, except what the order and the acceptance created. Inasmuch, therefore, as the order provides for the payment of the last instalment when the houses should be completed by Birmingham, which is consistent with the original contract between him and Miller, and which provision was made for [**23]  the security 

 [*287]  and protection of the latter in regard to the advances he was to make; and it is admitted that the houses never were finished by Birmingham; and the acceptance is with the condition that the note to be given should be for the accommodation of the plaintiffs, we do not think there is any legal obligation on the defendant to pay the last instalment.
The claim of the plaintiffs is based upon the order and the acceptance. The order, in express terms, makes the fourth payment to depend upon the completion of the houses. The acceptance, in providing that a note, including the amount of this payment, should be for the accommodation of the plaintiffs, seems designed for the very purpose of preserving the responsibility of the acceptor in its contingent character, and the contingency on which he was to pay not having occurred, the plaintiffs have no right to demand payment of him.
In our opinion, it is shown very clearly by the plaintiffs' proof, in connection with the facts admitted, that they have no cause of action against the defendant; it is, therefore, unnecessary to enquire into the correctness of the decision below in regard to the defendant's prayer, because [**24]  whether right or wrong, the case would not be sent back under a procedendo. We will therefore say--
Judgment affirmed. 

31 of 44 DOCUMENTS 

WILLIAM E. MAYHEW vs. RICH'D S. HARDESTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 479; 1855 Md. LEXIS 74 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellant against the appellee to recover the amount paid by the plaintiff as premiums for certain policies of insurance. Plea, non assumpsit.

Exception. The facts of the case appearing by the record are briefly these: Capron and wife, by deed dated the 26th of December 1845, leased to Heath and Snowden, for ninety-nine years, renewable forever, two undivided thirds of certain lands, including certain water privileges appertaining to a factory about to be erected thereon, for the yearly rent of $ 900. This lease contained a covenant between the lessees, "their heirs, executors and administrators," and the lessor, "his heirs and assigns," that the lessees, "their executors, administrators or assigns" should, during the continuance of the term, "at their own proper cost and charge, insure or cause to be insured, and kept insured from loss or damage by fire, the factories and buildings erected or that may be erected" on the demised premises, in some insurance offices in the city of Baltimore; and should assign, to and for the use of the lessor, two undivided thirds of all the right and interest of the lessors [**2]  or their executors, administrators or assigns, in each and every such policy of insurance, and shall pay the lessor, his heirs and assigns, or permit him or them to collect two-thirds of the money received on such policies to pay the rent, or by the permission of the lessor, his heirs or assigns, to apply the money to rebuilding or repairing such buildings as may be destroyed or injured by fire under the policies; and in case of default of the lessees to keep up the insurance or to assign the policies as aforesaid, then the lessor, "his heirs or assigns, may effect insurance thereon for his or their use at the expense of the" lessees, "their executors, administrators or assigns." On the same day the lessees mortgaged to the lessor, to secure the punctual payment of the rent reserved in the above lease, all the machinery and fixtures then in or intended to be placed in the factory in course of erection on the demised premises.

On the 6th of May 1846, and the 13th of January 1849, the lessor conveyed by two deeds, (one moiety by each,) the property in question, subject to the lease above stated, and the mortgaged machinery and fixtures, to Mayhew, the plaintiff, for $ 10,000. On [**3]  the 12th of September 1849, the Avondale Manufacturing Company having acquired by mesne assignment all the interest of the lessees, Heath and Snowden, in the lease and demised property, mortgaged the same, with other property, to Hardesty, the defendant, to secure the payment of certain notes mentioned in the mortgage, the mortgagor covenanting to keep insured the buildings, machinery and fixtures, and until default in payment in the notes as they became due the mortgagor was to remain in possession of the property, but in case of failure to pay the same as they respectively fell due the mortgagee was to enter and possess the property. None of the notes mentioned in the above mortgage were paid at the time this suit was brought, though most of them had long since become due.

In July 1850, Hardesty sold to Mason all his estate and interest in the property mortgaged to him, and Mason, by the authority and consent of Hardesty, then took possession of the same and has since continued to hold it, and has ever since regularly paid to Mayhew the ground-rent reserved by the original lease. The arrears of ground-rent, due at the time of this purchase, was paid by Hardesty to Mayhew out [**4]  of the purchase money paid by Mason. On the 14th of November 1850, Hardesty executed a bond of conveyance to Mason for the property sold, reciting the terms of the purchase, in which, among other things, it was stipulated that Mason should keep the factory and machinery insured until the payment of all the purchase money, and that the equity of redemption of the Avondale Manufacturing Company in the property had been conveyed to Hardesty by deed dated the 14th of November 1850. It was proved, that at the time of the original lease there were no buildings upon the land except two small houses; that the cotton factory, which was put in operation early in 1846 or 1847, cost, exclusive of machinery, between $ 8000 and $ 10,000; and the cost of the movable machinery was from $ 12,000 to $ 15,000; that what is called fixed machinery includes the water-wheel, shafting and gearing; that there were two water-wheels of iron to the factory, which cost originally about $ 450 or $ 500; that in one of these wheels some alteration was made, which cost less than $ 400; that the other fixed machinery might have cost $ 500 or $ 1000.

It was admitted that neither the original lessees nor Hardesty [**5]  had done anything in performance of the covenant for insurance in the original lease, between the 13th of October 1850 and the 4th of November 1852. The plaintiff, Mayhew, insured in the Etna Insurance Company on the 14th of October 1850, for one year, to the amount of $ 5000, viz., $ 2500 on the movable machinery in this factory, and $ 2500 on the building, paying therefor as premium $ 100; also in the Franklin Fire Insurance Company of Philadelphia, on the 4th of November 1850, for one year, to the amount of $ 5000 on the "cotton mill and water-wheel," paying $ 100 premium; and also in the Etna Insurance Company on the 14th of October 1851, for one year, to the amount of $ 5000, viz., $ 2200 on the building and $ 2800 "on the fixed machinery, including water-wheel, shafting, gearing," &c., paying $ 100 premium. The property mentioned in these policies was on the demised premises at the time the policies were effected. On these facts the plaintiff asked the following instructions to the jury:

1st. That the plaintiff, as assignee of the reversion in the property described in the lease from Capron to Heath and Snowden, is entitled to recover the premiums or sum or sums of money [**6]  paid by plaintiff to procure the insurance effected by the policies given in evidence upon all the property described in those policies, except the property described as movable machinery in the policy of the 14th of October 1850; if they find that the said property was on the demised premises at the respective dates of said policies, and find that none of the notes described in the mortgage to Hardesty, given in evidence, have been paid, notwithstanding that said Hardesty had not possession of said mortgaged premises at the time when said premiums were paid or when some of them were paid.

2nd. That if they find the facts stated in the plaintiff's first prayer, that then the plaintiff is entitled to recover the premiums or proportion of premiums paid for insurances effected on all the property described in all said policies, inclusive of the water-wheel but excepting the property described as "movable machinery" and that described as "shafting, gearings," &c., although said Hardesty had not possession of said mortgaged premises when said premiums were paid.

3rd. That if they find the facts stated in the plaintiff's first prayer, that then the plaintiff is entitled to recover [**7]  the premiums or a due proportion of the premiums for effecting insurances effected on all the property described in all said policies, excepting the movable machinery, the water-wheel and shafting and gearing, although said Hardesty had not possession of said mortgaged premises when said premiums were paid.

4th. If the jury find the facts stated in the first prayer, and that Hardesty, in July 1850, contracted with Mason to sell all his estate and interest in the mortgaged premises, and to execute, at some future day, a deed therefor to Mason, upon certain conditions, to be performed according to the form and effect of the bond of conveyance, dated the 14th of November 1850, and given in evidence, and that at the time of making this contract Hardesty agreed and stipulated, that Mason should or might take actual possession of and use the premises from and after the time of making this contract, and that in pursuance of this contract and agreement, Mason did take actual possession of the mortgaged premises from and after the time of making the contract, and has continued ever since to hold possession thereof, that then Hardesty is to be considered in this action as a mortgagee in [**8]  possession from and after the time of this contract; and then the plaintiff is entitled to recover the premiums paid by him to procure the insurance effected by the policies given in evidence upon all the property described in those policies, except the property described as "movable machinery" in the policy of the 14th of October 1850, if they find that none of the notes described in the mortgage to Hardesty, given in evidence, have been paid, and if they find that said policies were all effected after the date of the contract between Hardesty and Mason.

5th. If the jury find the facts stated in the first and fourth prayers, then the plaintiff is entitled to recover a due proportion of the premiums paid for effecting insurances on all the property described in all said policies, inclusive of the water-wheel, but excepting the movable machinery and that described as shafting and gearing.

6th. If they find the facts stated in the first and fourth prayers, then the plaintiff is entitled to recover the premiums, or a due proportion of the premiums, paid for effecting insurances on all the property described in all said policies, excepting the movable machinery, the water-wheel,  [**9]  shafting and gearing.

The court (MARSHALL, J.) rejected each and all of these prayers, and to this ruling the plaintiff excepted; and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

The mortgagee of a term, after forfeiture, has the whole legal estate therein, and is liable on the real covenants in the lease whether he becomes possessed of or occupies the premises in fact or not.

To make a party liable under the covenants as assignee, he must be the assignee of the entire term, for otherwise he is but a mere sub-lessee, and as such not liable under the covenants.

An interest in a term for more than seven years cannot be transferred or assigned, except in the mode prescribed by our registry laws, and no acts in pais short of a deed, duly executed and recorded, can transfer such interest.

A bond of conveyance executed by a lessee to a purchaser of the lease, does not make such purchaser the legal assignee of the entire term, and he is not therefore liable under the covenants in the lease.

A covenant to keep insured a factory, necessarily embraces the obligation to keep the fixed machinery, necessary to the operation of the factory, insured, among which would be included the water-wheel, shafting and gearing; the term "factory" embraces such fixed machinery. 

COUNSEL:
Edward O. Hinkley for the appellant, argued:

1st. That a covenant to insure runs with the land and binds assignees, and the covenant in the present case expressly includes them. 6 G. & J., 381, Thomas vs. Vonkapff. The appellee is mortgagee of the tenant, and as such is assignee in law and is liable, even though not in possession, for default had been made, none of the notes secured by the mortgage having been paid, and the first of them having become due in March 1850, long before insurance was effected, and the mortgagee then having the right to possession both by law and by the express terms of the mortgage. 4 Kent, 145. 1 Brod. & Bing., 238, Williams vs. Bosanquet. 4 Leigh, 69, Farmers Bank vs. Mutual Assurance Society. 15 Verm., 489, Pingry vs. Watkins, and the same case in 17 Verm. The very point has been decided by this court in Hintze vs. Thomas, 7 Md. Rep., 346.

But most clearly the appellee is liable if in possession, and his [**10]  acts are equivalent to taking possession, for he sold to Mason, who immediately took possession, in July 1850; that is, before the insurance was effected: and afterwards, on the 14th of November 1850, the equity of redemption was conveyed to the mortgagee, as appears by his reference to that fact in his bond of conveyance to Mason.

2nd. As to the extent of the appellee's liability: The word factories includes the fixed machinery; that is, the water-wheel and the shafting and gearing, for it is proved by a competent witness, that "what is called fixed machinery includes the water-wheel, shafting and gearing," and the language of one of the policies is, "on the fixed machinery, viz., the water-wheel, shafting, gearing," &c., showing clearly the opinion of the insurance company, that those things were fixed machinery, and showing their intention to hold themselves liable therefor. It is to be observed, that the appellant did not claim for any movable machinery: all his prayers expressly exclude that. Now does the word factory embrace fixed machinery? Most clearly it does, for the reason that without machinery the buildings are not factories, and the language of the covenant is particular,  [**11]  "buildings and factories." It is also to be observed, that the mortgage to the appellee expressly includes the machinery and fixtures as well as the land, and so does the bond of conveyance from the appellee to Mason. But even independently of the word factories, the covenant to insure the buildings would include fixtures, because they would pass by a conveyance of the land, and so would be covered by a covenant running with the land. 11 Barbour, 43, 62, 64, Buckley vs. Buckley. 3 Md. Ch. Dec., 186, McKim & Kennedy vs. Mason, and cases there cited. 1 Ohio State Rep., 528, Teaff vs. Hewitt.

F. K. Howard and S. T. Wallis for the appellee.

The plaintiff below offered six prayers, all of which were rejected. From that rejection alone the appeal is taken. The onus is therefore on the appellant to show that at least one of his prayers should have been granted, in the identical shape in which it was presented. This court cannot go behind the prayers to look for merits, of fact or law, which the appellant's case may be supposed to possess, but which the prayers either do not embody, or embody in a connexion which it would have been error to adopt. The action of the court below must [**12]  be judged by the prayers which were before it, and not by propositions, which might have been, but were not.

Of the six prayers, the first, second and third assert that Hardesty, as mortgagee, is responsible on the covenant to insure, though he may never have been in possession. The fourth, fifth and sixth assert, that by his contract with Mason, and Mason's possession thereunder, Hardesty, in contemplation of law, was actually in possession and so responsible on the covenant. Let us first assume, for the sake of argument, that the two sets of prayers are not otherwise defective or erroneous than in the two propositions which they thus principally set up, viz:

1st. That the mortgagee of a term, out of possession, is liable for covenants running with the land; and 2nd. That the possession of a purchaser under a bond of conveyance is the possession of the vendor, so as to make the latter liable for such covenants, as an assignee in possession.

1st. It is respectfully submitted, that some overruling legal necessity alone will induce this court to fix on a mortgagee, out of possession, a responsibility for his mortgagor's covenants. It is common learning, that if the lessee [**13]  sub-lets, by way of mortgage or otherwise, reserving a reversion of but a single day, the sub-lessee is free from the covenants. He is not an assignee, in name, though he is in fact. The twenty four hours save him. An assignee, it is conceded law, may assign to a pauper, avowedly to get rid of the covenants, and the pauper's responsibility at law, (though he has none in fact,) discharges the liability of his assignor. Surely there cannot be any peculiar sanctity in a rule of responsibility, which may be legitimately reduced to a practical absurdity by such simple processes. Surely a liability which is so purely nominal, that it attaches to a man merely when you call him an "assignee," and ceases to bind him as soon as you call him something else, though he in fact remains the same, cannot depend upon any vital principle of policy or jurisprudence. It must belong to that class of doctrines which the authorities denounce, when they say that "to stick at the letter is to stick in the bark"-- qui hoeret in litera hoeret in cortice.

But, even if the doctrine has any thing sound in it, as applied to absolute assignees--owners of the term--it certainly has not, in its application to [**14]  mortgagees, who, as every body knows, are not owners of the term in fact, no matter how strenuously you may endeavor to prove them so by definitions. Courts of law, in the progress of civilization, have at last grown to regard mortgages as what they are--securities and nothing more. You need not go into equity now to learn that a security for a debt is not a landed estate--that it is a mere collateral to the debt which it secures. The courts have at last acknowledged consciousness of the fact, that an estate in land, which may be extinguished by the payment of a promissory note, and amounts to nothing till the note is due and unpaid, is not of much higher dignity than the promissory note itself. Thus, happily, men's rights and reason are no longer smothered under old scholastic phrases, and the securities of a commercial community have ceased, in a measure, to be regulated by the statute of "Quia Emptores."

In Maryland our legislation has been in aid of this progress of ideas. A mortgage in fee-simple is no longer any thing, in fact, but a chattel interest with us. By the acts of 1833, ch. 181, and 1839, ch. 26, the interest in the land devolves, with the debt, on the executor,  [**15]  whose release is made equivalent to a reconveyance by the heirs.

Nor have our courts been at all behind the legislature, in relieving us, on this point, from the fictions of feudal pedantry. An outstanding mortgage, if paid in fact, cannot be set up in ejectment against the mortgagor, though it may not have been paid till after forfeiture. (Morgan vs. Davis, 2 H. & McH., 9.) Nor can a mortgagee, who has been paid, but who still retains the legal title, recover in ejectment against the mortgagor's assignee. (Paxon vs. Paul, 3 H. & McH., 399.) In the former of these cases the court decides, in terms, what is, in substance, necessarily determined in them both, that by payment "the mortgage was discharged, and the estate of the mortgagee defeated, in law and equity," though the legal title was still outstanding in him. One would think that after this there should be an end to all superstition about the empty shell of the mortgagor's "legal estate." The late Court of Appeals indeed expressly determined, further, that the mortgagor is regarded in law, as in equity, as the substantial owner, until foreclosure, his estate being, at law, responsible for his debts under attachment or execution.  [**16]  (Ford vs. Philpot, 5 H. & J., 312. Dougherty vs. McColgan, 6 G. & J., 285.) This court itself, pursuing the same enlightened course of decision, has determined, (Georges Creek Coal & Iron Co. vs. Detmold, 1 Md. Rep., 237,) that a covenant in a mortgage, for the mortgagee to hold until default, is equivalent to a re-demise from the mortgagee, and revests the legal estate in the mortgagor, so as to enable him to maintain ejectment.

With what show of consistency then, in view of these decisions and our statutes, can the appellant ask this court to say, that a mortgagee of a term, not in possession--not enjoying the profits--a mere holder of an unappropriated security--is, by virtue of his having the naked "legal estate" in him, an assignee of the whole term, and bound by the covenants of the lease? That he is not the owner of the term in equity, (which means simply that he is not in fact,) is conceded. It is his being clothed with the "legal estate" which alone creates his liability. But if a mortgagee in fee, though clothed with the nominal legal estate, does not pass it to his heirs; if the legal estate of a satisfied mortgagee, though still a legal estate, will not maintain or [**17]  defeat an ejectment, which is a mere matter of legal estate; if a mere covenant for possession, till default, which, on the strictest principles, is perfectly consistent with the existence of a present legal estate in the mortgagee, is yet construed to be a re-demise, and to render the actual legal estate of the mortgagee no legal estate at all for the time being; whence shall come the sanctity which is sought to be attached to the mere legal estate here? It is the same mortgage--the same legal estate--the same policy--the same principle--throughout. Why then set up the shadow in the one isolated case, when you regard the substance, only, in all the others? Why adhere to one incident only of the legal estate, when you repudiate all the rest? Why make the solitary exception in a case, where you admit that the rule is a technical and verbal one only, by conceding that the trick of a sub-lease or an assignment to a pauper may demolish it altogether? It is no answer to say that this is a case at law, and that the constructions and doctrines of equity have nothing to do with it. Not one of the decisions referred to can stand upon that theory. Every one of them involves the absolute subordination [**18]  of the mortgagee's legal title at law, to the broad and liberal application of the principles of equity. Uphold the doctrine contended for here, and you reverse them all--establishing in the stead of the rational principles which they embody, the singular doctrine, that a mortgage, which is meant for a security to a creditor, is but a mode of entrapping securities for the lessor of the debtor. It can only be done, it is respectfully submitted, by ignoring utterly the nature of a mortgage, as understood and expounded in modern days, and going back to the times when Glanvil and Skene expatiated de mortuo vadio.

The case of Eaton vs. Jacques, 2 Douglas, 456, in which Lord Mansfield repudiated the liability of a mortgagee out of possession, upon the covenants in the lease, would be conclusive from its reasoning if not from the authority of the great judge who pronounced it and the able associates who concurred with him in it. In spite of the case of Williams vs. Bosanquet, by which it has been overruled in England, it has not ceased to command the support of the most eminent authorities in this country.

Astor vs. Miller, 2 Paige, 68. Astor vs. Hoyt, 5 Wendell, 603. Walton vs.  [**19]  Crouly, 14 Wendell, 63. Wittington vs. Sale, 7 Mass., 139. Cushing vs. Hurd, 4 Pick., 253. Cooper vs. Davis, 15 Conn., 560. Wilkins vs. French, 20 Maine, 117. Smith vs. Taylor, 9 Alab., 637. And see Greenleaf's Cruise, title 15, secs. 15, 16, p. 111.

The Supreme Court of the United States, in Calvert vs. Bradley, 16 Howard, 580, has left no doubt of its determination to adopt the doctrine of Lord Mansfield whenever the case shall arise.

It is the conceded doctrine already, in all our courts, in regard to the liability of mortgagees of ships for repairs done while the mortgagors remain in possession, and it seems impossible to draw a distinction, in principle, between those cases and cases like the present; the liability in both being sought to be affixed to the legal title, and that title in both being a matter of record, independent of possession.

Nor is there any foundation for the argument, that this court itself has held differently in the case of Hintze vs. Thomas, 7 Md. Rep., 346. That cause was heard and determined on a case stated, and it is part of the statement itself, that upon the forfeiture of the mortgage, "by the terms thereof, Hintze became the absolute [**20]  assignee at law." The court therefore was bound, according to its own repeated decisions, to adhere to the case stated, and it consequently treated Hintze as "absolute assignee" throughout. The obligations of mortgagees, whether in or out of possession, were not discussed by the counsel, (as reported,) nor considered by the court. The word "mortgage" does not occur once in the whole opinion, nor are mortgagees once alluded to.

It is, of course, obvious, that in the case of an absolute assignment, (as in Hintze vs. Thomas,) it makes no difference whether the assignee does or does not take possession. He is the absolute representative in responsibility of the original covenantor. But as a mortgagee, even after forfeiture, is under our decisions, only owner sub modo, with qualified rights; he is only, sub modo, exposed to responsibility. The possession, which clothes him with the profits of the term, thus becomes an indispensable item among the considerations which are to fix its burdens on him.

It is therefore a palpable non sequitur to argue, that because an absolute assignee has been held liable, (in Hintze vs Thomas,) without possession, an assignee, by way of mortgage and [**21]  out of possession, has the same liability. The law may be so, but that case does not decide it, and the argument to the contrary merely begs the whole question by assuming the identity, quoad hoc, of mortgagees and absolute assignees, which is precisely the matter in dispute.

So much for the first three prayers, so far as their main principle is concerned.

2nd. Is it true, as is asserted by the last three prayers, that Mason's possession was Hardesty's?

One of the interest notes secured became due to Hardesty on December 15th, 1849. He, however, never took possession, but, on July 8th, 1850, contracted to sell the property to Mason, who immediately took possession under the contract, having paid part of the purchase-money and given notes for the rest. On November 14th, 1850, Hardesty, for the first time, received a deed of the Avondale Factory's equity of redemption, and he, on that day, uno flatu, executed a bond of conveyance to Mason, conditioned to convey, on payment of the notes given in July 1850. Mayhew himself was, however, assignee of a mortgage of the leasehold interest in the machinery and fixtures of older date than Hardesty's mortgage, nay of the same date [**22]  with the original lease, viz., December 26th, 1845, so that Hardesty, so far as the machinery and fixtures were concerned, never had the legal estate at all in the term. His legal estate in the term, as to the buildings, he passed away the moment he acquired it, and he never had any actual possession. With a part of Mason's purchase-money he paid the arrears of ground-rent before Mason took possession in July 1850, and from that time forth, Mason, being in possession under the bond of conveyance and in his own right, regularly paid the ground-rent to Mayhew, who as regularly received it from him.

Can such a possession be called the possession of Hardesty? If it cannot the last three prayers were properly rejected, even supposing them to be erroneous in no other particular.

This is not a question, as supposed in the argument, as to whether Mason was, at law, the assignee of Hardesty's whole interest. Upon the most rudimental principles, he, of course, was not.

But still there is no analogy between his case and that of a sub-lessee. Hardesty retained no reversion. Mason was the assignee in equity of the whole beneficial interest, subject, of course, to the terms of the [**23]  bond of conveyance, and the question is, whether being thus, in fact, in possession, in his own right, he was, in law, in possession in Hardesty's, merely because he had not the technical legal estate in him? There seems to be a very simple mode of testing the matter.

In a case fairly raising the question, could there be any doubt that Mason's possession was adverse to Hardesty? Obviously not. It was a possession by Mason as purchaser, not as tenant, in his own right, and in that of no one else. It would have given a legal title, of itself, if continued long enough. How then could it be adverse and not adverse at the same time? How could it be Mason's possession and Hardesty's likewise, when the one was directly antagonistic to the other and irreconcilable with it?

The possession of a purchaser, under an unrecorded deed, is so far notice to all the world as to avail, under our statutes, against every one but a bona fide purchaser for value by deed recorded. (1831, ch. 304.)

So possession under a bond of conveyance will carry the legal title, under a decree in equity, against intermediate judgment creditors, (Alexander vs. Ghiselin, 5 Gill, 181,) the registry laws to [**24]  the contrary notwithstanding. Where then can this court find authority for treating such a possession as nothing at all? It is no answer to say that Mason could not be sued at law as assignee, and therefore the right of action must remain against Hardesty. In the very case of Hintze vs. Thomas, 7 Md. Rep., 351, this court has itself determined, that assignees may be liable in equity for breaches of covenant, and can there be any doubt that Mason, in possession in his own right, under an equitable title, might have been made liable in equity if not at law? Even at law, could not Mason have been estopped from denying that privity of estate which sustains the remedy against an assignee after he had taken possession in his own right and paid rent under the lease?

3rd. But the prayers could not have been properly granted, even if the appellant's view of the preceding propositions be correct.

The 2nd, 3rd, 5th and 6th prayers are erroneous, because uncertain and inconsistent in their terms and alternatives. They instruct the jury to give "the premiums or proportion of premiums paid;" "the premiums or a due proportion of the premiums paid," and "due proportions of the premiums paid.  [**25]  " The plaintiff, if entitled to recover at all, was entitled to the whole premiums paid or to a portion of them. It was for the court to say whether he should have the whole or a part, and if a part it was for the court to determine what part. The court would have manifestly erred in leaving it to the jury to give the whole or a part, in their discretion, and to determine, if they gave a proportion, what proportion was the "due" one.

The 1st and 4th prayers are clearly defective in asserting the appellant's right to recover the whole premiums paid "for insurance on all the property," when the covenant, in terms, only provided for the insurance of a two-thirds interest.

The 1st, 2nd, 4th and 5th prayers are further erroneous, because they assume the right of Mayhew to insure the "machinery and fixtures" at Hardesty's expense. The covenant is to insure the "factories and buildings" only to the extent of a two-thirds interest. There were no "factories" on the land at the time, and all the machinery and fixtures in existence were at another place. These fixtures and machinery were, by deed of even date with the lease which contains the covenant, mortgaged to the lessors as a security [**26]  for the rent, together with all other machinery and fixtures which might thereafter be put up, &c. That mortgage of machinery and and fixtures has been assigned to Mayhew, the present appellant. Now one of two things is clear: Either the machinery and fixtures are mere chattels, or they are attached to and pass as part of the realty. If they are mere chattels it seems impossible to determine that they are covered by a covenant to insure "buildings and factories," or that such a covenant runs, as to the chattels, with the land. If they are attached to the realty then Mr. Mayhew is assignee of a mortgage of part of the leasehold premises, and must, upon the appellant's own doctrine, be liable under the identical covenant here sued on; he being, quoad hoc, in precisely the same relation to the lease that Hardesty occupies, with the additional difficulty of being a prior mortgagee. In either case the prayers referred to must be bad. In the one, supposing the fixtures, &c., to be chattels, Mr. Mayhew is estopped from asking that he be allowed to insure them as "buildings" at Hardesty's expense. In the other, if they are an interest in land Mayhew is clearly precluded from fixing on Hardesty,  [**27]  as the prayers require, the duty to insure the whole, for the insurance of part of which he is, himself, on his own doctrine, bound. As mortgagee of the leasehold interest in the machinery and fixtures he cannot escape from the obligation to keep them insured, if there be anything at all in the theory of his own case; and being so obliged he had no right to ask, and the court would have erred in instructing the jury, that Hardesty was liable for the whole. At the most Hardesty could only have been liable for the proportion which the value of the buildings might bear to the machinery and fixtures, and the prayers were erroneous in ignoring this. The same error, in fact, pervades and vitiates all the prayers.

4th. There is a still further and fatal objection to all the prayers, which is, that assuming Hardesty to be assignee of the term, and liable as such, in virtue of his privity of estate, they overlook the conclusive fact that Hardesty was only mortgagee of an equity of redemption and not of a legal estate. Besides the interest in the machinery and fixtures, which Mayhew holds under the first mortgage of all, Capron had a mortgage of the legal estate of the term. It is true [**28]  he joined in the mortgage to Hardesty, but, distinctly, not for the purpose of abandoning his estate. It was only to waive his priority of payment.

It will be further observed, that all the prayers treat Hardesty as mortgagee. None of them advert to the deed of the 14th of November 1850, by which the Avondale Factory passed its equity of redemption to him. Indeed none of them require the jury to find the execution of even the original lease or the mortgage to Hardesty. They all assume and take, distinctly, from the jury these fundamental facts of the case. It is respectfully submitted, that not one of the prayers can be indicated which was not properly rejected under this court's repeated decisions, on that ground if on no other.  

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

OPINIONBY:
MASON 

OPINION:

 [*494]  MASON, J., delivered the opinion of this court.
The principal questions raised upon this appeal are:--first, whether the appellee, Hardesty, as mortgagee of the term, notwithstanding he never took possession of the premises, is liable under the real covenants of the assignor? secondly, if he was, did not the sale and bond of conveyance to Mason, accompanied [**29]  with possession, so far amount to a legal transfer of all his interest, as to make Mason, and not himself, liable under the covenants? and thirdly, if not liable as mortgagee out of possession, or if there has not been a complete transfer of all interest to Mason, so as to make him liable, will not the possession of Mason, under the peculiar circumstances of the case, be regarded as that of Hardesty, so as to make him mortgagee constructively in possession?
In settling the first two questions, we need not look to the English authorities nor to those of our sister States, as we think the decisions of our own Court of Appeals have settled both. The third question, therefore, becomes unimportant.
By a close inspection of the case of Hintze vs. Thomas, 7 Md. 346, it will be found that the principle is clearly recognised, that where a party takes an assignment of a lease, as in the present case, the whole legal estate passes, and he 

 [*495]  thereby becomes liable on the real covenants, whether he became possessed, or occupied the premises, in fact, or not.
This is also now the law in England, notwithstanding the earlier decision of Eaton vs. Jacques, Doug.  [**30]  , 455, to the contrary.  Williams vs. Bosanquet, 1 Brod. & Bing. 230, 5 Eng. Com. Law Rep. 72. The same rule prevails at least in some of our sister States.  Pingrey vs. Watkins, 15 Vt., 479.
But it is contended by the appellee's counsel, as his second ground of defence, that even if he had been liable, by mere force of the mortgage, to him, and without possession, such liability was divested by the sale and bond of conveyance of his interest to Mason, and the possession of the latter thereunder.
This is not a correct legal assumption. Unless Hardesty transferred to Mason his entire interest or term, the latter would not thereby be an assignee, but a mere sub-lessee, and as such not liable under the covenants. The case of Peter vs. Schley, 3 Har. & Johns. 211, determines, that such an entire interest as is ascribed to Mason, that is, an interest for more than seven years, cannot, under our registry laws, be transferred or assigned in any other way than that prescribed by those laws, and that no acts, in pais, short of a deed duly executed and recorded, are competent for that purpose, (act of 1766, ch. 14.)  [**31]  Mason, therefore, cannot be regarded as the legal assignee of Hardesty's entire interest, and is not on that account liable to the appellant.
We are also of the opinion, that the term "factories" embraces the fixed machinery necessary to operate the factories, and the reason is, that without such necessary machinery, the buildings would not in fact be factories. A building is no more a factory without machinery, than machinery would be a factory without a building. A covenant, therefore, to keep insured a factory, necessarily embraces the obligation to keep the machinery necessary for the operation of the factory also insured: among such necessary fixed machinery would be included the water-wheel, shafting and gearing.
In the main, we think the theories of the appellant's first 

 [*496]  three prayers are correct, but we do not deem it necessary to affirm all the legal propositions advanced by each of those prayers. The last three prayers, which rest upon the notion that Mason's possession should be treated as the possession of Hardesty, need not be passed upon in the view we have already taken of the case.
We reverse the judgment, in order that the Court of Common Pleas,  [**32]  upon another trial, may instruct the jury in accordance with the principles herein announced.
Judgment reversed and procedendo awarded. 

32 of 44 DOCUMENTS 

FREDERICK ROLOSON vs. DAVID CARSON, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 208; 1855 Md. LEXIS 46 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellant against the appellee, to recover for damages sustained by reason of the alleged defective and unworkmanlike manner in which defendant had built a warehouse under an agreement with the plaintiff, in consequence of which the warehouse fell down. Plea, non assumpsit, with an agreement that either party may give in evidence any matter which he could rely on by any form or mode of pleading.

1st Exception. The plaintiff offered in evidence the agreement, by which the defendant contracted to build a warehouse for the plaintiff, adjoining that now occupied by him and corresponding with the same, for $ 2500. "The buildings now on the premises to be taken down, as also the south gable-end wall of old warehouse, all of the bricks to be properly cleaned and piled ready for use. The joist of old building to be stayed and shored up to receive the girders, which is to be used in the place of the wall." He then proved by Harris, that after a part of the warehouse fell down, the plaintiff and defendant mutually agreed to refer the matter to witness and John Nant, to ascertain the cause of the damage, and at whose [**2]  expense it should be repaired or who was liable for the damage done; that they met on the premises, in the presence of the parties, and called in Mr. Curley to their assistance; that the three examined the premises, heard the statements of both parties, held three or four meetings, at all of which, except that at which the witnesses were examined and that at which the award was made out and signed, both plaintiff and defendant were present; that the agreement under which the warehouse was built was produced by the plaintiff at the second or third meeting; that at one of the meetings, five witnesses were examined at the instance of the plaintiff; that neither of the parties was present at the examination of the witnesses, but written questions were left by the plaintiff with the arbitrators to be propounded to the witnesses; that afterwards, the arbitrators met and made out the award, which was offered in evidence and set out in full in the opinion of this court.

Much testimony was then offered by both parties chiefly as to the strength and proper construction of an old foundation wall which defendant claims he built upon by direction of plaintiff, who instructed him to allow the [**3]  old wall to remain. The plaintiff alleged and offered evidence that the old wall was strong enough, and that defendant built upon it in an improper manner. On the other hand, defendant offered in evidence that the old wall was badly built and that the fall was occasioned thereby. It was also proved, that at a meeting of the arbitrators, held before the award was made, an affidavit of the defendant was sent in by him, which was received and considered by the arbitrators, but one of them states it had no influence in forming his judgment; that plaintiff was not present at this meeting, nor was any previous notice given to the parties to attend.

The plaintiff then, to prove the damage sustained by the fall of the building, offered to prove there was a quantity of pork and other provisions belonging to the firm of plaintiff and one Littig, who held possession of the premises at the time of the accident as tenants of the plaintiff, injured thereby; but it being admitted there was another suit on the docket by this firm against the defendant for this damage, the court, (FRICK, J.,) on motion of defendant, rejected the evidence so offered, and to this ruling the plaintiff excepted.

2nd [**4]  Exception. The plaintiff having excepted to the ruling of the court in regard to a question propounded to a witness, his counsel proceeded to write his exception, and with the sufferance of the court, the examination of the witnesses, meanwhile, was suspended. But after waiting fifteen minutes, the court ordered the examination to be proceeded with, against the objection of plaintiff's counsel, who had not completed the writing of his exception. The court announced, that as there was associate counsel for the plaintiff, the examination of the witnesses must be proceeded with, and the counsel could write his exception at any time before the verdict was rendered and the court would sign it. To this ruling the plaintiff excepted.

3rd Exception. This exception was taken by the plaintiff to the refusal of the court below to grant his six prayers, all of which are sufficiently stated in the opinion of this court.

The verdict and judgment were in favor of the defendant and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Mistakes committed by the arbitrators in drawing incorrect inferences or forming erroneous judgments or conclusions from facts, will not vitiate their award.

A mistake that will vitiate an award must be gross and manifest, and of some fact by which the arbitrators were deceived and misled.

The courts have by a long course of decisions manifested a strong inclination to sustain the judgments pronounced by arbitrators.

It is not necessary that the parties should have notice of or be present at the meeting of the arbitrators at which the award is made up and signed.

Arbitrators, like jurors, have the privilege of consultation in private for the purpose of making their award.

A prayer that an award is void because the arbitrators, without previous notice to, and in the absence of, the other, read an ex-parte affidavit of one of the parties, "though the jury believe it had little or no influence on the minds of the arbitrators," is defective, because it would have justified the jury in vacating the award for what they believed had no effect upon the decision.

A more liberal and reasonable interpretation of awards is now adopted than formerly; every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible, without violating the rules adopted for the construction of written instruments.

A prayer that an award was void because of improper conduct of the arbitrators, without leaving to the jury to find any facts constituting the misconduct, is erroneous.

A prayer that an award is void because not in accordance with the submission as proved by one witness, is defective, there being other witnesses who testified in regard to the terms of the submission.

Where the appellant has received no injury from an erroneous ruling of the court below, the case will not be sent back under a procedendo.

Under the act of 1834, ch. 233, sec. 11, the court has a discretion as to what time the exceptions shall be prepared or signed, provided they are completed prior to the verdict, and the exercise of such discretion is not a subject of revision on appeal.

As a general rule, the most appropriate time to prepare an exception is immediately after the decision excepted to is made.  

COUNSEL:
Vivian Brent for the appellant, stated, that the main questions in this case arise under the third exception relating to the validity and effect of the award,  [**5]  but that he desired, however, an expression of this court's opinion upon the second exception. He then argued the questions arising upon the third exception.

Before considering the law of awards as applicable to the prayers contained in this exception, I desire to submit some authorities as to the legal merits of the plaintiff's right to recover damages on the facts detailed in the statement of evidence. Defendant was the agent of the plaintiff for hire to build the house, and he was in the business or profession of house-builder. The rule in such case is, that he is bound to have competent skill and is liable for loss occasioned by his ignorance, neglect or want of skill. Paley on Agency, 5, 10, 76, 77, 78. 14 Mass., 282, Taft vs. The Inhabitants of Montague. The very undertaking to build for hire is a representation that he had the requisite skill and judgment, and would use that skill and judgment, and his breach of contract may be given in evidence to reduce his claim for compensation or as the foundation of a cross-action. 3 Starkie's Rep., 6, Duncan vs. Blundell. 1 Camp., 38, Farnsworth vs. Garrard. 1 Car. & Pay., 352, Moneypenny vs. Hartland, et al.; also same case in 2 [**6]  Car. & Pay., 378. And even where the specific price is agreed on and the employer has encouraged the agent in the improper work the employer has a remedy by cross-suit. 3 Starkie on Ev., 1770. 2 Saund. Pl. & Ev., 962. But it will be said on this that Roloson substituted his own judgment and adopted the stone wall as a foundation. On this point see the case of Duncan vs. Blundell cited above. But no subsequent acts of Roloson can control or change the meaning of the contract. 6 H. & J., 418, Key vs. Parnham. 1 H. & G., 74, Ringgold vs. Ringgold. 10 G. & J., 279, Vincent vs. Chapman. If Roloson accepted the old stone wall and gave no specific instructions where or how to place the columns it was then left to the skill and competent judgment of the builder, and he should have examined the mortar and the sides of the wall and placed the columns most judiciously, and secured them with proper plates and distribution of pressure as shown in the evidence. Again, it is for the jury to say how much the accident was referable to the bulging of the south wall. Moreover there is no proof of the exercise of the personal skill or judgment of Carson. The columns were placed and sighted by White in [**7]  his absence and without instructions, and we have White's own admissions in evidence. Carson is responsible for the want of skill and care of his agents. 2 Kent's Com., 279. 6 G. & J., 291, Steam Co. vs. Hungerford. See further, as to damages by way of deduction from the stipulated price, Thornton vs. Place, 1 Moody & Rob, 218.

The award sought to be impeached by the prayers under review is clearly obnoxious to the objections taken in those prayers. The principles of law on this subject are well established, and each of these prayers ought to have been granted. In England it is clear that no award can be impeached for misconduct of arbitrators except by bill in equity, unless made a rule of court. 8 East, 344, Braddick vs. Thompson. 1 Saund. Rep., 32, Birks vs. Trippet, note (a.) 59 Law Lib., 156. But even there you may, by pleading, invalidate the award by matter on its face. 11 East, 191, Fisher vs. Pimbley. Or by pleading extrinsic matters. 9 Eng. C. L. Rep., 54, Cargey vs. Aitcheson. Or that there was no award, and support it by showing fraud in the submission. 18 Eng. C. L. Rep., 242, Sackett vs. Owen. But even in England this whole doctrine is favorably expounded for the [**8]  impeachment of awards, by Mr. Saunders quoting Mr. Philip on Evidence. 1 Saund. Pl. & Ev., 186. And where nothing can be done under the award but by suit, the court will leave all objections to be decided in the suit. 1 Bac. Abr., 376. 7 Term Rep., 74, Pedley vs. Goddard.

But be that as it may, no such rule has ever prevailed in Maryland, and there being no reason in it, we are free to follow our own practice, which is the simplest and most convenient. Where the award sets forth the facts as here, and draws erroneous inferences of law on the facts, it is vacated at law. 2 H. & McH., 478, Oliver vs. Heap. It is expressly decided, that any irregularity in the arbitrators is a defence in Maryland, (9 G. & J., 11, Shriver vs. The State,) contrary to the English law as laid down in 63 Law Lib., 371. And want of notice is fatal in Maryland, (3 Gill, 49, Bullitt vs. Musgrave,) not so at law in England. We therefore consider that the irregularities or improprieties of arbitrators are available at law in Maryland, as by bill in equity, especially where they amount to legal fraud. Courts of law relieve negatively against frauds. 6 H. & J., 255, Lamborn vs. Watson. Therefore we use the following [**9]  decisions: 1 H. & J., 361, Goldsmith vs. Tilly. 3 Gill, 49, Bullitt vs. Musgrave. 9 Gill, 175, State vs. Williams. 6 H. & J., 95, Heuitt vs. The State. Mistake of fact will vitiate the award where the fact appears on the face of the award and the mistake appears aliunde by evidence. 59 Law Lib., 164. 2 Story's Eq., sec. 14. 2 Vernon, 705, Corneforth vs. Geer. 5 Sergt. & Rawle, 51, Large vs. Passmore. 4 Dallas, 284, Williams vs. Paschall. 1 H. & J., 361. 2 H. & McH., 478, Oliver vs. Heap. Kyd on Awards, 327. 3 H. & McH., 118, Tillard vs. Fisher. But here is a mistake in law apparent on the face of the award as based on the facts assumed. The meeting at which the award was made and agreed upon is as essential as any other meeting, and no notice of that is proved. Caldwell on Arbitrations, 206. 6 H. & J., 406, Rigden vs. Martin. Watson on Awards, 73. 3 Gill, 49. Notice is always necessary or the award is void. 3 Gill, 49. 7 Gill, 497, Emery vs. Owings. Again, the conduct of the arbitrators in receiving the affidavit of Carson touching the contract vacates the award. (63 Law Lib., 172, 173, 177. 1 Dallas, 161, Hollingsworth vs. Leiper. Ibid., 187, Chaplin vs. Kirwan. 6 Ves., 70, Walker [**10]  vs. Frobisher. 9 Do., 67, Fetherstone vs. Cooper. Watson on Awards, 170. 8 Taunt., 694. In re, Hick et al. 4 Dallas, 232, Falconer vs. Montgomery. 2 Halst., 428, Harker vs. Hough,) although they swear it had no influence. 63 Law Lib., 175, 176.

Henry P. Brooks and Levin Gale for the appellee, stated, that the decisions of the court below in the first two exceptions need not be discussed, because even if wrong they are not causes for reversal as the appellant has received no harm thereby. They then argued:

1st. That the award offered in evidence in this case not being submitted by rule of court, in pursuance of the acts of Assembly relating to submission of causes pending in courts, the same cannot be inquired into or set aside in this case, unless there is obvious mistake apparent on the face of the award, and that there is no such mistake and therefore all the prayers offered by the plaintiff were properly rejected. The mistake that will vitiate an award must be a plain and obvious one upon its face, and not a mistake in the judgment of the arbitrators. It has always been the law, that nothing dehors the award can be given in evidence to defeat it. 2 Story's Eq., sec. 1452.  [**11]  63 Law Lib., 434. 51 Do., 107. 59 Do., 155. 3 Johns., 368, Barlow vs. Todd. 2 Do., 62, Newland vs. Douglass. 3 Monroe, 439, Southard vs. Steele. 18 Ala., 174, Strong vs. Beroujon. 5 Halst., 7, Shuland vs. Wood. 13 New Hamp., 72, Rand vs. Reddington, 11 Missouri, 624, Finley vs. Finley. 13 Ill., 454, Pottle vs. McWorter. 13 Verm., 484, Emerson vs. Udall. 1 Hill, 319, Dater vs. Wellington. 6 H. & J., 13, Cromwell vs. Owings. 9 Gill, 172, State vs. Williams.

2nd. The plaintiff's second prayer was properly rejected. For even if the award can be inquired into it was immaterial whether the plaintiff was present or not at the meeting at which the award was made, written and subscribed, the arbitrators having the undoubted right to make up their opinion and sign the award in the absence of the parties. Indeed it is difficult to understand how they could consult and decide properly in the presence of the parties. This prayer is confined exclusively to the meeting at which the award was made up and signed, and no other question in regard to notice can be raised in this court as none other was presented below. The authorities all say that notice of the publication of an award is not necessary.  [**12]  63 Law. Lib., 436. 59 Do., 89.

3rd. The third prayer was properly rejected. For even if the award can be inquired into, the fact that defendant submitted his affidavit to the arbitrators in reference to a matter in dispute does not vitiate the award as it did not affect their decision. 1st. Notice was given to the plaintiff before the award was made, and he did not object nor withdraw his submission, which he could then have done. He should not be allowed to wait until he ascertained which way the award was made, and object only in the event of the award being against him. 21 Eng. C. L. Rep., 371, Matson vs. Trower. 12 Penn. State Rep., 134, Graham vs. Graham. 4 Term Rep., 589, Hall vs. Lawrence. 40 Eng. C. L. Rep., 648, Bignall vs. Gale. 63 Law. Lib., 175. 6 Ves. 72, Walker vs. Frobisher. 4 Dallas, 271, Passmore vs. Pettit. 2nd. The plaintiff was guilty of the first fault, if it was a fault, by submitting his own statement or letter to the arbitrators. 9 Ves., 67, Fetherstone vs. Cooper. 3rd. The prayer itself assumes that no influence was had on the judgment of the arbitrators by the affidavit, and if so no wrong was done by it. This is a different question from the question [**13]  whether you can inquire whether it had any effect. For although it might be true that the court, on principles of policy, would not enquire whether a matter, which was improper, had or had not any effect on the judgment of the arbitrators, yet if the plaintiff choses to assume in his prayer that it had no effect he cannot be permitted to ask a reversal for a matter which was entirely barren of results. 6 Ves., 72. 9 Gill, 61, Ramsay vs. Glass.

4th. The fourth prayer was properly rejected, because there was no mistake of fact made by the arbitrators. It is also erroneous in this, that it submits to the jury the question, whether the arbitrators were mistaken in any of the facts set out on the award, whereas to vitiate the award the mistake must appear on the face of the award and must be a self-evident mistake, such as a miscalculation or the like; or it must be admitted by the arbitrators, that they had made a mistake, and that but for that mistake they would have determined otherwise. The fact that the court or the jury do not agree with the arbitrators in their opinion, or think they were wrong in their conclusion, is not sufficient to vacate the award. 51 Law Lib., 46, 47.  [**14]  63 Do., 242 to 246. 6 Metcalf, 131, Boston Water Power Co. vs. Gray. 11 How., 349. Benchall vs. Marsh. 2 Gallison, 69, Kleine vs. Catara. 6 H. & J., 12, Cromwell vs. Owings. 5 Md. Rep., 361, Ebert vs. Ebert.

5th. The fifth prayer was properly rejected. The assumption that the award held the defendant exempted from liability alone or entirely, on the ground mentioned in this prayer, is not true in fact, the award not professing to set out all the grounds for the decision given. Even if true it is not erroneous in point of law and not inquirable into. An error of law to vacate an award, if it can be vacated at all for such cause, must be a plain and obvious mistake on a point of law, unmixed with facts, and where no equitable considerations could enter into the subject to be decided. 2 Gallison, 69, Kleine vs. Catara. 25 Verm., 316, Spaulding vs. Warren.

6th. There is no evidence to support the facts assumed in the sixth prayer, and if there was, our argument, on the preceding prayers, shows that this one also was erroneous. Again, it assumes facts which should have been left to the jury. It assumes fraud without submitting the question to the jury, or hypothetically assuming [**15]  any facts to base the objection of fraud upon.

Orville Horwitz for the appellant in reply, argued:

1st. As to the right to inquire into the validity of the award in this way, there is a distinction between references under rule of court and submissions out of court. 1st. In cases of references the award returned to court must be set aside on motion when every defence or objection avails that would avail in equity. In 1 H. & J., 364, Goldsmith vs. Tilley, the court say: "Every ground of relief in equity against an award is equally open in this court." 2nd. In actions brought on awards or on bonds for submission, or where the award is introduced as a defence there the practice in Maryland is to hear the objections at law. 2 H. & McH., 478, Oliver vs. Heap. 3 H. & J., 383, Walsh vs. Gilmor. If, when declared on, they can be resisted, a fortiori can they when offered as a defence? Suppose the award in this case had been pleaded, could we not have assailed it?

2nd. How are awards to be considered? They ought not to be held more sacred than the verdicts of juries. 1 Dallas, 315, Williams vs. Craig. There are two grounds for setting aside an award; either matter apparent on [**16]  the face or matter dehors. 1st. As to matter apparent on the face. What will suffice? Mistake of fact apparent on the face. 1 H. & J., 364. 9 Gill, 175, State vs. Williams. The conclusion that "the wall had not been well built," is a wrong conclusion of fact. The defect might have arisen from any other source. Mistake of law will also suffice to vacate the award. The obligation of the contractor is to make the foundation sufficient, and not merely to pay attention to the building during its progress. As to duties of agent see Paley on Agency in 28 Law Lib., 5, 10, 76, 78. 14 Mass., 282, Taft vs. Inhabitants of Montague. 2 Car. & Pay., 378, Moneypenny vs. Hartland, et al. He must not rely upon another's information, but must look for himself. 1 Car. & Pay., 352, Moneypenny vs. Hartland, et al. 3 Starkie's Rep., 6 Duncan vs. Blundell. So that the implication of law would be that he should see that the foundation was sufficient. But the contract expressly provided for the taking down of the south gable-end wall and made it his duty to supply its place. The award proceeds upon the double error of law; that if he made a mistake in his judgment he was relieved; and again, upon the idea that [**17]  the duty was to superintend diligently. If it appears on the face of the award that there is evidence not pertinent or legal relied on by the arbitrators, it will be set aside. Peck, (Tenn. Rep.,) 275. 2nd. As to matters dehors. Want of notice of last meeting is fatal, for Roloson was thereby deprived of the opportunity of examining McCoy. 1 H. & J., 362, Selby vs. Gibson. 6 H. & J., 406, Rigden vs. Martin. 3 Gill, 49. Bullitt vs. Musgrave. 63 Law Lib., 172. The reading of an ex-parte affidavit by the arbitrators vitiates the award. 4 Dallas, 272, Passmore vs. Pettit. 1 Dallas, 161, Hollingsworth vs. Leiper. 7 Gill, 498, Emery vs. Owings. 63 Law Lib., 173, 174, 176. If the contract has been misconstrued, it being in writing, the court will correct the error. 5 Sergt. & Rawle, 52, Large vs. Passmore. Again, the award does not cover the submission, but only decides part of the matter in controversy, and for this reason is defective. 5 G. & J., 412, Armstrong vs. Robinson. 6 H. & J., 10, Cromwell vs. Owings.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*218]  ECCLESTON, J., delivered the opinion of this court.
The questions of most [**18]  importance in the cause are those which relate to the award, we therefore intend directing our attention to them first; although they are presented by the plaintiff's prayers, numbered from two to six, inclusive, which are to be found in the third and last bill of exceptions.
In England, when an award made under a reference in pais is sued upon, or is used in defence, in a court of law, it cannot be impeached for matters dehors the award. And when the injured party wishes to relieve himself from such an instrument, by proof aliunde, he must file a bill in equity to set it aside. In the suit at law he is confined to errors apparent on the face of the award. Not only is it so in England, but likewise 

 [*219]  in many of the States of this Union, as will appear from the authorities referred to by the counsel for the appellee under their first point.
Portions of the plaintiff's evidence intended to impeach the validity of the award should have been rejected in the court below, if objected to as inadmissible, because dehors the award. But what those portions are need not now be inquired into; because, even considering the evidence as in the cause, still we think the [**19]  prayers of the plaintiff were rightfully refused by the court. And this renders it unnecessary to ascertain to what extent, if any, the English rule in regard to the impeachment of awards, similar to the present, has been altered or modified in Maryland.
The award in controversy is in the following language: "The undersigned, Samuel Harris and J. Nant, having been appointed arbitrators by Frederick Roloson of the one part, and David Carson, contractor, of the other part, both of the city of Baltimore, to settle a matter of difference between them respecting the building of an addition to said F. Roloson's warehouse, situate on the west side of N. Paca, between Fayette and Lexington streets, which building or addition to said house, when near being finished and taken possession of by said Roloson, fell down in part, from the fact that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage, showing very plainly that the wall had not been well built. The arbitrators named above, at their second meeting, called in [**20]  James Curley, and after hearing all the statements of both parties respecting the cause, &c., also examined, under oath, five witnesses called by Mr. Roloson, some of whom had worked upon the building, and others frequently saw the work while in progress; and all of the five witnesses testified that said Carson had paid proper attention to the work from first to last. We therefore, as arbitrators, say, after hearing all the evidence produced in the case, and from our own observation, after a careful examination of the building, that D. Carson is not in any way in fault 

 [*220]  and not liable for any part of the damage, it being one of those things which human wisdom could not foresee.
SAMUEL HARRIS,
JOHN NANT,
JAMES CURLEY."
From this we understand the arbitrators as intending to say, in effect, that the wall which fell was to remain, and was supposed by all parties to be good and sufficient to support all the weight for which it was intended; that the external appearance of it indicated no unsoundness or imperfection, but by the fall the internal defectiveness of the structure became manifest, although previously concealed from human observation; that the damage resulted from [**21]  such concealed defect which caused the falling of the wall; and as that wall, by agreement, was not to be taken down, but to stand as it was, the arbitrators came to the conclusion that Carson was not in fault and not liable for the damage.
Whether the old wall, by contract, was to stand, and whether its external appearance exhibited such a state of soundness as to indicate its entire sufficiency to sustain the weight designed to be placed upon it, disclosing no evidence of any internal defect whatever, the parties supposing it good and sufficient for what it was intended; and whether the falling of the wall was caused by its concealed defect, and not a want of proper care or skill, in the manner of placing the iron columns upon it, were matters in regard to which the conclusions of the arbitrators were formed from the evidence, in connection with their own personal observation. From the nature and character of the circumstances presented for consideration and decision by the referees, if they committed errors or mistakes in their conclusions upon the facts, they were mere errors of judgment, and not gross mistakes which could defeat the award. It is not every error or mistake which [**22]  can avail for such a purpose. On the contrary, by a long course of decisions, courts have manifested a strong inclination to sustain the judgments pronounced by arbitrators. Mistakes committed by them in drawing incorrect inferences, or forming erroneous judgments or conclusions, from facts, will not vitiate their 

 [*221]  awards; but when mistakes are relied upon for that purpose they must be gross and manifest. In Knox vs. Symmonds, 1 Ves., Jr. 369, where the court, from the character of the proceeding, were at liberty to look, not only to the award, but also to the evidence aliunde, Lord Thurlow says: "To induce the court to interfere there must be something more than an error of judgment, such as corruption in the arbitrators, or gross mistake, either apparent on the face of the award or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened he should have made a different award." This remark is quoted with approbation in Burchell vs. Marsh, et al., 17 How. 344. And in that case the Supreme Court also say: "Courts should be careful to avoid a wrong use of [**23]  the word 'mistake,' and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards."
From its peculiar applicability to the subject before us we are induced to make a quotation from the opinion of Ch. Justice Shaw, in Boston Water Power Co. vs. Gray, 6 Metcalf 181, where he says: "The mistake or accident, therefore, must be of some fact which deceived and misled the arbitrators, and not a mistake in drawing conclusions of fact from evidence or observation." That mistakes which are but errors of judgment will not invalidate awards, may be seen by reference to Cromwell vs. Owings, 6 H. & J. 10, and Ebert's Exc'rs vs. Ebert's Adm'rs, 5 Md. 353. And in delivering the opinion of the court in Goldsmith vs. Tilly, 1 H. & J. 361, Ch. J. Chase says: "The court will not unravel the matter and examine into the justice and reasonableness of what is awarded."
Without meaning to say whether we should have drawn the conclusions which the referees did, we feel no hesitation in saying, that after looking, not only to the award, but also to the proof in the cause, we see no just reason for supposing [**24]  they did not believe they were doing what justice demanded of them. And in Burchell vs. Marsh, et al., where the award was open to a full examination, under a bill in equity, filed 

 [*222]  for the purpose of setting it aside, the court use this language: "If the award is within the submission and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either of law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation."
The plaintiff's second prayer, but the first stated in the record, is: "If the jury find from the evidence that the award read in evidence was made, written and subscribed by the arbitrators, at a meeting at which plaintiff did not attend and of which no notice was given to him, the plaintiff, then the said award is no bar to a recovery in this case, unless the jury are further satisfied from the evidence that the said award, after being notified to the plaintiff, was acquiesced in and assented to by him."
If the law of this [**25]  prayer is correct, then an award is void, unless ratified after notice of it is given, provided the party opposed to it is not present at, or notified of, the final meeting of the arbitrators, held simply for the purpose of making their decision, writing out and signing their award, although they may have previously heard all the allegations of the parties and examined all the evidence. When jurors retire to their chamber for the purpose of forming a verdict the parties are excluded, so that there may be a free and unbiassed deliberation as to what the verdict ought to be. Why have not arbitrators the same privilege of secret consultation and interchange of views, in regard to their final decision of the matters submitted to them? Impartial justice requires it should be so. If then arbitrators must be allowed the privilege of consultation, in private, for the purpose of making their award, what possible benefit can result from requiring the parties to have notice or knowledge of such an intended meeting? Not considering it necessary the parties should have notice of, or be present at, a meeting of that description, we think the court did right in refusing the prayer.
The third prayer [**26]  assumes the award to be void in consequence 

 [*223]  of the arbitrators having read the defendant's affidavit without previous notice to the plaintiff, and in his absence, even if the jury believed the affidavit had no influence on the minds of the arbitrators. The prayer is in the alternative, "although the jury may believe that the said affidavit had little or no influence on the minds of the arbitrators," and therefore if the instruction had been given the jury would have been justified in deciding against the award, on account of the affidavit being read, although they believed it produced no effect upon the decision of the referees. That would be allowing an award to be defeated for what is known to have exerted neither beneficial nor injurious influence on the rights of either party. Whilst it might be very proper to set aside an award because the arbitrators had read an ex-parte affidavit of this sort, and a court would not consider such an objection to the award as removed, even were the arbitrators to testify that the affidavit had no influence on their decision, still such a principle does not sanction the propriety of a prayer which assumes that the affidavit [**27]  had no effect upon the award. Such a proposition would be equivalent to saying the mere reading of such a paper will defeat an award, although the parties have agreed that it produced no possible effect.
The proposition stated in the fourth prayer is, that if the jury should find from the evidence the arbitrators were mistaken in the facts, or any of them, recited in the award, as the grounds on which they so awarded, and that without such mistake they would not have so decided, then the award is no bar to the plaintiff's claim. After a full consideration of the evidence we see no proof on which such a prayer could be granted: no evidence, in our opinion, legally tending to prove such a gross palpable error or mistake, in any of the facts recited by the arbitrators, as the grounds on which they made their decision, which could defeat the award. If the evidence has any tendency to show mistake, it can amount to nothing more than mistake or error of judgment on the part of the arbitrators, in drawing conclusions or inferences from the evidence and their own observation.
The fifth prayer is: "That the award read in evidence 

 [*224]  undertakes to acquit and exonerate the defendant [**28]  from liability on the ground alone, as stated therein, that both parties supposed the stone wall to be good and sufficient, and the same proved defective, which was the cause of the falling of the building, and the award is therefore void for mistake in law, of the arbitrators, appearing on the face of their award, in this, that the facts stated in the award do not, in law, warrant the conclusion, as the arbitrators supposed they did, that the defendant is free from liability to the plaintiff." In the very commencement of this prayer there is an error. Instead of the award undertaking to acquit and exonerate the defendant from liability, on the ground alone, that both parties supposed the wall good and sufficient, and the same proved defective, which caused the falling of the building, the award contains the important statement, that the wall referred to in the prayer "was to remain." Not that the arbitrators thought it was to remain, because both parties supposed it good; but after speaking of the new building, they say, it "fell down, in part, from the fact, that the old stone wall which was to remain, and which wall was supposed by all parties to be good and sufficient to [**29]  support all the weight for which it was intended, gave way or crushed under the iron columns, which caused the damage." Here it is first said the wall was to remain, then follows the statement of the further fact that the wall was supposed by all parties, &c. Moreover, when in conclusion the arbitrators speak of their own observation or examination of the building, and of having heard all the evidence produced in the case, and say "that D. Carson is not in fault and not liable for any part of the damage, it being one of those things which human wisdom could not foresee," it is evident the award does not undertake to exonerate and acquit the defendant from liability, on the ground alone stated in the prayer. Of course it should not have been granted.
By the sixth prayer the court were asked to instruct the jury, "that the paper offered in evidence and purporting to be an award is void for the following reasons:
1st. Because there is a mistake of fact apparent on its face.
2nd. Because there is a mistake of law apparent on its face.

 [*225]  3rd. Because of the improper conduct of the arbitrators.
4th. Because it is not in accordance with the submission as proved by Mr.  [**30]  Harris."
The first reason confines the court to the award itself; and if there is any mistake of fact on its face, we cannot see any which can be considered more than an erroneous judgment or inference. The second reason assumes there is a mistake of law apparent on the face of the award. Whether the court could so instruct the jury must be ascertained by looking to the award itself, without resorting to extrinsic evidence for the purpose of showing a mistake, the assumption being that on its face the award shows it.
We have already stated what we understand to be the meaning of the award in regard to the grounds on which the arbitrators exonerated the defendant from liability, and we think that conclusion upon those grounds was not an error or mistake in law, authorizing the court to instruct the jury that the award is void, because on its face there is an apparent mistake of law. In Ebert's Exc'rs vs. Ebert's Adm'rs, it is said: "A more liberal and reasonable interpretation of awards is now adopted by the courts than formerly existed, as to awards. Every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible,  [**31]  without violating the rules adopted for the construction of instruments." In support of this reference is made to Caton vs. MacTavish, 10 G. & J. 192 at 193. 11 Law Lib. 53, 61, 63.
The third reason relies upon the ground of improper conduct in the arbitrators. The award furnishes no proof of such misconduct, and if any existed it could only have been shown by the evidence. The prayer did not ask the court to inform the jury what facts were sufficient to establish misconduct, leaving the jury to decide whether such facts had been proved; but the court were called upon to say the award was void because of the improper conduct of the arbitration. The granting of such an instruction would have violated the right of the jury to decide questions of fact. In the fourth reason the plaintiff assumed the award to be void, because it was not in accordance 

 [*226]  with the submission as proved by Mr. Harris. The testimony of this witness was not the only proof in regard to the terms of the submission. Mr. Nant also testified on that subject, and therefore the court were right in refusing to say the award was void because it was not in accordance with the submission [**32]  as proved by Mr. Harris.
Believing, as we do, the award to have been a good defence against the plaintiff's claim, and that even if the other decisions of the court below, to which exceptions were taken, are erroneous, the case ought not to be sent back under a procedendo, it is unnecessary to inquire whether those decisions are correct or not. Indeed we understood the counsel on both sides as agreeing that if the judgment was not reversed upon the plaintiff's prayers in regard to the award, the other questions presented by the record were of no importance so far as this case is concerned. They desired the court, however, to express an opinion upon the question raised by the second bill of exceptions, in regard to the refusal of the court to suspend the examination of the witnesses until the plaintiff's counsel had finished writing his exception.
The act of 1834, ch. 233, sec. 11, provides that bills of exceptions must be signed before the verdict is rendered, if the party requires it. Under this act the court has a discretion as to what time the exceptions shall be either prepared or signed, provided they are completed prior to the verdict; and consequently the action of the [**33]  court in this instance, in regard to directing the cause to be proceeded in, by the examination of witnesses, against the objection of the plaintiff's counsel, who was writing the exception, we think is not subject to revision on appeal. We will, however, say, that in our opinion, as a general rule, the most appropriate time for, and most likely to avoid delay in, preparing an exception, is, immediately after the decision which is to be excepted to, when the facts are fresh in the recollection of court and counsel, and the witnesses are in attendance, affording an opportunity of re-examination, if a controversy should arise in reference to any portion of the testimony.
Judgment affirmed. 

33 of 44 DOCUMENTS 

WILLIAM H. KEIGHLER and others, vs. WILLIAM J. WARD and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 254; 1855 Md. LEXIS 49 

DECEMBER, 1855, Decided 

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

This appeal was taken from an order of the court below quashing the return to a writ of sequestration under the following circumstances:

The appellants obtained a decree in the court of chancery on the 13th of May 1851, against Royston Betts for $ 21,111.26, under a bill filed in that court on the 16th of January 1849, and on the 6th of September 1851, filed their petition in the case, setting out the decree and the failure of Betts to pay the same, and praying for the writ of sequestration to enforce payment thereof. On the same day the writ was issued by order of the chancellor, and on the 15th of the same month was laid in the hands of William J. Ward and the agents of certain fire insurance companies, and return made accordingly.

Afterwards, on the 22nd of April 1853, the appellants filed another petition, in which, after setting out the decree, the issue, service and return of the sequestration, and insisting that thereby the moneys and effects of Betts in the hands of Ward and the insurance companies became subject to the payment of the decree, states, that since the return the said corporations have paid all the moneys of Betts,  [**2]  in their hands, to Ward, who is about to apply them to other purposes, pretending they were not in his hands at the date of the service of the writ, whereas petitioners are advised said moneys were in the hands of the corporations at the time of such service and were paid over to Ward with notice thereof, and are bound in his hands as fully as they were in the hands of the corporations; but to conclude all questions on the subject they pray that another writ of sequestration may be issued, to be also laid in the hands of Ward; and that on service thereof he may be required to show forth in certainty what moneys and effects of Betts are in his hands, and how and when he received them, and to bring the same into court to be applied to the decree. The chancellor on the same day ordered the suit to issue as prayed, and directed Ward to answer the petition on or before the 17th of May following. The writ was accordingly issued and laid in the hands of Ward on the 27th of April 1853, and also in the hands of the Franklin Fire Insurance Company on the 29th of the same month.

On the 17th of May 1853, Ward appeared and filed his answer, in which, after admitting the decree and the issue [**3]  and service of the writ as stated in the petition, he files and submits a copy of a deed of trust from Betts to him, and of his report as trustee thereunder, made to the Superior Court of Baltimore city, and the order of said court directing notice to the creditors of Betts, and the notice given conformably thereto, which report exhibits a full account of his trust and the residue remaining in his hands for distribution. He also admits service of the second writ of sequestration, and refers to his said report as giving in detail the disclosures required by the order of the chancellor, and asked for in the petition. He states that the original writ of sequestration issued after the execution of the deed of trust from Betts to him, and such being the case he submits that his course, preparatory to distribution, in pursuance of the deed, was right and proper, and that such distribution ought to be made, and asks, if requisite, that a hearing may be granted him in the premises before final action thereon by the chancellor.

The report referred to in this answer, and filed with it, shows a balance of $ 3986.58 in the hands of the trustee for distribution under the deed of trust. The [**4]  deed of trust from Betts to Ward, also filed with this answer, bears date the 29th of January 1851, and conveys to Ward "all the right, title, claim, demand and interest" of Betts, in and to certain described insurance policies issued in favor of Betts, on which suits were then pending in the Circuit Court of the United States for the Maryland District, and to the money payable and recoverable thereunder in trust to receive and apply the same, first, to pay the expenses and counsel fees in the suits on the policies then pending; secondly, to pay the trustee's commission of eight per cent.; thirdly, to pay $ 3000, with interest, to a named creditor in New York, "and the residue to divide, without preference, among all the other creditors of said Betts who may come in and release, as hereinafter stated, according to their respective claims, without priority or preference save as by law established; provided, however, that each of said creditors claiming or receiving any thing, dividend or distributive share under the provisions of this deed or out of said trust fund, shall simultaneously therewith execute and deliver to said Betts, his heirs and representatives, a good and sufficient [**5]  release of all claim or demand of any nature against said Betts, which could or might be made because of said claims; and that in case of the refusal of any of said creditors so to release, the distributive share or shares of the party so refusing shall be divided proportionably among the other creditors so assenting."

Afterwards, on the 27th of February 1854, Ward made a motion in the case to quash the writ of sequestration, and the return thereof so far as relates to him: 1st. Because the same, was improvidently issued. 2nd. Because he has no property or effects of said Betts in his hands bound by said writ. 3rd. Because he had no property or effects in his hands, when said writ issued, to which said Betts had any claim, and has not since had any such property or effects. And 4th. For other reasons apparent on the face of the proceedings.

On the 9th of March 1854, the chancellor, (JOHNSON,) delivered an opinion in the case, which is reported in 4 Md. Ch. Dec., 87, and passed an order directing the return to the writs, so far as the same relates to or affects Ward, to be quashed. From this order the complainants appealed.  

DISPOSITION:
Decree reversed and cause ordered to the Circuit [**6]  Court of Baltimore city the costs to be paid out of the estate.  

HEADNOTES:

The writ of sequestration is in full force in Maryland, both as a mesne process against a party in contempt and as a judicial writ to enforce the performance of a decree, and in its latter office is analogous to an execution at law.

The 4th sec. of the act of 1818, ch. 193, dispenses with demand or notice of the decree before issuing process thereon required by the previous act of 1785, ch. 72, sec. 25, and applies to process of sequestration as well as other writs.

Jurisdiction once rightfully asserted by a court of equity, and which would lead to a settlement of all the questions which might arise out of the subject matter in controversy, will exclude all jurisdiction over it by other courts for similar purposes.

But proceedings in equity, which contemplate giving force and efficacy to a deed, will not prevent the deed from being assailed as fraudulent in another court, or by another proceeding in equity.

Choses in action, under certain circumstances, may be sequestered; if the party in whose hands the chose is admits the debt to be due, and is willing to pay it over under the order of the court, it is subject to sequestration, but not otherwise.

Where the party in whose hands the chose is denies that it is due to the decree-debtor, and sets up a deed of trust, under which he claims title, and avers it to be valid, the court will not, upon return to the writ of sequestration, inquire into the validity of such deed and determine whether it be fraudulent or not.

It is the resistance of the party holding the chose that defeats the proceeding by sequestration, and not the grounds upon which the resistance rests.

But where a party levies a sequestration upon such a chose in action he acquires thereby an inchoate equitable lien or priority to the fund contingent upon the result of the question, whether the deed is void or not.

In such case the return to the writ of sequestration should not be quashed, but the court should protect the inchoate equitable lien or priority thus acquired, by retaining the case until, by other proceedings, the validity of the deed can be determined.  

COUNSEL:
Thos. S. Alexander and John V. L. McMahon for the appellants, argued:

1st. That the deed of trust from Betts to Ward was fraudulent and void as to the appellants, the creditors of Betts:--1st, because it exacts releases of the creditors and at the same time does not profess to be, and is not shown or pretended to be, a conveyance of all the debtor's property. Being a deed of specifics, it is void on its face; it must stand or fall as it thus appears, and you cannot go into outside testimony to show that it does embrace the whole property of the grantor. But if it can be helped out by extrinsic evidence, the onus is upon the parties claiming under the deed, and they have offered no such proof in this case. 3 Md. Rep., 48, 51, Sangston vs. Gaither. Ibid., 12, 34, 35, Green & Trammell, vs. Trieber. 2nd. Because it does not merely prefer the releasing creditors to those not releasing, but excludes the latter from all benefit and substantially reserves the surplus to the debtor. 17 Verm., 310, Hall vs. Denison. Ibid., 390, Dana vs. Lull. 17 Ala., 549, West vs. Snodgrass. 3rd. Because it limits no time for its acceptance.  [**7]  

2nd. It is said the writ of sequestration in this case improvidently issued, because no notice of the decree had been given, as required by the act of 1785, ch. 72, sec. 25. But the petition for the writ alleges, that Betts had full knowledge of the decree and refused to perform it, and notice, therefore, appears on the face of the petition. No exception was taken by Ward either to the writ or the return; no point was made in the court below as to the regularity of the writ, and no question of that kind is now before this court. But if there was there is nothing in it. The 4th sec. of the act of 1818, ch. 193, dispenses with notice and demand before issuing process, required by the 25th sec. of the act of 1785, ch. 72, and this refers to all process which could be issued under the act of 1785. The writ, therefore, being regularly issued, we say, that on the case before the chancellor at the time of quashing the return, the appellants' right to their sequestration against the trustee, Ward, involved no question as to the right thus to reach the unpaid debts or choses in action of Betts, and thus to determine the rights and liabilities as between Betts and his debtors, the insurance [**8]  companies, but merely the question, whether, after Betts' said debtors had paid over what was due by them to Betts' trustee under his said deed, this process would lie to affect the funds in the hands of said trustee thus received, and claimed and held by the trustee under no other title. The fund was not a chose in action due Betts, but money paid over by him to Ward. The case, therefore, presents no other right or title as against the appellants' right thus to obtain and appropriate the funds in Ward's hands as Betts' property, as regards them, except the title given by Betts to Ward by that deed, and this deed being in law fraudulent as to the appellants, the law finding it to be so treats the property as if no such deed had been made. 3 Md. Rep., 409, Spindler vs. Atkinson. Ibid., 45, Sangston vs. Gaither. 7 Do., 380, American Exchange Bank vs. Inloes. The question then is, can we get this money by process of sequestration? As to this we insist, that the sequestration issued in execution of the appellants' decree was proper process to reach any funds or moneys of Betts in the hands of Ward, and the only question, therefore, is, whether the appellants are by law permitted, under [**9]  that proceeding, to deny the validity of the deed, and thus necessarily to show that the funds in Ward's hands are still the property of Betts as it regards the appellants; and lastly, that under that process against the trustee, the holder and representative of the title granted by that deed, and upon his answer admitting the funds in hand and setting up that title under the deed, the appellants were entitled in that proceeding to impeach the title set up under that deed as fraudulent and void as to them. In attachments at law against such a trustee, the right of the attaching creditor under that process to impeach the deed as fraudulent as to creditors, and thus to obtain condemnation of the property or funds in the hands of the trustee, has been recognised and sanctioned in this court, and therefore, a fortiori, does it exist under this the analogous but more comprehensive process of execution of a court of equity. In England, where sequestration issues on final decree, it is in the nature of process of execution. There all process of execution in equity was founded upon contempt, and the writ of sequestration is one of such processes. 2 Daniel's Ch. Pr., 1244, 1253. 8 Bac. Abr.  [**10]  , (Bouv. Ed.,) 629, 630. Where the debt is admitted to be due, all the authorities say that the writ lies to affect the choses in action of the decree-debtor. So money in hand admitted to be due. Tothill, 175. 2 Daniel's Ch. Pr., 1255, 1256, 1260, 1261, 1262, and the cases there cited. This, indeed, was admitted by the chancellor in his opinion. 4 Md. Ch. Dec., 91. 1 Beavan, 263, Wilson vs. Metcalfe. But the title may also be inquired into. A writ of sequestration may be levied on property fraudulently aliened, and if the fraudulent alienation be set up as a defence, it may be inquired into upon the return of the writ. 2 Daniel's Ch. Pr., 1266, 1268 to 1272, and the cases there cited. 25 Cond. Eng. Ch. Rep., 461, Empringham vs. Short, was the case of fraud in fact in regard to deeds, and Vice-Chancellor Wigram declared, that he had not the slightest doubt of the jurisdiction to try the question, and ordered it to be tried. Such is the English law on the subject. Now what is the Maryland law? It is said the writ is obsolete in this State. The act of 1785 recognises, adopts and modifies it so as to make it the most comprehensive of equity processes. It might with as much propriety be [**11]  said that this act of Assembly is obsolete. This law puts it beyond all doubt that it is a writ of execution. It was intended to reach by it something more than could be reached by a fi. fa., for it speaks of personal estate and "effects" as including something more than visible, tangible property. And moreover, this act gives the chancellor the power to order it as an immediate execution. For the American authorities on this subject, see 1 Hoffman's Ch. Pr., 158, note 1. 1 Edw. Ch. Rep., 340, White vs. Geraerdt. 12 Metcalf, 363, Grew vs. Breed. 11 Paige, 603, Hosack vs. Rogers. That Ward is the only party necessary to be brought before the court in order to assail the deed, see 4 Barbour, 237, Russell vs. Lasher, and cases there cited.

3rd. That by the proceedings the appellants had under their sequestrations as process of execution, acquired at least an inchoate equitable right to priority of payment of their decree out of the funds in the hands of the trustee, which the court below ought to have respected and protected as fully as priorities acquired by the ineffectual levy of executions at law to affect equitable interests, and that even if conceded, (as it is not,) that under [**12]  this process and the trustee's answer setting up as his only title this deed alleged to be fraudulent on its face, the court below could not adjudicate finally on that title, still it erred in quashing the return and thereby destroying the appellants' priority, and should, on the contrary, have preserved it, by directing such other proceeding in equity or at law as might be deemed necessary to the proper adjudication of that title, and by retaining the sequestration to await the issue of that proceeding. 10 G. & J., 251, Harris vs. Alcock. 2 Md. Ch. Dec., 260, Gill vs. McAttee, et al. 1 Edw. Ch. Rep., 340, White vs. Geraerdt. 8 Bac. Abr., (Bouv. Ed.,) 629, 630. 25 Cond. Eng. Ch. Rep., 461, Empringham vs. Short. 27 Maine, 539, Sargent vs. Salmond. 3 Paige, 320, Clarkson vs. De Peyster.

4th. That the trustee's report to the Superior Court of Baltimore city, and the order of the court thereon, were no bar to the further continuance of the sequestration against the trustee, and did not justify the court below in quashing it. 7 Md. Rep., 380, American Exchange Bank vs. Inloes.

Wm. A. Talbott and George W. Dobbin for the appellees, argued:

1st. That the deed from Betts to [**13]  Ward is not on its face a void instrument, but may be supported by proof that it conveys all the property of the grantor; that it reserves nothing to the grantor, and gives to the creditors the whole time till the payment of the dividend under it to accept its terms, and is therefore beneficial to them. The intent to defraud must be gathered from the face of the instrument. The statute itself requires this intent. Upon the face of this deed there is no such intent. The fact that it does not upon its face convey all the property of the grantor may make it voidable, but does not make it void. There is no principle of law and no decision that makes it void. The fact that no time is limited in it for acceptance of its terms, is no objection, for the law presumes that the trust will be executed in a reasonable time. On this point we refer to 3 Md. Rep., 48, Sangston vs. Gaither. Ibid., 12, Green & Trammell, vs. Trieber.

2nd. That the writ of sequestration is a process of contempt, used to enforce obedience on the part of recusant parties to mesne process or final decree of the court of chancery, and that having compelled the submission of the recusant by depriving him of the possession [**14]  and enjoyment of his property, the law proceeds to execute its final decree by the appropriation of the property thus in possession to the satisfaction of the decree; that the efficacy of the writ depends entirely upon the power of taking into possession the property of the person against whom it is issued, and it has no application therefore to a chose in action, when the person against whom the action exists denies the right and withholds the possession. Mr. Alexander, in his Book on Chancery Practice, says that this writ is obsolete in Maryland, and there never has been any instance of its having been obtained before the present case. Prior to the year 1839 all process in England to enforce decrees was process of contempt. Then for the first time process of execution was given. The process of sequestration was peculiarly a process of contempt. It did not issue to the sheriff, but to four persons named by the plaintiff, who are to enter and take the property and keep it till the party purges himself of the contempt. It has no return day, but exists as long as the party stands out in contempt. Such was the law in England prior to the passage of the new rules in 1839. As soon as our [**15]  legislature passed the act of 1785, giving the fi. fa. and ca. sa., from that moment this writ commenced to become obsolete. That act speaks of it as a writ of contempt. It may issue and be levied upon choses in action in certain cases. Where the holder admits that the property belongs to the decree-debtor it may properly lie. But where the holder denies title and claims the property himself, and refuses to give it up, in such cases we say it does not lie. There has been no case adduced in which a disputed chose has been the subject of the writ or could be affected by it. In support of these views we refer to 2 Daniel's Ch. Pr., 1248, 1249, 1255, 1256, 1 Hoffman's Ch. Pr., 158, note 1. 1 Barbour's Ch. Pr., 70, 71. 2 Simons, 55, Johnson vs. Chippindall. 3 Swans., 309, Francklyn vs. Colhoun. 1 Beavan, 269, Wilson vs. Metcalfe. 4 Ves., 735, Simmonds vs. Kinnaird. 1 Ball & Beatt., 387, McCarthy vs. Goold. 1 Ves., 198, Dundas vs. Dutens. 1 Ves., Sen., 180, Wharam vs. Boughton. The act of 1785 does not convert the writ from a process of contempt to one of execution; this act speaks throughout of clearing the contempt whenever this suit is spoken of. As to the point that the appellants have [**16]  acquired an inchoate right by the ineffectual levy of the writ, the case of Burns vs. Robinson, 7 Irish Eq. Rep., 188, is a sufficient reply. This case very distinctly says there is no right acquired by the party at whose instance the writ issues. Equity will only aid an ineffectual levy where the levy has been made upon the thing itself, but by this writ the party acquires no such right.

3rd. That the writ of sequestration being a process of contempt, it is not within the meaning of the act of 1818, ch. 193, sec. 4, which dispenses with demand of a compliance with a decree prior to issuing process of execution, and no notice of this decree having been given as required by the act of 1785, ch. 72, sec. 25, the writ issued improvidently.

4th. That this case does not fall within the reason of the American Exchange Bank vs. Inloes, 7 Md. Rep., 380, which determines that the pendency of an equity proceeding to administer the trust, will not prevent an attaching creditor from attacking the validity of a deed of trust, as the attachment is a new suit appropriate to try the issue of the validity of the deed, whilst this is an attempt to engraft on the execution of final process [**17]  a new, complicated and important inquiry involving the interests of parties not before the court.

5th. Because the sheriff's return is not conformable to the exigency of the writ which commands the sheriff to "collect, take, and get into his hands, the goods, chattels and personal estate, and detain and keep the same," &c., and the law, unlike the attachment law with reference to garnishees, furnishes no means by which to reach a chose in action in the hands of one who is unwilling to bring the money or thing into court.  

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

OPINIONBY:
MASON 

OPINION:

 [*263]  MASON, J., delivered the opinion of this court.
The questions involved upon this appeal have never before, as we are aware, arisen in any court in Maryland. They relate to the nature, office and applicability, of the writ of sequestration, as a part of our equity jurisprudence. We have no doubt that this writ is in full force in this State, both as a mesne process against a party in contempt, as well as a judicial writ to enforce the performance of a decree, and in its latter office may be said to be analogous to an execution at law. The process of sequestration came with [**18]  our chancery system from England, and has since been fully recognised and adopted by our legislation, as appears from the act of 1785, ch. 72, sec. 25. The circumstance, that it has never been resorted to in practice in this State, does not, on that account, render it inoperative or powerless. In Bacon's Abr., 8th Vol., 630, 

 [*264]  it is said of this writ that it has "become the common process in courts of equity, and may be said to be two-fold; that is, it issues either as a mesne process on the defendant's default in not appearing, or not answering, after the whole process of contempt hath spent against him; or it issues as a judicial process in pursuance of a decree, and to enforce the performance of it; and it is the execution and life of a court of equity; and as it is the fruit of a long suit it is to be favored, and in this case it is said to be analogous to an execution at common law."
Unless we can discover a purpose on the part of our legislature, as developed by our act of 1785, to alter the character and office of this writ, and the practice under it, as shown by the English authorities, we must look for the general principles regulating the subject to [**19]  the adjudged cases and elementary works in England. How far then have the English doctrines in regard to sequestration been affected or altered by our act of Assembly, is to be our first inquiry.
The 25th sec. of the act of 1785 requires as a condition upon which this writ, as well as all other process upon decree, shall issue, that notice shall first be served upon the defendant of the passage of the decree, by an attested copy thereof; and by the 26th section it is provided, "that in all cases in chancery the process of commission of rebellion, and sergeant-at-arms, shall be omitted as unnecessary." These, we believe, are the only two statutory modifications made in the law which we need notice; and by the act of 1818, ch. 193, sec. 4, the demand or notice of the decree, as required by the previous act, has been dispensed with, and the party obtaining the decree is entitled to process thereon, without such demand or notice, and this embraces the process of sequestration as well as other writs.
Of one thing we are certain, that there is nothing in the provisions of either of the acts referred to which at all affect the questions involved in the present appeal. They are to be determined [**20]  therefore upon English authority.
There appears to be no objection taken to any of the proceedings in this case prior to the decree of the 13th of May 1851, 

 [*265]  against the defendant, Betts. The case stands then upon the concession that those proceedings are regular, and that Betts is justly indebted to the complainants in the amount of the decree.
Upon this decree a writ of sequestration was issued on the 22nd of April 1853, and at once laid in the hands of W. G. Ward and the Franklin Fire Insurance Company, who, as was alleged, held certain moneys and effects of Betts, the defendant, which were subject, by this process, to be made available towards the satisfaction of the decree. Ward filed his answer, setting up a deed of trust from Betts to him, his report as trustee under said deed to the Superior Court of Baltimore, and the order of that court for notice to creditors, &c. He states that the writ of sequestration issued after the deed from Betts was executed, and he submits that he proceeded regularly in the Superior Court, and that the distribution of the trust estate ought to be made under the direction of that court; he also avers, that he has no property  [**21]   or effects of Betts in his hands bound by or subject to said writ. For these reasons he moved that the return of the writ be quashed. The chancellor did accordingly quash the return to the writ of sequestration, and from that decision the present appeal was taken.
In the argument of this cause the five prominent questions discussed, were:--1st. Did not the jurisdiction rightfully assumed by the Superior Court of Baltimore over the trusts, as set out in the deed to Ward, appropriate to that court the settlement of the questions raised on this appeal, to the exclusion of the court of chancery? 2nd. Is the process of sequestration, in any of its aspects, applicable to a case like the present? 3rd. But if so, as Ward denies in his answer, that the choses in action sought to be reached were Betts', would this proceeding be effectual to test the question of title to those choses in action? 4th. Whether the deed of trust was valid and vested a good title in Ward, as against all parties claiming subsequent to its execution? And 5th. Whether by virtue of the decree and the proceedings under the sequestration, the complainants acquired any inchoate equitable priority upon [**22]  

 [*266]  the funds in the hands of Ward, which upon a subsequent proceeding might be made available in payment of their decree, provided they cannot be reached under the present proceeding?
The first question is abundantly answered by the decision of this court, in the case of the American Exchange Bank vs. Inloes, 7 Md. 380. A court of equity cannot, by taking hold of a case for one purpose, draw to itself an exclusive jurisdiction over every other discordant question which might arise out of it. It is true that a jurisdiction once rightfully asserted by a court of equity, and which would lead to a settlement of all the questions which might arise out of the subject matter in controversy, will exclude all jurisdiction over it, by other courts, for similar purposes, and the reason of this, which is to prevent a number of conflicting proceedings about the same thing, is wise and just. But that a proceeding like this one pending in the Superior Court, which contemplated giving force and efficacy to a deed, can be said to draw within its ample folds the considerations of questions which assail the very existence of the deed itself, is a proposition not for one [**23]  moment to be entertained.
The second question we have already determined, to the extent of saying, that the writ of sequestration was in force in Maryland. But it is contended, that under no circumstances are choses in action, such as stock, debts, &c., subject to sequestration. This was, no doubt, at one time held. 8 Bacon's Abr., 632. But a different or modified doctrine now prevails, and it may be said to be the result of the best adjudged cases in England, that choses in action, under certain circumstances, may be sequestered. The chancellor's views upon this particular point are correct. It may be stated as a settled point, upon strict authority, that if the party in whose hands the chose is admits the debt to be due to the defendant, and is willing to pay the same over under the order of the court, it becomes thereby subject to sequestration, but not otherwise. 2 Daniell's Chan. Prac., 1261. 1 Hoffman's Chan. Prac., 157. White vs. Geraerdt, 1 Edw. Chan. Rep. 340.  Johnson vs. Chippindall, 2 Sim. 55. 1 Beavan 369.
This then leads us to the third inquiry, whether Ward's 

 [*267]  denial of his liability to Betts defeats [**24]  the writ? Clearly, by this denial, the case is made to fall within the general principle just stated, that there can be no sequestration against a party denying his indebtedness, unless it may be shown by some further proceeding that the objection is untenable, as will be more fully explained hereafter. The appellants seek to except this case from the operations of the general rule, upon the ground, that as Ward has thought proper to exhibit a deed in support of his title to the property, which upon its face, as is alleged, is void for fraud, therefore the law will treat the property as if no deed had been executed. This objection simply resolves itself into the general proposition, that choses in action held by fraud are subject to sequestration, notwithstanding the party holding them denies the charge and resists the proceeding, and thus resistance, resting upon such a ground, is held to be an exception to the general rule, that choses in the hands of an unwilling party cannot be sequestered. We cannot discover any authority or good reason for such a proposition. The general principle is doubtless designed to avoid such collateral proceedings and inquiries as would unavoidably [**25]  result from such resistance. What questions are more fraught with difficulty or attended with more protracted controversies than questions arising out of allegations of fraud? And this is abundantly illustrated by the question of fraud raised upon this appeal. It has elicited a most able and prolonged argument, and if the zeal manifested by the counsel be any index of their real convictions upon the subject, they must have been sincere in maintaining the conflicting positions assumed by them, and thus we have a clear case of controversy presented to us, which, if we were now to decide upon this collateral inquiry, we would upturn the established doctrines and practice upon the subject. It is no answer to our objection to say, that because we can see from the case made, (if such were the fact,) that Ward has no title, therefore the sequestration must go against him. Such a view might apply to nearly every case, or would make the question depend upon the degree of difficulty which each case would present, while the law says that the resistance must defeat the proceeding, and not the grounds upon which the resistance 

 [*268]  rests. The appellants say the deed is void [**26]  upon its face, and the appellee denies it; if we were to look into the deed for the purpose of determining this point, we would be simply settling the question, and what more could we do in regard to any other controversy that might arise out of such a proceeding? The authorities seem to leave the determination of this question, whether to abide the sequestration or not, entirely with the party affected by it. If he may resist the writ without assigning any reasons for doing so, is it not unreasonable that he should be worse off for having assigned insufficient or bad reasons?
The fourth question, as to the validity of the deed, after what has already been said, ought not to be decided upon the present appeal. To do so would be to disregard what we have laid down under the previous head as the proper rule upon the subject.
The fifth and last ground taken in argument relates to the supposed inchoate equitable lien created by this proceeding upon the funds in the hands of Ward. This is a most important proposition, and to some extent a new and unsettled one. Daniell, (2 Vol. 1262,) says, that the question, "whether, when the party in possession of the chose in action [**27]  refuses to admit, or disputes his liability, the court will authorise the institution of proceedings, either at law or in equity, for the purpose of enforcing the sequestration against such party, is a point which still appears to remain uncertain." See also Simmonds vs. Kinnaird, 4 Ves. 735. White vs. Geraerdt, 1 Edw. Ch. Rep. 336.
From the analogy of the case of Harris vs. Alcock, 10 Gill & John. 226, and upon general principles of equity and justice, we are disposed to believe and do so accordingly decide, that the complainants have acquired, by virtue of the sequestration, an equitable lien or priority to the funds in controversy, contingent however upon the result of the question, whether the deed of trust from Betts to Ward is void or not.
The complainants having had a valid, equitable claim against Betts sought to enforce the same in the only court having ample jurisdiction over the subject, and having done so obtained a decree in chancery for the amount due them. In order 

 [*269]  to obtain, by due course of law, the fruits of their decree, they resorted to the only legal process suited to the emergencies of their [**28]  case, namely, the writ of sequestration, which was laid upon property or effects in the hands of Ward, which belonged, as was alleged, to Betts. The efficacy of this writ is defeated, under a well settled principle of law, by Ward, who denies that the property is Betts', and in support of this denial relies upon the deed of trust. The complainants thus find the estate of Betts, or a large portion of it, which they consider, both in law and equity, bound for his debts, transferred beyond their reach, by means of what they allege to be a fraudulent conveyance. What is to be the consequence of this condition of things, provided the deed should turn out to be void? Are the complainants to lose the fruits of their vigilance, which, in every court, is preserved and protected, not from any laches, delay or mistake on their part, in pursuing their proper, legal remedies, but from a technical, and perhaps untenable objection, which could not have been averted, made by one, who, at best, is but a mere third party or stranger to the proceedings? Can it be said that these parties must abandon and lose all benefit resulting from this proceeding, shown to be regular and proper, up to the time [**29]  of this objection, because of the interposition of such an objection on the part of Ward? If the remedy of these complainants had been at law, and they had obtained a judgment instead of a decree, an attachment by way of execution would have reached the funds in the hands of Ward, and notwithstanding any objection he might make the validity of the deed would have been inquired into, and if found void the funds would have been summarily condemned. Are we now to say that there are remedies at law in cases where there are none in equity? Without this equitable lien, which is contended for by the appellants, they would be either remediless or would be driven to a slow and tedious proceeding, instituted expressly to vacate the deed, which would result equally to the benefit of all creditors, while, in the mean time, more fortunate, though not more wise or vigilant creditors, would probably, by means of attachments, or otherwise, sweep away the debtor's whole estate.

 [*270]  The court of chancery could therefore properly have retained this case until such other or additional proceedings could be had, at law or in equity, as the exigencies of the case might require, by which the question [**30]  of the validity of the deed could be settled. Until this was done the court ought not to have quashed the return to the sequestration, but on the contrary, we think, that the appellants had, under their process of sequestration, which, in this case, was in the nature of an execution or attachment at law, acquired, at least, an inchoate equitable lien or priority, which the court ought to have protected until the final termination of the whole controversy. If the deed should be declared void, and the funds in the hands of Ward decided to belong to Betts, they should be distributed with reference to the priority or preference acquired by the complainants by virtue of their process of sequestration.
In the foregoing opinion we have said enough to dispose of the several questions as presented upon the present appeal. All questions arising out of the deed should be left, as we have said, open for future consideration upon proceedings hereafter to be instituted to test its validity.
Decree reversed and cause ordered to the Circuit Court of Baltimore city. The costs to be paid out of the estate.
ECCLESTON, J., delivered the following separate opinion:
Although the recent [**31]  English decisions have held that a chose in action may be made subject to the payment of a decree in equity, under a writ of sequestration, yet, in my opinion, the English and American authorities show it to be true, as a general rule, that the process of sequestration will be defeated if objected to by the person charged with being indebted to the defendant in the decree. In this case, however, the objection made by Ward is based upon the assignment or conveyance in trust, made to him by Betts, which instrument is alleged to be fraudulent and void.
A court of equity has long been considered the proper tribunal for deciding whether a conveyance is void for fraud. And as the instrument on which Ward bases his objection to the 

 [*271]  sequestration has been alleged to be fraudulent, I think the chancellor should have retained the writ for the purpose of having the question of fraud settled; so that in case of a decision adverse to the validity of the conveyance the sequestration might then be available to the complainants, because of the removal of Ward's objection by a court having competent and appropriate jurisdiction in reference to matters of fraud.
Under [**32]  the English practice certain preliminary steps were necessary for putting a defendant in contempt before a writ of sequestration could be issued against him; but by our acts 1785, ch. 72, sec. 25, and 1818, ch. 193, sec. 4, these preliminary steps are dispensed with; and therefore the present writ was not irregular for want of them.
Entertaining these views I think the order of the chancellor should be reversed and the cause remanded for further proceedings.  

34 of 44 DOCUMENTS 

JAS. MALCOLM, Perm't Trustee of THOS. SPRIGG and HENRY MESEKE, vs. JAS. HODGES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 418; 1855 Md. LEXIS 69 

DECEMBER, 1855, Decided 

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

The bill in this case was filed on the 15th of July 1850, by the appellant, as permanent trustee in insolvency of Sprigg & Meseke, to vacate a deed executed by the said insolvents to the appellee, on the 2nd of June 1849. The bill assails the deed as void both at common law, under the statute of Elizabeth, and under the insolvent laws. Sprigg & Meseke applied for the benefit of the insolvent laws on the 5th of July 1849, and the appellant was duly appointed their permanent trustee on the 11th of August following.

The deed, which is filed as an exhibit with the bill, is dated the 2nd of June 1849, and purports to be an "indenture between Thomas Sprigg and Henry Meseke, copartners, trading in the name, style and firm of Sprigg & Meseke," and James Hodges. It recites, that "whereas, the said Sprigg & Meseke are indebted to sundry persons, and being unable to pay their liabilities, the said Sprigg & Meseke have hereby assigned all their estate and effects unto the said Hodges, upon trust, for the benefit of their creditors, to be distributed, pro rata, according to their claims, among them, or so many of them as will sign a release, on or before [**2]  the 2nd of July next succeeding the date above written to the said Sprigg & Meseke, to them." It then, in consideration of the premises, conveys to Hodges "all and singular the stock of goods, machinery, book-accounts owing to said Sprigg & Meseke, and all and singular the estate and effects of the said Sprigg & Meseke, of whatsoever consisting: To have and to hold the said property, estate and effects of the said Sprigg & Meseke unto the said James Hodges, his executors, administrators and assigns," in trust, to sell the same at public auction or private sale, as the trustee in his discretion may deem best, and collect and apply the proceeds to pay, first, the expenses of the sale and the trust; secondly, the trustee's commission of eight per cent., and thirdly, to distribute the residue "pro rata, according to their claims, among those of the said Sprigg & Meseke's creditors who shall, on or before the 2nd of July next succeeding the date first above hereinbefore written, sign a release to the said Thomas Sprigg and to the said Henry Meseke, from all their liabilities, individual as well as copartnership, to them the said creditors." It also contains a power of attorney to Hodges [**3]  to collect the debts due the grantors and to compound for the same.

The answer of Hodges states, that shortly before the 2nd of June 1849, Sprigg & Meseke called a meeting of their creditors, for the purpose of laying before them a statement of their assets and liabilities, and getting an extension upon their liabilities, averring at the time that they were able and would pay all their debts if time was given them; that at this meeting respondent, being a creditor, met with a large majority of the creditors, who then examined into the affairs of Sprigg & Meseke, and unanimously determined, it would be for the interest and advantage of all and each of the creditors of said parties that they should at once execute an assignment of all their effects for the benefit of their creditors, which they agreed to do, and accordingly executed the deed in question; that at this meeting, all the creditors present believed Sprigg & Meseke ought to be released upon the execution of said deed, and agreed themselves so to release them; that after the execution of this deed, respondent addressed letters to all the non-resident creditors, informing them of its provisions, and all of them, except [**4]  two, whose claims do not amount to one-fourth of the grantors' liabilities, have agreed to come in under it. The answer also denies that the deed is void under the insolvent laws.

A replication was filed and the cause submitted to the chancellor (JOHNSON) upon bill, answer and replication, who delivered the following opinion, accompanying his decree dismissing the bill:

"This cause was submitted on the part of the complainant during the sittings of the term, and at the close of the sittings is laid before the chancellor under the rule for decision.

"After the repeated adjudications of the Court of Appeals upon the subject of the validity or invalidity of deeds containing provisions similar to those to be found in this deed, I deem it unnecessary to occupy time or space in an argument, and will merely say, that according to my understanding of the case of Sangston vs. Gaither, 3 Md. Rep., 40, the deed in this case is valid.

"It does convey all the estate and property of the grantors of every kind and description, and there is no reservation of the surplus to them after paying the preferred, or any class of creditors. The deed, therefore, is not void at common law [**5]  or under the statute of Elizabeth, and there being no evidence in support of the allegations of the bill which assail it as void under the insolvent laws, the complainant does not make out a title to relief in any way, and his bill must be dismissed."

From the decree dismissing his bill the complainant appealed.  

DISPOSITION:
Decree reversed, and cause transmitted to the circuit court of Baltimore city.  

HEADNOTES:

The validity of a deed of trust for the benefit of creditors must be determined by the deed itself, without reference to extrinsic facts.

A deed from two parties, "copartners in trade," conveying "all and singular the stock of goods, machinery, book-accounts owing to" the grantors, "of whatsoever consisting," to hold the same in trust, to sell and apply the proceeds in part to such creditors as shall release the grantors "from all their liabilities, individual as well as copartnership," operates as a conveyance of all the grantor's property, both joint and separate.

An implied reservation of the surplus, after paying the releasing or preferred creditors, to the grantor, avoids the deed equally with an express reservation, and the court cannot look outside of the deed to ascertain whether there will be a surplus or not.

Such an assignment, to be valid, must convey all the property of the debtor, and in terms dedicate the whole for the benefit of his creditors, subject to such preferences as may be declared in the deed.

A deed which makes no disposition of the surplus, after paying the releasing creditors, is void, because there is an implied reservation of such surplus to the grantor. 

COUNSEL:
William H. Norris and J. M. Campbell for the appellant, argued, that the deed in question was void:

1st. Because while under it nothing passes to the trustee for the use of the releasing creditors except the partnership property of the grantors, it demands from the releasing creditors a release to the grantors of all their liabilities to such creditors, individual as well as partnership. That such a deed is void has been expressly adjudicated, and this although the debtors had no separate property. 5 Rawle, 221, Thomas vs. Jenks. 6 Watts & Sergt., 300, Hennessy vs. The Western Bank. 3 Md. Rep., 12, Green & Trammell, vs. Trieber. It seems to be too plain for argument, that when two recite a joint interest and joint liabilities, and a style or firm, and only mention the estate and [**6]  effects of such style or firm as intended to be granted, that it would be impossible to suppose that any thing was intended to be covered by the grant but what belonged to the style or firm ownership: otherwise every deed by partners would be held to convey all the joint and separate estate of the partners, if the style of the partnership chanced to correspond with the surnames of the individual partners. But when you pass from the granting part of the deed to the habendum, it will be seen that the rule of construction coincides with the knowledge of the grantors and violates no possible intention in fact; for in stipulating for releases it is from all their liabilities, "individual as well as co-partnership," thus recognising their appreciation of the distinction between their private and co-partnership relations as respects debts, and if this was before their minds, the failure to convey also thus distinctly and distributively evinces a clear purpose to reserve from the grant their individual estate. The next question is, assuming the deed does not convey the individual property, is it good until the parties assailing it prove that there is individual estate which has not been conveyed?  [**7]  If such is the duty of the party assailing the deed, then a deed from a partnership conveying a single chattel is prima facie good until the parties assailing it prove there were other chattels or assets. And can such a principle be law in cases where, for the permission given to exact releases, the party is required to make it appear that he has conveyed all his estate? Must not the operative transfer in law be in fact of all the party's property, stated or unstated, known or unknown? Can a law levelled against fraudulent reservation be otherwise administered? Must not the grantor show conclusively that he has complied with the condition? It therefore seems to us that it ought not to be admissible for a grantor to prove that the specification includes all his property, where the terms of the grant do not in themselves convey all. The rule being directed against fraudulent reservations, they are allowed too much liberty of accomplishment when a party is permitted to narrow the terms of his grant from a general transfer into a particular one, and then to prove that practically it is a general transfer. The simplicity of fair dealing requires that the proof of compliance with the rule [**8]  should be found in the terms of the grant. This is sufficiently indicated in the cases of Green & Trammell, vs. Trieber, 3 Md. Rep., 12, and Sangston vs. Gaither, Ibid., 41, independently of the other authorities.

2nd. Because the deed makes no provision for paying any surplus remaining after the claims of the releasing creditors shall have been satisfied over to those creditors who may refuse to sign a release, and therefore any surplus that might remain in the hands of the trustee would revert to the grantors themselves. 3 Md. Rep., 41, Sangston vs. Gaither. 17 Verm., 390, Dana vs. Lull. 7 Md. Rep., 380, American Exchange Bank vs. Inloes, Garn. of Turnbull & Co. The effort to sustain this deed as a composition deed is met with many insuperable difficulties, which need not be noticed; for whether there be a valid composition or not as to certain creditors, it is admitted there were two who did not compound, and whether there were or not any thus dissenting, it is not perceived how that makes a deed good which makes no provision for paying any surplus, after the claims of the releasing creditors have been satisfied, to those who may refuse to sign a release. This court is not [**9]  sitting over the distribution of assets; equity don't distribute insolvent estates. 3 Md. Rep., 464, Manahan & Gorman, vs. Sammon & Thurston. If the failure to make this provision makes the deed void, the composition and release is a matter between the insolvent trustees and the trustees, and the grantor and the composition creditors, which only comes up when a distribution is gone into. If the deed is valid as between the parties the insolvent trustee will pay the surplus to the grantors, but he has none the less right to set the deed aside. That nobody will be injured by its being treated as valid, is a question with which a court of equity has no concern; that only arises when creditors are notified to file their claims and a distribution is to be made. It cannot be legally known until then whether there are dissenting creditors or not.

St. George W. Teackle for the appellee, argued:

1st. That the first objection to the validity of the deed is not supported by any evidence in the cause, or by the provision of the deed itself, but on the contrary, the deed itself conveys not only all the partnership property of the grantors, but also all their individual property; for,  [**10]  after granting to the trustee "all and singular the stock of goods, machinery, book-accounts owing to said Sprigg & Meseke," the deed further says, "and all and singular the estate and effects of the said Sprigg & Meseke, of whatsoever consisting." Now upon the well established rule of interpretation in regard to deeds, that every deed is to be construed as strongly against the grantor as possible, can it be doubted that the individual estate and property of the grantors in this deed passed to the trustee under its provisions? Such was the construction put upon the deed by the learned chancellor who decided this case below. But even if no individual property did pass by the deed, can it be successfully contended for as law in Maryland that this deed is void on that account, without some evidence to show that the grantors had some individual property? Is the court to presume that they had individual property, for the purpose of establishing upon that presumption of fact (not sustained by any allegation or proof in the cause) the legal conclusion, that the deed is thereby avoided, and that too upon the ground of fraud? Such a doctrine, it is respectfully submitted, will not, upon a careful [**11]  examination, be found to be supported by either of the cases referred to by the counsel on the other side. No such point was presented for the decision of the court by the record in either of those cases.

2nd. The second objection to the deed is equally untenable and unsupported by authority. The deed reserves no surplus to the grantors or any one else, and the objection rests upon the ground of a surplus by way of resulting trust to the grantors. This point is liable to the same objection as to the first, viz., that there is no fact in the case to show, or from which it could be rationally presumed, that any of the creditors would refuse to take under the provisions of the deed of trust, or if any would have so refused, whether their dividends would have been more than sufficient to pay in full all the claims of the assenting creditors, and leave a surplus for the grantors. And yet to support this point the court must presume both these facts, and that too in opposition to the fact stated in the answer responsive to the bill, and not excepted to by the complainant, that all of the creditors at the meeting called to investigate the affairs of the grantors, they being a large majority [**12]  in value of all the creditors, advised and accepted the deed, and agreed to abide by its provisions. We submit, that the cases of Sangston vs. Gaither, and Dana vs. Lull, decide no such doctrine. But we say the present case stands upon grounds totally different and clearly distinguishable from those on which any of the cases cited on the other side were decided. None of them decide or intimate that if the creditors agree with their debtors to take less than the full amount of their claims and release them, that such an agreement, if based on a valuable consideration, would not be valid and binding against such creditors, nor can any case be found going to that extent. Upon such an hypothesis as this there could be no such thing as valid deeds of composition between creditors and debtors, and yet the books are full of them, and the principles governing them are so familiar as not to require the citation of authority. Now apply these principles to the present case, and it will be found that the deed in question is a deed of composition between creditors and debtors, and not a deed having in it or about it a single feature obnoxious to any of the provisions of the statute of Elizabeth.  [**13]  (The learned counsel then further argued, that from the facts of the case, as disclosed by the answer, this was a composition deed.) 

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

OPINIONBY:
TUCK 

OPINION:

 [*425]  TUCK, J., delivered the opinion of this court.
The appellant, as trustee of Sprigg & Meseke, under the insolvent laws, filed a bill against the appellee to vacate a deed from Sprigg & Meseke to him, as trustee, for the benefit of their creditors, on the terms and conditions mentioned in the deed. The case was heard on bill, answer and replication, before the chancellor, who dismissed the bill, being of opinion, that as the conveyance transferred all the property of the grantors, and contained no reservation to them of any surplus, after paying the preferred or any class of creditors, it was not void.
The validity of the deed must be determined without regard to the surrounding and other circumstances averred in the answer. If admissible for any purpose they are not proved. "We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence [**14]  of intention can change the presumption. If the 

 [*426]  law declares the deed to be void, it is no matter how the question of fraud in fact may stand." 3 Md. 40, Green vs. Trieber.
Upon consideration of the deed we are of opinion, with the chancellor, that if good in other respects it would operate as a conveyance of all the grantors' property, joint and separate. The terms are not very clear; but, construing all its parts together, the legal effect of the granting clause and the habendum is to vest in the grantee title to all their property and effects of every description. But we think the instrument is void as against the appellant, representing the creditors of the grantors, because the necessary effect of the trusts declared therein is to secure to the grantors any surplus that may remain, after paying the claims of those creditors who may come in under its terms within the time limited. The law is now too well settled to admit of dispute, that deeds of this description must not only convey all the property of the debtor, but they must, in terms, dedicate the whole for the benefit of the creditors, subject to such preferences as may be declared in [**15]  the deed. There must be no reservation to the debtor, express or implied. We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face. This deed, in express terms, restricts the benefits designed to be conferred to those creditors who may come in within a certain time and execute releases. Nothing is said of the surplus. Now suppose creditors, to a very small amount, assent, and that all the rest stand out, what becomes of the surplus of the property when those few who may assent are fully paid? Does it not belong to the grantors as a resulting trust? Nothing, in our opinion, can be clearer. The refusing creditors could not claim it under the deed, and it would not belong to the grantee, as in cases of deeds where the grantee is not a trustee for others. It is true the other creditors might prosecute their claims against the trustee, in respect of this surplus, but not in reliance upon the assignment, which they have repudiated. They would claim to be paid out of the fund, not as 

 [*427]  theirs by [**16]  the deed, but as the property of the grantors, their debtors, in the hands of the trustee for the use of the grantors; and this pretension, probably, could be asserted only by process of law, to which, as we have said in 3 Md. 52, the grantors have no right to compel them to resort.
The view here expressed was affirmed in Dana vs. Lull, 17 Vt. 390, referred to in 3 Md. 51. The case then before the court did not require us, in terms, to go as far as the Vermont doctrine, but we have no doubt of its correctness, upon principle, and so intimated. If such deeds, as the one before us, are valid, fraudulent transfers might easily be made by granting preferences to a few creditors, of small amount, and omitting all mention of the surplus. The operation would be, that after the property was sold and the preferences satisfied, the trustee would return the residue to the debtor before the other creditors could take measures to arrest it in his hands for the payment of their claims. To prevent such devices the law requires that the deed, on its face, shall show that the debtor can get nothing for himself, so long as a creditor remains unpaid.  [**17]  
This case is substantially the same as Dana vs. Lull, and satisfied that it was decided on proper grounds, we adopt the reasoning there employed as conclusive of the question arising on the assignment now in controversy.
Decree reversed, and cause transmitted to the circuit court of Baltimore city. 

35 of 44 DOCUMENTS 

JOHN T. BERRY vs. THE CONVENTION OF THE PROTESTANT EPISCOPAL CHURCH OF THE DIOCESE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 564; 1855 Md. LEXIS 19 

JUNE, 1855, Decided 

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

The original bill in this case was filed on the 24th of October 1848, by the appellant, against the appellee and the executor, widow and devisees of Robert W. Bowie, deceased.

It alleges, that on the 17th of December 1839, Robert W. Bowie executed to the complainant a bond of conveyance for a tract of land, and in the same year delivered possession thereof to him; that complainant, in compliance with this bond, executed to Bowie his four bonds for the purchase money, with a surety, all of which he has paid, except two, for $ 6,666.66 2/3 each, on which Bowie recovered judgments, the one at April term 1843, and the other at April term 1844, of Prince George's county court; that he has made several payments to Bowie on these judgments, and that the last of them is fully satisfied; that Bowie assigned the first judgment to the convention of the Protestant Episcopal church, and it stands now entered to the use of this assignee; that Bowie is dead, leaving a large but incumbered property, and his estate is insolvent; that Bowie's widow (Catharine Bowie,) has filed a bill for dower out of the land so sold him by her husband, and [**2]  he is advised that she has such a right, and that it is a valid incumbrance thereon, and if she recovers it, he will be unable to indemnify himself out of Bowie's estate; that the assignee of this judgment holds it subject to all the equities existing between him and Bowie at the time of the assignment, or arising out of his subsequent death, and his widow's refusal to relinquish her dower, and that as against said assignee he is entitled to deduct from the judgment the value of the dower aforesaid, but that said assignee is about to issue execution on the judgment, and ought to be enjoined, and that the widow ought to be enjoined from prosecuting her claim for dower till relief shall be done to all parties, and he tenders, if desired, the money due on the judgments to be brought into court.

The bond of conveyance was filed as an exhibit with the bill. It is in the penal sum of $ 30,000, dated the 17th of December 1839, and sets out a sale by Bowie to Berry, of a plantation containing six hundred acres, more or less, and that Berry has given Bowie four bonds, all of even date with the bond of conveyance, and bearing interest from the 1st of January 1840, the first for $ 10,000,  [**3]  payable the 1st of March 1840, and the other three for $ 6,666.66 2/3 each, payable respectively on the first days of January 1841, 1842 and 1843, and its condition is, that Bowie shall, upon their payment, make to Berry a good and sufficient conveyance of the premises, "free from all incumbrances."

With the bill were also filed, 1st, a short copy of the oldest judgment on the first unpaid bond, at April term 1843, the only credit on which is $ 370.42, being the interest to the 22nd of November 1843; 2nd, a similar copy of the junior judgment on the last bond, at April term 1844, which shows a credit of $ 2721.03, as of the 22nd of November 1843; 3rd, several receipts for other payments subsequently made on the last named judgment.

An amended and supplemental bill was filed on the 18th of December 1848, charging that at least $ 3500 of the purchase money paid to Bowie, was applied by him to obtain the legal title for the land in question, which was conveyed to him by deed from his vendor, dated the 25th of November 1843, and that other large payments were applied by Bowie in the same manner, and that these payments ought to be deducted out of the widow's claim for dower,  [**4]  and prays for an injunction restraining execution of the judgment, which was granted.

The answer of the convention admits, that to secure the repayment of a loan of $ 6105.89, made by respondent to Bowie, the latter, on the 27th of November 1843, assigned to respondent a judgment for that amount, which he had recovered against Berry and his surety in April 1843, which judgment was accordingly entered for respondent's use, and the whole amount thereof, with interest from the 27th of November 1848, is due and unpaid, and that respondent means to enforce the same by execution; that when respondent made this loan and received this security, it understood that the judgment had been recovered on an obligation for the purchase money of land in Prince George's county, sold by Bowie to Berry. The answer also admits Bowie's death, but respondent does not know whether his widow has sued for dower, as alleged, nor what her dower rights are, but denies that her claim can affect respondent, or the judgment assigned to it; that the judgment assigned was the elder judgment on account of the purchase money, and that the payments made by Berry on the junior judgment, were made when he was aware [**5]  of the assignment to respondent of the elder judgment, and was bound to make them according to the priorities of the judgments, and that he cannot, in equity, set up his payments on the junior judgment to affect the rights of the assignee of the elder judgment, who is a bona fide holder thereof, for a valuable consideration.

The answer further alleges, that in the summer of 1847, Berry being pressed for payment of this judgment, applied to respondent for indulgence and a further credit of twelve months; offered to pay all arrears of interest, and the interest in advance for twelve months, and to give additional security by a mortgage of negroes; that respondent consented, and received the arrearages of interest, and interest up to the 27th of November 1848, but that Berry never gave the mortgage on the negroes, though it was drawn up under his own direction by respondent's agent, and though he obtained, by such undertaking, the forbearance he had stipulated for, and that it is against equity for him to seek to impair respondent's rights under the judgment, with an agreement, unperformed on his part, to secure to respondent the amount of the judgment, the benefit of which he has [**6]  enjoyed.

In October 1854, a motion was made to dissolve the injunction, when it was agreed between the parties that the judgment assigned to the convention was recovered on a bond given by Berry to Bowie, in the manner and for the purchase money due on the contract stated in the bill; that at the time of the assignment the assignee had notice that the judgment was recovered on an obligation given by Berry to the assignor, for the purchase money of land in Prince George's county, sold by the assignor to him; that Thomas F. Bowie, the attorney by whom the judgment was recovered for the assignor, was, from and after the assignment, continued as the attorney of the assignee in respect to the judgment, and, as such, received payments thereon; that Bowie, the assignor, died about the 1st of January 1848, and that the assignment was made at the instance and by the act of Thomas F. Bowie, he being, at the time, the attorney of the assignor and of the assignee; that Berry, since the death of Bowie, has been sued by the widow of the latter for dower in this land, and compelled, by decree of the court, to pay to her, as of the 29th of July 1851, $ 2479.24, with interest on $ 2048.96, from [**7]  the 8th of July 1851, which he has accordingly paid; that all Bowie's estate, real and personal, has been sold to pay his debts, and is insufficient therefor; and that Berry had notice of the assignment of the judgment to the convention shortly after the entry of the same on the docket.

The deposition of Thomas F. Bowie was also filed, to the effect that he was attorney of the convention in regard to the judgment of April 1843, which was assigned to the convention on the 6th of December 1843, and the use entered on the docket; that as such attorney he caused a fi. fa. to be issued and levied upon the land sold to Berry. In this state of affairs Berry applied for further time and indulgence in the payment of the judgment; deponent referred him to Mr. Donaldson, of Baltimore, who acted on behalf of the convention in the matter, and gave him a letter, dated the 16th of June 1847, introducing him to Mr. Donaldson. This letter being shown to deponent he states that it is in his handwriting, except certain memoranda thereon, written by Mr. Donaldson after he received it. Deponent also recollects Mr. Donaldson's reply, and it is substantially what appears upon what purports to be a draft [**8]  or copy thereof shown to him. Deponent and Berry subsequently met in July 1847, and the arrangement was entered into which is set out in another letter from deponent to Donaldson, dated the 13th of July 1847. In pursuance of this agreement Berry requested deponent to prepare a mortgage of the negroes to be given by him as security, and promised to execute it when prepared, and furnished deponent a list of negroes for that purpose, and deponent prepared the mortgage accordingly. Berry informed deponent that he had paid the interest according to the arrangement, and deponent directed the sheriff, in Berry's presence, not to advertise or proceed with the execution. Berry agreed at the time to pay the sheriff his poundage fees. Since then nothing has ever been done upon the execution, and deponent from time to time expected Berry to call and execute the mortgage until he heard of his filing his injunction bill.

The first letter referred to in the preceding deposition from Thomas F. Bowie to Donaldson, dated the 16th of June 1847, introduces Mr. Berry to the latter; states the object of Berry to be to obtain further indulgence on the judgment by giving additional security; and expresses [**9]  the writer's opinion that the judgment in its present form is a safe investment. On this letter was a memorandum by Mr. Donaldson, to the effect that Berry proposes to pay the interest now due, and one year's interest in advance, provided he can have credit for one year, or until he can get the crop of 1848, when he pledges himself to pay the whole or greater part of the debt. He is desirous of getting his deed from Bowie, and if assented to he will immediately execute a mortgage upon eight hundred acres of land and twenty-five servants to secure the debt. The property cost $ 30,000, and has since improved in value. It is free from incumbrances and will be mortgaged clear of dower.

The letter of Donaldson to Thomas F. Bowie, in reply to the preceding, states that the board of trustees determined, if Mr. Robert W. Bowie will consent thereto, to grant further time to Berry on the judgment, on condition that he pay at once all arrearages of interest and one year's interest in advance. If Bowie should refuse to consent to a postponement of the proceedings then in progress on the judgment, the indulgence will be granted to Berry on payment of interest as above stated, and by giving [**10]  additional security other than his lands on which the judgment was a lien, this security to be approved of by Thomas F. Bowie, and placed on a basis to make it available in case it should be necessary to resort to it. The judgment to be kept alive, so that at the end of twelve months the fi. fa. can be enforced.

The second letter from Thomas F. Bowie to Donaldson, dated the 13th of July 1847, acknowledges the receipt of the preceding letter from Donaldson, and states that Berry had agreed to execute a mortgage on all his negroes, some thirty in number, to secure the judgment, Mr. Bowie still declining to consent to the indulgence without his being released; that this will (if further security were necessary) undoubtedly place the judgment in a condition to be realised at any time; that Berry is also to pay up all arrearages of interest and one year's interest in advance; that he has promised to bring up a list of the negroes, when the writer will prepare the mortgage and have it recorded; that besides being a judgment vs. John T. Berry, it is also a lien on the real estate of his brother and co-defendant, who has a fine landed estate. That it is also secured by a mortgage to Bowie [**11]  on all the negroes of Berry, and the assignment of the judgment carries with it the mortgage rights of Bowie, the assignor, so that even now the convention has, in the opinion of the writer, a mortgage on Berry's negroes by virtue of Bowie's assignment of the mortgage thus secured, but to make the matter doubly sure the writer will have a new mortgage executed.

There was also filed a copy of this unexecuted mortgage and a receipt from the treasurer of the convention, dated the 22nd of July 1847, for $ 641.21, paid by Berry for arrearages of interest, and interest in advance to the 27th of November 1848, on this judgment, for $ 6105.89, due the convention.

There was also filed an assignment of this judgment, signed by Robert W. Bowie and dated the 27th of November 1843, to the effect that he had that day assigned to the convention a judgment recovered by him in April 1843 against Berry for $ 6105.89, to secure the repayment of that sum loaned him by the convention, one-third of which was to be repaid in two, and the residue in three and four years from date, with interest, payable quarterly, according to the tender of certain promissory notes of this date drawn by him and [**12]  endorsed by George Rust, "And I do hereby consent and agree, that in case of default in payment of any one of these notes when due, the convention shall be and is hereby authorised to issue execution on the judgment for the recovery of the whole amount loaned me," &c. He also agreed to pay the taxes on the judgment, and acknowledged that it was for part of the purchase money for a farm sold by him to Berry, and was entitled to a preference in payment to the balance of the purchase money remaining due.

A paper containing a short copy of this judgment was also filed, upon which, immediately under the judgment, was the following acknowledgment, dated the 22nd of November 1843, and signed by John T. Berry:

"I do hereby acknowledge that the judgment obtained against me in Prince George's county court by Robert W. Bowie, of which the above is a short copy, was for a portion of the purchase money for the farm in said county sold by him to me, and that at this time there is due and unpaid on said judgment the sum of $ 6105."

On the same paper was also the following assignment under the hand and seal of Robert W. Bowie, dated the 27th of November 1847:

"For value received,  [**13]  I do hereby assign and transfer to the convention of the Protestant Episcopal Church of the Diocese of Maryland, incorporated by law, all my right, title, interest claim and demand, of, in and to the judgment obtained by me in Prince George's county court, at April term last against John T. Berry and Alfred M. Berry, of which the within is a short copy."

And it was admitted that the body of the certificate signed by Berry, and the body of the assignment of the short copy of the judgment, except the number of the day of the month, and the statement on the short copy of the interest paid thereon, are in the handwriting of Mr. Donaldson, one of the trustees appointed by the convention to manage the fund of which the judgment is a part. It was also agreed that all the preceding evidence should be received as if duly taken under a commission.

Upon this evidence the court below, (KREBS, J.,) passed an order dissolving the injunction, from which the complainant appealed.  

DISPOSITION:
Cause remanded, under the act of 1832.  

HEADNOTES:

A vendor sold land, and gave a bond of conveyance, covenanting to convey "free of all incumbrances," and the purchaser gave his several bonds to secure the payment of the purchase money, upon the two last of which the vendor recovered judgments. The elder of these judgments he assigned, and after this assignment the purchaser paid the amount due on the junior judgment. The assignee had notice that the judgment assigned to him was for land purchased by the judgment debtor from the assignor. The vendor afterwards died insolvent, never having executed a deed to the purchaser, and his widow claimed dower out of the land, which dower claim the purchaser was compelled to pay, and then filed his bill against the assignee, claiming a set-off, on account thereof, against the assigned judgment. HELD:

1st. The purchaser knowing that the previous judgment had been bona fide assigned for value, should have retained the money due on the last judgment, and having failed to do so, he cannot now fall back upon the debt due the assignee and discount from that the amount of the dower money paid by him to the widow.

2nd. The judgments should have been paid in the order in which they fell due, and any equitable claim like this for dower, should be set up against them in the inverse order in which they were payable.

3rd. But if the purchaser, at the time of the assignment of the judgment and his payment of the junior judgment, did not know that his vendor had a wife living at the time, he cannot be held answerable for laches in not providing against the consequences of a fact of the existence of which he was ignorant, but it matters not whether the assignee knew of this fact or not.

4th. If the purchaser is ultimately compelled to pay the whole amount of this judgment, he will be entitled to a decree as a general creditor against his vendor's estate, for the amount paid by him for the widow's dower. 

COUNSEL:
Charles E. Phelps and Robert J. Brent for the appellant:

1st. If this were a contest between the purchaser, Berry, and his vendor, Bowie, the former could certainly [**14]  deduct from the unpaid purchase money the value of the dower interest or incumbrance paid by him. This equity is derived from the title bond itself, which stipulates for a title clear of incumbrances, and that alone enables us to have relief against unpaid purchase money. 5 Monroe, 260, McKoy vs. Chiles. Independent of the bond, the purchaser has a right, before completion of the contract, to have all incumbrances removed, as a contract to sell implies a clear title. Atkinson on Titles, 565, 369, 379, quoted and approved in Duffy vs. Calvert, 6 Gill, 516. 3 Peere Wms., 307, Tourville vs. Naish. 2 Sugden on Vendors, ch. 12, sec. 2. Such would be the equities between the assignor of this judgment, and Berry the purchaser.

2nd. Does this equity attach to the assignee of the judgment? We say that it does. Here is an assignee purchasing with notice that the judgment is for unpaid purchase money, and that there were other portions of the purchase money unpaid. Were they not bound to know that before that purchase money was paid up, Bowie must give a clear title, and, if incumbrances existed, that the purchase money was applicable to extinguish them? Ignorance of the law in such a case [**15]  excuseth not. 15 Eng. Law & Eq. Rep., 112, Cockell vs. Taylor. They did not require Berry to waive in their favor his equity, inherent on the known facts, if incumbrances appeared on the land before payment of the judgment. Non constat that Berry knew of this inchoate dower right, or knew that Bowie was married. He had no right to know it until the purchase money was paid, and Bowie was ready to give him the deed, and if there was no incumbrance at that date, there was no breach of the bond. 5 Paige, 235, Brown vs. Haff. 1 Bland, 75, Rawlings vs. Carroll. The general rule as to assignees taking subject to all equities, is stated in 2 Johns. Ch. Rep., 479, Livingston vs. Dean. 1 Munf., 533, Mayo vs. Giles. 1 Paige, 319, Webster vs. Wise. 2 Murphey, 30, Jordon vs. Black. 3 Monroe, 510, White vs. Prentiss. These authorities show, that, as a general principle, a chose in action cannot be assigned, and that the assignee, when assigned, takes it subject to all the equities in the hands of the assignor. The distinction between a purchaser of a chose in action and a purchaser of real estate without notice, is clearly shown in the case of Cockell vs. Taylor, 15 Eng. Law & Eq. Rep., 110. But [**16]  the present case is different from all cited, in this, that here the assignee had full notice of the facts on which Berry's equity arose by law.

3rd. Has Berry forfeited his right to this equity by any subsequent act or laches on his part?

1st. As to the objection, that having paid the junior judgment first, he cannot now set up this equity. The assignee had Bowie's private stipulation not to collect the other bonds first. Yet they serve no notice of this stipulation, but on the contrary, give time to Berry for a valuable consideration, and leave Bowie free to press him on other judgments and bonds. But this objection is sufficiently answered by the fact that both judgments were due when Berry paid the junior judgment to Bowie, and if the church chose to let their over-due judgment sleep from November 1843, when they purchased it, until 1847, when they bargained to give time to the debtor, they cannot complain if Berry, in the years 1844, 1845 and 1846, paid the junior judgment, when he was under no notice not to do so. But a still more conclusive reason why it was right in Berry to pay the junior judgment first, appears in the fact that the church had made the loan to Bowie [**17]  on his notes, endorsed by Rust, at two, three and four years from the 27th of November 1843, and the judgment being assigned expressly to secure these notes, the church had no right to collect it by execution until the notes fell due, which would be, for the first, the 27th of November 1845, and for the last, the 27th of November 1847. It was before the maturity of these notes that Bowie collected the junior judgment, as he had a right to do.

2nd. As to the certificate signed by Berry. There is no evidence in the record that he knew when he was asked to sign this certificate, that Bowie was negotiating with the church for a loan of money on the faith thereof. This paper only shows the consideration on which the judgment was rendered, and the amount due on it, and the equity which Berry relies on now is perfectly consistent with this certificate. It was designed only to protect the assignee, whoever he might be, against secret payments, but says nothing about equities which might thereafter arise.

3rd. As to the extension of time given to Berry, and his promise to pay in connection therewith. When this extension was made, there was clear notice to the assignee that Berry had [**18]  not got his deed from Bowie, and, therefore, that by law he was entitled to a deed from his vendor, clear of incumbrances. The negotiation for this extension did not begin until the 16th of June 1847. The assignee is no worse off by the extension of the time of payment than before; 1st, because they received from Berry a valuable and stipulated consideration for the indulgence, and thus received equal benefit from the extension; 2nd, because if they had forced Berry to pay up this judgment, he then had a legal right, before he paid, to call for a clear title, and could then have obtained relief by injunction against the assignee, unless Mrs. Bowie's inchoate right of dower was relinquished. There is no difference in principle between rights of parties before and after extension, except that in one case the incumbrance was inchoate, and in the other was consumated by the survivorship of the widow. In either case Berry has a right to obtain his land clear of incumbrances, and the assignee took the judgment and extended the time of payment with notice of this right.

Again the promise of Berry to pay, if the extension should be granted, was to pay the whole or greater part of the [**19]  debt when he should secure the crop of 1848. He, therefore, did not promise to pay the whole, and if he is credited with the dower money, he still pays a greater part of the debt. According to his promise he was at liberty to retain an uncertain portion of the purchase money due on the judgment, and he now only claims to retain $ 2400 out of $ 6105. The case of Kemp vs. McPherson, 7 H. & J., 337, decides that if, after assignment, the obligor, with full knowledge of a charge against the bond, promises to pay the assignee, he cannot be relieved. But that is said in a case where the rights of the debtor existed at the time he promised payment, and yet were concealed, and the assignee had no actual or constructive notice of the equity. There was in that case a promise by Kemp to pay the bond, notwithstanding he should have to discharge the incumbrances upon the land, but here there was no promise by Berry that he would pay the judgment though he should have to pay the widow's dower, and in this essential particular the two cases are totally different.

Notice to the assignee of the facts will prevent a waiver of the equity, unless the debtor agrees to waive all equities at the time [**20]  he promises to pay; for a promise to pay is not inconsistent with the enforcement of the equity, especially when the equity is known to the assignee as much as to the debtor. Independently of notice of the equity to the assignee, the waiver of the equity is on the ground of deceit or concealment of an existing equity known to the debtor and unknown to the assignee, coupled with a promise to pay the assignee. 2 Md. Ch. Dec., 140, Hall vs. Purnell. The reason of the rule preventing the obligor from setting up equities concealed from the assignee, is that it is a fraud. 2 Spence's Eq., 864. 15 Eng. Law & Eq. Rep., 110. 2 Md. Ch. Dec., 140, Hall vs. Purnell.

Now here was a promise to pay to Bowie in the very bond itself, but that would not prevent Berry from relief on the final settlement, according to the contract known to Bowie, therefore a mere promise to pay is, of itself, no answer to the equity. Why should a promise to the assignee, even in consideration of forbearance, have greater effect? Bowie was alive in 1847, when this promise was made, and Berry was then ignorant of the existence of this equity. No one could foresee Bowie's death, insolvent, and the renunciation of his [**21]  widow, and her throwing herself upon her legal rights, and, under such circumstances, the law will not impute to him constructive notice, for this would be to impute to him a fraud. 15 Eng. Law & Eq. Rep., 110. The equity being, then, remote, unknown and speculative, it is not like the case of the concealment of a known existing equity, where there must be fraud, if it is concealed from the assignee. Berry could not anticipate the survivorship of Mrs. Bowie, and the subsequent insolvency of Bowie's estate. Non constat, from the evidence, that he even knew that Bowie was married. It is, therefore, a case of a promise to pay, in ignorance of any incumbrance at the time of the promise, and it is only a promise to pay an existing liability, subject to contingent and unascertained discounts, the promisee knowing all the facts.

There is no proof of any laches on the part of Berry that would relieve Bowie, and if Bowie's estate was solvent, this court could at once decree payment of this claim for dower on suit by Berry. The default of Berry, if there was any, does not add to the equity of the assignee, unless it amounts to such laches as would deprive him of his equity as against Bowie.  [**22]  2 Story's Eq., sec. 776.

Finally, it appears from the assignment that the judgment was only assigned as collateral security for the payment of certain notes of Bowie, endorsed by Rust. Now it is only consistent with principles of equity that before Berry should lose his equity as against this assignee, the insolvency of the endorser should be shown, because he was bound in the original debt of Bowie to the church. If he be able to pay, then the church must marshall its securities so as to collect, if possible, its claim, without inflicting irreparable loss on Berry, who has been made to pay money, for which he has received no consideration whatever.

J. Mason Campbell and Thos. S. Alexander for the appellees:

Whatever may have been the equity of Berry against Bowie, in regard to the claim for dower, he has estopped himself by his own certificate of the amount due upon the judgment held by the convention, to press that equity against the assignee who acted on his certificate given for the very purpose.

The facts of the case show that Bowie was the owner of this judgment in 1843, and then held another bond due at that time. Berry knew, at the time he signed the certificate,  [**23]  that it was to be signed by him for the purpose of an assignment, and a few days after he signed the certificate, he knew of the fact of the assignment, for he saw it. It was a certificate unquestionably given to induce and facilitate the assignment of the judgment to some one, and it makes no difference that he had no knowledge that the appellees were the particular parties to whom the assignment was to be made.

In 1847, when asking an extension of the time for payment of this very judgment, Berry speaks of the title to this very land, and says that it was then free of all incumbrances of dower of every body. If these equities had been then suggested, the church could have resorted to Bowie and his endorser, but we then granted indulgence to Berry without Bowie's consent, and therefore released him, and at Berry's request, and to grant indulgence to him have lost a part of our securities. If, then, we are now to lose this claim, it is undeniably because, in 1847, we consented to withhold the execution which then would have resulted in our recovery of the whole amount of the judgment, and this delay was granted at Berry's request, and for his indulgence. The possibility of dower [**24]  then existing, has ripened into a right only because of the laches of Berry. There was then but an inchoate right of dower dependant upon two contingencies, 1st, the survivorship of Bowie's widow, and 2nd, the omission of Bowie to convey the estate to Berry, for the chancellor, in the dower case, decides that he could convey the estate and defeat the right of dower. 3 Md. Ch. Dec., 362, and 1 Do., 454, Berry vs. Bowie.

Now what is the law applicable to these facts? 1st. Conceding there is an equity, we say the assignee is, under the circumstances, released. 2 White's Lead. Cases in Eq., 233. 15 Vermont, 269, Foot vs. Ketchum. 2 Md. Rep., 407, Doub vs. Mason. The case of Kemp vs. McPherson, 7 H. & J., 320, announces the doctrine that the effect of the statements of the debtor in such a case as this, is to deceive the assignee, and that he is bound by his statements. This case is the law of this State, and has never been disputed, but is recognized in 9 Gill, 431, Beard vs. Hubble. See also 1 Macnayhten & Gordon, 437, Mangles vs. Dixon. If Berry agreed to pay the whole debt (even conceding he had a claim to a set off,) in consideration of the indulgence for twelve months, it is [**25]  a contract which a court of equity will enforce. He cannot dispute the facts contained in his certificate. 2 Comstock, 278, L'Amoreux vs. Vischer. When he gave this certificate, he held in his hands the amount of the other and junior bond, which was abundantly sufficient to meet this claim.

2nd. There is no equity in the case. There is no case to be found where a party has been allowed to manufacture an equity out of his own laches, and yet this is precisely what Berry is seeking here to do. If he had paid his bonds and got his deed, the claim for dower never would have arisen; for when these bonds were due, Bowie held but an equitable title to the land, and the widow then had no claim for dower. We say, then, in conclusion, that Berry having notice of the assignment to the church, and dealing with the assignee directly as creditor, and obtaining time and indulgence for payment from the assignee, by covenanting to give further security, which he failed to give, has no equity against the church in regard to the dower of Mrs. Bowie, his present difficulty arising out of his own failure to secure himself against the dower out of his payments to Bowie on the unassigned judgment.  

JUDGES:
The [**26]  cause was argued before LE GRAND, C. J., ECCLESTON and MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*578]  MASON, J., delivered the opinion of this court.
An attempt was made by counsel, in the course of their 

 [*579]  argument, to reflect upon the motives and conduct of the respective parties to this record. We can discover in the facts before us no warrant for any accusations against either the complainant or defendants, in the course which they have pursued in this transaction, but on the contrary we regard both as being in court with clean hands.
The material facts, as alleged by the complainant in his bill, and as they are proved or admitted, are, that in 1839 R. W. Bowie sold an estate to the appellant, and executed to him a bond of conveyance, and in conformity therewith the latter executed and delivered to said Bowie his three several bonds, each for $ 6666.66 2/3, payable at different periods. Upon the two bonds last falling due judgments were confessed, one at April term 1843 of Prince Georges county court, and the other one year after. The judgment on the bond preceding the last was assigned to the convention of the Episcopal Church, the appellees in this proceeding. After  [**27]   this assignment the appellant paid to said Bowie the amount due upon the last judgment. The bond of conveyance stipulated, on the part of Mr. Bowie, for a title free from all incumbrances; no deed was in fact ever executed. The bill proceeds further to charge that Bowie is dead, leaving a large, but incumbered property, and that his estate is insolvent; and that Mr. Bowie's widow has filed a bill against the appellant, claiming dower out of the property so sold him by her husband, and that he is advised that she has such a right, and that it is a valid incumbrance thereon; and that if she recovers the same, he will be unable to indemnify himself out of the estate left by Bowie; that the assignee of said judgment holds it subject to all the equities existing between him and Bowie at the time of the assignment, or arising out of his subsequent death, and his widow's refusal to relinquish her dower; and that, as against said assignee, he is entitled to deduct from the judgment the value of the dower aforesaid, but that said assignee is about to issue execution on said judgment, and ought to be enjoined; and that Catharine Bowie ought to be enjoined from prosecuting her claim for dower [**28]  

 [*580]  till relief shall be done to all parties; and he tenders, if desired, the money due on the judgments to be brought into court.
He further states that Bowie left a will, and that letters thereon have been granted to Judge Tuck; and that his widow has refused to take, in lieu of her dower, the real estate therein bequeathed to her; and that a part of his real estate is devised to his executor to be sold for his debts; and that another part is devised to his nephew, Robert Bowie, in trust for her daughters, Caroline, wife of Osborn Sprigg, and Priscilla, wife of Richard L. Ogle, and another part devised to I. I. Bowie, his son; and that the daughters and son, above mentioned, with Robert Bowie, are the only children and heirs-at-law of said Robert W. Bowie, and are all parties to this proceeding. The convention had notice that the judgment assigned to them was for land purchased by the appellant from Mr. Bowie.
Mrs. Bowie subsequently sustained her claim to dower, and the question is, can the sum thus recovered by her be discounted from the judgment now held by the convention?
The complainant's case rests upon the theory, that as the defendants had knowledge that the debt [**29]  which was assigned to them, was due on a contract for the purchase of land, knowledge was therefore to be imputed to them of the provisions and incidents of that contract, one of which was, that the purchaser was to have a good title, and as there was an inchoate right of dower in Mrs. Bowie, it might ultimately mature, and subject the amount of purchase money to a reduction unless extinguished, and that therefore they took the assignment of the judgment subject to this equity. Concede this position to be correct, still the same knowledge would inform the defendants that at the time they took the judgment in question there was another and a junior instalment on the land still unpaid. Although they might not have been unmindful that this sleeping equity against the purchase money might be awakened into active life, still they must be supposed to have acted upon the correct assumption, that there was ample indemnity and protection both as to themselves 

 [*581]  as well as to the purchaser also, against such a contingency, in the defined or junior instalment still remaining unpaid in the latter's hands.
It was the duty of the complainant, knowing that the previous installment had [**30]  been bona fide assigned for value, (and knowledge of this fact is sufficiently inferable from the certificate given by Mr. Berry, as well as from other circumstances,) to have retained in his hands the money due on the last, as a protection, if any were necessary, against the consequences of a non-fulfilment by Mr. Bowie of his contract. Having parted with this means of protection or indemnity, which would only be availing in his own hands, he cannot now fall back upon the debt due the appellees, and have that discounted to the amount of the dower money recovered by Mrs. Bowie. The installments should have been paid in the order in which they fell due, and any equitable claim like the present, against the purchase money, should be set up against the several instalments in the inverse order in which they were payable.
These views, it will be observed, are based upon the hypothesis that Mr. Berry knew that Mr. Bowie had a wife living at the time these several transactions took place. If he did not, he could not be held answerable for laches in not providing against the consequences of a fact, of the existence of which he was ignorant, but it matters not, in any aspect of the [**31]  case, whether the convention knew or not of the existence of this fact of Mr. Bowie's having a wife.
Unless, therefore, the parties can come to some agreement upon this question, we will remand the case under the act of 1832, ch. 302, to enable the parties to amend their pleadings and take proof upon the point, without either affirming or reversing the decree of the court below.
Upon the bill and other proceedings now before us, the court are of opinion that if the decree in this case should ultimately be against the appellant, he will be entitled to a decree as a general creditor against the representatives of Mr. Bowie's estate, for the amount which he has been obliged to pay to Mrs. Bowie for her dower.

 [*582]  We do not think the appellees are entitled, under the peculiar circumstances of this case, to costs, and we therefore remand the case without allowing them.
Cause remanded, under the act of 1832.  

36 of 44 DOCUMENTS 

FREDERICK E. B. HINTZE vs. JANE THOMAS, Adm'x d. b. n. of HENRY PETERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 346; 1855 Md. LEXIS 2 

JUNE, 1855, Decided 

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

Covenant by the appellee against the appellant, for ground-rent due under a lease. The suit was instituted on the 25th of August 1845. Plea nil debet, with an agreement to waive errors in pleading.

The case was submitted to the court below upon an agreed statement of facts, from which it appears, that Margaret Moore, being lessee of the premises, under a lease for ninety-nine years, commencing the 2nd of November 1792, executed, on the 7th of May 1836, a lease of the same to Peter R. Blumb, for ninety-nine years from that date, at a yearly rent of $ 24.62, payable semi-annually, and on the 18th of February 1837, sold and conveyed her interest in the premises, subject to this lease, to Henry Peters. On the 29th of April, Blumb assigned his term to Hintze, by way of mortgage, which contained a covenant that the mortgagor should remain in possession until default, to wit, until the 29th of April 1838. Blumb remained in possession and paid the ground-rent to Peters up to the 1st of March 1838, after which he made no further payment: the mortgage was forfeited, and by the terms thereof Hintze became the absolute assignee at law, but never paid [**2]  any rent for the premises, and refused to do so, and on the 8th of November 1844, assigned his interest to McElderry. The suit was for rent which fell due after the assignment to Hintze, and before he assigned to McElderry. The court were to have the privilege of drawing inferences of fact as a jury might, and either party to have the right of appeal. Upon this statement of facts, the court gave judgment in favor of the plaintiff for $ 232.02, and the defendant appealed.  

DISPOSITION:
Judgment reversed, and judgment for defendant.  

HEADNOTES:

A suit at law cannot be maintained against the assignee of a lessee after he has assigned over, for rent falling due subsequent to the assignment to him and before the assignment over, the remedy of the lessor in such case being in equity alone.

The liability of the assignee at law continues only so long as the privity of estate continues, and when he makes an assignment, this privity, so far as regards himself, is determined and is transferred to the new assignee.

The doctrine of estoppel, as between landlord and tenant, does prevent the assignee of the lessee, who has assigned over, from denying the right of the lessor to sue him at law.  

COUNSEL:
David Stewart and T. Yates Walsh for the appellant, argued:

1st. Mrs. Moore, by her lease to Blumb, professed to convey a larger estate than she herself had in the premises. This left her without any reversion, and she could, of course, transfer none to Peters, who therefore could not sue upon the covenants in Blumb's lease. The statute of 32 Henry, 8, enables only the assignee of the reversion to sue, and so strict is the construction of this statute, that the assignee of an equitable reversion cannot sue. 29 Eng. C. L. Rep., 375, Whitton vs. Peacock.

The lessor must continue to have the same reversion which he had at the execution of the lease; for if [**3]  he changes it, the covenants are gone. 3 Term Rep., 393, Webb vs. Russel. 8 Gill, 294, Wahl vs. Barroll & Spence. Act of 1849, ch. 260. Mrs. Moore, herself, could never have sued Hintze, though she might have sued Blumb, by reason of the personal contract in his lease, there being a clear distinction between privity of estate and privity of contract. Platt on Cov., 489, in 3 Law Lib., 218. From Spencer's case, 5 Rep., 16, it has never been doubted that privity of estate is the sole ground which enables a lessor to sue the assignee of a lease upon the covenants in the lease. This point was discussed in Wakefield vs. Brown, 58 Eng. C. L. Rep., 209, where it was held, that reversion in one of three lessors is sufficient, but still reversion is necessary. Even this doctrine is received doubtingly by the court in Magnay vs. Edwards, 20 Law & Eq. Rep., 264, but it will suffice for the appellant here. There must be reversion somewhere. 58 Eng. C. L. Rep., 1033, Pollock vs. Stacy.

2nd. But conceding, argumenti gratia, we were liable on the covenants in Blumb's lease, yet we insist, that having parted with our interest, remedy can only be obtained against us in a court of equity. Platt [**4]  on Cov., 495, in 3 Law. Lib., 221, and authorities there collected. Crabb on Real Property, 207, in 54 Law Lib., 155. The whole current of authorities support these elementary writers. The only decision the other way is that of Lord Abinger, in Harley vs. King, 2 Cromp., Mees. & Ros., 18, which is a sleepy decision, and upon its face shows that it has no title to respect.

Wm. B. Perine for the appellee, argued:

1st. The agreement to waive errors in pleading precludes the appellant from setting up the objection that we could not sue, but suppose he has the right to make this objection, still he is estopped from doing so, because he is the assignee of a lessee, and if the latter cannot set up the defence, he cannot, because he cannot dispute the title of his lessor. The deed from Mrs. Moore to Blumb is a lease, because it reserves rent, and is so to be construed, though Mrs. Moore may have been but a lessee, (27 Eng. C. L. Rep., 292, Baker vs. Gostling,) and this being so, the appellant is estopped from disputing the title of his grantor, (2 Taunt., 278, Taylor vs. Needham. 4 Pet., 82, Carver vs. Jackson. 2 G. & J., 184, Gwynn vs. Jones,) and, therefore, from denying that we [**5]  have the reversion.

2nd. The covenant in the lease to pay rent runs with the land, and binds the lessee, his executors, administrators and assigns. Hintze therefore took subject to all the covenants of the lessee: there is then a privity of estate between the parties, and he cannot take the estate, except bound by the covenants. 3 Coke Rep., 29, Spencer's case. 1 Dallas, 210, Pollard vs. Shaaffer. 1 Browne, 221, Sandwith vs. De Silver. 8 Gill, 294, Wahl vs. Barroll & Spence. 7 Eng. C. L. Rep., 1, Vernon vs. Smith. 4 H. & McH., 218, Harrison vs. Steele. That a mortgagee is an assignee at law, is settled by the cases of Jamieson vs. Bruce, 6 G. & J., 74, and Evans vs. Merriken, 8 G. & J., 46.

3rd. As such assignee, he is liable with or without entry in this action of covenant, for the rent which accrued from the date of the mortgage to him, and a fortiori from the date of the forfeiture of the mortgage up to that of his assignment over. But it is said Hintze's interest has terminated by the assignment over of his mortgage. According to this doctrine, a party may go into possession of property, drain it of its profits, and then, in fraud, assign over to a pauper, and escape [**6]  payment of the rent. But such is not the true doctrine: the right to sue vests, and the responsibility remains, notwithstanding the assignment, and though the privity of estate be gone. 2 Bac. Abr., 566, Covenant E. Harley vs. King, 2 Cromp., Mees. & Ros., 22, is the very case at bar. It has been called a sleepy decision, but if there be a court in England against which such an imputation would be unjustly cast, it is the Exchequer court, in which this decision was made. If Mr. Platt is right, then Bacon is wrong, and Lord Abinger is wrong. But Mr. Platt is clearly in error: the idea that you must go into equity, originated in the supposition that a party was not responsible without entry, which is erroneous.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*349]  ECCLESTON, J., delivered the opinion of this court.
This is an action of covenant for rent alleged to be due under a lease from Margaret Moore to Peter R. Blumb, for ninety-nine years, bearing date the 7th of May 1836, which lease was assigned to H. Peters, on the 18th of February 1837, by Mrs. Moore. When she executed this lease her only title to the premises was as lessee under a lease [**7]  for ninety-nine years, commencing on the 2nd of November, 1792. The rent in controversy fell due after the assignment by Mrs. Moore to Peters.
This claim has been resisted upon the ground that as the lease or conveyance from Mrs. Moore to Blumb, professed to convey a larger estate in the premises than she was actually entitled to, no reversion was left in her, and therefore none was transferred by the assignment which she made to Peters, who, for want of a reversion in him, could not maintain this action, if living, and of course his representative cannot.

 [*350]  It is unnecessary to decide whether the appellant's views on this point are correct or not, because another objection to the present right of action must settle the case adversely to the plaintiff.
The claim is against Hintze, as assignee of Blumb, for rent falling due after the assignment to Hintze, and before he assigned to McElderry. It is contended, that as the suit was instituted after the assignment by Hintze, it cannot be maintained. The remedy, if any, is not at law, but in equity.
This subject has been examined with much care and ability in Platt on Cov., from page 495 to 503, in 4 Law Lib., and [**8]  his argument is designed to establish the position assumed in the present defence. He commences the argument by stating that the privity of estate, which exists between the lessor and the assignee, during the occupancy of the latter, is the principle which gives to the former the remedy by covenant; and that by getting rid of the estate, the assignee determines the privity as far as regards himself, and transfers it to the new assignee. From this he draws the inference, that if the privity, on which alone the liability is based, is destroyed, the dependent liability of the assignee must cease. The defeasance of the principal, he thinks, will operate as a defeasance of the accessary. This writer also thinks, that in addition to the argument resting upon the principle on which is founded the right to maintain covenant against the assignee, the authorities are consistent with his view of the subject. He then makes reference to the rule that equity will seldom grant relief where means of redress can be had at law; from which it is assumed that if suits in equity, instituted for the purpose of compelling an assignee, after he has made an assignment, to pay rent accruing during his possession,  [**9]  have frequently been sustained, it may be fairly inferred that the court of chancery sanctioned such proceedings because there was no remedy at law. After which, cases are examined, showing that relief had been granted in equity, and in some instances the right to sue at law had been denied. And from the authorities referred to, Mr. Platt insists, it is evident that some of the greatest English judges, for a period approaching to a century and a half, were directly 

 [*351]  hostile to the right of action, in a court of law, against an assignee, under such circumstances.
In Harley vs. King, 2 Crompt., Mees. & Ros. 18, it was decided, that an assignment over, before suit brought, would not defeat or prevent a recovery in an action of covenant, against the intermediate assignee, for the breach of a covenant to repair occurring between the time of the assignment to him and the date of the one from him. But, in the later case of Fagg vs. Dobie, 3 You. & Col. 96, the doctrine contended for in Platt on Cov., was sustained. There the proceeding was in equity in the Exchequer. No lease had been actually made but an agreement for a lease for sixty-one years, and possession [**10]  taken under it. The tenant assigned to B., who assigned to C., and the suit was against B. At page 103, Baron Alderson says: "An assignee of a term is liable to the covenants only by reason of his privity of estate." And he maintains that the law which imposes this liability will only continue it so long as the privity of estate continues; so that any real assignment puts an end to it.
In reference to a question, whether the assignment was fraudulent, in consequence of being made to a man in poverty, the court held, that if the assignment was real, the party not retaining in himself the beneficial possession, it was not a fraudulent act. And that the motive which influenced one in parting with, or the motive of the other for receiving it, did not render it fraudulent, if the act was designed really to operate as it appeared to do. It is then said by Baron Alderson: "The decisions, both at law and in equity, concur in this point. But though this be so, yet equity will give relief as to antecedent rent due, or antecedent breaches of covenant committed at the time the party was liable for them, although by his subsequent assignment the remedy at law is gone." Taking this [**11]  case in connection with Mr. Platt's argument, and the cases referred to by him, we think, notwithstanding the decision in Harley vs. King, that the present action cannot be maintained. There is an agreement that errors in pleading shall be waived, and the facts are set forth in a statement.
The plaintiff's counsel relied upon the doctrine of estoppel, 

 [*352]  but we understood him as urging it against the first ground of defence. If, however, he meant to apply it to the second also, we do not think it available against such a defence in a case like the present.  Paul vs. Nurse, 8 Barn. & Cres. 486. Brudnel vs. Roberts, 2 Wilson 143.
Judgment reversed, and judgment for defendant. 

37 of 44 DOCUMENTS 

FREDERICK DIETUS vs. FRANCIS J. FUSS, Trustee of GOTLIEB DIETUS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 148; 1855 Md. LEXIS 40 

DECEMBER, 1855, Decided 

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

Trover by the appellee, as permanent trustee in insolvency of Gotlieb Dietus, brought on the 8th of July 1851, against the appellant, to recover the value of twenty-three cows, four horses, seven hogs, one milk-wagon, and a lot of household and kitchen furniture, which the nar alleges the said Gotlieb was possessed of on the 11th of February 1851, and on the same day casually lost, and which on the same day came to the possession of the defendant by finding, and were converted by him to his own use on the 26th of June 1851. The nar also alleges, that on the 11th of February 1851, said Gotlieb petitioned for the benefit of the insolvent laws, and the plaintiff was appointed his permanent trustee, and filed a duly approved bond as such on the 25th of June 1851. Plea, non cul.

Exception. It was admitted that Gotlieb Dietus petitioned for the benefit of the insolvent laws on the 11th of February 1851, and that plaintiff was appointed his permanent trustee and duly bonded as such on the 25th of June 1851. The plaintiff then proved that said Gotlieb had not obtained his final discharge, and then called several witnesses who proved [**2]  substantially the following facts: that said Gotlieb carried on the milk-business, and his property was appraised, at the instance of the defendant, in March or April 1851, at $ 900 or $ 1000; that not long prior to his application for the benefit of the insolvent laws he was hard pressed for money, borrowed small sums, said his brother, the defendant, had helped him out several times and he was afraid to apply to him again; that in the spring of 1851 he was sued and said he must petition if the judgment could not be superseded; that he carried on his business as usual up to time of his application and was in possession of his stock, &c.; that on the 25th of June 1851, plaintiff made a demand in writing upon the defendant for the property in dispute which was received by him from Gotlieb, and particularly described in a bill of sale from Gotlieb to defendant, dated the 13th of June 1850, to which defendant replied that he would not give it up. He also offered in evidence several notes given by Gotlieb for debts dated in 1850 and 1854.

The defendant then offered in evidence the bill of sale of the property in question (which was duly recorded) from Gotlieb to him, dated the 30th [**3]  of June 1850, in consideration of $ 1000 in hand paid. He then proved by several witnesses, that Gotlieb had been several times in execution on other judgments than that on which when arrested he petitioned; that he carried on his business up to the time of his arrest and was in his milk-wagon when arrested, and on the same morning petitioned; that defendant was a butcher and did not carry on the milk-business. He then proved by Sacks, that on the 28th of January 1851, Gotlieb sold to witness a lot of cows, horses, hogs, milk-wagon, and other property appertaining to his milk concern, for $ 1000, of which $ 400 was paid by the extinguishment of a debt due by Gotlieb to him, which had been running for several years, and for which defendant was security, and the remaining $ 600 was paid to defendant; that defendant was not present at this sale; that at that time Gotlieb had the property in his possession, and shortly thereafter delivered possession thereof to witness and moved from the place, carrying with him the articles he had not sold; that defendant told witness to sell his brother, Gotlieb, cows and he would pay for them.

The plaintiff then recalled a witness, who proved that [**4]  he heard defendant tell the plaintiff, who inquired of him why he had taken so large a bill of sale, as Gotlieb could not owe so much? that he had taken it so that none of the creditors should lose any thing. The plaintiff then offered three prayers, as follows:

1st. If the jury find from the evidence that at the time the bill of sale offered in evidence was made by Gotlieb Dietus he was indebted to several persons, who are yet unpaid, and that after its execution he remained in possession of the property therein mentioned as before, and prosecuted his business as milk-dealer up to a short time before his application for the benefit of the insolvent laws, and that the consideration mentioned in said bill of sale was not bona fide paid as therein stated, in money or in satisfaction of some existing debt due by the grantor to the grantee, or in other equivalent value, and that the contract between Gotlieb and Sacks was made with the privity of the defendant, then the jury may infer that said bill of sale was made to hinder and delay the creditors of said Gotlieb, and if they make such inference, it is fraudulent and void as against the creditors of said insolvent.

2nd. If they [**5]  find the facts stated in the first prayer and draw the inference thereby authorised, and further find that before the institution of this suit the plaintiff was appointed permanent trustee of said Gotlieb Dietus, and gave bond as such, which was afterwards duly approved, and that thereafter he demanded of the defendant the property mentioned in said bill of sale, and that defendant refused to deliver the same, then plaintiff is entitled to a verdict for such amount as the jury may find from the evidence to be the value of the property in question.

3rd. This prayer is fully stated in the opinion of this court.

The defendant then offered the five following prayers:

1st. This prayer contains the proposition which is also fully stated in the opinion of this court.

2nd. If the jury find from the evidence that defendant came into possession of the chattels in question prior to Gotlieb's application for the benefit of the insolvent laws, under the bill of sale of the 13th of June 1850, and that such possession ended prior to said application, in consequence of no act or consent of the defendant, but of the acts of Gotlieb; and further, that at the time of the alleged demand [**6]  and refusal the defendant had not possession or control of said chattels, they must find a verdict for the defendant.

3rd. This prayer is fully stated in the opinion of this court.

4th. If the jury shall find from the evidence that defendant came into possession of the goods and chattels alleged to be converted under a sale or transfer from Gotlieb Dietus prior to his application for insolvency, and that plaintiff, since his appointment as trustee of said Gotlieb, has made no demand of said goods and chattels at a time when defendant had possession or control of them, then, though they believe such sale or transfer was made in contemplation of insolvency, they must find for the defendant.

5th. This prayer is fully stated in the opinion of this court.

The court below, (FRICK, J.,) granted all the prayers of the plaintiff and rejected all those offered by the defendant, and then gave the instruction set out in the opinion of this court. To which instruction by the court, as well as to the granting of each of the plaintiff's and the rejection of each of the defendant's prayers, the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment [**7]  reversed and procedendo ordered.  

HEADNOTES:

A prayer which leaves it to the jury to infer that a bill of sale was fraudulent and void as to creditors, from the fact, simply, that the grantor, at the time he executed it, was indebted to several persons, whose debts remained unpaid, without submitting to them any question as to the amount of such indebtedness or the extent of the grantor's means, or whether he was in embarrassed or insolvent circumstances, is defective.

Trover cannot be maintained without a conversion either direct or constructive, and which must be proved either directly or by inference.

When the plaintiff fails to prove an actual conversion, he must give evidence of a demand and refusal made at a time when the defendant had the power to give up the goods.

A demand and refusal are only evidence of a prior conversion, which may be explained or rebutted by evidence to the contrary.

Where a party in insolvent circumstances sells property, and his vendee sells or disposes of it after the vendor petitions, or if before petition and while the goods are in his possession the vendor makes a second sale, which the first vendee subsequent to the petition adopts or sanctions, it will amount to a conversion by such vendee without a demand and refusal.

But the mere fact that a party before he petitions makes a fraudulent bill of sale of property, without any proof as to an actual conversion or a demand and refusal, will not justify a verdict in trover in favor of the insolvent's trustee against the grantee.

A prayer that the insolvent trustee could not recover against such grantee, unless the jury believe the bill of sale void under the insolvent laws, is defective, because though not void under those laws, the deed may still be void under the statute of Elizabeth.

The particular day named in the nar, either in reference to the possession of the party whose goods have been converted or to the conversion, is an immaterial averment as to time. 

COUNSEL:
James A. Buchanan and Chas. J. M. Gwinn for the appellant, argued:

1st. That the plaintiff's first prayer is erroneous in this:-- 1st. That it makes the mere fact of an indebtedness of Gotlieb Dietus at the time of the execution of the bill of sale a circumstance from which the jury may infer it was intended to hinder and delay his creditors, without limiting the instruction in such a manner as that the jury should consider the amount of such indebtedness, its proportion to the whole property conveyed, the presence or absence of proof as to his possession of other property sufficient to pay such outstanding demands. 5 Gill, 449, Worthington, et al., vs. Shipley. Under the law of this part of the instruction, if the jury had found an indebtedness on the part of Gotlieb of one dollar, the technical requirement of the instruction would have been satisfied. 2nd. It makes Gotlieb's remaining in possession of the chattels conveyed a circumstance from which the jury may also infer such intent to hinder and delay creditors, when, by the provisions of the act of 1729, ch. 8, sec. 5, the bill of sale having been duly recorded, the grantor's remaining [**8]  in possession was in exact conformity with law and good faith. 3rd. It improperly makes the prosecution of his business by Gotlieb with the articles so legally in his possession up to the time of his application, a circumstance from which the jury may infer an intent to hinder and delay his creditors in executing the bill of sale. 4th. It authorises the jury to find an intent to hinder and delay creditors, if they believe the very pecuniary consideration of $ 1000 was not paid by the defendant to Gotlieb either in its exact sum of money, or in its exact sum in satisfaction of existing debts, or in some other exact equivalent value, which was well calculated to mislead the jury, as it did not leave to them the simple determination of the inquiry, whether the consideration was a valuable one or not, but left them free to find for the plaintiff if defendant had paid any less sum than $ 1000 or was the creditor of Gotlieb in any less sum. 5th. It authorises the jury to find the privity of the defendant to the sale made to Sacks to be a circumstance of fraud, when such sale was right and proper if it had the assent of the defendant, since, by the recording of the bill of sale, the right [**9]  of property in the chattels transferred was vested in him and the right of possession remained in Gotlieb so long as it was not claimed by defendant, and in the disposition of the property with the consent of the defendant, Gotlieb can only be intended to have acted as his proper agent and by his permission. 6th. The question should not have been upon the intent, as it is here inferentially made, with which the defendant took the bill of sale, but upon the intent with which Gotlieb made it and the consideration upon which it was made; for if made without intent to hinder and delay creditors and for a valuable consideration, the assent given afterwards by the defendant to the disposition of the property could not affect the validity of the bill of sale in its inception and execution. 7th. The conduct of the defendant subsequent to the execution of the bill of sale with regard to the disposition of the property conveyed to him, making no part of the res gestae, was not a proper circumstance to be left to the jury as in any sense an indicium of fraud. 3 Md. Rep., 77, Stewart vs. Redditt.

2nd. The plaintiff's second prayer is also erroneous:--1st. Because it is based upon the first [**10]  prayer which we have shown to be defective. 2nd, for the further reason, that it makes the mere fact of demand and refusal evidence of a conversion, although it was in proof the property was not at the time of such demand and refusal in the possession or under the control of the defendant, and never had been in his possession. 3rd. Because in order to make a demand and refusal evidence of a conversion, it must be proved that defendant had at the time of such demand and refusal the possession or control of the property demanded of him. 2 H. Bl. Rep., 135, Nixon vs. Jenkins. 2 Greenlf. on Ev., sec. 644. 11 Mees. & Wels., 362, Edwards vs. Hooper. 9 Barn. & Cres., 764, Jones vs. Fort. 1 Camp., 439, Smith vs. Young. 13 Pick., 294, Vincent vs. Cornell. 3 Metcalf, 6, Leonard vs. Tidd.

3rd. The plaintiff's third prayer is defective, because it assumes that the mere invalidity of the deed to the defendant gave the plaintiff a right to recover in trover, without leaving it to the jury to find whether there had been any actual conversion of the property by the defendant, or any demand made on, and refusal by him, if he had it in his possession; or without leaving them to find whether the [**11]  defendant had ever been in the actual possession of the property so conveyed to him by the bill of sale; and because, in fine, the prayer assumes that a right to the possession of the chattels or to their proceeds was of itself sufficient to maintain trover, whereas, on the contrary, the prayer is not law, because it does not direct the jury to find such demand and refusal or any fact equivalent thereto. Vide cases cited on the second point.

4th. The defendant's first prayer presented the true rule to enable the jury to test the validity of the bill of sale, and should have been granted. 5 G. & J., 377, Hickley vs. Farmers & Merchants Bank. 6 Do., 323, Crawfords vs. Taylor. Act of 1834, ch. 293, sec. 1. 7 G. & J., 170, Dulaney vs. Hoffman. 6 Do., 205, State vs. Bank of Md. Ibid., 363, Union Bank vs. Ellicott. 1 Gill, 412, Cole vs. Albers & Runge. 4 Do., 38, Wheeler vs. Stone. 7 Do., 378, Gardner vs. Lewis. Ibid., 439, Stewart vs. Union Bank.

5th. Our second prayer presented the true law of the case. Vide authorities under the second point, and 6 Barbour, 436, Kelsey vs. Griswold.

6th. The court erred in rejecting our third prayer, for the reason that the defendant could [**12]  not be made liable when the property had been taken from him by Gotlieb before he was insolvent, and before his trustee had acquired any right to the property in question. 12 G. & J., 341, Repp vs. Repp. 11 Mees. & Wels., 362, Edwards vs. Hooper. And for the further reason that the plaintiff, in his declaration, avers that the defendant converted Gotlieb's property to his own use on the 11th of February 1851, and the defendant was not liable if he could show that Gotlieb had taken the property from him prior to February 11th, 1851, when Gotlieb applied for the benefit of the insolvent laws.

7th. Our fourth prayer was also improperly rejected for the reason, that if the jury found the defendant came into possession of the property in the manner stated in the prayer, he could not be guilty of a conversion until it was demanded of him and until he had refused to give it up. And in order to make a demand and refusal evidence of a conversion, the plaintiff must show that at the time it was made the defendant had possession or control of the property demanded. 2 Greenlf. on Ev., sec. 644. 2 H. Bl. Rep., 134, Nixon vs. Jenkins. 13 Pick., 294, Vincent vs. Cornell. 5 Md. Rep., 433, Stewart [**13]  vs. Spedden.

8th. Our fifth prayer should have been granted, for the reason that the plaintiff avers in his declaration that the property in the goods and chattels in question was in Gotlieb, on the 11th of February 1851, when the defendant converted them to his own use, and this must be proved, because a prior conversion is not sufficient. 11 Mees. & Wels., 362, Edwards vs. Hooper. 2 Younge & Jervis, 101, Balme vs. Hutton. 4 Md. Rep., 352, Mayor & C. C. of Balto. vs. Norman.

9th. The court erred in its instruction, because it was calculated to, and doubtless did, mislead the jury; for under it they could find a verdict for the plaintiff if they believed the bill of sale invalid, although they should not have found that defendant was ever in possession of the goods conveyed to him by it, or that he ever converted them to his own use, or though they should believe there had been no sufficient or any demand or refusal, and though they should find the goods had been sold to Sacks without authority from the defendant, or had been, in fact, converted to the use of Gotlieb by the single act of Gotlieb, and because upon this instruction, which is avowed by the court to be the law [**14]  of the whole case, no rule was furnished to the jury by which they could assess the damages in the case. 2 Greenlf. on Ev., sec. 649. 5 Md. Rep., 438, Stewart vs. Spedden. 7 H. & J., 257, Bohn vs. Headley.

10th. That as from the proof there can be no recovery, a procedendo ought to be refused if judgment is reversed. 7 H. & J., 251, Bohn vs. Headley. 6 Md. Rep., 113, Gittings vs. Mayhew. 6 Gill, 191, Emery vs. Gault.

John J. Snyder and David Stewart for the appellee, argued:

1st. That there was evidence to go to the jury, that the bill of sale made by the insolvent to the defendant was not made fairly and bona fide, and the plaintiff therefore could recover the property in trover. 1 Md. Rep., 455, Waters vs. Dashiell.

2nd. That the demand made by the plaintiff upon the defendant for the property in the written demand mentioned, and the unqualified refusal of the defendant to deliver the same was evidence of the previous conversion by the defendant of the property referred to in the demand. 7 Eng. C. L. Rep., 278, Wilton vs. Girdstone.

3rd. That the contract between the insolvent and Sacks, if made with the privity of the defendant, was evidence from which the [**15]  jury might infer, that the bill of sale set up by the defence was made to hinder and delay the creditors of the insolvent, and that there is in the record abundant evidence of such privity on the part of the defendant.

4th. That the rights of the plaintiff have relation back to the date of the application of the insolvent, and that if the bill of sale was fraudulent the defendant is responsible to the plaintiff for any conversion of the property whereby it was withheld from the plaintiff as trustee, though such conversion may have taken place before the day of the demand and refusal. 1 Term. Rep., 157, Thompson vs. Councel. 5 Bingh., 597, Price vs. Helyar. 3 Camp., 396, Wyatt vs. Blades. Smith's Lead. Cases, 237. 6 East, 540, McCombie vs. Davies. 7 Johns., 257, Bristol vs. Burt. 5 Cowen., 323, Reynolds vs. Shuler.

5th. That the sale by the defendant or with his consent, after the application of Gotlieb Dietus for the benefit of the insolvent laws, was an actual conversion, and that a demand and refusal were unnecessary. 5 East, 407, Bloxam vs. Hubbard. 1 Eng. C. L. Rep., 439, Craven vs. Ryder. 14 Do., 222, Yates vs. Carnsew. 4 Blackford, 397, Coffin vs. Anderson. 1 Burr,  [**16]  20, Cooper vs. Chitty. 23 Eng. C. L. Rep., 338, Balme vs. Hutton. 16 Do., 237, Egan vs. Threlfall.

These points we think cover the entire case and demonstrate the correctness of the ruling of the court below in granting the plaintiff's prayers and rejecting those of the defendant; and also vindicate the propriety of the court's instruction, which is not to be regarded as a distinct and separate instruction, but must be taken in connection with the plaintiff's prayers.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*157]  ECCLESTON, J., delivered the opinion of this court.
The first proposition in the plaintiff's first prayer, relied upon as furnishing evidence, in connection with other matters, to justify the inference, that the bill of sale alluded to was made to hinder and delay creditors, and therefore void, is simply, that when Gotlieb Dietus executed the instrument he was indebted to several persons, who remained unpaid up to the time of trial. There is no question submitted to the jury as to the amount of his indebtedness or the extent of his means, nothing as to whether he was in embarrassed or insolvent circumstances [**17]  further than what might be conjectured from the fact of his having several creditors whose claims were not subsequently paid. The language of the instruction would have been complied with if the jury had believed Gotlieb Dietus' creditors were three in number, to each of whom he owed five dollars, whilst he was worth forty thousand dollars. A prayer containing a proposition so well calculated to mislead a jury should not have been granted.
The second prayer on behalf of the plaintiff presents, not only the facts, but also the inference to be drawn from them, as set forth in the first; and if that is erroneous this likewise must be so.
Before expressing an opinion in reference to the plaintiff's 

 [*158]  third prayer it is proper to notice some of the principles relating to the subject of conversion, for the action of trover cannot be maintained without a conversion. It may be either direct or constructive, and therefore may be proved directly or by inference. When the plaintiff fails in proving an actual conversion it will be necessary for him to give evidence of a demand and refusal having been made at a time when the defendant had the power to give up the goods. A demand [**18]  and refusal are only evidence of a prior conversion, which may be explained and rebutted by evidence to the contrary. 2 Greenl. on Ev., secs. 642, 644.  Edwards vs. Hooper, 11 Mees. & Wels. 363.
In Nixon vs. Jenkins, 2 H. Bl. Rep. 135, goods were sold to the defendant by a party in contemplation of insolvency, and with a design of defeating the claims of his creditors. He committed an act of bankruptcy shortly after the sale, and an action of trover was instituted by his assignees to recover the value of the goods, in which they gave no proof of a demand and refusal. On behalf of the plaintiff it was insisted, that because the sale was fraudulent no demand and refusal need be proved, that being only necessary where the possession was originally lawful, and then the possession was wrongful.
But it was held by the court, "That a demand and refusal were necessary to maintain the action. When the sale was made the parties were competent to contract; there was no unlawful taking of the goods, though the transaction was liable to be impeached by the assignees. They might either affirm or disaffirm the contract, and if they thought proper to disaffirm it [**19]  they ought to have demanded the goods, a refusal to deliver which would have been evidence of a conversion." And in Browne on Actions at Law, 440; the author says, "If a trader, in contemplation of bankruptcy, make a collusive sale or fraudulent preference, the assignees cannot maintain trover without a demand and refusal." In support of which position he refers to 2 H. Bl. Rep. 135; 9 B. & C. 764; and 4 M. & R. 547. See also Stewart vs. Spedden, 5 Md. 433, as to when a demand is necessary.
Although the principle stated by Brown, and recognized in 

 [*159]  the authorities cited by him be true, yet if a vendee, under such a sale, disposes of the property by sale or otherwise, after his vendor has made application for the benefit of the insolvent laws, or if prior to the application, whilst the goods were remaining in the possession of the original vendor, he may have made a second sale of them, and subsequently to the petition the first vendee adopts or sanctions that sale, such conduct will amount to a conversion without a demand and refusal, so far as relates to the sale of the goods so adopted or sanctioned. The authorities referred [**20]  to by the appellee's counsel show this view of the subject to be correct. And surely it would not be promoting the ends of justice to hold, that without a demand and refusal the trustee of an insolvent could not maintain an action of trover against the first vendee under such circumstances, because a demand and refusal, after he had parted with all authority and control over the property, would not make him responsible in trover, as he would have no power to comply with the demand when made.
The third prayer asked the court to instruct the jury, if they should find that when the suit was instituted the plaintiff had been appointed permanent trustee of Gotlieb Dietus, and had given bond as such; and if they should also find, that the bill of sale given in evidence was not made upon the consideration therein stated, and was not made bona fide, that then the said bill of sale was clearly and utterly void, and the plaintiff was entitled to recover what the jury might find to be the value of the property therein mentioned. If we are to consider this prayer as having any reference whatever to the subject of conversion, it must rest exclusively upon the hypothesis, that the bill of sale [**21]  was fraudulent and void, and that the simple execution of it operated as a sufficient conversion to sustain the suit; without requiring that the jury should find anything in reference to the possession of the goods, whether they had been resold or in any way disposed of, or whether there had been a demand and refusal. The bill of sale was made before the grantor filed his petition as an insolvent, and even admitting it was fraudulent, and the jury might have believed it to be so, still that alone, unsupported by any other fact in regard 

 [*160]  to an actual conversion, or to a demand and refusal, would not justify a verdict in trover in favor of the plaintiff. The prayer was therefore erroneous.
The first prayer of the defendant was properly refused. The proposition contained in it is, that the plaintiff was not entitled to recover unless the jury believed the bill of sale had been made by the grantor with a view or intent of taking the benefit of the insolvent laws; and unless they should likewise believe the defendant had actual notice that the grantor was insolvent at the time of executing the bill of sale, and of the intention of the grantor to apply for the benefit of the [**22]  insolvent laws. This was erroneous, because it did not follow that if the bill of sale was not void under our insolvent laws it might not be successfully assailed under the statute of Elizabeth, in the opinion and belief of the jury.
Our reasons for thinking the court did right in refusing the defendant's third prayer will be found sufficient, we think, to show there was no error in not granting his second prayer.
The position taken in the defendant's third prayer is, that if the jury believed the defendant's possession of the chattels in question, at any time prior to Gotlieb Dietus' application for the benefit of the insolvent laws, was with the consent of Gotlieb Dietus; and should also believe that such possession ceased by the act and choice of Gotlieb prior to his application as an insolvent, and that at the time of the plaintiff's alleged demand of the chattels the defendant had not possession of them, the verdict should then be for the defendant.
Although the jury might have believed all the matters to be true which were submitted for their consideration; and although the defendant's possession may have ceased by the act and choice of Gotlieb prior to his petition; nevertheless [**23]  if the jury believed the bill of sale was fraudulent, and that after the petition the sale and delivery of possession made prior thereto by Gotlieb were adopted or sanctioned by the defendant, such acts amounted to a conversion, which rendered a demand and refusal unnecessary. In reference to the circumstances just mentioned, which, if believed by the jury to be true, would constitute a conversion, there is some evidence, but it is not 

 [*161]  our province to say whether the evidence is or is not sufficient to prove them.
Admitting the truth of all the circumstances presented in the prayer, on which the defendant based his right to a verdict, still there is evidence tending to prove other circumstances, which if found by the jury would entitle the plaintiff to a verdict. The prayer was therefore properly refused by the court.
The defendant's fourth prayer was erroneous for the reasons assigned in regard to the third.
In his fifth prayer the defendant asked an instruction to the jury, that the plaintiff was not entitled to recover unless they believed that the defendant had possession of or exercised control over the goods at some time since the tenth day of February 1851. In [**24]  support of the position here taken, the defendant says, the plaintiff avers in his declaration, that the property in the goods was in Gotlieb Dietus on the 11th of February 1851, when the defendant converted them to his own use, and this he assumes must be proved, because a prior conversion is not sufficient. As to the averment in the nar, in regard to the date of the conversion, he is mistaken; the allegation being that the defendant converted the goods on the 26th day of June 1851; but if he were correct in his facts still his prayer would not be so. The particular day named in a nar, either in reference to the possession of the party whose goods have been converted, or in relation to the conversion, is not material, as may be seen by reference to two forms of nars, in trover, by assignees of bankrupts, to be found in 1 Saund. Pl. & Evi. 205, 206.
The defendant's counsel relied with much confidence upon the case of Edwards vs. Hooper as sustaining their views; but that decision did not turn upon the materiality of any particular day named in the nar. The statement of the assignees' right of property instead of merely stating their right of action [**25]  rendered it necessary to prove that the conversion was after the plaintiffs became assignees. But there was no discussion, either by counsel or judges, as to the materiality of the precise days stated in the nar. This decision does not contradict what 

 [*162]  is said by Saunders, nor do the other cases cited on the subject.
The statement in the nar, that on the 11th of February 1851, Gotlieb had possession of the goods, and on the same day they came to the possession of the defendant, by finding, we consider immaterial averments in regard to time, and that the court were right in refusing to grant the fifth prayer of the defendant.
According to the record it appears the plaintiff offered three prayers, which were all granted; then the defendant submitted five prayers, which were all refused. The language of the record at this point, (after having set forth the prayers,) is, "And the court rejected all the said prayers of the said defendant, and instructed the jury, that the sole question for them was, as to the validity of the bill of sale from Gotlieb Dietus to the defendant; that if they should find the said bill of sale not to have been made bona fide the plaintiff [**26]  was entitled to recover what they should find to be the value of the property, but if they should find that the bill of sale was made in good faith their verdict should be for the defendant." This instruction, as also the granting of the plaintiff's prayers, and the rejection of those of the defendant, were all excepted to by him.
Notwithstanding what had previously taken place the jury might well have been misled, when informed voluntarily by the court, in very explicit terms, that the sole question for them was, as to the validity of the bill of sale, with direction to find a verdict for the plaintiff, if they believed that instrument to have been fraudulent, but if made in good faith then their verdict should be in favor of the defendant. From this the jury might very readily have supposed it was their duty to decide in favor of the plaintiff if they believed the bill of sale was fraudulent, without making any enquiry in regard to a demand and refusal, or to an actual conversion at any time. Taking this view of the instruction we must consider it erroneous, after what has been said on the subject of conversion in reference to the plaintiff's third prayer.
But the appellee's [**27]  counsel say this direction to the jury is not to be considered as standing by itself; on the contrary it 

 [*163]  must be looked at in connection with the plaintiff's prayers previously granted. Admitting this to be so, still the instruction will receive but little aid from such connection, inasmuch as we have decided that each of the plaintiff's prayers is erroneous.
We affirm on the defendant's prayers but reverse on those of the plaintiff, and also on the last instruction given by the court.
Judgment reversed and procedendo ordered. 

38 of 44 DOCUMENTS 

JAMES W. BOYD vs. WILLIAM A. TALBOTT, Garnishee of HENRY F. HOOK and HENRY HOOK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 404; 1855 Md. LEXIS 8 

JUNE, 1855, Decided 

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

The record in this case shows that the appellant recovered judgment against the two Hooks on the 1st of March 1848, on which a fi. fa. was issued on the 24th of August following, but was immediately countermanded, and on the same day a ca. sa. issued, and was returned on the 2nd Monday of September, non est as to one, discharged under the insolvent laws as to the other, of the defendants. On the 6th of October 1848, a fi. fa. was issued, and returned on the 2nd Monday of January 1849, "nulla bona." On the 2nd of October 1849, an attachment was issued, and returned on the 2nd Monday of January 1850, "laid in the hands of William A. Talbott, permanent trustee of Henry F. Hook," who appeared and pleaded "nulla bona," and the attachment was regularly continued till the 2nd of March 1852, when the plaintiff suffered judgment of non suit by default, and on the same day a second attachment was issued, and also laid in the hands of Talbott, who, upon its return, moved to quash this writ--1st, because the judgment on which it issued was rendered more than three years before the date of the attachment, and had not been revived by scire facias.  [**2]  2nd, because it was rendered more than a year and a day before the writ issued, and had not been properly kept alive.

The cause was then continued under curia till January term 1853, when the plaintiff, after the motion to quash had been argued on both sides, moved for leave to enter on the docket and roll the continuances from January term 1849, regularly through that year to January term 1850. The court (FRICK, J.,) refused to grant this leave, and quashed the attachment, and from the judgment of cassetur the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An attachment on judgment, so far as the issuing of it is involved, is on the same footing with a fi. fa. or ca. sa., and cannot be issued more than three years after the rendition of the judgment, unless the latter has been revived by scire facias. 

COUNSEL:
James Malcolm and J. Mason Campbell for the appellant:

The appellee's first reason for quashing the writ, puts the execution, by way of attachment, in the same category with a ca. sa. and fi. fa., and assuming the same rule to be applicable to it as to them, affirms it to be irregular where they would have been. The theory then is, that attachments on judgments being executions, are within the equity, though not within the terms of the act of 1823, ch. 194, entitled "An act relating to executions." If this be true, it is fatal to the second point, which proceeds on the assumption that the attachment could only issue within [**3]  a year and a day, and is, consequently, a denial of the applicability of the act of 1823 to such a writ. Assuming it to be true however, argumenti gratia, the question presented by this point is, whether this attachment, being issued after three years, required a preliminary scire facias on the judgment to warrant its issue? The present attachment, it will be remembered, is not the first which issued on the judgment. It had been preceded by a previous one in October 1849, when it is conceded by this point that the judgment was alive and the writ issuable. This previous attachment was regularly carried forward by continuances, until the 2nd of March 1852, after the three years had expired, when the plaintiffs suffered judgment by default, and on the same day the present writ issued. Now, that the judgment was alive on that day, there can be no doubt. Had there then been funds in the garnishee's hands, a condemnation would have taken place on the first attachment, and as there are no fractions of a day in law, the present attachment was in time, because the judgment on that day was in force. It is an error to suppose that the rule requiring a scire facias to revive a judgment where no [**4]  execution has issued within the year in England, or the three years in this State, is without exception. Bacon (Title Execution H.,) says: "Though the general rule be, that the plaintiff cannot take out execution after the year and day, without a sci. fa., yet it must be understood with these restrictions." And he then proceeds to cite a writ of error, a stay of execution, &c., as not affecting the right to take out execution, even though the year has expired. The same principle is laid down by Tidd, (2 Tidd, 1155,) and in addition to the exceptional instances mentioned by Bacon, he says: "When a fi. fa. or ca. sa. is taken out within the year, and not executed, a new writ of execution may be sued out at any time afterwards, without a scire facias, provided the first writ be returned and filed, and continuances entered from the time of issuing it." This passage is both cited with approval, and explained by the Court of Appeals, in Mullikin vs. Duvall, 7 G. & J., 358. The opinion in that case says, "That a judgment may be kept alive and in full legal operation for an indefinite period of time, by the issuing an execution on it within a year and a day, by the law of England, and within [**5]  three years by the law of this State, and if such execution is not effective by renewing it from term to term." The rule, therefore, both in England and Maryland, is, that the judgment is unaffected by any lapse of time, during which process of execution is kept up by the renewal of the writ, whenever it proves ineffective. In this case, the original attachment issued within the three years, was not ascertained to be ineffective until the 2nd of March 1852, and not only at the same term, but on the same day on which it became ineffective, the alias or present attachment was issued. It is submitted with great confidence that no scire facias was necessary, and that the court below ought not, for this reason, to have quashed the attachment.

(The argument upon the second reason for quashing the writ, need not be stated, because this court held, that the writ was properly quashed for the first reason.)

No counsel appeared for the appellee.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*407]  LE GRAND, C. J., delivered the opinion of this court.
We are of opinion, independently of all other considerations, that by virtue of the provisions [**6]  of the act of Assembly of 1834, chapter 189, the judgment of the court below ought to be affirmed. We regard that act as a legislative interpretation of the previous state of the law, and as designed to place an attachment on judgment on precisely the same footing, so far as the issue of it should be involved, as that of a fi. fa. or ca. sa. The writ in this case having issued more than three years after the rendition of the judgment, and the latter not having been previously revived by scire facias, we 

 [*408]  think the court did right in quashing it, and accordingly affirm the judgment.
Judgment affirmed. 

39 of 44 DOCUMENTS 

GEORGE T. JENKINS vs. ELLIS B. LONG and WILLIAM W. BYRNE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 132; 1855 Md. LEXIS 38 

DECEMBER, 1855, Decided 

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

Assumpsit by the appellant against the appellees. The declaration counts upon the special contract set out in the opinion of this court; and also contains a count for work and labor, and the common money counts. Plea non assumpsit.

Three exceptions were taken by the plaintiff to the rulings of the court below, (MARSHALL, J.,) all of which are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendants and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

By a written contract the defendants agreed to pay the plaintiff a salary of $ 1000, payable in monthly instalments of $ 50 each, "if he sells for them, to such parties as they shall approve, $ 40,000 during the year, and for all sales above that amount, (deducting bad and doubtful debts,) two per cent. additional." The defendants were also to have the right to dismiss him at any time before the end of the year "by giving him a month's notice to that effect." HELD:

That the equitable construction of this contract is, that if defendants dismiss the plaintiff before the end of the year the latter is entitled to compensation in proportion to the amount he was to have received for the whole year, including both the contingent compensation of two per cent. and the proportionate part of the $ 1000, provided his sales for the fraction of the year were at the rate of $ 40,000 per annum, deducting bad debts.

In construing contracts it is legitimate to suppose new and different aspects of the case from those which have actually arisen, in order to ascertain whether the rule of interpretation adopted makes every phase which the case might assume harmonise with each other.

Where a special contract to pay a certain sum for services for a year provides that the defendant may dismiss the plaintiff at any time during the year upon giving a month's notice, and the latter is so dismissed; the contract is not violated or rescinded, and the plaintiff must recover upon it, and cannot resort to a quantum meruit.

Evidence in a quantum meruit is admissible if the contract has been violated or abandoned by the defendant, or terminated by consent of both parties after it has been partly performed.

Evidence under a quantum meruit can only be resorted to where the special contract from having been either violated or rescinded is not sufficient to meet the case.

Where a contract has been fully executed, and nothing remains to be done but the payment of the money, the amount due may be recovered in indebitatus assumpsit, and in such case it is not necessary to declare upon or set out the special agreement.

But where the contract remains in full force it must, by virtue of its own terms, constitute the evidence of the agreement itself, even where the plaintiff relies alone upon the common counts; and no other evidence is admissible. 

COUNSEL:
Benjamin C. Barroll for the appellant, argued:

1st. That the evidence contained in the first exception was admissible as being applicable to the count for work and labor. That the defendants having, by their own act, terminated the contract by discharging the plaintiff from their service, and having thus put it out of his power to perform his contract to its full extent it was at his election to go before the jury upon the quantum meruit. 1 Greenlf. on Ev., secs. 277, 287, 288. 7 H. & J., 133, Owings & Piet vs. Low. 2 Md. Rep., 38, Bull vs. Schuberth. 6 H. & J., 38, Watkins vs. Hodges, et al. Ibid,  [**2]  81, Speake vs. Sheppard. 9 Gill, 288, Rodemer vs. Hazlehurst. 2 Fairfield, 348, Jewett vs. Weston. And further, that the evidence was admissible as affording light to the court by which the true construction of the written contract could be better discerned. See sections from Greenlf., cited above, and 1 Mason, 12, Piesch vs. Dickson.

2nd. As to the construction of the contract raised by the second and third exceptions the appellant insists, that its true construction is, that the plaintiff is entitled to claim compensation pro rata, according to the amount of goods sold by him and not according to time as set forth in the defendant's prayer granted by the court below. The contract divides itself into two distinct branches; 1st. It states, that if Jenkins sells to the specified amount of $ 40,000 he is to receive $ 1000, which is equivalent to two and-a-half per cent. on the $ 40,000. And this he is to receive without regard to the ultimate payment by the purchasers. And the mode of payment is specified, viz., an advance of $ 350, and the balance in monthly instalments of $ 50 each. 2nd. Then with regard to the excess of sales over the $ 40,000. Upon such sales he is to receive [**3]  a commission of two per cent. at the end of the year, after deducting all bad and doubtful debts, upon which the commission is not to be paid; the meaning and intention being, it is presumed, that the payment of commissions on such shall be suspended until their quality is definitely ascertained. As the sales did not reach the amount of $ 40,000 the second branch of the contract does not require consideration as to its construction. The contract makes no reference to the ordinary compensation for a clerk or salesman in a store, but has special reference to the customers which Jenkins should bring to the house of the defendants, and beyond this custom which he was to introduce he had nothing to do with the general business of the concern. It was for the profit arising to them from this special custom the defendants contracted to pay $ 1000, (or two and-a-half per cent.,) for the sale of goods to the extent of $ 40,000. The whole tenor of the agreement shows it was a commission on sales, (by way of salary,) they were to pay, such form of compensation being familiar among merchants in large cities. The contract itself uses the term "commissions." The construction contended for by the [**4]  appellant is natural, equitable, and that by which no undue advantage could be taken by either of the contracting parties. The construction contended for by the appellees would place Jenkins wholly in their power; they could discharge him as soon as the spring sales were over, (and the evidence proves they did so,) and then seek to allow him a compensation not based upon the amount of service rendered, as evidenced by the amount of goods sold, but a compensation based altogether upon time. According to their construction of the contract he might, in three months, have sold within a fraction of $ 40,000, been discharged, and be entitled to receive a paltry pittance instead of the $ 1000 for which he had bargained. If Jenkins in five months had sold $ 40,000 worth of goods there cannot be a doubt he would be entitled to claim the $ 1000 stipulated to be paid in the contract, which would be equivalent to two and-a-half per cent., and as he has proved, that in five months he sold to the extent of $ 33,266.50, he insists he is entitled to claim at the same rate of two and-a-half per cent. on that amount, as he was debarred selling the further amount to make up the $ 40,000 by the act of [**5]  the defendants and not by any default on his part.

Oliver Miller and Robert C. Barry for the appellees, argued:

1st. As to the first exception: By the terms of the contract declared upon and offered in evidence by the plaintiff himself, he was to receive a specific sum for the service he was to render, and without attempting to show any violation or rescision of this agreement, he sought to repudiate it altogether and recover upon a quantum meruit, by introducing evidence to establish an implied agreement totally inconsistent in its terms with those set out in the existing special agreement proved by himself, and thereby admitted to be in full force and of binding authority. The rule of law is well settled and without exception, that you cannot imply a contract where you prove an express contract. In West vs. Flannagan, 4 Md. Rep., 56, this court has said: "As a general rule, implied contracts are only sustained in order to supply the place of express agreements, and we know of no case where the latter have been made to yield to the former, unless by the express or implied understanding of the parties that such should be the result. Indeed an express agreement admitted to [**6]  be in full force negatives an implied inconsistent agreement relating to the same subject matter." The fact that the declaration contains a count for work and labor does not affect the operation of the rule. In Cushman vs. Sims, 2 H. & J., 352, the declaration contained the common counts, and the court held, that if there was a special agreement proved the plaintiff could not recover. In Story on Cont., sec. 15, the rule is clearly and strongly stated: "A contract will be implied only when there is no express contract, 'expressum facit cessare tacitum.' If therefore there be an express contract between the parties, the plaintiff in an action to recover the consideration for work and labor done must declare specially thereupon. So long therefore as that contract remains unrescinded he cannot recover the value of his services upon a quantum meruit." See also Chitty on Cont., 24, (Ed. of 1851,) where the same rule is also stated in the same strong language, and the doctrine announced that a party cannot be bound by an implied contract when he has made a specific contract, "even although the latter be avoided by fraud." See also the cases cited by Chitty and Story in support of this general [**7]  rule. But it is said the defendants terminated the contract by discharging the appellant from their service, and having put it out of his power to perform his contract to its full extent, it was at his election to go before the jury upon the quantum meruit. It is undoubtedly true, that if the defendant violates the contract or prevents the plaintiff from carrying it out, (which is equivalent to a violation on his part and a fraud upon the contract,) the latter may recover upon a quantum meruit. But this rule is confined to cases of violated contracts and of fraud. Such is not the case here. In discharging the plaintiff the defendants did not violate the contract, but simply exercised their unquestioned rights under the contract. The plaintiff's recovery for what is due him must therefore be under and not outside of the contract. The cases cited in 2 H. & G., 133; 6 Do., 38, 81, and 2 Md. Rep., 38, are not in conflict with, but sustain all the views expressed above. But it is further said, this evidence was admissible as affording light by which the true construction of the written contract could be better discerned. It is difficult to understand how evidence that the value of plaintiff's [**8]  services for one year was worth from $ 2500 to $ 3000, can throw light upon the construction of a written contract, by which the value of those services for that period was fixed at $ 1000 if he sold $ 40,000 worth of goods, and two per cent. commissions on all sales above that amount. If such evidence can be admitted for such a purpose, it is difficult to understand the use of a written agreement in any case. If there be any ambiguity in the terms of this contract, it is patent upon the face of the instrument itself, and cannot be explained or removed by extrinsic evidence. 4 Md. Rep., 498, Marshall vs. Haney. Nor is it a case in which evidence of usage would be admissible, for such evidence is never admissible to vary or contradict the clear and manifest signification of the terms used by the contracting parties to express their meaning, nor to oppose or alter a general principle or rule of law. 6 Md. Rep., 37, Foley & Woodside, vs. Mason & Son. "A usage of trade cannot be set up in contravention of an express contract." Chitty on Cont., 24, (Ed. of 1851.) We therefore insist that the ruling of the court upon the first exception cannot be reversed, for with such reversal would go [**9]  a reversal of elementary text law.

2nd. The second and third exceptions relate to the construction of the contract in question. Upon these we insist: 1st. That the true construction of this contract is that given to it by the court below in granting defendants' prayer. The plaintiff was to receive a salary of $ 1000 if he sold during the year $ 40,000 to such parties as the defendants should approve, and after selling $ 40,000 he was to receive two per cent. commissions on all sums over and above that amount, all bad and doubtful debts, however, to be first deducted. The $ 1000 salary was to be drawn in monthly instalments. The commission of two per cent. on sums over $ 40,000 was to be paid at the end of the year, when the amount over and above $ 40,000 should be ascertained. There can be no doubt that the appellant was not entitled to receive aught but the $ 1000, if during the entire year he had sold only $ 40,000. It is admitted he sold but $ 33,266.50 up to the 1st of June 1850, when, under the notice given by defendants, in pursuance of a provision of the contract, he left their services. The contingency had not then happened by which the plaintiff was entitled to receive [**10]  any commissions on his sales. He was entitled to draw his salary at the rate of $ 1000 per annum, and no more, because he had not then even sold $ 40,000, which he was bound to sell before he could make any claim for commissions. The sale of $ 40,000 was clearly a condition precedent to the right to receive any commissions. If he was to receive a pro rata compensation on the sales made, without any reference to the time of service or amount sold, then all that part (which is by far the greater and most important portion) of the contract relating to the salary of $ 1000, and the sale of the $ 40,000 is utterly without meaning, and must be stricken from the instrument. We therefore confidently insist that the pro rata proportion of the salary of $ 1000, having reference to the time the plaintiff was in the defendants' service, is all that he can claim, and all that in equity and justice he is entitled to. The above is the construction given to the contract by the court below, and is the most favorable for the appellant which, as we conceive, can possibly be placed upon it. But we insist, 2ndly, that this is more than, upon a strict and legal construction of the contract, the appellant [**11]  is entitled to ask. This court must look at the contract as it stands, and put such a construction upon it as the plain import of its language demands, regardless of any considerations of hardship which such a construction may inflict upon the parties. Now what is the plain import of the language here used? We say the plaintiff can recover neither salary nor commissions, unless he remained in the service of the defendants, at their desire, till the 1st of January 1851, and sold for them $ 40,000 to such parties as they should approve. He did neither. How then can he recover anything under this agreement? The contract is, that the defendants "agree to pay Mr. Jenkins a salary of $ 1000, IF he sells for them, to such parties as they shall approve, $ 40,000 during the year." Is there any difficulty in construing this language? If he sells the $ 40,000 during the year, he is to recive his salary, if not he is to receive nothing. He must perform the condition before his right of action accrues. It is said he was prevented from performing this condition by the act of the defendants. This is true, but it is equally true that in so doing they violated no stipulation of the agreement, but on [**12]  the other hand merely exercised a right which the plaintiff, by the contract, agreed they should have the power to exercise. He was to remain in their service till the 1st of January 1851, if they so desired it, and they were to have the right to dispense with his services at any time previously by giving him a month's notice to that effect. This notice was given and he left in pursuance of it before he had sold the $ 40,000. They were not bound to assign any reason for dismissing him; this was left to their own uncontrolled and arbitrary discretion. It may be said this construction makes the contract a harsh, inequitable and one-sided bargain, and puts the plaintiff entirely in the power of the defendants; but the conclusive answer is, you so stipulated with "your eyes open to the rights and powers conferred by the contract, both upon yourself and the defendants." 4 Md. Rep., 57, West vs. Flannagan. Because a party has entered into an improvident bargain, it is no reason why he should ask relief in a court of law. It was a case of greater hardship in Wagner vs. White, 4 H. & J., 564, where the tenant was held responsible for the rent, though the house was torn down by a mob which [**13]  he could not resist, and yet the court there say, "the defendant has bound himself by express agreement, without any reservation or exception, to pay the rent, and he must stand by his contract. In Rodemer vs. Hazlehurst, 9 Gill, 292, a contract was made which the court called "peculiar and one-sided," by which the right to rescind it, upon three days' notice, was given to one side only, and the court held the plaintiff was released, because the required notice was not given. Here the month's notice was given, and there are no restrictions upon the right of the defendants to dismiss the plaintiff from their service at any time they chose, and without assigning any reason therefor. The only stipulation in the contract that in the least militates against this view, is that which provides that the salary of $ 1000 is to be drawn in monthly instalments, commencing at the end of January. But it is submitted that this clause is controlled and modified by the great and controlling condition, which, undoubtedly, was the consideration moving to the defendants in the execution of the contract, and upon which alone they agreed to pay the salary, viz., "the sale by the plaintiff of $ 40,000 during [**14]  the year;" and that each monthly payment was made subject to the condition, that this part of the contract was to be complied with, and in case of failure so to comply, was liable to be refunded by the plaintiff, or to be recovered from him by defendants in case he should refuse to refund.  

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

OPINIONBY:
MASON 

OPINION:

 [*140]  MASON, J., delivered the opinion of this court.
This is an action of assumpsit, the declaration in which contains a count upon a special agreement, a count for work and labor and the common money counts.
At the trial the plaintiff proved, that in virtue of a written contract, which was afterwards produced, he had been in the employment of the defendants from the 1st of January 1850 to the 1st of June 1850, a period of five months, and during that time had sold for them goods to the amount of $ 33,266.50, which had been duly delivered to the purchasers. He also proved that a written notice from the defendants, dispensing with his services, had been given to him thirty days prior to 1st of June, and that he left their employment in conformity 

 [*141]  with such notice. The plaintiff then gave [**15]  in evidence the written contract between himself and defendants, as follows:
"Memorandum of understanding between Long & Byrne and George T. Jenkins for the year eighteen hundred and fifty (1850.) The first named party agree to pay Mr. Jenkins a salary of one thousand dollars if he sells for them to such parties as they shall approve, forty thousand during the year, and for all sales over and above that amount, (2 p. c.) two per cent. additional, the excess over the one thousand dollars to be paid at the end of the year, when the amount of sales shall be ascertained, and the thousand dollars to be drawn in monthly instalments of fifty dollars per month, commencing at end of January, three hundred and fifty dollars being already advanced on next year's salary. Sales made by Mr. Jenkins personally, and orders from his friends and induced by his influence, (the packing of whose goods are to be superintended by him,) to be considered as constituting the amount of his sales, after deducting all bad and doubtful debts at the end of the year, which, under no circumstances, can the two per cent. commission be paid upon. It being further understood, that George T. Jenkins binds himself,  [**16]  under a penalty of five hundred dollars, to continue in the service of Long & Byrne till the 1st of January 1851, if they so desire it, and that they have the right to dispense with his services at any time previously by giving him a month's notice to that effect, to which agreement both parties pledged themselves, this 14th day of November 1849.
(Signed,)   LONG & BYRNE, by E. B. Long, GEO. T. JENKINS."
The plaintiff then offered to prove by several witnesses his competency and character as a business man, and the value of his services in connection with the dry goods business, (being the business in which Long & Byrne were engaged in the year 1850,) and particularly the value of his services to the defendants from the 1st of January 1850 to the 1st of June 1850. And offered further to prove his services worth for the year 1850 from $ 2500 to $ 3000. But the court refused to allow the testimony to go to the jury and ruled the same incompetent, which ruling forms the matter of the plaintiff's first exception.

 [*142]  The defendants then proved that the plaintiff had received from them $ 650.50; and thereupon the case was closed.
The plaintiff then asked the court to [**17]  instruct the jury, "that the true and legal construction of the contract offered in evidence is, that the plaintiff is entitled to receive for his services a pro rata compensation, to be estimated upon the amount of goods sold by him while in the employment of the defendants." But the court refused so to do and the plaintiff excepted.
The defendants then prayed the court, &c., "that if the jury find from the evidence that the defendants contracted with plaintiff, as set out in the contract, and that plaintiff entered into the service of the defendants on the 1st of January and remained in their service till 1st of June, (five months,) and then left their service in consequence of notice from defendants, in pursuance of said contract, the plaintiff is only entitled to recover in this action at the rate of $ 1000 per annum for the time he was so in defendants' service, and that from such amount must be deducted the amount of defendants' bill filed in this case and admitted by plaintiff to be correct." This prayer was granted and the plaintiff also excepted.
This case depends upon the proper construction of the written contract between the plaintiff and defendants. It is not [**18]  a case where evidence in a quantum meruit would be admissible as if the contract had been violated or abandoned by the defendants, or where it had been terminated even by the consent of both parties after it was only partly performed. Such were the cases of Watkins vs. Hodges, 6 Har. & Johns. 38; Howard vs. Rail Road Co., 1 Gill 311; Rodemer vs. Hazlehurst & Co., 9 Gill 288; Bull vs. Schuberth, 2 Md. 38; Balt. & O. R. R. Co. vs. Resley, 7 Md. 297.
The defendants did not violate the terms of the agreement in dismissing the plaintiff, but in doing so they acted in strict conformity with them. Notwithstanding this dismissal of the plaintiff, it was nevertheless as much a perfectly executed and an entire contract between both parties as if it had continued for the whole year and as if the plaintiff had sold $ 40,000 worth of goods, and it was, therefore, as much the subject of 

 [*143]  a special action. Evidence under a quantum meruit is only resorted to where the special contract, from its having been either violated or rescinded, is not sufficient to meet the case. But [**19]  here such is not the fact. The construction which we place upon this contract makes it ascertain, by force of its own terms, the precise amount of compensation which is due the plaintiff, and therefore there is no necessity to resort to evidence out side of the contract to ascertain, upon a quantum meruit, what that compensation should be or what the services were worth.
The question involved in the first exception is not one of pleading but one of evidence. There is no doubt that where the contract has been fully executed and nothing remains to be done but the payment of the money, the amount due can be recovered in indebitatus assumpsit, and it is not necessary in such case to declare upon or set out the special agreement. But where the contract remains in full force, as in this case, it must constitute, by virtue of its own terms, the evidence of the agreement itself, even where the plaintiff relies alone upon the common money counts, and no other evidence will be admissible.
Surely the defendants were entitled to whatever advantage they may derive from the provision in the contract, which authorises them to terminate it by dismissing the plaintiff after thirty [**20]  days' notice. But if by doing so, the defendants are to be treated as having so far abandoned the contract as to permit the plaintiff to resort to evidence in indebitatus assumpsit instead of the special contract, what better off are they than if no such provision was embraced in the agreement? In other words, the effect upon the defendants would be precisely the same, whether, in dismissing the plaintiff, they violated the contract, or whether, in doing so, they pursued its strict letter and spirit.
We are, therefore, of the opinion, that the evidence embraced in the first bill of exceptions was properly rejected. It sought to substitute an implied agreement in the place of the positive contract between the parties, which, as we shall presently show, though executed, was still in full force and virtue, unrescinded or unviolated by either party.

 [*144]  The equitable construction of this contract is evidently this: If the defendants should think proper, before the end of the year, to terminate the contract and dismiss the plaintiff, the latter would be entitled to compensation for the fraction of the year in proportion to the amount he was to have received for the whole year,  [**21]  and this would include as well the contingent compensation of two per cent. as the proportionate part of the $ 1000; provided, however, that the sales made for the fraction of the year had been at the rate of $ 40,000 per annum. Thus, to entitle the plaintiff to recover for the five months he was in the defendants' service, it must appear that he sold goods in that time to the amount, at least, of $ 16,666.66, which sum bears the same proportion to $ 40,000 that five months bear to one year. This having been shown, he became at once entitled to his share of the $ 1000 in the proportion also of five to twelve, which is $ 416.66 2/3. By the admissions in the record it appears, that the plaintiff, in the five months, sold goods to the amount of $ 33,266.50, which was an excess of $ 16,599.83 over the sum necessary to entitle him to claim compensation. Upon this excess he was entitled to two per cent. commissions, which, provided there were no bad debts, would amount to $ 331.99, which, added to the proportion due on his fixed salary, would make the plaintiff's claim, on the 1st of June 1850, the time he was dismissed, $ 748.65 2/3. Deducting the account of the defendants, which is admitted [**22]  to be $ 650.50, the balance due the plaintiff would be $ 98.15 2/3, with interest. As before said, this sum would be subject to be reduced upon proof that any portion of the sales were bad debts, upon which, by the terms of the contract, he was to have no commissions.
From what we have said, it follows, that the construction of the contract contended for by the appellee, namely, that there could be no recovery in this case, either of any fraction of the fixed salary or the contingent per centum until after an actual sale of $ 40,000 worth of goods had been made, is wholly untenable. The opposite suggestion, that the appellant would be entitled to 2 1/2 per cent. on the sales actually made while they continued below $ 40,000, which is at the rate of $ 1000 upon $ 40,000 is equally unsupported by the terms of the agreement. The 

 [*145]  effect of the latter construction would be to allow the plaintiff a greater rate of compensation for the five months than he would have been entitled to if he had continued in service till the end of the year, and had sold at the same ratio; whereas it is manifest from the terms of the agreement, that the contract, although made for a whole year,  [**23]  nevertheless contemplated a case of a segregation or division of it into fractions of a year, and that the compensation to be allowed for such fraction would be determined by the standard adopted for the whole year.
It is proper in construing contracts, not to confine ourselves to the particular state of case that has arisen under it, but it is legitimate for us to test the correctness of our impressions upon the particular state of facts that may be presented by the record, by supposing new and different aspects of the case, in order to ascertain whether the rule of interpretation adopted makes every phase which the case might assume harmonise with each other.
That the view we have taken of this contract is the correct one, appears manifest to our minds from the following illustrations: Suppose the plaintiff had sold goods, say at the rate of $ 200,000 for the year, the commissions on the excess over $ 40,000, added to his fixed salary, would amount to $ 4200. To avoid the payment of these commissions it would be only necessary for the defendants to give notice, on the 30th of November, for the purpose of dismissing the plaintiff, and thus on the 30th of December, one day only before [**24]  his claim for the full year's compensation would be consummated, he would find himself bereft of the fruits of his labors, (the commissions,) for the previous 364 days of the year, and that too without any default or misconduct on his part. This might be inevitably one of the results of the construction contended for by the appellee.
Again, suppose the defendants should think proper, in two months, to dismiss the plaintiff, and that in that time he had sold $ 40,000 worth of goods, if the construction contended for by him be correct, he would be entitled to $ 1000, whereas by the rule we have adopted he would be entitled to only 

 [*146]  $ 833.33 1/3. If it were otherwise and our rule of construction were not adopted the contract would be without mutuality, and would be susceptible of great injustice.
The contract further provides, that "the thousand dollars to be drawn in monthly instalments of fifty dollars per month." This provision of course rests upon the assumption, that the sales were to be at least at the rate of $ 40,000 per annum; and it furnishes another illustration, that notwithstanding the contract might be terminated before the end of the year, still it was,  [**25]  for the fraction of the year in which it might remain in force, to be regarded as an entire, executed contract.
The construction placed upon this contract, by the court below, being in our judgment erroneous, we must reverse the judgment and remand the cause, in order that the jury, upon a subsequent trial, may be instructed in accordance with the views herein expressed.
Judgment reversed and procedendo awarded. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J., delivered the following separate opinion:
By the terms of the agreement the clerk was to receive as a salary $ 1000, if he sold, to such persons as the defendants should approve, $ 40,000 worth of goods during the year, and two per cent. for all sales above that amount. At the end of five months the clerk was discharged, up to which time he had sold $ 33,266.50, from which no abatement is claimed on account of sales to improper parties. The sales being made within the year, and not exceeding $ 40,000, according to my construction of the contract, and in view of the circumstances disclosed by the record, I think the clerk had a right to claim 2 1/2 per cent. upon $ 33,266.50, because a salary of $ 1000 for selling goods amounting to [**26]  $ 40,000, is at the rate of 2 1/2 per cent. on the latter sum. Of course the defendants should be credited with the payments made by them.
I concur with the majority of the court in reversing the judgment, but not in their construction of the contract.  

40 of 44 DOCUMENTS 

EDWARD W. SALMON, Permanent Trustee of JAMES BOON, vs. JOHN W. PIERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 297; 1855 Md. LEXIS 53 

DECEMBER, 1855, Decided 

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

In this case the auditor allowed the claim of the appellee against the insolvent estate of Boon. The trustee excepted, on the ground that if there be any claim whatever on the part of Pierson, it is one arising after the application of Boon for the benefit of the insolvent laws. Testimony was taken, and this exception was overruled by the court, (MARSHALL, J.,) and the claim allowed. From this order the trustee appealed.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

In cases in insolvency, the right of appeal is given only to persons aggrieved by the decision of the court below, and the trustee has no right to object to the claims of creditors, and to appeal from an order allowing such claims, where the creditors themselves acquiesce.

He may appeal where the decision complained of affects the interests of all the creditors by diminishing the estate out of which they are to be paid, or where he is defeated in attempts to augment that fund by the recovery of property or money which he thinks belongs to the creditors.

If he has an interest as trustee in reference to his allowance for commissions and expenses, or as a creditor of the insolvent, he has an equal right, with others, to object to the distribution and to appeal.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.; by Charles H. Pitts for the appellant, and T. Parkin Scott for the appellee. The arguments of counsel, which related solely to the merits of the claim, need not be reported, as this court dismissed the appeal, upon the ground that the trustee had no right to appeal.  

OPINIONBY:
TUCK 

OPINION:

 [*298]  TUCK, J., delivered the opinion of this court.
The right of appeal from decisions in insolvency is granted, by the act of 1849, ch. 88, only to persons aggrieved by the action of the court below. If the appellant does not come within this designation, the appeal must be dismissed.
The trustee of an [**2]  insolvent represents the creditors, and may appeal, under the laws upon that subject, where the decision complained of affects the interests of all the creditors, as for example, by diminishing the estate out of which they are to be paid, or where he is defeated in attempts to augment that fund by the recovery of property or money which he thinks belongs to the creditors. But his relation to the estate does 

 [*299]  not authorise him, under this act of Assembly, to object to the claims of creditors, who may, if they please, litigate, inter sese, as actors in reference to the same subject matter. It is his duty to protect all alike, which is quite inconsistent with any pretension to contest with one or more for the benefit of the others. If he has an interest, as trustee, in reference to his allowance for commission and expenses, or as creditor of the insolvent, he has an equal right, with others, to object to the distribution and to appeal. But what interest can he set up to continue litigation here, after a decision below to which the parties really interested do not appear to have objected? As mere custodian of the funds, he cannot interplead, as it were, in this unnecessary [**3]  manner, to the expense and diminution of the estate, too often inadequate to pay the just claims upon it.
We are aware that this case is supposed to be analogous to that of a trustee in chancery, who, it was said in Ellicott vs. Ellicott, 6 G. & J. 35, may appeal from an order distributing the proceeds of sale. In that suit, however, the appellants, the trustees, were heirs at law and personally interested in the proceeds of sale; and although the decision of the court was not placed on that ground, the circumstance distinguishes that case from the present. Besides, it does not appear, that in the case of Kent vs. Alexander, Trustee of Mullikin, referred to and relied upon in the opinion, any point or question was decided as to the right of appeal; and in fact, that record shows that the exception to the auditor's account was made by Kent, a claimant against the estate, and that the appeal was taken by him because his claim was rejected. At a later period, the Court of Appeals, in Balch vs. Zentmeyer, 11 G. & J. 267, where the appellant was a trustee in chancery contesting the claim of the appellee, appear to have considered the question [**4]  as not conclusively settled. They say, "in making this affirmance, however, we desire to be considered as expressing no opinion on the right of the trustee, in his own name, to prosecute this appeal in behalf of parties present in court and litigating their claim by their solicitor." In the present case the creditors had filed their claims, and if they acquiesced in the audit, we cannot discover that the trustee can, with legal propriety, 

 [*300]  object in their behalf, not being himself aggrieved by the decision below, to which description of persons the right of appeal is confined by the act of Assembly. Under the circumstances of the case, the costs will be paid out of the trust estate.
Appeal dismissed. 

41 of 44 DOCUMENTS 

WILLIAM B. NELSON vs. JOHN W. PIERSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 300; 1855 Md. LEXIS 54 

DECEMBER, 1855, Decided 

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

In this case the appellant preferred a claim against the insolvent estate of James Boon of $ 100, for professional services rendered the trustee in relation to the trust. The proof in regard to the claim is stated in the opinion of this court. To the allowance of this claim the appellee, another creditor, excepted. The court, (MARSHALL, J.,) allowed the claim to the extent of $ 25, for services rendered the insolvent in preparing his insolvent papers, and referred the case back to the auditor with directions to allow the claim to this extent only, upon proper proof, remarking that he "did not think it admissible, as a principle, that a trustee should employ counsel in all cases, and especially should retain a permanent counsel, whether required absolutely or not." From this decision Nelson appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

A trustee in insolvency cannot employ a professional adviser and charge his compensation to the estate; but where the assistance of counsel is required in prosecuting or defending the interests of creditors, compensation therefor is properly payable out of the funds.  

JUDGES:
The cause was submitted to the court, LE GRAND, C. J., ECCLESTON and TUCK, J., without argument.  

OPINIONBY:
TUCK 

OPINION:

 [*300]  TUCK, J., delivered the opinion of this court.
We agree with the Court of Common Pleas, that a trustee in insolvency cannot employ a professional adviser and [**2]  charge his compensation to the estate. But where the assistance of 

 [*301]  counsel is required in prosecuting or defending the interests of the creditors, they are properly payable out of the funds.  Young's Appeal, 8 Gill 285. The proof shows, that there were many cases before justices of the peace, to all or some of which the appellant attended professionally. We think when the case was remanded to the auditor for further proof of claims, liberty should have been allowed to the appellant to make good his claim, by showing the extent and character of his services and the value thereof. The record will be remanded under the act of 1849, ch. 88, that further proceedings may be had according to the views here expressed. The costs should be paid out of the estate.
Cause remanded. 

42 of 44 DOCUMENTS 

ISAAC FEIGLEY AND MARY ANN FEIGLEY, vs. ELIZABETH M. H. FEIGLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

7 Md. 537; 1855 Md. LEXIS 18 

JUNE, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the equity side of the Circuit Court for Washington county.

The original bill in this case was filed on the 7th of February 1846, by the appellee against the appellant, Isaac Feigley, for a divorce a vinculo and for alimony. It alleges, in substance, the marriage of the parties in 1844; that the husband, without cause, abandoned and deserted the wife, and led an idle and indolent life, without making any effort to support her or her children; that he was entitled to a future interest in considerable property--his share of the estate of his deceased father. The bill then prays for a divorce a vinculo; that a support may be awarded to the complainant and her children, out of the property of the said Isaac; that the guardianship and custody of the children may be assigned to complainant; and for an injunction restraining the defendant from assigning or conveying his property until the final order of the court in this case.

Afterwards, on the 23rd of September 1848, the complainant, under leave of the court, filed an amended or supplemental bill, in which she reiterates the charge of abandonment and desertion, and further charges, that to oppress and deprive her of [**2]  all hope of any provision out of his property, the said Isaac, confederating with his sister, Mary Ann Feigley, for that purpose, on the 28th of October 1847, executed a deed of all his interest in the estate of his deceased father to his said sister, for the trifling and pretended consideration of $ 200; that this conveyance was merely fictitious, and not intended really to deprive the grantor of the benefit of said estate, but only to save the same for his benefit; that before this pretended sale, the said Mary Ann had full knowledge of complainant's bill; that said consideration is altogether inadequate, and has, in fact, never been paid, or if it has, before the same was paid, the complainant gave notice to said grantee of the pendency of her bill, and warned the said Mary Ann not to pay it. This bill further charges, that the said Isaac absents himself from the State, taking no notice of his family; that he has recently returned, but has avowed his determination soon to leave the State again, promising his family no assistance. The bill then calls upon the said Mary Ann to answer, and that if she pretends that she has paid the consideration mentioned in the deed aforesaid, to [**3]  state how and when she paid, and prays that this deed may be declared null and void; that provision may be made for the support of complainant and her children; for an order requiring the said Isaac to pay a reasonable sum for carrying on these proceedings, and for the support of complainant and her children during their pendency; and for a writ of ne exeat, restraining him from leaving the State until he makes the provision herein prayed, or gives security so to do.

The court granted the writ of ne exeat, but it was afterwards dissolved upon the defendant's giving the required security. With this bill were filed as exhibits, 1st, the deed to Mary Ann Feigley, referred to in it. This deed is dated the 28th of October 1847, and for the consideration of $ 200, conveys to the grantee all the grantor's (the said Isaac's) interest in and to the estate of his father, Peter Feigley, deceased. 2nd, a written notice from the complainant to said Mary Ann Feigley, dated the 22nd of March 1848, (which was served upon her the 24th of the same month,) not to pay the consideration stated in said deed, as she was about to take proceedings to set the same aside, in order to provide for the said [**4]  Isaac's family. 3rd, the executor's account, showing a balance due the estate of said Peter Feigley of $ 7161.34. This property, by the will of said Peter, was devised to his widow during her single life, and upon her marriage or death, the executor was to sell the same, and distribute the proceeds thereof (with the exception of a legacy of $ 500,) equally amongst the testator's children.

The answer of Isaac Feigley, to both the original and amended bill, denies the alleged abandonment and desertion, but admits a partial separation and non-intercourse, which he avers was occasioned by the bad conduct of his wife, and then, after other allegations as to his willingness but inability to support his family, he admits the execution of the deed of October 1847, to his sister, Mary Ann Feigley, but denies that it was made in order to oppress and deprive complainant of any hope of provision out of his property, or that he confederated with his sister for that purpose, or that the consideration was trifling and pretended, or that the said deed was fictitious, and not intended really to deprive himself of the benefit of said estate, or that it was only to save the same for his benefit,  [**5]  or that the consideration was inadequate, but avers that the consideration was bona fide, and is paid, and that the conveyance was made in good faith. He further avers, that by his father's will, the whole estate passed to his mother for life, and that he has no existing operative interest in the said estate, but must await the contingencies of the marriage or death of his mother, before he can enjoy any part of it. He consents to a divorce a vinculo, but protests against any award of support or maintenance to the complainant, and prays that the custody and guardianship of the children may be assigned to him.

The answer of Mary Ann Feigley contains the same denials as to the intent and motives under which the deed to her was executed, and as to the adequacy of the consideration, and avers that the consideration was just and true, and that the deed was executed and received in good faith; she denies that she had knowledge of the filing of the original bill before the sale of said Isaac's interest in said estate to her, and avers that the consideration was paid in full, and in good faith by her, by paying $ 100 in cash, at the execution of the deed, and two judgments previously [**6]  recovered against the grantor, and by other sums of money advanced to him by the grantee, before the deed was executed. She then denies all manner of fraud, confederation and pretence in the making of said conveyance, and prays that the same may not be declared null and void, and that she may be hence dismissed, with her reasonable costs.

Testimony of several witnesses was then taken under a commission. Only one of these witnesses (Martin,) says any thing of the alleged abandonment or desertion prior to the filing of the original bill, and the substance of his evidence is, that said Isaac has not taken care of his family since 1845, and that the complainant and her family were in a distressed and suffering condition. The testimony of all the other witnesses relate to a period subsequent to the filing of the amended or supplemental bill, and its purport is sufficiently stated in the opinion of this court. The testimony as to the value of the property conveyed by the deed to Mary Ann Feigley, is also stated in the opinion of this court.

The defendants excepted to the admissibility of all the testimony which related to matters which arose subsequent to the filing of the original [**7]  bill.

The court below (PERRY, J.,) passed a decree divorcing the parties a mensa et thoro, giving to the complainant the custody of her children, awarding an allowance of $ 150 per annum, to be paid to her by the defendant, Isaac Feigley, during their natural lives, or so long as they shall live separate from each other, for the support of complainant and her children, and annulling and vacating the deed from him to the defendant, Mary Ann Feigley, and making the property thereby conveyed the security for the payment of the above allowance. From this decree the defendants appealed.  

DISPOSITION:
Decree affirmed in part, and reversed in part.  

HEADNOTES:

Where a bill was filed for a divorce, and a supplemental bill was afterwards filed and received without objection by the defendant, the latter must be treated as properly a part of the case.

Where such supplemental bill reiterates the allegations of the original bill, as to the conduct of the husband, constituting the ground for a divorce, facts proved as occurring subsequent to the filing of the original, and prior to that of the supplemental bill, must be treated as supportive of the plaintiff's case.

Where such supplemental bill assails a deed made by the husband, as fraudulent as against the claim of the wife for alimony, and the grantee answers without objection, the latter submits his rights under the deed for adjudication in the case.

The wife, in reference to her claim upon her husband for a support, or for alimony, stands, to a certain extent, in the same relation that a creditor stands towards his debtor; she may assail a deed made by him with the actual intent of defeating her rights.

The statute of 13 Elizabeth, ch. 5, was designed to embrace others than those who are strictly and technically creditors, and a wife who has been made the victim of her husband's fraud, is embraced in the clause, "creditors and others."

A husband may alienate his property at will, even though he strips himself of all means of supporting or maintaining his wife, provided he does so bona fide, and with no design of defrauding her of her just claims upon him and his estate; the fraudulent intent, in all such cases, being the true test of the validity of the transaction.

A creditor cannot be impeded in the collection of his debt, even by a bona fide gift of the whole or a part of his debtor's estate, but the rights of the wife may be defeated by such a gift, if not made with the actual intent of defeating them.

Where a husband conveys his property to his sister, and the wife assails the deed as a fraud upon her rights, the court must look to the surrounding circumstances for the motives and designs of the parties, and call to its aid every fact, however remote and trivial, which can throw light upon the subject.

In the sale of property for $ 200, worth $ 800, there is not such a glaring inadequacy of consideration as would, of itself, stamp the transaction with fraud, and render the deed void.

An answer responsive to the bill, denying its allegations of fraudulent motives and intentions in executing a deed, is conclusive upon that question, unless overcome by the testimony of two witnesses, or of one with corroborating circumstances.

Alimony is an allowance out of the husband's estate, for the support of his wife, and if he has no estate, no decree for alimony can be passed.

The doctrine of lis penders does not apply to a case where a wife is suing for a divorce and alimony, but only to a case where the proceeding directly relates to the thing or property in question. 

COUNSEL:
George Schley for the appellants, argued the following points:

1st. That the testimony excepted to, is inadmissible and irrelevant for the reasons set forth in the exceptions filed thereto; that it details facts and conduct subsequent to the filing of the original bill. 4 H. & J., 521, Hayward vs. Carroll. 3 G. & J., 158, Hoye vs. Brewer, et al.

2nd. That the only witness in the record, whose testimony bears upon the subject matter of the bill, is Charles Martin, and his testimony does not establish the facts required by the act of 1841,  [**8]  ch. 262, sec. 3, to a decree of divorce.

3rd. As to the validity of the deed. The question of adequacy or inadequacy of consideration, can only arise in this case as a fact indicating fraud. 1 Story's Eq., secs. 244, 245, 246, 247. 1 Md. Ch. Dec., 338, 340, Hays vs. Henry. 3 Do., 145 to 148, Dunnock vs. Dunnock. 4 Do., 183, Robinson vs. Robinson. 4 Gill, 105, Ricketts vs. Ricketts. The doctrine of lis penders has no application to the case. 2 Kinne's Law Com., 131, 132. 7 Paige, 290, Sedwick vs. Sedwick. 2 Johns. Ch. Rep., 445, Murray vs. Lylburn. Story's Eq. Pl., secs. 156, 381. 1 Story's Eq., secs. 405 to 407. 2 Do., secs. 908, 953.

4th. The answers of Isaac Feigley and Mary A. Feigley are responsive to the bill--deny all fraud and must prevail. Facts and circumstances unsustained by a witness, cannot overcome them. 6 Gill, 391, Methodist Church vs. Mayor & City Council of Baltimore. 2 Md. Rep., 365, Faringer vs. Ransay.

Jervis Spencer for the appellee, argued:

1st. That under the acts of Assembly, the proof furnishes abundant ground to sustain the divorce, and for the custody of the children. The fact that the cruel treatment and abandonment continued after the [**9]  bill was filed, makes the case so much the stronger, and the testimony is so much the stronger for this very reason. 5 G. & J., 300, Davis vs. Calvert.

2nd. That the conveyance by Isaac Feigley to his sister, Mary Ann Feigley, was void, 1st, for actual fraud, 2nd, for defect of consideration, and 3rd, on account of the lis pendes. To sustain these positions, and to show that the wife is placed on the same footing and has the same rights as a creditor, he cited the following authorities. 2 Atk., 62, 377, Smith vs. Fellows. 2 Vernon, 202, Fairebeard vs. Bowers. 7 Viner's Abr., 202. 2 Roper on Husband & Wife, 14. 3 Md. Ch. Dec., 174, Cole vs. O'Neill. 1 Do., 338, Hays vs. Henry. 4 Md. Rep., 96, McNeal & Worley vs. Glenn. 3 Do., 99, Bullitt vs. Worthington. 1 Md. Ch. Dec., 337, Hays vs. Henry. 7 Blackf., 242, Green vs. White. 1 Story's Eq., sec. 182. 1 Pet., 310, Mechanics Bank of Alexandria vs. Seton.

3rd. That it was proper for the court, in the decree, to provide for the means of its enforcement, and the defendant having removed from the State, this could only be done by taking hold of the property. As to the amount of the provision see 3 Phill., 387, Rees vs. Rees. 2 Hagg.  [**10]  , 5, Brown vs. Brown. 2 Phill., 40, Cooke vs. Cooke. 1 Hagg., 351, Harris vs. Harris.

After the preceding points had been argued orally, a reargument was directed especially upon the following questions, suggested by one of the judges.

1st. Does the amended or supplemental bill, in reaffirming the averments of the original bill, so far take the place of the latter as to make the complainant's proof applicable to and supportive of her case?

2nd. Can a deed, based upon an inadequate consideration, be vacated for fraud upon creditors on the part of the grantor alone, without the knowledge or participation of the grantee? In other words, could such a deed be regarded as voluntary, so far as it concerns the grantee, as respects the difference between the price paid and the actual value of the property, and, therefore, to that extent void as to creditors?

3rd. Does the wife, in such a case, stand in the attitude of a creditor, with reference to her husband's property?

4th. If the deed be deemed void as a fraud upon the marital rights, is there any authority in a court of equity to take and hold the husband's property, independent of his control, for the wife's separate [**11]  support?

Upon these questions the counsel filed written arguments, substantially as follows.

George Schley for the appellants:

1st. The original bill was filed February 7th, 1846. The deed from Isaac to Mary, bears date October 28th, 1847. This conveyance was the only new fact which had occurred in the cause. "Where the estate or interest of the defendant is not determined, but only becomes vested in another by an event subsequent to the institution of the suit, as in the case of bankruptcy or insolvency, or of alienation by deed, the defect in the suit may be supplied by supplemental bill. 3 Daniel's Ch. Pr., 172. 8 G. & J., 149, Calwell vs. Boyer. On the 23rd of September 1848, the complainant filed her supplemental bill, for the purpose of making Isaac's grantee a party to the proceeding. It will be found, upon reading this supplemental bill, that the charges in the original bill are reiterated, and the proof taken under the commission, although manifestly inapplicable to the case made in the original bill, is supposed to be made relevant by force of the supplemental bill. In answer to this suggestion, it is submitted that the only exigency in the cause, requiring [**12]  a supplemental bill, was produced by the deed of October 1847, and this bill should have been thus limited. All the matters therein stated, apart from this deed, are surplussage. The complainant might have introduced new matter to prove what was before alleged, but not to prove a case not made; she had no power to make, thereby, a new case, but to establish the old one. As a further test, would the court, if no alienation had been made, have permitted a supplemental bill, reiterating or duplicating the charges or averments in the original, to be filed? If not, and so the law is assumed to be, then every charge in the supplemental bill, apart from the circumstances under which the deed was executed, is surplussage, and no part of the cause now before the court. Relying upon this position, I reassert the first point in my oral argument.

2nd. The case of Bullitt vs. Worthington, 3 Md. Ch. Dec., 99, decided that the conveyance there specified was voluntary to the extent of the excess of the value of the land conveyed over $ 5000, the money actually paid by the grantee. In that case the conveyance was attacked by "the creditors of Walter Worthington, the father and grantor, and also [**13]  by his permanent trustee in insolvency:" and the proof being that only $ 5000 was paid, the conveyance for the difference between the value of the land, $ 20,000, and the price paid, was held to be voluntary, and therefore void as against the creditors of the grantor. The correctness of this decision is not now meant to be questioned, and, therefore, will be assumed as the law of Maryland. But conceding this case to state the law correctly, how does it reflect upon that at bar? It has no force and sheds no light, it is submitted, unless it can be established that the wife, Elizabeth Feigley, stands in the attitude of a creditor. The authorities referred to in Faringer vs. Ramsay, et al., 2 Md. Rep., 372, 373, do not support the position for which they are cited; they are unhesitatingly averred to be inapplicable, and fail in supporting the 8th position there taken. If they can be used for the purpose quoted, I frankly admit my incapacity to perceive their applicability or point. These cases presenting no difficulty, unless the wife can be shown to occupy the attitude of a creditor, the validity or invalidity of the deed of October 1847, turns upon the solution of this question; can [**14]  the wife be said to be a creditor of her husband, by virtue of the marital relation, competent in law to impeach conveyances made by him? If she be, then the law books ought to furnish the decisions and the reasons therefor. The court will not be here fatigued by an examination of the rights, duties and powers of husband and wife. These matters are fully discussed in the various treatises on this subject, and are familiar without citation of authorities. The late chancellor has, in the cases cited in my oral argument, under the 3rd point, very fully enunciated the law of Maryland, and the court is referred especially to the pages there quoted. The results to which he arrived, were that the husband, "if the disposition of the property by him made be bona fide, and no right reserved to him, then, though made to defeat the claim of the wife, it will be good as against her, because an act cannot be denounced as fraudulent which the law authorizes to be done." 1 Md. Ch. Dec., 338, 340, Hays vs. Henry. The same doctrine is reiterated in Dunnock vs. Dunnock, 3 Md. Ch. Dec., 146, 147. "It is not enough to show that the conveyance, assuming it to be without a valuable consideration, was made [**15]  to defeat the claim of the wife; that the law allows the husband to do, by gift, so far as his personal estate is concerned, provided there be no right reserved to himself, and it is not a mere fiction by which, not divesting himself of the dominion over his property during his life, he attempts, after his death, to deprive her of her distributive share thereof." See, also, last sentence on page 148. So in 4 Md. Ch. Dec., 183, "Certainly this court would not, nor is it presumed any court would, undertake to interfere with a man's right to dispose of his own property upon any terms he pleases. He may not only sell it for an inadequate price, but he may give it away, and if he be of competent understanding, and the rights of creditors are not involved, no court has a right to say one word about it."

If these decisions correctly announce the law, in what sense can the wife be said to be a creditor? A creditor! And yet unable to vacate a conveyance made to defeat her rights, because such conveyance is authorized by law! The husband may sell or give away his personal property, and although the effect, and perhaps the design, may have been to defeat her of her distributive share thereof,  [**16]  yet she is without remedy, and at the same time a creditor! Was ever creditor before thus treated by the law or the courts? If creditor, then she is entitled to the rights of one, and if entitled to such rights, then to the appropriate remedies, and yet the cases cited above say otherwise. If she be a creditor, then decisions announcing such novel doctrines cannot be sustained, and are not law. If she be not a creditor, then they are easily understood, and present no inconsistency between rights and remedies.

In 2 Roper on Husband & Wife, 16, 17, 18, it is stated, "that a freeman, during his life, may make a bona fide gift or disposition of his property amongst his children, or otherwise, which will bar his widow's claim under the custom." The custom is given and explained in the preceding pages. At page 17, the cases in 7 Viner's Abr., 202. 2 Atk., 62, and 2 Vern., 202, referred to by the counsel for the appellee on the first argument, are stated and shown to be cases of fraud, contravening the principle quoted above from page 16. And the last sentence upon page 17, has the following, "Any device to defeat the custom and preserve the income of the property to the husband for [**17]  his life, will be met and cancelled by the court." The last sentence upon page 19, quoted in Hays vs. Henry, 1 Md. Ch. Dec., 339, seems to embody the conclusion of all the preceding authorities discussed by Mr. Roper. The result of the preceding remarks seems to be--

1st. That the wife cannot, in any view, be considered as a creditor of the husband, by virtue of the marital relation.

2nd. That the husband, so far as the wife is concerned, has absolute dominion over his personal and real property, except her dower, and may give or sell it, bona fide, during his life, and the wife has no power to call his acts in relation thereto in question, although the ultimate effect may be to deprive her of her share thereof, under the statute of distributions. If such gift or alienation had not been made, or, being made, could be avoided by her, she could then take.

3rd. Her inability to question such gifts or disposition of property, demonstrates that she cannot be a creditor.

If the above views be correct, it is unnecessary to discuss the 4th question suggested for argument, and so satisfied am I of their correctness, that this question will, therefore, not be agitated now.  [**18]  

The doctrine of lis pendens, insisted on by the counsel for the appellee, does not apply, as the following authorities will show. 1 Story's Eq., secs. 405 to 407. 2 Do., secs. 908, 953. Story's Eq. Pl., secs. 156, 351. 2 Kinne's Law Compendium, 131, 132. 2 Johns. Ch. Rep., 445. 7 Paige, 290, 292.

Alimony. See Crane vs. Meginnis, 1 G. & J., 463. This case establishes that alimony is a consequence, not a precedence of a divorce. In other words, the decree of divorce constitutes the wife a creditor of the husband, and not the filing of the bill. Until divorce she is wife--after divorce she is both wife and creditor.

As to Fraud. "Inadequacy of consideration is not a distinct principle of relief in equity." 1 Story's Eq., sec. 245. At best, it is but a fact indicating--causing the presumption of fraud. Ibid, sec. 244. In opposition to this presumption or indication of fraud, we have the answer under oath of grantor and grantee, responsive to the bill, denying most conclusively every pretence of fraud. These answers must prevail. See 4th point and cases cited in the oral argument. Fraud, then, being out of view in this case, how has the appellee been injured by the deed of [**19]  October 1847? Has the husband done more than exercise his legal rights over his own property? Having done nothing but what the law authorized him, will this court speculate upon the propriety or expediency of his acts? The propriety or expediency of a gift or sale was a matter solely for his decisions, and the jus disponendi being conceded, the mode or occasion are not open to review or reform. The appellants, therefore, seek a reversal of the decree appealed from.

Jervis Spencer for the appellee.

1st. I understand that the effect of an amended or supplemental bill is to bring all that was originally averred, as well as what is included in the supplement, to the view of the court, and make it all alike the subject of the action. Any evidence, therefore, which applies either to the original or supplemental bill is "supportive of her case." "The whole record constitutes but one cause." Story's Eq. Pl., sec. 332. "The original and amended bills are treated as one instrument." Alex. Ch. Pr., 110.

I am not sure that I understand the first question propounded. Perhaps it may relate to the competency of granting relief upon the averments of the supplemental bill when such averments [**20]  are of facts which occurred subsequent to the filing of the original. When I argued the case orally, I did not regard this point on the question of divorce as material, because I thought the direct evidence as to what had occurred before the filing of the original bill quite sufficient to justify a decree for a divorce. The original bill was filed February 7th, 1846; the marriage was in 1844. Feigley admits this, and says that three months after the wedding he found it "impossible to live inseparably with his wife;" and Martin proves his cruel abandonment and desertion in 1844 and 1845. The facts which occurred subsequently I regarded in any view as competent corroborative proof, and as showing the incorrigible character of the defendant's neglect and abandonment of his family, and there was no exception to the testimony filed.

As to the questions arising on the deed to Mary Ann Feigley, I did not think it of much importance, inasmuch as, if the case was to be regarded as in statu quo ante litem motam, her right would be entirely out of the case, and the court would decree as if the conveyance had never been made. But as she had elected to defend her own right in this case, had [**21]  submitted such right to the court, and had appealed in defence of it, I did not perceive that it could be regarded that it was not a subject of adjudication in the cause.

But if we wholly depended upon matters that occurred after the filing of the original bill and which are averred in the supplement, there still seems to be no difficulty. As to any matters which have occurred since the filing of this bill, a supplemental bill is the appropriate remedy. Story's Eq. Pl., sec. 332. And such "supplemental bill may not only put in issue new matter, but may vary the relief prayed in the original bill." See also sec. 352. Lord Hardwicke says: "The plaintiff could not properly amend his original bill by filing new matter which has arisen since the original bill, but ought to have brought a supplemental bill; but then the defendant should have taken advantage of this defect in form by a demurrer, and it is too late to make the objection after an answer." Archbishop of York vs. Stapleton, 2 Atk., 137. The right to bring in new matter by supplemental bill is absolute. See also Wray vs. Hutchinson, 2 Mylne & Keene, 235. I therefore conclude, if the admissions of Isaac Feigley and the testimony [**22]  of Martin as to what occurred before the filing of the original bill be regarded as insufficient, the supplemental bill brings the whole matter to the view of the court and the proofs are ample.

2nd. In answer to the second question it is submitted, that if the inadequacy is not so great as either alone or with other circumstances to produce an inference of a fraudulent purpose, the purchase is good, even though the grantor has conveyed to hinder and defraud creditors. But if the purchaser was cognizant of the fraudulent purpose, his title is void, no matter how full a price he may have paid. 1 Story's Eq., secs. 353, 369. 3 Ala. Rep., 446, Moore vs. Tarlton.

In the case of gross inadequacy of price, when the grantee is familiar with the title and character of the property, the conclusions may be indulged.

1st. That the grantor has been overreached, which occurs most frequently with persons of weak minds or pecuniary distress, in which case the conveyance will be set aside on his application upon his restoring the price paid. He cannot take the property and keep the price. 3 Madd. Ch. Rep., 420, Wood vs. Abrey. 2 Peere Wms., 204, Clarkson vs. Hanway. 1 Ambler, 235, Lane [**23]  vs. Page. 2 Ves., Sen., 516, How vs. Weldon. 1 Cox, 333, Evans vs. Llewellin. 2 H. & J., 294, Brogden vs. Walker.

2nd. That there was an intention to defraud creditors or others.

Either of these conclusions implicates the grantee. In the second case the conveyance is good against the grantor, because he cannot allege his own fraud to avoid his deed. But in both cases the deed is void as to creditors. In the first case, because the property is still the grantor's, and is liable to the claims of his creditors; and in the second case, because, under the statute of 13 Elizabeth, ch. 5, the deed is absolutely void against every one but the grantor, not "as respects the difference between the price paid and the actual value of the property," but absolutely. "Cases of bargains of an unconscionable nature, and of gross inequality, naturally lead to the presumption of fraud, imposition or undue influence." 1 Story's Eq., sec. 244. "There may be such an unconscionableness or inadequacy in a bargain as to demonstrate some gross imposition or some undue influence, and in such cases courts of equity ought to interfere upon the satisfactory ground of fraud." Sec. 246. In sec. 188, the [**24]  principle is strongly stated, in the words of Lord Hardwicke. See also secs. 350 to 353. "All voluntary dispositions made by debtors upon the score of liberality were revocable, whether the donee knew of the prejudice intended to creditors or not." Sec. 351. "The fraudulent grantee has no rights against creditors." 3 Johns. Ch. Rep., 371, Roberts vs. Anderson. "It is in possible the deeds should stand as a security;" that is, for the sum paid. Per Kent, C. J. 4 Johns. 597, Sands vs. Codwise. 7 Ala. Rep., 280, Borland vs. Walker. 3 Do., 446, Moore vs. Tarlton. 4 Md. Rep., 96, and 3 Md. Ch. Dec., 349, McNeal & Worley, vs. Glenn. I have not seen in the elementary books any thing, directly or indirectly, recognising any right of reimbursement against creditors. I do not know what was done in the case of Worthington vs. Bullitt, in the appellate court, but the chancellor seems to have put it on the ground of voluntary conveyances, which is different from fraud as implied from inadequacy of consideration. Nor have I seen a single case in which the deed has not been set aside, upon the application of any one interested at the date of the deed, when there was such an inequality as existed [**25]  in this case.

But are there no facts in this case which, in association with the gross inadequacy, tend to implicate the grantee? The court must make rational conclusions from the situation of the parties. The grantee undeniably knew the extent and value of the interest conveyed to her. It was the same interest and property she had herself, and was worth $ 2000 instead of $ 200. She knew the inadequacy of the consideration, and that the grantor had a motive for conveying to her. Whether that motive was to defeat the wife's claim for alimony or to defeat his creditors, or to relieve himself from pecuniary distress, of which she took advantage, either would vitiate the deed. And it is absolutely certain, that she knew he was influenced by one of these motives. There was no moral duty on him to provide for his sister to the prejudice of his own family to constitute a good consideration, if the deed was defended on any such ground. The fact of the conveyance proves that the grantor and grantee were on confidential terms. It is proved, that after the abandonment of his family the grantor stayed in the house of his mother, from which the complainant was excluded, and when he must have [**26]  been in daily intercourse with the grantee, his sister. It is impossible, therefore, to conjecture that she was ignorant of the pendency of the action of the complainant, or of the pecuniary distress of Isaac, if he were embarrassed. As to her answer, it is equivocal as to her knowledge, and there is probably not a case in the books in which the sale was vacated for inadequacy of consideration, in which the fraud was not denied as positively as in this case. In some of them the court thought there was really no actual but only a legal fraud.

3rd. In answer to the third question I maintain, that the deed is void at common law, and also under the provisions of the statute of 13 Elizabeth, ch. 5. The statute provides, "that all and every grant, bargain and conveyance of land or tenements, goods and chattels, &c., for the intent or purpose to delay, hinder and defraud creditors and others of their just and legal actions, suits, &c., shall be deemed and taken to be utterly void, frustrate and of none effect." It will be observed, that the statute does not apply only to creditors, but to creditors and others having actions, suits, &c. Roberts on Fraud. Con., 1, note (a.) But suppose [**27]  it applied only to creditors, what is a creditor in the view of the law? "A creditor is he who has a right to require the fulfilment of an obligation or contract." Bouv. Law Dic., 383. All the marital rights are legal obligations growing out of and incident to the matrimonial contract. It is declared a part of every contract for the payment of money that the property of the debtor should be liable for the payment. So essential a part of the contract is it, that the legislature can pass no law absolving the property, because, say the courts, it would impair the obligation of the contract. Are not the wife's rights to dower and alimony, and maintenance in case of separation for the bad conduct of the husband, equally obligations of the marriage contract? The courts have often recognised the right to relief against fraudulent sales, of those to whom the grantor was not an actual debtor at the date of the conveyance, such as sureties and such as had unliquidated demands on covenants, simple contracts, torts, &c. 1 Amer. Lead. Cases, 57.

If we take creditor in a literal sense, it means one who puts trust in another, and regarded in that sense, a wife occupies a position as a creditor [**28]  higher and more sacred than any other. In the case of Hays vs. Henry, 1 Md. Ch. Dec., 338, the right of the husband to dispose of his property is thus qualified, "provided the transaction is not merely colorable and be unattended with circumstances indicative of fraud upon the rights of the wife." There is, however, something in the case which I cannot comprehend, and which seems to put the rights of the wife against the frauds of the husband out of the protection of our laws. The proposition which appears in the argument to have struck the chancellor so forcibly, appears to me a mere sophism, viz: "An act cannot be denounced as fraudulent which the law authorises to be done." This is merely begging the question, and is as good for one case as another. It assumes that the law does allow conveyances to defeat the wife's right, and after this assumption concludes, the law does not regard it as a fraud. In the same connection it is said: "If the disposition of the husband be bona fide, though made to defeat the claim of the wife," &c. This purpose would indubitably be, per se, mala fides with regard to every one but a wife, and I cannot understand the distinction, unless the wife has [**29]  no right to protection. The statute of 13 Elizabeth, ch. 5, is broad enough to guard a wife's rights as well as those of other persons. It makes void conveyances to hinder the actions of creditors and others. A creditor has his action and the wife has her action actually depending. A conveyance is made to hinder the creditor's action, and the deed is indubitably void. Another is made to hinder the wife's action, and it is good. This is not a fair construction of the statute. It is a solecism. There may be a distinction in favor of the complainant in this case between a woman living with her husband and having no present right of action against him and one abandoned by him, and having her right of action for alimony; but in this civilized and enlightened age, I hope she would be protected in either case.

I referred the court to a number of cases in which the wife has been protected. 2 Atk., 62. 7 Viner's Abr., 202. 2 Vern., 202, and 2 Roper on Husband & Wife, 14. But it was said on the other side, that the rights thus protected are customary right. My answer to that was, that if a right existing only by a local custom would receive such protection, multo fortiori would a right [**30]  be protected which existed under a general and positive law. The custom had no effect on the conveyance; it only gave the right to the wife; and to say that a customary right would be more sedulously guarded than a common law or statutory right, is to assume the former more sacred than the latter. There are divers cases showing that a wife cannot convey her property in fraud of her husband. 13 Maine Rep., 124, Tucker vs. Andrews. 2 Leigh., 11, Waller vs. Armistead. 1 McMullan's Ch. Rep., 236, Ramsay vs. Joyce. 3 Md. Ch. Dec., 174. Are not the wife's rights as sacred as those of the husband? But my adversary says it is in the power of the husband absolutely to dispose of his property as he pleases. This is equally true of the wife before the marriage. Yet when she has the absolute right, she cannot exercise it in fraud of her future husband. Neither can the husband exercise his in fraud of his wife.

4th. The next question is: if the deed be void as a fraud upon the marital rights, is there any authority in a court of equity to take and hold the husband's property, independent of his control, for the wife's separate support? This has been often done. I have not thought it necessary [**31]  to go further than the case of Ricketts vs. Ricketts, 4 Gill, 107. The right in that case was recognised by the Court of Appeals. The case was argued by gentlemen of great legal ability and research, and the power of the court does not appear to have been disputed. It is believed to have been the common practice of the ecclesiastical courts to assign a portion of the property for the support of the wife, independent of the control of the husband.

Again, if the court have the power of setting aside the conveyance in favor of the wife, they necessarily have power over the property. It is believed the court in such cases commonly direct the disposition of the property. See McNeal & Worley, vs. Glenn, 4 Md. Rep., 96, and 3 Md. Ch. Dec., 349, in which it was done under prayers to vacate and for general relief, the same as in this case. This would be sufficient to justify the decree in this respect, if other grounds were deficient.

I will not leave the subject without a word as to the lis pendens. If the suit was lis pendens as to the property, it will not be denied that a sale of it could not affect the complainant's right. Let us therefore inquire what is alimony? Blackstone [**32]  says, "It is that allowance which is made to a woman for her support out of the husband's estate." 1 Bl. Com., 441. Shelford says, "It signifies that proportion of the husband's estate which the wife sues in the ecclesiastical courts to have allowed her." Shelford on Marriage & Divorce, 586. Judge Story expressly speaks of a bill for alimony as a lis pendens. 2 Story's Eq., sec. 1472. If it be a right to have alimony allowed out of the husband's estate, the proceeding is as much against the estate as a bill of the vendor for the unpaid purchase money, or of one who had advanced the purchase money to have the title made to him. In either case no deed could be made, pending the proceedings, to prejudice the complainant. In Ricketts vs. Ricketts, 4 Gill, 107, an injunction was granted to restrain the husband from alienating the property, and it was sustained by the Court of Appeals. In this case we pray for an injunction, but it was not pressed, because we thought a bond would be required. Suppose, upon the issue of the injunction in Ricketts vs. Ricketts, the defendant had alienated, would the title of the purchaser have been good against the complainant? I think the court will say,  [**33]  it certainly would not. If not, why so? The grantee is not affected as a party, and the injunction could make no difference as to third parties. Its violation would only subject the defendant to punishment for a contempt. But because it is lis pendens, third parties are affected by the proceedings, and it is no more lis pendens after the issuing of the injunction than it was before. That the proceeding related to the property I think there can be no dispute, and if I am right it is conclusive. "The principle is now too well settled to be doubted, that a lis pendens duly prosecuted is notice to the purchaser so as to affect his interest by the decree." Green vs. White, 7 Blackf., 243. "The principle of lis pendens is, that the specific property must be so pointed out by the proceedings as to warn the whole world that they meddle with it at their peril." 1 Strob. Eq. Rep., 182, Lewis vs. Mew.

In this case the property was described as specifically in the bill as it was in the deed, and was the same. "It is a well settled principle, that the court is not bound to take notice of any interest acquired in the subject matter of the suit, pending the suit." Bank vs. Seton, 1 Pet., 310.  [**34]  Green vs. White, 7 Blackf., 243.

George Schley for the appellants, in reply:

1st. The counsel for the appellee quotes Story's Eq. Pl., sec. 332, to sustain the proposition that the effect of a supplemental bill is to project the facts alleged in the original bill beyond the time covered by it, to and inclusive of the time of filing the supplemental bill. The last sentence in that section seems to announce the true rule: "Wherever a supplemental bill is not a supplemental suit, but only introduces supplemental matter, the whole record constitutes but one cause," &c. The only supplemental matter introduced into the bill is the conveyance from Isaac to Mary, all the other matters would form the foundation of a fresh suit. For example, suppose no alienation to have been made, and no supplemental bill therefore filed, and the parties to have gone to trial upon the original bill and proof applicable thereto in the record, and the complainant to have been denied relief, can it be questioned that she could instanter have filed a bill upon the facts occurring subsequent to the filing of the original bill, (now embraced by the supplemental bill,) and that upon proof thereof a divorce [**35]  would have been decreed? Assuming this to be too clear for cavil, the matter introduced into the supplemental bill apart from the deed is not supplementary matter, but a supplemental suit. The question here recurs, would the court grant a supplemental bill merely to repeat and duplicate the allegations of abandonment and desertion made in the original bill? It is contended that according to the rule of equity it would not, because a supplemental bill was necessary in this case simply and solely for the purpose of adding a new party. Story's Eq. Pl., sec. 352, is relied upon by the appellants as directly adverse to the right of the appellee to have embraced the matters she has in her supplemental bill.

2nd. As to the deed: It is not a voluntary conveyance, but a deed for a valuable consideration, viz: $ 200. The will of Peter Feigley, the father, shows that the property was to be enjoyed by its ultimate recipients, his devisees, upon the death or marriage of his widow. The testimony of Smith is, that in his opinion Isaac's interest was worth $ 700 or $ 800, and of Gelwick's $ 1600. How then does this cause appear before this court? A man of sound mind, not indebted, having the [**36]  jus disponendi, sells and conveys his property for $ 200. Because one witness conjectures it to be worth $ 800 and another $ 1600, the court is urged to a per saltum conclusion that the deed is fraudulent and void, not against creditors, none being in court attacking it, but against others, e. g., the wife of the grantor. On the other hand the answers of grantor and grantee deny all fraud, aver the deed to be bona fide and for valuable consideration, and the grantee specially denies all knowledge of the existence of the original suit when the purchase was made. Yet because she was the sister, and because the defendant lived sometimes at his mother's and could not live inseparably with his wife, the counsel for the appellee has constructed a spring-board of assumptions, inferences and conclusions, not warranted and not sustained by any proof in the record, from which the court is solicited to vault to the conclusion that the whole transaction was a fraud.

Fraud is never to be presumed, but must be established by proofs. 1 Story's Eq., sec. 190. In 2 Md. Rep., 365, this court has said, "that deeds are prima facie evidence of the verity of their contents, and when supported by the [**37]  positive answer of the grantee, the testimony to set them aside ought to be so clear and explicit as to leave scarcely a doubt on the subject." See also 3 Md. Rep., 212, 213. Apply this criterion to this cause and where in the record can such testimony be found? The only fact indicative of fraud is the inadequacy of price, and this, per se, is insufficient. See 1 Story's Eq., sec. 245, in which the good sense of the doctrine is well expressed and strongly stated. The statute of Elizabeth cannot apply unless the wife is held by the court to have been a creditor at the date of the deed, 1 Roper on Prop., 311. 2 Younge & Coll., 172, 178, Ede vs. Knowles. 1 Story's Eq., sec. 361. And even if she could be held to be a creditor competent to impeach the deed, where is the proof in the record to bring this case within the operation of the statute? The statute does not declare all voluntary, but only all fraudulent conveyances to be void. And whether a conveyance be fraudulent or not, is declared to depend on its being made "upon good consideration and bona fide." It is not sufficient that it be upon good consideration or bona fide. It must be both. And therefore if a conveyance be defective [**38]  in either particular, although it is valid between the parties and their representatives, yet it is utterly void as to creditors. 1 Story's Eq., sec. 353. Try this deed by the above standard:

1st. Was it made upon "good consideration," words which in their widest sense embrace "valuable consideration?" 1 Story's Eq., sec. 354. It purports to be for valuable consideration, which, per se, is prima facie evidence of its having been paid. 1 Gill, 84, Wolfe vs. Hauver. In addition to this evidence the answer of the grantee, unquestioned by any evidence in the cause, establishes the fact of the money having been paid. The first particular has been established by proof.

2nd. Was it executed bona fide? The answers of grantor and grantee say it was, and they must prevail, according to all the Maryland decisions, unless rebutted. Where are the two witnesses? Where is the witness with cogent circumstances? The record is as silent as the grave, and no answers to these questions can be had from it.

But it is contended that the deed is void at common law. Here again the same difficulty recurs, and before the deed can be attacked in this mode the wife must be shown to be "a creditor"  [**39]  at the time the conveyance was made. By the common law, fraudulent gifts or conveyances were avoidable by persons who were creditors at the time such gift or conveyance was made; but such gifts or conveyances were not avoidable by persons who became creditors subsequent to the making of them. 1 Madd. Ch. Rep., 221. The difficulty which occurs at every step of the attack sought to be made upon the deed is, does the wife in this case stand in the position of "a creditor?" My learned friend's views on this point are given in his argument, in which, after striving hard with Hays vs. Henry, he appeals to the "civilization and enlightenment of the age" for remedy. The court is next referred to Atkins. Vin. Abr., and Vernon, and 2 Roper on Husband & Wife, 14. At page 17 of this last authority, the above cases are shown to have been cases of fraud contravening the principles expounded in pages 16, 17, 18. This is my answer to those authorities and not that suggested, viz: that the rights were protected because they were "customary rights."

Fraud vitiates every conveyance, and conceding the fraud the right to relief is admitted, and hence the cases cited to show that a wife cannot convey [**40]  her property in fraud of her husband. The wife then not being a creditor, she is incompetent to impugn conveyances made in contravention of the common law or the statute. When the decree of divorce and the decree for alimony has been passed, she may then, in a qualified sense, be said to be a creditor, but not until then.  

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

OPINIONBY:
MASON 

OPINION:

 [*560]  MASON, J., delivered the opinion of this court.
The supplemental bill having been received, without objection on the part of the defendants, we must treat it as properly a part of the case. It having reaverred the substantial allegations of the original bill, as to the conduct of the husband, which constituted the ground of the plaintiff's application for her divorce, we must treat the facts deposed to by the several witnesses, as supportive of the plaintiff's case, although most of those facts occurred subsequent to the filing of the original bill, but prior to the filing of the supplemental bill. The testimony, we think, under those circumstances fully sustains the plaintiff's case, and entitles her to her divorce, a mensa et thoro. So much therefore of the decree [**41]  as grants the divorce is affirmed.
The defendant, Mary Ann Feigley, having answered the supplemental bill, so far as the same relates to the conveyance under which she claims, without objection, must be regarded as having submitted her rights under that deed for adjudication under the present proceedings. The supplemental bill, among other things, seeks to vacate the deed from Isaac Feigley to his sister Mary Ann, upon the ground of its having been made fraudulently, to defeat the marital rights of the complainant.

 [*561]  The first objection taken by the defendant to this bill is, that there does not subsist such a relation between a husband and wife, as would entitle the latter to assail her husband's conveyances upon the ground of fraud, as might be done in the case of an ordinary creditor at common law, or under the statute of Elizabeth, who finds himself hindered, delayed or defrauded by means of such a conveyance. In other words, does the wife stand in relation to her husband in reference to her claim upon him for a support, or for alimony, in the same attitude that a creditor stands towards his debtor? We think, to a certain extent, she does. The language of the statute [**42]  of Elizabeth is surely broad enough to embrace such a case. It provides, "that all and every grant, &c., for the intent or purpose to delay, hinder and defraud creditors, and others, of their just and lawful actions, &c., shall be void," &c. The statute seems to design to embrace others than those who are strictly and technically creditors: and if under such a comprehensive clause, as "creditors and others," a wife, who has been made the victim of her husband's fraud, is not to be included, we are at a loss to ascertain to whom else it was designed to relate.
We do not wish to be understood as carrying this doctrine to an extent which would impose any restraint upon the husband in the free and unlimited exercise of his right to alienate his property at will, even though in the exercise of this right he strips himself of all means of supporting or maintaining his wife, provided he does so bona fide, and with no design of defrauding her of her just claims upon him and his estate. The fraudulent intent in all such cases being the true test of the validity of the transaction.  Ricketts vs. Ricketts, 4 Gill 105.
There is this difference between [**43]  the claim o the wife upon her husband's estate, and that of a creditor upon the estate of his debtor: in the latter case a debtor cannot, even by a bona fide gift of he whole, or a part of his property, to a third party, impede his creditor in the collection of his debt. Under such circumstances, such a transfer would be voluntary, and as against a bona fide creditor, void in point of law. Not so 

 [*562]  as respects the gifts or voluntary transfers by a husband of his property in relation to the rights of his wife. If not made with the actual intent of defeating the rights of his wife, they will be sustained, although they leave her without the means of a subsistence.
The next inquiry then is, was the deed from Isaac to his sister, Mary Ann Feigley, of the 28th of October 1847, void upon the principles announced above? Was it a bona fide transaction, or was it the result of a deliberate purpose to defraud the wife of her claim to alimony?
From the nature of such an issue as is thus presented, we could hardly expect that any direct testimony could be brought to bear upon it. Resting, as the transaction did, between a brother and sister, dependent in no way upon [**44]  the participation or concurrence of others, secret, locked up in the bosoms of the two actors themselves, we must look for the motives and designs of the parties, in the surrounding circumstances attending the transaction, and must call to our aid every fact, however remote and trivial it may be, which can throw light upon the subject.
In reference to the defendant, Isaac Feigley, the court have no doubt that the deed in question was executed in fraud of the rights of his wife. The original bill for the divorce carried to him notice of the complainant's purpose to subject his estate, if possible, to liability for alimony. It contained a prayer for an injunction to restrain him from alienating it. He was also, no doubt, impressed with a conviction that his conduct to his wife had been such as to constitute just grounds for supposing that this application would be viewed with favor by the court. Regarding these facts in connection with the circumstance that the grantee was his sister, and that the consideration upon which the deed rested ($ 200,) was wholly inadequate to the value of the property, which, incumbered with his mother's life estate, was estimated as worth seven or eight [**45]  hundred dollars; and of the correctness of this estimate the court have no doubt, from the facts of the case, independent of the direct evidence of the witnesses upon the point.

 [*563]  The proof against the defendant, Mary Ann Feigley, stands upon other grounds. There is no direct evidence in the record as to the fraudulent participation of this defendant in this transaction, other than the mere inadequacy of consideration contained in the deed. It is not such a glaring inadequacy as, of itself, to stamp the transaction with fraud, by shocking the common sense of honesty, and thereby to render the deed void.
But, at this stage of the case, we are met by the doctrine often announced in this court, that an answer of the defendant, responsive to the bill, denying the allegations therein made in regard to his motives and intentions, is conclusive upon that question, unless overcome by the testimony of two witnesses, or of one, with corroborating circumstances.
In the case now before us, whatever may be our views upon the general merits of the case, we are obliged, in the formation of our judicial opinion, to be controlled by the principle announced above. Both of the defendants [**46]  in this case flatly deny the allegations of the bill in regard to their fraudulent intention, and as that denial has not been contradicted by the testimony of any witness, it must be taken as conclusive upon the question.
The defendant, Isaac, being left entirely without property, no decree for alimony can be passed against him, alimony being an allowance out of the husband's estate, for the support of the wife. Where there is no estate, there can, therefore, be no alimony.
The doctrine of lis pendens has no application whatever to this case. As well might a pending action at law, to recover an ordinary debt, be a lis pendens as to the property of a debtor, as a proceeding like the present, the purpose of each being to subject the property of the debtor to the payment of debts. Lis pendens is a proceeding directly relating to the thing or property in question.
The decree is affirmed in part, and reversed in part.
Decree affirmed in part, and reversed in part. 

43 of 44 DOCUMENTS 

EX-PARTE HUGH O'NEILL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 227; 1855 Md. LEXIS 47 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  This was an application made to the Court of Appeals, during its session in term time, for a writ of habeas corpus, made by the petitioner, O'Neill, through his counsel, James S. Franklin, alleging that he was unjustly confined in the jail of Anne Arundel county, upon the charge of shooting a free negro with intent to kill.  

DISPOSITION:
Petition dismissed.  

HEADNOTES:

The Court of Appeals has appellate jurisdiction only, and as jurisdiction in a case of habeas corpus is original and not appellate in its character, this court cannot exercise it.

But the individual judges of the court may, under the act of 1809, ch. 125, whether the court be in session or not, grant the writ of habeas corpus during the vacation of the circuit courts.

The acts of Assembly imposing duties upon the judges of the Court of Appeals in their individual capacities have not been abrogated by the new constitution, but apply in the same manner to the members of the present as to those of the former court.

The power to hear and decide upon cases of habeas corpus may be claimed by the individual judges of the Court of Appeals, under that clause of the constitution which makes them "conservators of the peace throughout the State."

The term "vacation," in the act of 1809, ch. 125, refers only to the county courts and not to the Court of Appeals.  

JUDGES:
MASON, J.  

OPINIONBY:
MASON 

OPINION:

 [*227]  MASON, J., delivered the opinion of the court upon this application.
We cannot discover from the new constitution any purpose to abrogate any of the acts of Assembly imposing duties upon the members of the Court of Appeals in their individual capacities; but on the contrary, we are of opinion, that the members of the new Court of Appeals accepted their offices, burthened with the obligation to discharge the duties which were imposed by those acts upon the judges of the former court. Under this impression all the members of this court have acted in their attendance upon, and participation in the proceedings of the board of Governors and Visitors of St. John's College, and under which others have acted in taking acknowledgments of deeds, in hearing cases in habeas corpus and the like. It is evident [**2]  that the new constitution designed that the present 

 [*228]  Court of Appeals, as well as the individual members thereof, should, for every purpose, unless otherwise specified, be substituted to all the powers, duties and responsibilities of the former court, and its individual members.
The act of 1809, ch. 125, empowering any judge of the Court of Appeals, in vacation, to grant the writ of habeas corpus, is still in force and applies to the present members of the Court of Appeals. The reason why the power under that act was only to be exercised during vacation was, manifestly, because during the sessions of the court there would be no necessity for the judges to exercise the power, inasmuch as the court possessed the same power, and being in actual session could exercise it, and thus grant immediate relief to the aggrieved party.
The judge who pronounced the opinion in the case of Walsh, 5 Md. 607, (the same who delivers the opinion of the court in this case,) fell into the error of supposing, that the vacation referred to in the act of 1809 embraced as well the vacations of the Court of Appeals as those of the county courts. Mature reflection brings [**3]  us to the conclusion, that the term, vacation, refers only to the county, now circuit, courts, and the courts of Baltimore, to which have been transferred the powers and duties of the former county court. It does not appear to us that the Court of Appeals ever had original jurisdiction in cases of habeas corpus, ( Norwood vs. Martin, 3 H. & J. 199,) and therefore there is no more reason why this power should be only exercised during the vacation than during the actual sessions of that court. The reason why this power was conferred upon judges in their individual capacities only, in vacation, was to provide against the delay which parties would be subjected to if they should have been required to wait for relief until the court having jurisdiction in their case should hold a session; and if the Court of Appeals had no jurisdiction, the same reason would apply why the power should be exercised by a single judge as well during the session as during the vacation of that court. The great design of the law of 1809 was to require the judges therein named to grant the writ of habeas corpus wherever they might be, within the limits of Maryland, 

 [*229]  provided at the [**4]  time the county court of the county where the application was made was not in session, to which the injured party could appeal. The design and efficacy of this law have not been impaired by the new constitution; but on the contrary, the powers and duties imposed under it have been transferred to the judges created under the new, which correspond to those designated in the old constitution.
A power so valuable to the peace and liberties of our citizens as that conferred by the act of 1809 ought not to be considered as abrogated or withdrawn by the new constitution, except upon the plainest and most unequivocal language. We have not been able to discover such a purpose upon the face of this constitution.
The new constitution, while it continues the powers in the individual members of the court as defined by the act of 1809, nevertheless evidently designed to withhold it from the court itself. The 4th article, section 1 of the constitution expressly provides, that "the Court of Appeals shall have appellate jurisdiction only," and as jurisdiction in a case of habeas corpus is original and not appellate in its character, it cannot be claimed by this court.
Nor can we see any [**5]  inconsistency in this distinction, nor would any inconvenience result from it. The opinion of an individual judge of this court, expressed in a case of habeas corpus, upon a summary proceeding, might well afterwards be reviewed, if properly the subject of appeal, by his three associates, or even in part by himself, when upon full hearing and argument the merits of the question would be more fully developed. This court then has no original jurisdiction in cases of habeas corpus.
We are further of the opinion, that the power to hear and decide upon cases of habeas corpus may be claimed by the individual judges of this court, under the 4th article and 6th section of the constitution, which provides, that "all judges of the Court of Appeals, &c., shall, by virtue of their offices, be conservators of the peace throughout the State." Every case of unlawful imprisonment may be said to present a question connected with or affecting the peace of the community, and as 

 [*230]  conservators of the peace, it is our duty to examine into all such cases when properly and upon sufficient grounds they may be presented to us; and if necessary to do so effectually, we may command the [**6]  aid of the writ of habeas corpus.
Petition dismissed.
NOTE.--The writ was afterwards issued by one of the judges of the court, and the case was heard before Justice Tuck, who released the party upon bail.  

44 of 44 DOCUMENTS 

WILLIAM LOGAN vs. CHARLES MCGILL and MARY MCGILL, his Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

8 Md. 461; 1855 Md. LEXIS 72 

DECEMBER, 1855, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Washington county.

This appeal was taken from a decision of the court below (PERRY, J.) upon a case stated, between the appellees, as plaintiffs, and the appellant, as defendant, the facts of which are sufficiently stated in the opinion of this court. The right of appeal to each party was reserved in the agreement of facts. The opinion and judgment of the court below was in favor of the plaintiffs. The opinion is as follows:

"I will not disguise the fact, that I have esteemed the true construction of the acts of 1841, ch. 161, and 1842, ch. 293, as a matter of much importance, and as affecting the interests of the community in regard to the marital and conjugal rights to such an extent, as to demand much investigation and care. The frequency with which I have been called upon to interpret their meaning, is evidence of the uncertainty and difficulty entertained in arriving at the legislative will. If those acts do design that the rents and profits of real estate, which has been acquired by a feme covert during coverture, should be exempted from execution against the husband, and such design can be seen, the court has no discretion, but is bound [**2]  to respect it. On the other hand, if there should be found in the law any omission or that such was not intended, the judicial tribunals cannot usurp the legislative province, and supply that which is wanting to accomplish the intent of those acts; for as contended in such a case, the common law rule must apply. This is so fully established, I do not feel it necessary to refer to any authority except 2 Binney, 279, Cresoe vs. Laidley, and 1 Bouvier's Law Dictionary, 210.

"But is this a case to justify a resort to the common law doctrine? If the construction of the acts is adverse to the defendant, then the case is of course in that predicament which forbids their application, and, indeed, that which seems to me to be the only question for the court is, as to the rules of construing statutes and the intention of those acts.

"The cases of the Canal Co. vs. The Rail Road Co., 4 G. & J., 1. Dulany vs. Tilghman, 6 G. & J., 464, and The Mayor of Baltimore vs. Howard, 6 H. & J., 383, furnish the true rule by which statutes are to be construed, and establish the principle, that all statutes upon or relating to the same subject are to be interpreted pari materia, and that every part [**3]  of the statute is to be considered to arrive at the intention of the legislature.

"With the doctrine of those cases as a guide, can we see the object intended to be accomplished by the acts of 1841 and 1842? By the terms of the former, the real estate acquired by marriage shall not be liable to execution during the life of the wife for debts due from the husband. This act standing alone, the question might be environed with much more embarrassment. But the legislature, by the act of 1842, provides, 'that any married woman may become seized or possessed of any property real, or of slaves, by direct bequest, devise, gift, purchase or distribution, in her own name and as of her own property.' Was it intended that the rents and profits of the land of the wife acquired during coverture should be taken for the debts of the husband? Whether the moment they become in the nature of personalty or a 'chose in action,' they vest by operation of law in the husband and become liable for his debts, and if possessed or become due before his death, would pass and be transmissible to his representatives as a part of his estate?

"By the act of 1841, the real property acquired by marriage cannot [**4]  be sold for the debts of the husband, and by the act of 1842 it is provided, 'that the receipt of the labor of slaves acquired during marriage shall remain to the husband;' but it makes no such provision in respect to the rents of the land. The real property having been acquired in the same relation, and she to be possessed or seized of it in her own name and of her own property, and no such right given in regard to its products as is in respect to the hire of slaves, the conclusion seems to be reasonable, that such was not intended to be the property of the husband. No one can doubt, that if the act did not provide for the right of the husband to the hire of the slaves, the same difficulty and question would arise as to that which now exists in regard to the rents and profits of the real estate. Is not then the absence of such a provision an indication that the legislature deemed it necessary in regard to the rents of the land? and does not the conclusion follow, as a necessary consequence, that the law-makers designed it should not be subject to the debts of the husband without that feature? The conjugal relation, by the common law, vests the legal title to land during coverture [**5]  in the husband, and that title is subject (by the common law) to execution and sale. 2 Kent's Com., 131. But by the act of 1842, the land thus acquired is to be held by the wife as 'her own and in her name.' The common law gives the title to the husband. The statute confers it upon the wife. By the former, the wife, during the life of her husband, has no present interest. By the latter, she has it entire, and 'as her own and in her name.' To give the land in her own name and as her property, and not to give the benefits incident to it in the same character, would be imputing to the legislature the design of conferring upon her a mere naked and formal title, without any advantage to attend it. A title for which no reason or necessity can be seen. We are to construe those acts pari materia. The act of 1841 forbids a sale of the land for the debts of the husband, and the act of 1842 vests the title in the wife, and yet all the profits of the land thus exempted from execution and which is held in the name of the wife, it is insisted, is to be liable. It may well be argued, that no good reason can be shown why there should be an exemption of the land and still the profits to be answerable,  [**6]  for if such is the case, would it not be disposing of the property in another shape? What is the land worth without the profits? It is that alone which imparts a value to it. Then it cannot be, as contended, that the act of 1842 leaves nothing but the legal title in the wife and still makes the rents liable for the husband's debts.

"It may be questioned whether more was not done by the act of 1841, and to give a different construction, is to impute, as before stated, to the legislature, the passage of unmeaning laws, and with having passed an act by which no apparent benefit was to be conferred. I cannot, in considering them together, do otherwise than believe that the legislature certainly did intend to confer a benefit upon the wife.

"It has been insisted, that there cannot be a separate estate in the wife, because technical language, by which such an estate is conferred, is not found in either of those acts. That in cases of settlements or agreements for the separate estate of feme coverts, the law requires certain language to accomplish such a purpose, and authorities have been adduced to show the law in relation to that question. It is true that in deeds or agreements [**7]  such is necessary, and in their absence, courts will not be permitted to impair the marital rights of the husband by a departure from those established rules. But when the legislature has indicated its will, no matter in what language, the court must yield implicit obedience to its authority. The legislature has determined that the land shall be held in the name and as the property of the wife. In cases of agreements, and when technical or sufficient language is not used, no such design can be accomplished. But when the law-makers have declared their intention, that intent must govern. If they have said such can be done and must be so, it is not in the power of the court to inquire why they have dispensed with the intervention of a trustee, or why they have not used the technical language found in the elementary books of the law on such subjects. I repeat, it is enough for the court to see the intention of the legislature, however expressed, and obey its requirements. It is a settled principle in the construction of statutes, that the intention is to prevail, and the circumstances which produced it is to be considered and not form is to control.  Young vs. The State, 7 G. & J., 253.  [**8]  Beall vs. Harwood, 2 H. & J., 167."

From this decision, and judgment in conformity therewith, the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Since the act of 1841, ch. 161, the rent of a farm devised to a married woman cannot, during the life of the wife, be made liable to execution for the debts of the husband.

The first section of the act of 1842, ch. 293, enables a wife to acquire title to any property real, and to slaves, in the mode therein specified, without the intervention of a trustee.

The act of 1841, ch. 161, does not destroy the tenancy by the curtesy, but suspends the right of execution during the life of the wife, leaving the judgment lien perfect on the life estate of the husband, to be enforced on the death of the wife.  

COUNSEL:
Thomas Harbine for the appellant, argued:

1st. That by the well known rule of the common law, the rents of lands belonging to femes covert are the property of their husbands, and liable to be taken in execution for their debts. 2 Kent, 129, 130. 1 Roper on Husband & Wife, 35.

2nd. That by no act of Assembly of Maryland has the common law rule been so much changed as to take away from the husband the rents and profits of the wife's real estate and make them her separate property. First, let us examine the act of 1841, ch. 161. Being in derogation of the common law, this act must be strictly construed. 8 Gill, 129, Miller vs. Stewart. 1 Kent, 464. Dwarris on Statutes, 695. Courts will not indulge in speculation to arrive at the intent of the legislature. Dwarris, 703, 708. Words of common use must be taken in their ordinary signification and import. 1 Kent, 462, and note. 2 Barn. & Ald., 522, King vs. Inhabitants of Turvey. Dwarris, 702. The ordinary signification of the words "real estate" is land, and that does not include rent.  [**9]  1 Crabb on Real Property, 66. Real estate is distinguished from personalty by its manner of devolving, and as the wheat in controversy was severed and threshed, it would clearly pass to the personal representatives and not to the heir at law. 1 Crabb, 4. 2 Kent, 131, 340, note (a.) 3 Do., 402. Comyn's Digest, (A,) 2, (G,) 1. 1 Wms. on Exc'rs, 397, 698. 1 Crabb, 6, 11. This construction of that act would not avoid any beneficial operation of it, but would relieve the homestead from execution; which was the design of the law.

Nor has the husband been deprived of his right to the rents of his wife's land by the act of 1842, ch. 293. The words, "any married woman may become seized of real property, &c., in her own name and as of her own property," do not confer upon her a separate estate in lands thus devised and give her the rents and profits. To give the wife a separate estate, it must be done in clear terms; not by inference but by language--it must clearly appear beyond any reasonable doubt. 2 Story's Eq., secs. 1381, 1382, 1383. Hill on Trustees, 421. 4 Maddox, 409, Wills vs. Sayers. 2 Russell & Mylne, 183, Tyler vs. Lake. 2 Mylne & Keene, 184, Kensington vs. Dollond. 1 Ch. C.  [**10]  , 194, Dakins vs. Berisford. 3 G. & J., 508, Carroll vs. Lee. 6 Md. Rep., 383, Turton vs. Turto. Every part of a statute will be considered in its construction. 6 H. & J., 382, Mayor & City Council of Balto. vs. Moore, et al. The same property is, by the first section of this act, given to the wife in slaves as in real property, but that it gives no separate property is manifest, else the third section would not give a separate property in slaves. The first section merely empowers a married woman at law to hold her separate property without the intervention of a trustee, which she could not do before. 2 Story's Eq., sec. 1378. 2 Crabb, 1749.

In reply to the appellee's second point, that McGill rented the farm, as agent for his wife, and she, by virtue of the agreement with the tenant to pay the rents to her, would be entitled to them, we contend:--1st. That it does not appear from the facts in this case that the rents were to be paid to the wife; and 2nd, that by the common law, the rents were the husband's, (2 Kent, 129, 130,) and McGill could not, as against his creditors, give them to her, so as to authorise her to receive them from the tenant. 2 Bland, 561, Helms vs. Franciscus.  [**11]  2 Kent, 129, and note (b.) 2 Blackstone's Com., 422, and note 39. 3 Am. Law Register, 231, Avery vs. Duane. 3 Atk., 72, Beard vs. Beard. 2 Md. Ch. Dec., 360, George vs. Spencer. 2 Story's Eq., secs. 1374, 1375. The appellees' authorities on this point do not apply to husband and wife, nor can the act of 1853, ch. 245, protect what the wife could not acquire.

On the appellee's third point, that until delivery of the rental proportion, the whole crop remains in the tenant, and therefore the landlord had nothing to levy upon, see 8 Johns., 117, Bradish vs. Schenck. 3 Do., 221, Foote vs. Colvin; but such is not the law of Maryland. 4 Gill, 209, Ferrall vs. Kent.

To the appellees' fourth point, that the rental proportion not being delivered, the right to it was a mere chose in action, not subject to execution, we reply, that though not delivered, yet it appears from the facts in the record that it was separated from the lessee's part of the crop, threshed and ready for delivery, and only that part which was the landlord's was levied upon, and hence it was subject to execution. 1 H. & G., 308, McElderry vs. Flannagan.

Richard H. Alvey for the appellees, argued:

1st. That [**12]  on a fair and liberal construction of the act of 1841, ch. 161, together with the act of 1842, ch. 293, these acts being intended as exemption laws, for the protection of married women against the extravagance, prodigality and dissipation of their husbands, the property levied upon, under the facts of this case, was not liable for execution for the satisfaction of the debts of the husband during the life of the wife. That upon the true construction of these acts, the legislature intended to confer benefit and protection upon the wife, and to further and effect that object, these acts should receive a liberal and beneficial construction, even though such construction be without the apparent letter of the statute. 4 G. & J., 152, Canal Co. vs. Rail Road Co. 11 Coke, 73, Magdalen College case. 6 Bac. Abr., 384. Plow., 205, Stradling vs. Morgan. 1 Kent, 462 to 464. 4 Md. Rep., 1, Cassilly, et al., vs. Meyer, et al. 11 G. & J., 490, Lucas vs. The Lottery Commissioners. 12 Do., 1, Lucas vs. McBlair, et al. 7 Md. Rep., 76, Gibbs vs. Gale.

2nd. But suppose it should be thought that the property levied on under the facts of this case was not within or comprehended by the acts of 1841 and [**13]  1842, yet under the facts of this case the wife could have a right to the rents reserved, it being agreed that the land was rented for and in the name of the wife, and though the wife would not take the rental proportion of the grain technically as rent, she would be entitled to it by virtue of the contract with the tenant. And on a formal state of pleading under the facts of this case, the wife, being the meritorious cause of the action, would be entitled to sue with her husband on the contract with the tenant. 3 Cruise Digest, tit., Rent, 78, 319, 320. 1 Hilliard on Real Property, 242. 5 Watts, 134, Ege vs. Ege. 1 H. & G., 139, Higdon vs. Thomas. 1 H. & G., 484, Owings vs. Owings. 1 Chitty's Pl., 26. 1 Story's Eq., sec. 336. And under the act of 1853, ch. 245, all the rights or property acquired by the wife in this case, by virtue of the contract with the tenant, are protected from the debts of the husband and are not in any way liable to execution for such debts.

3rd. Where the rent reserved is a proportion of the crop, the whole property in such productions remains in the lessee till it is divided and the lessor's share delivered to him. 1 Hilliard on Real Property, tit.,  [**14]  Rent, ch. 16, sec. 4, page 236. 9 Johns., 113, Stewart vs. Doughty. 5 Watts & Sergt., 157, Rinehart vs. Olwine. 1 G. & J., 266, Hoskins vs. Rhodes.

4th. The rental proportion not having been delivered before the levy of the execution, the right, at most, was but a mere chose in action, which is not subject to execution. 6 H. & J., 266, Harding vs. Stevenson.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*469]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from the decision of the circuit court of Washington county on a case stated. The facts which it is necessary to notice are these:--certain parties obtained a judgment before a justice of the peace against the defendant, Charles McGill, and caused to be issued thereon a fieri facias, which was delivered to the appellant, as constable, for levy, which was accordingly done on a certain quantity of wheat alleged to be part of the yield and rent of a farm which had been devised to the wife of the said McGill. The farm was rented or leased by the said McGill, "for his wife, to a certain William Peter, who was tenant in possession, and who seeded on the [**15]  said farm, as tenant as aforesaid, in the fall of the year 1853, a crop of wheat, and harvested or gathered the same in the summer of 1854, and that the said quantity of wheat so seized and levied upon as aforesaid, to satisfy the execution against the said McGill, was part of the rental proportion of the said crop of wheat so sown and gathered, which the said tenant, Peter, was to pay as rent for the said farm." The words of the devise are as follows: "I give and devise to my daughter, Mary McGill, and her heirs and assigns forever," &c.
The question is, whether, under the laws of Maryland, the crop or rent of the farm devised to Mrs. McGill be liable to execution for the debts due by her husband?
The act of 1841, ch. 161, provides, "that no real estate hereafter acquired by marriage shall be liable to execution, during the life of the wife, for debts due from her husband." And the first section of the act of 1842, ch. 293, declares, "that from and after the passage of this act, any married woman may become seized or possessed of any property real, or of 

 [*470]  slaves, by direct bequest, demise, gift, purchase or distribution, in her own name and as of her own property;  [**16]  provided the same does not come from her husband after coverture."
We consider this case must be decided by the act of 1841; the section of the act of 1842 was designed to authorise a wife to acquire title to any property real, and slaves, in the particular modes therein pointed out, without the intervention of a trustee. The act of 1841 was intended to shield any real estate acquired by marriage from execution, during the life of the wife, for debts due by the husband. Although it does not destroy the tenancy by the curtesy, it nevertheless suspends the right of execution during the life of the wife, leaving, however, the judgment lien perfect on the life estate of the husband, to be enforced on the death of the wife. Anderson, et al., vs. Tydings, et al., Ante., 427.
Whatever may be thought of the wisdom of such legislation, it is clear to our apprehension, that it was the purpose of the legislature to secure to the wife and husband the enjoyment of her real estate during her life. To allow the rent or yield of the property to be taken in execution for the debts of the husband, would be, in effect, to render the law in most cases wholly inoperative. Concurring with the [**17]  court below, we accordingly affirm the judgment.
Judgment affirmed.